MILLER AND FITZGERALD….Hold on a second. I’ve now read several blog posts speculating that Judith Miller managed to scam Patrick Fitzgerald when she negotiated her agreement to testify before the grand jury. As Mickey Kaus tells it, the basic storyline is that Miller’s lawyer, Robert Bennett, cleverly convinced Fitzgerald to limit his questioning solely to her conversations with Scooter Libby:

But a key question is who told Miller the name “Valerie Plame,” which she miswrote as “Valerie Flame” in her notebook. Miller says she’s not sure it was Libby. Therefore it might have been someone else ? i.e. she might well have had another very “meaningful” source, contrary to Bennett’s alleged representations to the prosecutor. Am I missing something, or does Fitzgerald have grounds for being extremely p—–d off?

This doesn’t sound right to me. First of all, surely something like this can’t happen in real life, can it? Bennett’s representations to Fitzgerald would be considered binding, wouldn’t they? If it turned out he misrepresented the evidence, Fitzgerald would no longer be bound by the original agreement. (Someone with experience in federal prosecutions should feel free to step in and tell me I’m wrong, but this sure doesn’t sound like something a judge would spend more than a few seconds ruling on.)

Second, Miller didn’t refuse to answer the question because it went beyond her original agreement with Fitzgerald. She said she didn’t remember:

Mr. Fitzgerald wanted to know whether the entry was based on my conversations with Mr. Libby. I said I didn’t think so. I said I believed the information came from another source, whom I could not recall.

This account is vague about exactly what Fitzgerald asked, but it seems like he felt free to ask the question in the first place, and would have followed up if Miller hadn’t pleaded forgetfulness.


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