‘NY Times’ Attorney Says Subpoena Required Miller to Turn Over Notes

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By: Joe Strupp

The subpoena ordering New York Times reporter Judith Miller to testify before a federal grand jury, which she did on Friday, had always included a demand for her personal notes on her key conversations with “the source” in this case, a Times attorney told E&P. The notes were written on note pads, not on her newspaper’s electronic system.

He also confirmed that the notes had been “redacted” before they were turned over to the prosecutor.

George Freeman, Times assistant general counsel, said the court order for Miller to answer questions in the Valerie Plame investigation would not have been completely fulfilled without the notes. “That is part and parcel of the whole thing,” Freeman said about an hour after Miller testified Friday. “They were her personal notes, her note pads. I don’t know what was in them and I am not going to guess. I did not go through them.”

Freeman did not say who had redacted them. A Times story Friday reported that Robert Bennett, Miller’s attorney, had provided an “edited” version of the notes to the prosecutor.

Miller’s release occurred after she agreed to testify following what were reportedly weeks of discussions between her lawyers, federal prosecutor Patrick Fitzgerald, and the source, which has been reported by several news outlets to be I. Lewis Libby, Vice President Dick Cheney’s chief of staff.

Miller said Friday after her testimony that she agreed to testify only after her source verbally assured her that he had waived his right to confidentiality, and after prosecutors agreed to limit the scope of her testimony. Although Libby had signed a general waiver last year, Miller did not consider that enough of an exception, Freeman said.

“The key was after her source called her and convinced her that the waiver he was giving her was not coerced and that he really meant it,” Freeman said, referring to a Libby call to Miller earlier this month. “That really changed it because it is different than a letter. It is very different than a written form you are forced to sign. A written form the government makes you sign is not a waiver.”

Others have wondered, however, why Miller did not ask for this personal assurance earlier.

Freeman said a letter from Fitzgerald written earlier this month had allowed the conversation between Miller and her source to occur. “There was a letter from the special prosecutor saying that he would not consider a conversation between them to be any kind of obstruction of justice,” Freeman said, adding that that concern had kept Miller from speaking with the source sooner. “That seemed to clear the way.”

Still, this doesn’t explain why this couldn’t have happened much sooner, perhaps before Miller went to jail.

Freeman praised Fitzgerald’s effort at trying to end the stalemate be giving the source the freedom to speak to Miller. “He was very professional,” Freeman added. “I’m not happy that he put her in jail, but I think the letter he wrote was a professional attempt at trying to resolve this thing.”

He would not speculate on what occurred in the testimony, but said Miller’s part in the case is over. “I think it reconfirms the need to get a federal shield law passed,” he added. “That would have avoided all of this.”

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