Reportage Medialog

Although Judith Miller is out of jail nothing much new is known about why she decided to go there in the first place. We do now know that the source she was supposedly protecting was I. Lewis “Scooter” Libby, Vice President Dick Cheney’s chief of staff. But as even her own paper reports the sudden direct release from confidentiality by Libby seems to be an offer that has been on the table all along. Her lawyers spoke to his lawyers well before Miller was incarcerated and according to the Libby camp they gave “unequivocal” permission for Miller to testify. Miller says she needed direct confirmation which came in a recent phonecall with Libby. This seems rather odd: you’d think they could have had that phone call a few months back.

Miller’s other requirement was that she got a deal with the special prosecutor limitting her testimony to questions on her conversations with Libby about Palme. This is the type of deal that a number of other reporters got from Fitzgerald, so again it seems like this could have all been worked out a long time ago.

The irony is that a number of reporters, including Time’s Matt Cooper who nearly did jail time like Miller before coming to an arrangement with his source Karl Rove, have already testified about their conversations with Libby so Miller’s testimony is unlikely to add any new dimensions to the case.

As one rather wry reporter asked Miller on her release: “What about the perception that you spent 85 days dancing on the head of a pin?” Indeed.

But an article in today’s Washinton Post gives us a fresh perspective on the inquiry. Jim VandeHei and Walter Pincus speculate, based on conversations with lawyers involved in the case, that special prosecutor Fitzgerald may be getting ready to change tactics.

If formal charges cannot be laid under the Intelligence Identities Protection Act then he may bring general charges of criminal conspiracy.

Under this legal tactic, Fitzgerald would attempt to establish that at least two or more officials agreed to take affirmative steps to discredit and retaliate against Wilson and leak sensitive government information about his wife. To prove a criminal conspiracy, the actions need not have been criminal, but conspirators must have had a criminal purpose….

One source briefed on Miller’s account of conversations with Libby said it is doubtful her testimony would on its own lead to charges against any government officials. But, the source said, her account could establish a piece of a web of actions taken by officials that had an underlying criminal purpose.

Conspiracy cases are viewed by criminal prosecutors as simpler to bring than more straightforward criminal charges, but also trickier to sell to juries. “That would arguably be a close call for a prosecutor, but it could be tried,” a veteran Washington criminal attorney with longtime experience in national security cases said yesterday.

If this is the case the focus of the inquiry may finally shift from Miller’s questionable heroics to the heart of the matter: the deeply troubling behaviour of the Bush/Cheney Whitehouse.