The Parts Left Out of Max Frankel’s Article on the Libby Trial

By: Marcy Wheeler

On the evening of January 30, 2007, after Judith Miller had just finished a grueling half-day of testimony in the Scooter Libby trial, Miller and her lawyer, Robert Bennett, had an exchange with Max Frankel, the former executive editor of the New York Times, in the first floor hallway of the Courthouse.

Frankel addressed Bennett, who had defended Special Counsel Patrick Fitzgerald?s attempts to limit the questions to Miller in court that day: ?You did a good job for us today.?

It was an odd statement for Frankel to make. After all, Miller had hired Bennett precisely because, over the course of her attempt to fight the subpoena to testify, her interests and those of the Times diverged. And the Times had severed its relationship with Miller in November 2006.

Yet here was Frankel, in many ways the embodiment of the Times? considerable reputation, suggesting that Miller?s personal lawyer still represented the interests of the Times.

Frankel?s suggestion?that the Times and Miller remain linked?might explain the odd narrative he wrote of the Scooter Libby trial for last week?s Sunday New York Times Magazine, ?The Washington Back Channel.? On matters unrelated to the Times, the 7800-word story provides a well-researched and nuanced description of the trial. But on issues relating to Miller?s involvement in the case, Frankel covers up the most important parts of the story.

He does so, first of all, by arguing the trial was just about lying. He repeatedly names perjury as the crime at issue, arguing “perjury substitut[ed] for an unreachable, perhaps even nonexistent crime,” describing reporters protecting Libby’s perjury, and suggesting that Fitzgerald pursued journalists’ testimony so he “would at least have a perjury case.” And Frankel presents Libby?s lies about his conversation with Tim Russert as the most important charged lie of the trial.

“In fact,” Frankel writes, “Libby told the F.B.I. and the grand jury that he learned about Wilson’s wife — as if for the first time — from Russert on July 10 or 11. He insisted that he had totally forgotten discussing her during the preceding month with Cheney and with officials from State and the C.I.A. Libby’s recollection of how he was “taken aback” by Russert’s revelation stood at the heart of his indictment, and his meandering re-enactment of his talk with Russert would clinch the case for the jury.

“The other, subsidiary counts charged that Libby lied by denying knowledge of Wilson’s wife before the Russert conversation.”

This representation flips the importance of these lies, suggesting that Libby?s prior knowledge of Plame?s identity is ?subsidiary? to the story he invented about his Russert conversation.

But that?s not right. After all, Libby invented the Russert conversation, the prosecution argued, to hide his prior knowledge of Valerie Wilson?s identity. The prosecution team explained?and the jury understood?that Libby had had ten conversations with nine people about Valerie Wilson.

That?s what the obstruction of justice charge?the most serious of the five charges on which Libby was convicted?was about.

Libby told the story about Russert to hide earlier knowledge and earlier conversations. Those lies prevented the government from discovering the facts about those earlier conversations.

And chief among those earlier conversations, of course, were the two conversations at which Libby leaked Valerie Wilson?s identity to Judith Miller. Though he explains the “offense was never established,” Frankel himself presumes that Libby and Cheney, ?surely also recognized the legal risk in exposing Valerie Plame’s covert status — that the Intelligence Identities Protection Act prohibits anyone with authorized access to knowledge of a covert agent to intentionally disclose the agent’s identity to persons not so authorized.?

Of all the ten conversations presented to the jury, only the conversations with Miller carried the risk of an IIPA charge (though Miller testified Libby gave her no indication Ms. Wilson was covert). By claiming he had only learned of Ms. Wilson?s identity on July 10, Libby hid the fact he was leaking that information to a journalist two days earlier, on July 8. The two conversations with Miller were the potentially criminal leaks that Libby attempted to hide by obstructing justice.

But in his description of Miller?s testimony, Frankel makes no mention of that fact.

Frankel starts his description of her testimony: “On Tuesday, July 8, in what his normally detailed calendar listed only as a ‘private meeting,’ Libby spent two hours at breakfast with Judith Miller to enlist her help in countering Wilson’s attack. He told the grand jury that he admired her reporting, on Al Qaeda and chemical and biological weapons, and presumably also her prewar articles lending credence to the administration’s wild alarms about Iraqi W.M.D.’s — credulous articles that The Times eventually disowned.”

But then he suggests that the main thrust of Miller?s testimony related to Libby?s leak of the National Intelligence Estimate (NIE).

“Miller testified that Libby brought her selected excerpts from a top-secret National Intelligence Estimate (N.I.E.) to buttress his claim that long after Wilson’s mission, the C.I.A. still endorsed reports that Saddam Hussein had “vigorously” pursued uranium in Africa.”

The emphasis on the NIE simply does not fairly represent Miller?s testimony. Of roughly six hours of testimony and related arguments, roughly ten minutes concerned the materials from the NIE.

Further, Miller did not testify that Libby brought ?excerpts from a top secret National Intelligence Estimate.? She described a piece of paper in Libby?s pocket and much later described their discussion of the NIE, without asserting that the paper related to the NIE.

By reporting the NIE so prominently, Frankel is basically endorsing Libby?s cover story about the conversation, the claim that he met with Miller to give her an exclusive leak of the NIE. Yet among the things that belies that claim is the fact that Libby had already leaked the NIE to the Times? David Sanger six days earlier.

Compare the discussion of the NIE to the way Frankel presents the topic that made up the bulk of Miller?s testimony, Valerie Wilson?s identity and the results of Joe Wilson?s trip to Niger: “The established Washington routine meant that such revelations could be reported, provided that they were attributed only to ‘senior administration officials.’ But on the subject of Joe Wilson and his wife, Miller’s notes showed, Libby took the added precaution of asking to be identified as ‘a former Hill staffer.’ Though technically true, this was a devious dodge even by Washington’s tortuous rules of engagement, and it should have led Miller to realize that the remedy for bad leaks is more leaks.”

That?s it. In a trial focused on lies about whether or not Libby leaked Valerie Wilson?s identity, Frankel says only, ?But on the subject of Joe Wilson and his wife….? Frankel goes on to refer to the ?White House?s denigration of the Wilsons,? but he doesn?t describe what that denigration entailed.

In the entire length of his 7800-word article, Frankel never once mentions one of the most damning pieces of evidence submitted at trial, Miller?s testimony that Libby shared Valerie Wilson?s CIA employ with her on two occasions.

And so, in an otherwise beautifully written and astute article, Frankel repeats the cover-up Libby attempted with his concocted story about Russert. Frankel covers up the earlier, potentially criminal conversations with Judith Miller.

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