A pattern is emerging at the Lewis Libby trial, now in the middle of its third week in the federal courthouse in Washington. The pattern is this: A witness called by prosecutor Patrick Fitzgerald delivers testimony that seems clearly damaging to Libby, strongly suggesting that Libby lied when he testified before prosecutor Patrick Fitzgerald’s grand jury in the CIA-leak affair. And then Libby’s lawyers take over, suggesting that the witness’s memory is so selective, or so flawed, or so sketchy as to render his or her testimony useless.
Each day, most news reports from the trial focus on the damage done to Libby’s case; there are lots of headlines like “Ex-Aide Contradicts Libby” and “Reporter’s Account Hurts Libby’s Defense.” But each day, the question is not what headline writers are taking from events in the courtroom but what jurors are making of it. Are they seeing an overwhelming case for Libby’s guilt? Or are they seeing a case in which everyone involved seems to have forgotten something — and no one is truly credible? We just don’t know.
The latest witness to contradict Libby and then find her credibility seriously challenged is Judith Miller, the former New York Times reporter who went to jail for 85 days in an effort to avoid testifying in the case. Miller told the jury that she interviewed Libby three times in the course of three weeks in the summer of 2003, on June 23, July 8, and July 12. Each time, she said, Libby mentioned former ambassador Joseph Wilson, his trip to Niger, his attacks on the Bush administration — and his wife.
Much of Miller’s testimony focused on her first meeting with Libby, a June 23, 2003 interview that took place in the Old Executive Office Building next to the White House. Questioned by prosecutor Fitzgerald, Miller offered a vivid description of Libby’s state of mind. “Mr. Libby appeared to me to be agitated and frustrated and angry,” she testified. “He is a very low key and controlled guy, but he seemed annoyed.”
“Did he indicate what he was annoyed at?” Fitzgerald asked.
“He was concerned that the CIA was beginning to backpedal to try to distance itself from the unequivocal intelligence estimates it had provided before the war,” Miller said. She told the jurors that Libby had called the CIA’s action “a perverted war of leaks.”
And then, Miller said, Libby brought up the subject of Joseph Wilson’s trip to Africa. At the time, Wilson was still criticizing the administration anonymously, and no one in the general public knew who he was. Miller testified that Libby at first referred to Wilson as the “clandestine guy” and only later began to call him by name. “He said the vice president did not know that Mr. Wilson had been sent on this trip,” Miller testified. She said Libby assured her that Dick Cheney did not know of Wilson and “did not get a readout” on Wilson’s findings. As “an aside,” Miller said, Libby mentioned that Wilson’s wife “worked in the bureau.” At first, Miller recalled, she was confused — What bureau? The FBI? — but later “it became clear that he was referring to the CIA.”
Miller told the jury that Libby did not treat Wilson’s role, or the fact that his wife worked for the CIA, as a big deal. “He said that people were beginning to focus on Mr. Wilson, but that Mr. Wilson was a ruse — that’s the word he used — an irrelevancy,” Miller testified. By that, Libby apparently meant that Wilson was just one small part of a much bigger story, which was the intensifying war between the CIA and the White House over Iraq intelligence. “Mr. Libby seemed really unhappy and irritated,” Miller said. “He accused the CIA of leaking information that would attempt to distance the agency from its earlier estimates. He said that nobody had ever come to the White House from the CIA and said, ‘Mr. President, this is not right.’ He felt that if the CIA had had such doubts, they should have shared them with the president.”
In all, Miller drew a fascinating picture of her talk with Libby. He was controlled. He was angry. He was engaging in back-and-forth battles with the CIA. Miller’s portrait of Libby stuck in the mind — for a few minutes, at least, until defense lawyer William Jeffress rose to cross-examine her.
You did not always remember that June 23 meeting so well, Jeffress said to Miller. In fact, he continued, Miller, after resisting a subpoena, after going to jail, and after thinking at great length about her contacts with Libby, failed to mention the June 23 meeting at all when she first appeared before prosecutor Fitzgerald’s grand jury.
“That conversation on June 23 in the Old Executive Office Building,” Jeffress said. “When you first appeared before the grand jury, you didn’t remember that at all?”
“Nothing about it,” Miller answered.
“And today you’ve described that meeting in great detail.”
“That’s correct,” Miller said. Quickly thinking better of her answer, she added, “No, not in great detail. The highlights of it.”
But Miller knew at the time about all the controversy over the CIA leak, didn’t she? Yes, she said. She remembered the Robert Novak column, didn’t she? Yes. She remembered that a criminal investigation was opened into the matter? Yes. She remembered writing a column defending her conduct in the affair? Yes. She remembered talking to executives at the Times about the whole thing? Yes. So why didn’t she remember her first meeting with Libby about the matter?
“You got subpoenaed?” Jeffress asked.
“And you retained counsel….Did you have an occasion to think about gee, if they ask me questions, what am I going to have to say?”
“Yes. I was concerned.”
“So at that time did you remember your meeting with Mr. Libby on June 23, 2003?”
“I don’t know, sir, because I wasn’t asked about it,” Miller answered. “I discussed my meetings with Mr. Libby within my newspaper.”
“Did you discuss the June 23 meetings within your newspaper?”
“I discussed a series of meetings…”
“Did you discuss the June 23 meeting?”
“I don’t recall.”
Jeffress asked whether Miller asked herself “What conversations did I have with Mr. Libby?”
