Miller Time: "Don't Go There"

(* update at bottom of post)

Judy Miller should have listened to Jack Shafer back in July: “Listen to a real criminal defense lawyer and not a First Amendment legend.”

It's not as much fun as Mad Magazine's old "Spy Vs Spy" feature, but one of the many things to emerge from the Miller-palooza in today's New York Times is a lawyer vs. lawyer battle between New York Times' attorneys Floyd Abrams and George Freeman on the one side and Miller lawyer Robert Bennett and Scooter Libby lawyer Joseph A. Tate on the other. An in-house corporate lawyer usually takes pains to tell employees that the lawyer represents the company and not the individual. The reason for this, of course, is that the company's interest might diverge from the interests of the employee. Here, Abrams and Freeman's advice to the NYT and Miller – to not accept Scooter Libby’s waiver (according to Miller); to not seek a more “more voluntary” Libby waiver of confidentiality or even tell Libby’s counsel that Miller had not accepted Libby’s more general waiver of confidentiality; to not try to negotiate with Prosecutor Patrick Fitzgerald; to counsel against agreeing to testifying – might be interpreted as moves designed to please the First Amendment community (which sees Abrams as a legendary figure and the approval of which both Miller and top newspaper brass is always seeking) at all costs. Regardless, Miller says that strategy changed after she hired started listening to Bennett and disregarding Abrams and Freeman’s advice. (Maybe she was reading Mickey Kaus.)

After Miller was subpoenaed in August 2004, Abrams met with Tate:

"According to Ms. Miller, this was what Mr. Abrams told her about his conversation with Mr. Tate: "He was pressing about what you would say. When I wouldn't give him an assurance that you would exonerate Libby, if you were to cooperate, he then immediately gave me this, 'Don't go there, or, we don't want you there.’"

Mr. Abrams said: "On more than one occasion, Mr. Tate asked me for a recitation of what Ms. Miller would say. I did not provide one."

In an e-mail message Friday, Mr. Tate called Ms. Miller's interpretation "outrageous."

"I never once suggested that she should not testify," Mr. Tate wrote. "It was just the opposite. I told Mr. Abrams that the waiver was voluntary."

He added: "'Don't go there' or 'We don't want you there' is not something I said, would say, or ever implied or suggested."

. . . .

"You never told me," Mr. Tate wrote to Mr. Abrams recently, "that your client did not accept my representation of voluntariness or that she wanted to speak personally to my client.” Mr. Abrams does not dispute that.

. . . .

The two sides did not talk for a year.

Ms. Miller said in an interview that she was waiting for Mr. Libby to call her, but he never did. "I interpreted the silence as, 'Don't testify,' " Ms. Miller said.

She and her lawyers have also said it was inappropriate for them to hound a source for permission to testify.

Mr. Tate, for his part, said the silence of the Miller side was mystifying."

Abrams admits never going back to his learned adversary, Mr. Tate, and saying, "Hey, my client thinks that your client was pressured into waiving confidentiality," because Abrams, on behalf of Miller, could not "hound a source for permission to testify." A criminal defense lawyer would ask, "I need to present to my client all of her options, including testifying and staying out of jail?" Perhaps a media lawyer who believes lawyers should never testify about what a source says asks, "How can I make sure that my client does not have to testify?"

"Ms. Miller recalled Mr. Bennett saying while he signed on to her case: "I don't want to represent a principle. I want to represent Judy Miller.""

Even with Miller finally itching to obtain a clear waiver from Libby and get out of jail, the NYT's lawyers were worried about perception rather than legal consequences:

"While Mr. Bennett urged Ms. Miller to test the waters, some of her other lawyers were counseling caution. Mr. Freeman, The Times's company lawyer, and Mr. Abrams worried that if Ms. Miller sought and received permission to testify and was released from jail, people would say that she and the newspaper had simply caved in.

"I was afraid that people would draw the wrong conclusions," Mr. Freeman said.

Mr. Freeman advised Ms. Miller to remain in jail until Oct. 28, when the term of the grand jury would expire and the investigation would presumably end.

Mr. Bennett thought that was a bad strategy; he argued that Mr. Fitzgerald would "almost certainly" empanel a new grand jury, which might mean Ms. Miller would have to spend an additional 18 months behind bars.

Mr. Freeman said he thought Mr. Fitzgerald was bluffing. Mr. Abrams was less sure. But he said Judge Hogan might release Ms. Miller if Mr. Fitzgerald tried to take further action against her."

If this account is to be believed, Abrams and Freeman advised her that she should stay in jail and play a game of chicken with a special prosecutor because of a fear of the conclusions that people might draw. According to Miller, Abrams and Freeman didn't want her to go back to Libby and ask for a specific waiver and didn’t want her to agree to testify without that waiver. They thought that she could outlast Fitzgerald, apparently.

Of course, Abrams has forgotten more about media law than most of us will ever know, and my knowledge of this case comes from journalism exclusively. Moreover, much of the NYT’s account is dependent on Miller as a reliable witness, of course. Miller had her own reasons to avoid testifying, which might include her own First Amendment views, a desire to take the focus off her disastrous WMD reporting and put it onto her role as a martyr, and sympathy with her friend and source Scooter Libby. And regardless of her legal advice, she seems singularly unworthy of anyone's sympathy (to take just one example, she arguably lied to the grand jury, her editors, and her readers, as Kevin Drum (among others) explains).

UPDATE:

Josh Marshall notes that Abrams in Monday’s Washington Post has taken the extraordinary step of accusing his (former?) client (or at least his client’s employee – it is unclear to me from the stories whether Abrams represents Miller or just the NYT) of twice coloring the truth in the previous day’s NYT:

"In an interview yesterday, Abrams declined to endorse Miller's account that Libby did not want her to testify unless she was going to exonerate him. "That's Judy's interpretation," Abrams said. Tate "certainly asked me what Judy would say, but that's an entirely proper question."

Abrams also minimized Miller's assertion that another source may have given her the name "Valerie Flame," as she recorded it in the same notebook used for her first interview of Libby. Abrams said others may have mentioned Plame only "in passing. . . . The central and essentially only figure who had information was Libby.""