Letter shows Cheney aide was prodded in leak probe


By Adam Entous Sat Oct 8,12:53 PM ET

WASHINGTON (Reuters) - 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 whose diplomat husband was an Iraq-war critic.

The prosecutor's encouragement, in a letter obtained by Reuters, has prompted some lawyers in the case to question whether Cheney's aide was acting completely voluntarily when he gave Miller the confidentiality waiver she had insisted on.

The investigation has spotlighted free-press issues and the Bush administration's aggressive efforts to defend its Iraq policy against critics.

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 Cheney's chief of staff, Lewis Libby, as coerced.

But Libby offered a new waiver that Miller accepted after he received a September 12 letter in which the prosecutor, 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," prosecutor Patrick Fitzgerald told Libby's lawyer, Joseph Tate.

"It would be viewed as cooperation with the investigation," Fitzgerald said.

Some lawyers in the case called the letter a thinly veiled threat seeking Libby's cooperation, and said it raised questions about whether Libby's waiver was as voluntary as Miller and her lawyers 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 has also testified to the grand jury. But he added, "It is not unfair and it is not unduly coercive."

Fitzgerald has been investigating Libby, President George W. Bush's top political adviser Karl Rove and other administration officials over the leak of CIA operative Valerie Plame's identity, and lawyers involved in the case said there were signs Fitzgerald might be preparing to bring charges.

Plame's husband, Joseph Wilson, has accused the administration of leaking her name and damaging her ability to work undercover in retaliation for his criticisms of Bush's Iraq policy.

Wilson had investigated for the CIA an administration charge that Iraq was seeking nuclear materials in Niger and concluded it was unsubstantiated, then he publicly accused the administration of twisting intelligence on Iraq.

Fitzgerald said in the September 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," Fitzgerald wrote.

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

Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law, said Fitzgerald's letter sounded reasonable on the surface, but the reference to cooperation could be taken either way.

"If you think you might be a target of an investigation, being cooperative could be viewed as a desirable thing to be," Kirtley said.

Marvin Kalb of Harvard University's Kennedy School of Government said, "Libby took the hint."

Three days after Fitzgerald's letter, Libby on September 15 wrote directly to Miller urging her to testify. The New York Times has released copies of Libby's letter, but not Fitzgerald's.

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

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

Those notes could help Fitzgerald establish that Libby and other White House officials took an early interest in the backgrounds of Wilson and Plame, and talked to reporters, as reports of Wilson's investigation were surfacing but before he went public in a July 6, 2003, opinion piece in the Times.