“No sir, not before I received the subpoena.”
“OK,” Jeffress said. “So you received a subpoena in the Spring of 2004. When you got the subpoena, did you think, If I have to testify, what am I going to say?…Did you try to think about, When did I talk to Mr. Libby?”
“Of course I tried to think about it,” Miller said, growing a bit defensive.
“But isn’t it true,” Jeffress continued, “that you didn’t remember that meeting of June 23 at any time between the time you received a subpoena in this investigation and the time you were held in contempt?”
Miller said she hadn’t seen any notes from the meeting, that she had been asked to review her notes from the period, but she hadn’t found any from the June 23 session.
“Put aside notes,” Jeffress responded. “Did you remember any meeting?”
“I had a vague memory that I knew of Ms. Plame prior to my July 8 meeting, and it bothered me,” Miller said.
“So is the answer to my question yes?” Jeffress asked. “Did you remember the meeting with Mr. Libby on June 23?”
“I don’t believe I did,” Miller said.
Jeffress moved on to Miller’s 85 days in jail. She had a lot of time to think about things, he said — but not her first, critical, meeting with Libby. “You did not remember the meeting when you were in jail?”
“I did not remember the meeting when I was in jail.”
The day after Miller got out of jail, she testified before the grand jury. “You were asked, do you recall if you had met with Mr. Libby in late June,” Jeffress said.
“I don’t recall,” Miller answered.
Jeffress went to the transcript of Miller’s grand jury testimony. “So were you asked the following question,” he said, beginning to read. “‘And do you recall that if a few weeks earlier, you had met with Mr. Libby in late June?’ Answer: ‘I don’t know if I met with him.’“
Jeffress let that answer hang in the air for a brief moment. And then he asked, “You didn’t go into the grand jury to lie?”
“No,” Miller said.
“You tried to be honest?”
“But the meeting of June 23 was not memorable to you at the time.”
“I did not remember that it even occurred.”
“So today,” Jeffress said, “you have testified to Mr. Libby’s demeanor, that he was agitated. You have testified to things that he said. You said his wife works in the bureau. Do you distinctly remember that?”
Miller said her notes brought her memory back. She explained that, after her first grand jury testimony, she discovered a shopping bag full of notebooks under her desk in her New York office. One of those notebooks covered the June 23 interview.
“How did your notes reflect that Mr. Libby was irritated?” Jeffress asked. “Did they say, anywhere, ‘irritated?’“
“No,” Miller answered. “I was able to read them, and that brought a memory of the meeting that day.”
“Do you have a good memory?”
“Of some things.”
“Do you remember appearing on a television show with Jim Goodale, a show called Digital Age, in 2006?” Jeffress asked. “Do you remember saying that it was easy to forget details of a story you’re not writing about? Didn’t you tell him that you didn’t have a good memory of this because it wasn’t important to you?”
“I don’t remember saying that,” Miller answered.
Alright, Jeffress said, let’s watch a tape of the program. Miller’s image appeared on a screen in the courtroom. “People say, ‘How could she have forgotten?’ Miller said on the tape. “It’s really easy to forget details on a story you’re not writing. I had not written about uranium in Niger. I had not written about Niger. I had not written about uranium. It didn’t mean anything to me.”
The tape ended. “That was you?” Jeffress asked dryly.
“Yes,” Miller answered. Finally, exasperated, she looked at Jeffress and said, “Counselor, I’ve already said it. I didn’t remember that meeting. I just didn’t remember it.”
But that wasn’t the end of it. Jeffress then moved in on Miller’s notes. She relied on them extensively, Jeffress said. “Do you remember saying [to the grand jury]…’I don’t have an independent memory of much of this?’“
“Generally, I am note-driven,” Miller said. “And notes bring to mind a memory, or they don’t. Sometimes they did, sometimes they didn’t.”
By that point, Miller was clearly nervous, clearly defensive, and clearly upset by Jeffress’s constant challenges. But Jeffress would not let up. Trying to suggest that Miller might have heard about Joseph Wilson and his wife from someone other than Lewis Libby, Jeffress pressed.
“You had in your notes the name Joe Wilson,” Jeffress said. “You had his phone number. You had his extension. So who did you talk to about Joe Wilson?”
“I don’t remember who I talked to about Joe Wilson.”
“Do you remember talking to Joe Wilson?”
“I don’t believe I did.”
“Did you tell the grand jury that you remember Joe Wilson was in your notes before that, and so somebody may have told me, but I don’t remember…Is that your testimony?”
And on it went. By the end of the day, Jeffress had planted an entire field’s worth of seeds of doubt. Miller’s memory was faulty. She gave conflicting accounts of events. She had talked to other people about Joseph Wilson and his wife, but she couldn’t remember anything about it.
And that was just one meeting, June 23. There was also testimony about Miller’s July 8 and 12 conversations with Libby, as well as the inner workings of the Times. And by the end of the day, in an echo of earlier litigation in this case, the lawyers were arguing intensely over whether Miller could be asked to reveal the names of people she talked to about Wilson. And the fighting would go on; when Judge Reggie Walton adjourned for the night, Libby’s defense was clearly not finished with Miller. In this trial, just one man faces charges for his testimony. But everyone is under suspicion.
– Byron York, NR’s White House correspondent, is the author of the book The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President — and Why They’ll Try Even Harder Next Time.