At the Libby trial, it's back to square one

The judge sends the jury home as questions arise -- again -- about Judy Miller's confidential sources.

Published January 30, 2007 10:23PM (EST)

The Scooter Libby trial has just come to a sudden halt.

During his cross-examination of Judith Miller this afternoon, defense lawyer William Jeffress tried to press the former New York Times reporter about an affidavit -- filed when she first tried to quash Patrick Fitzgerald's grand jury subpoena -- in which she said that she had spoken or met with several sources for a story she didn't write about "issues related" to Joseph Wilson's New York Times Op-Ed piece. Jeffress asked who those sources were. And with that, the proceedings moved right back to the issue that landed Miller in jail on contempt of court charges: To what degree must she testify about sources to whom she promised confidentiality?

Judge Reggie Walton stopped the proceedings, sent the jury away on a break and called on Miller's lawyer, Robert Bennett, to rise from his seat in the audience and tell the court whether he objected to having Miller answer the question. Bennett said he would object to "any question by either the defense or the prosecution that would ask Miss Miller to identify any other sources" -- and that, even if Miller were called upon to answer the question, "there are not other sources that she could testify about that she recollects dealing with Mr. Wilson, Miss Plame or the specific issues before you." Bennett then suggested that he should go check with Miller, who had left the courtroom. When Bennett returned, he said that Miller did not, in fact, object to having the question asked -- presumably because she would say she didn't remember who the sources were and therefore wouldn't be at any risk of revealing their identies.

Walton brought the jury back in and Jeffress started to ask his question. But it was broader than Fitzgerald thought it would be; it wasn't limited to sources with whom Miller might have talked about the fact that Wilson's wife worked for the CIA, but rather included all sources with whom Miller spoke about issues related to Wilson's Op-Ed. Fitzgerald objected, and Walton sent the jurors home for the night.

With the jurors gone, Walton made it clear that he's not inclined to let Jeffress ask Miller the broader question. Whether Miller heard about Wilson's wife from sources other than Libby is relevant, Walton said. But to ask about sources on Wilson's New York Times Op-Ed more generally, Walton said, would invite into the trial questions about the Bush administration's path to war, claims about weapons of mass destruction and everything else Walton has tried hard to keep out of his courtroom. Fitzgerald chimed in to say that the issue isn't -- or at least doesn't need to be -- the First Amendment concerns implicated by the need for a reporter to protect confidential sources. The issue is simply one of relevance. The war and the WMD and all the rest aren't relevant to the case, Fitzgerald said. And if they become part of the case, he said, "we've got to bring in cots."

Libby's lawyers aren't giving up. They say they need to ask Miller the broader question for purposes of impeaching her. She said in her affidavit that she talked to other sources about the Wilson Op-Ed. If she can't even remember who those sources are now, they argue, why should the jury believe her when she says she remembers so much about her meetings with Scooter Libby?

Walton plainly isn't buying what they're selling, but he said he'll take the matter under submission and have a final decision when the jury comes back Wednesday morning.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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