Let's Make A Deal

By MICHAEL DUFFY, Viveca Novak

In a White House where clout is often measured by how well you can keep a secret, few men are as furtive and powerful as I. Lewis (Scooter) Libby, Vice President Dick Cheney's chief of staff. A dapper, compact man with an easy smile, Libby has worked for Cheney on and off since the late 1980s. But that only partly explains his swat: during the past five years, he has often been the last man to speak to the last man to speak to President George W. Bush before a decision gets made. Libby is so spooky that even today, his office declines to confirm his real first name. (The best speculation is Irving.)

So hardly anyone in Washington could say they were surprised when it turned out that Libby was the long-secret source for New York Times reporter Judith Miller, who spent 85 days in jail this summer rather than tell federal prosecutors exactly to whom she spoke in 2003 about a CIA operative whose diplomat-husband had criticized the President's justifications for the war in Iraq. Libby had been a confidential source for at least three other reporters--including TIME's Matthew Cooper--who received subpoenas in the case. All three eventually spoke to prosecutors after receiving a waiver of confidentiality from Libby. And last week Miller fell in line too, testifying for more than three hours before a grand jury about her conversations with him, after receiving what she called a voluntary and personal waiver of her reporter's promise to keep her source's identity in confidence. "It's good to be free," she said.

Miller's testimony was expected to be the final piece in a puzzle assembled by U.S. attorney Patrick Fitzgerald, who for 21 months has been investigating how a reference to a CIA operative named Valerie Plame turned up in a column by Robert Novak back in 2003--a potential violation of a 1982 law forbidding the disclosure of a covert CIA operative's identity. Fitzgerald is probing who, if anyone, leaked Plame's name and why. It has been clear from the outset that the White House wasn't happy when Plame's husband, diplomat Joseph Wilson, blew the whistle on a weak piece of the Administration's prewar claims about Iraq's weapons of mass destruction (WMD), after he had been sent by the CIA on a mission to investigate WMD. A central mystery of the case is what crime Fitzgerald aims to prosecute: the leaks or a possible cover-up involving perjury or obstruction of justice.

Miller was no sooner sprung and sworn than a war erupted over why it took Miller and her lawyers so long to get a waiver from Libby in the first place. One of the principles over which Miller said she went to jail was her belief that the so-called blanket waivers of confidentiality signed by Libby and several other White House officials were coerced from them, leaving her no choice other than to continue protecting them. But Libby's lawyer Joseph Tate suggested that Libby had offered Miller a freely given waiver as much as a year ago and that her lawyers dropped the ball--either they didn't understand the offer or they failed to communicate it to Miller. In a letter that Libby wrote to Miller after the negotiations resumed last month, Libby assumed an intimate tone: "Out West, where you vacation, the aspens will already be turning. They turn in clusters, because their roots connect them. Come back to work--and life." Libby said that he was surprised he was being asked to "repeat for you the waiver of confidentiality that I specifically gave to your counsel over a year ago."

The assertion by Libby's team that he had been giving her the green light all along brought a quick rebuttal from one of Miller's attorneys, Floyd Abrams. In a letter to Libby's lawyers "to set the record straight," Abrams argued that until recently, the waiver offered by Libby's lawyers always amounted to a reference to the previously signed waiver that Miller considered "coerced." That position, Abrams said, led Miller's team to assume that Libby wasn't really keen on seeing Miller testify, no matter what Libby's lawyers implied--a hesitation that gave Miller pause. "He didn't call. He didn't write," said Abrams on MSNBC. After a while, "you draw certain conclusions."

Miller had spent nearly two months in jail on civil contempt-of-court charges when negotiations between the two camps resumed. Another Miller lawyer, Robert Bennett, picked up the phone on Aug. 31 to call Tate. Bennett told TIME that the Miller camp had received an indication from a third party that it might be a good time to approach Libby with a new request to personally waive the confidentiality agreement. It took Miller's lawyers a month, till Sept. 29, to hammer out the details with Libby and Fitzgerald. A legal source told TIME that Fitzgerald gave both camps a letter saying that if Miller and Libby were to have a talk about making a deal, the prosecutor wouldn't view the conversation as collusive or obstructive as long as they didn't discuss what Miller would testify to. Said Bennett: "She would not testify until she was satisfied that the source personally was waiving confidentiality, and she wanted to hear it directly from him." Negotiations with Fitzgerald were complicated, involving not only Miller's testimony but her notes as well. The legal source told TIME that the prosecutor did not give the final O.K. for Miller's release until after he received and reviewed the notes from one of two conversations with Libby in July 2003.

In his deal with Miller, the prosecutor agreed to limit the scope of her testimony before the grand jury, focusing only on the reporter's conversations with sources about Plame, according to her lawyer Bennett. Miller wanted to rule out of bounds any questions about her reporting on WMD, a lawyer involved in the case told TIME. What remains unexplained is why Miller could not have reached an agreement much earlier. In the case of TIME's Cooper, a deal was made with Libby and Fitzgerald that led to Cooper's testimony in August 2004, after Fitzgerald indicated he was interested only in Cooper's conversations with Libby. Cooper called Libby himself to ask for a waiver; Libby asked Cooper to have his lawyer, who happened to be Abrams, call Tate to work out the details. Two other journalists, Glenn Kessler of the Washington Post and Tim Russert of NBC News, also gave testimony on their conversations with Libby.

The cases of the New York Times and TIME journalists both involved the surrender of documents, although under different circumstances. Miller, who never actually wrote a story based on her reporting about the Plame leak, was originally subpoenaed along with the Times. After the newspaper said it had no relevant documents to hand over and that Miller's notes--and the decision whether to turn them over--belonged to her alone, the court pursued only the subpoena against Miller. (The notes she gave up were redacted to omit discussions about anything other than Plame.) In the Cooper case, the prosecutor went after e-mails and other information stored on computers owned by Cooper's employer, Time Inc., which was subpoenaed and held in contempt when it refused to turn over the documents. That decision rested with Time Inc. editor-in-chief Norman Pearlstine, who, after fighting the prosecutor all the way up to the U.S. Supreme Court (it declined to hear the case), eventually decided to honor the subpoena last July. Soon after, Cooper, who had refused to testify after getting a second subpoena and was facing jail time, testified once he received a specific waiver of confidentiality from another White House source, Karl Rove, via Rove's lawyer.

Whatever the reasons for the delay in the Miller case, the two sides were pushed toward a deal by external forces at work in both camps. Pressure had been growing on Libby from G.O.P. lawmakers to take whatever steps necessary to free Miller from her imprisonment. And there was the possibility that Miller was looking at more time in jail than she had bargained for. Although Fitzgerald is expected to finish this month, he has no obligation to do so. He could have boosted Miller's civil contempt charge to a criminal one or shifted the probe to a new grand jury, a step that could have meant more jail time for Miller.

But if the legal logjams have been cleared, few in the newsgathering business are pleased by the outcome. The murky sequence of events in the case tended to obscure the principles that journalists were trying to defend. "This case was a complete loser for the press," says Jay Rosen, chairman of New York University's school of journalism. "It exposed this traffic in secrets. And whenever the press is claiming rights that are an exception from the rest of the public, then I think it works against the press." --With reporting by Mike Allen/ Washington and Nathan Thornburgh/New York

With reporting by Mike Allen / Washington, Nathan Thornburgh / New York