— Miller’s attorney to Libby’s attorney
Smoke screens: A flurry of letters were exchanged last week just prior to Judith Miller’s release from prison. Three of these are available (in PDF) from the New York Times:
- Lewis Libby, the Vice President’s chief of staff wrote a letter to Judith Miller at the jail assuring her that the waiver of their confidentiality agreement he’d given her in 2004 was genuine – – that he was in fact “surprised” that she was in jail waiting on him to offer an uncoerced waiver.
- Libby’s lawyer, Joe Hart, wrote the special counsel, Peter Fitzgerald, making similar assertions. “To say I’m surprised … is an understatement,” he said, claiming that he and Libby had no idea that Miller had spent 85 days in jail waiting on Libby’s waiver. Hart told Fitzgerald that he made it clear to Miller and her lawyers that Libby’s waiver had not been coerced by the White House.
- Floyd Abrams, Miller’s lawyer, responded to both those letters by accusing Libby and Hart of distorting the facts about Libby’s waiver and adamantly refuting the notion that Libby and Hart were unaware that Miller went to prison specifically because she doubted that Libby’s waiver had been given freely.
Taken together, the letters illuminate – but don’t fully explain – the confusion about Miller’s release from prison, and whether she knew she had an uncoerced waiver from Libby the whole time she was languishing an Alexandria jail.
Abrams, addressing attorney Hart, calls Hart on his statement that Libby had not been coerced by the White House to sign the waiver:
In our conversations, however, you did not say that Mr. Libby’s written waiver was uncoerced. In fact, you said quite the opposite. You told me that the signed waiver was by its nature, coerced and had been required as a condition for Mr. Libby’s continued employment at the White House. You compared the coercion to that inherent in the effective ban imposed upon White House employees asserting the Fifth Amendment. A failure by your client to sign the written waiver, you explained, like any assertion by your client of the Fifth Amendment, would result in his dismissal. You persuasively mocked the notion that any waiver signed under such circumstances could be voluntary.
Abrams also denies Hart’s statement that he and Libby felt that there was “nothing [they] could do” to change Judith Miller’s position about going to jail:
That is simply inaccurate. Not only have I never said that, but I have never said anything even resembling that to you. … Your similar assertions in your letter of September 16, 2005 that you told me that you and your client “encouraged” Ms. Miller to testify “over a year ago” are similarly inaccurate.
In the earlier discussions, apparently Libby’s attorney had apparently tried to create a smoke screen around the issue of waiver. Abrams says the message he and Miller got at the time was “inherently mixed.”
And, not withstanding that Ms. Miller had known Mr. Libby for some time, the fact that the made no effort to contact Ms. Miller directly about this matter (even, as it turned out, when he was specifically and publicly requested by a member of Congress to provide a personalized waiver to her) led her to conclude that Mr. Libby’s waiver was not voluntary. Nor, in fact was there any public or private response by him or you in the face of repeated public statements by Ms. Miller and myself to the effect that no satisfactory personal waiver had been obtained.
Finally, Abrams disputes statements in the letters from both Libby and Hart that Libby wanted Miller to testify because her testimony would only “benefit” him.
In both your letter and that of Mr. Libby, statements were made to the effect that Mr. Libby now desires Ms. Miller to testify because he believes her testimony would “benefit” him. I can neither confirm nor deny that. But so that there is no possible misunderstanding, Ms. Miller’s decision about whether to testify has been and will be wholly unaffected by whether it assists your client or not and will be based on, among other things, whether she concludes that your client’s waiver is truly voluntary.