- The Washington Times - Sunday, October 9, 2005

Prodding seen in reporter case

A top aide to Vice President Dick Cheney got a push from a prosecutor before telling New York Times reporter Judith Miller that he wanted her to testify in a probe into the outing of a CIA operative.

The prosecutor’s encouragement, in a letter obtained by Reuters, has prompted some lawyers in the case to question whether Mr. Cheney’s chief of staff, I. Lewis “Scooter” Libby, was acting completely voluntarily when he gave Miss Miller the confidentiality waiver she had insisted on.

Miss Miller maintains she only agreed to testify — after spending 85 days in jail — because she received what she describes as a personal and voluntary waiver of confidentiality from her source. She dismissed an earlier waiver by Mr. Libby as being coerced.

But Mr. Libby offered a new waiver that Miss Miller accepted after he received a Sept. 12 letter in which special prosecutor Patrick Fitzgerald, investigating a possible White House role in the leak, repeatedly encouraged him to do just that.

“I would welcome such a communication reaffirming Mr. Libby’s waiver,” Mr. Fitzgerald told Mr. Libby’s attorney, Joseph Tate. “It would be viewed as cooperation with the investigation.”

Some lawyers in the case called the letter a thinly veiled threat seeking Mr. Libby’s cooperation, and said it raised questions about whether Mr. Libby’s waiver was as voluntary as Miss Miller and her attorneys had described.

Others said it was not coercive.

“Is that pressure? Absolutely,” said Richard Sauber, a Washington lawyer who represents Time magazine’s Matt Cooper, who also has testified to the grand jury. But he added, “It is not unfair, and it is not unduly coercive.”

Mr. Fitzgerald has been investigating Mr. Libby, presidential adviser Karl Rove and other administration officials over the leak of CIA operative Valerie Plame’s identity.

Mrs. Plame’s husband, former Ambassador Joseph C. Wilson IV, has accused the administration of leaking her name and damaging her ability to work undercover in retaliation for his criticisms of President Bush’s Iraq policy.

Mr. Fitzgerald said in the Sept. 12 letter that he was not seeking to compel a more explicit confidentiality waiver.

“Mr. Libby, of course, retains the right not to so reaffirm his waiver … if he would prefer that the status quo continue and Ms. Miller remain in jail rather than testify about their conversations,” he wrote.

A lawyer in the case, speaking on the condition of anonymity, said, “It’s coercive to have the prosecutor, at the end of his investigation, say: ‘Unless you take this additional step, I’m going to draw a negative inference against you.’”

Three days after Mr. Fitzgerald’s letter, Mr. Libby wrote directly to Miss Miller urging her to testify. The New York Times has released copies of Mr. Libby’s letter, but not Mr. Fitzgerald’s.

On Sept. 30, Miss Miller testified before the grand jury about two conversations with Mr. Libby in July 2003.

Mr. Fitzgerald summoned Miss Miller again for a meeting after she found notes from an earlier, previously undisclosed conversation with Mr. Libby. The Times reported the conversation was on June 25, 2003.



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