Reporter Testifies About Source

Times Staff Writer

After serving 85 days in jail for refusing to reveal her conversations with a confidential source, New York Times reporter Judith Miller broke her silence Friday, testifying about her conversations with that source before a federal grand jury investigating possible wrongdoing by figures in the Bush administration.

Miller emerged from the federal courthouse in Washington beaming, at the arm of her publisher, less than a day removed from a jail cell. She had been held in contempt of court for refusing to cooperate in the investigation into whether people in the White House leaked the name of a CIA operative to journalists in July 2003.

Although she declined to detail the substance of her testimony, sources said its focus was conversations between Miller and I. Lewis “Scooter” Libby, the chief of staff to Vice President Dick Cheney, days before the name of CIA operative Valerie Plame appeared in a newspaper column by Robert Novak. The sources spoke on the condition of anonymity because of the secrecy of the grand jury proceedings.

Miller, who was jailed July 6 for refusing to divulge her confidential source, said she agreed to testify after her source personally telephoned her last week at the Virginia jail where she was held. The source urged her to appear and released her from a claim of confidentiality, she said. She did not identify Libby as her source; he was named by others close to the case.

“I said to the court before I was jailed that I did not believe I was above the law, and that I would have to go to jail because of my principles,” Miller said on the courthouse steps. “But once I satisfied those principles, I was prepared to testify.”


She briefly answered questions from reporters, and then stepped into a waiting limousine, saying that she was looking forward to having her husband prepare her a home-cooked meal and hugging her dog.

Thus ended a media drama that had provoked claims that the prosecutor in the case was overzealous, and renewed interest in Congress in enacting legislation that affords journalists greater protection against revealing sources who provide confidential information about official misconduct. The special prosecutor, Patrick J. Fitzgerald, had pressed for jail time, saying that Miller’s testimony was essential to wrapping up an investigation that has lasted for two years. But the import of her testimony for that investigation is far from clear.

Justice Department rules allow prosecutors to seek the testimony of journalists for purposes of exonerating as well as implicating potential defendants, and Fitzgerald has not provided any clues about his intentions. The grand jury investigating the case is set to expire Oct. 28, although its term could be extended.

Fitzgerald, a terrorism expert who is also the U.S. attorney in Chicago, declined to comment as he left the courthouse Friday.

Questions surround the circumstances of Miller’s release, with lawyers for key players trading jabs about their conduct of the case. Questions arose over whether her lawyers had acted aggressively enough to strike a deal with Libby early in the case to win his support for her testimony.

There were also questions whether Libby had done everything he could to encourage Miller to testify, and whether he abided by a mandate from President Bush to fully cooperate in the investigation.

A lawyer for Libby, Joseph Tate, said in a report in Friday’s New York Times that he had given one of Miller’s lawyers, Floyd Abrams, a waiver freeing the journalist to testify more than a year ago.

Abrams countered Friday that the sort of waiver Tate had discussed didn’t satisfy Miller’s need to know that the source was sincere about the waiver. Abrams said that Miller had declined to call the source directly for such a waiver because she felt it then would not be construed as voluntarily given.

Libby had given waivers to other journalists permitting them to testify about conversations he had had with them. But Abrams said those waivers -- including one that Abrams negotiated with Tate on behalf of Time magazine correspondent Matthew Cooper -- were meaningless to Miller.

“She wanted a person-to-person communication, not a lawyer-to-lawyer communication,” Abrams said. “She wanted a phone call or a visit or something where she could pass judgment on her own as to the reality of the asserted waiver.”

The result was a sort of legal standoff, exacerbated by concerns among a new team of lawyers for the journalist who specialized in criminal law.

They were concerned that, if they directly approached lawyers for another witness while Miller was in jail, they could be construed as attempting to obstruct justice.

The situation began to resolve itself in late August and early September, in part because of an Aug. 25 article in the Los Angeles Times that quoted some attorneys in the case about their concerns with the obstruction issue. Abrams said Fitzgerald, citing The Times story, sent an e-mail to lawyers saying that those concerns should not stop them from facilitating testimony. “That sort of e-mail, that just made life easier,” Abrams said.

Around the same time, one of Miller’s other lawyers, Robert Bennett, placed a phone call to Tate inquiring about the waiver, and a deal was eventually struck. Bennett also worked out an arrangement with Fitzgerald that limited the scope of the testimony that Miller would have to give, which the journalist said Friday was pivotal to her decision to cooperate.

“I hope that blanket waivers are a thing of the past,” Miller said. “They do not count. They are not voluntary and should not be accepted by journalists. “