Profile: Joseph Tate
Joseph Tate was a participant or observer in the following events:
The grand jury investigating the leak of Valerie Plame Wilson’s covert CIA identity (see December 30, 2003) subpoenas New York Times reporter Judith Miller to testify. The Times says it will fight the subpoena. [US District Court for the District of Columbia, 8/12/2004 ; Washington Post, 7/3/2007]
Unusual Negotiations between Lawyers - The subpoena will open a lengthy and sometimes puzzling set of negotiations between lawyers for Miller and her source, White House aide Lewis “Scooter” Libby. Miller refuses to divulge the identity of her source or the contents of their conversations (see June 23, 2003, 8:30 a.m. July 8, 2003, and Late Afternoon, July 12, 2003). But she sends her lawyer, Floyd Abrams, to talk to Libby’s lawyer, Joseph Tate, to see if Libby will approve of her testimony. According to Abrams and others involved in the negotiations, Tate initially tells Abrams that Miller is free to testify. However, Abrams will say, Tate says that Libby never told Miller the name or the undercover status of Plame Wilson. This raises a conflict for Miller: her notes clearly indicate that she was told three times about Plame Wilson’s identity. If she testifies, she will contradict Libby’s own accounts of their conversations.
Libby Attempting to Influence Miller? - Miller decides that Libby is sending her a signal not to testify. She will later recalls Abrams’s recounting of his conversation with Tate: “He was pressing about what you would say. When I wouldn’t give him an assurance that you would exonerate Libby, if you were to cooperate, he then immediately gave me this, ‘Don’t go there, or, we don’t want you there.’” Abrams himself will recall: “On more than one occasion, Mr. Tate asked me for a recitation of what Ms. Miller would say. I did not provide one.” (Tate will angrily dispute both Abrams’s and Miller’s recollections, saying: “I never once suggested that she should not testify. It was just the opposite. I told Mr. Abrams that the waiver was voluntary.… ‘Don’t go there’ or ‘We don’t want you there’ is not something I said, would say, or ever implied or suggested.”) Miller’s executive editor, Bill Keller, will later say that Miller believed Libby feared her testimony. “Judy believed Libby was afraid of her testimony,” he will recall. “She thought Libby had reason to be afraid of her testimony.” Because of these reasons, Miller will decide not to further pursue the idea of a waiver from Libby that would allow her to testify about their conversations. For over a year, the two sides do not speak to one another. “I interpreted the silence as, ‘Don’t testify,’” Miller will later say. Tate will counter that he never understood why Miller or Abrams wanted to discuss the matter further. [New York Times, 10/16/2005]
McClellan: Fighting to Protect Partisan Government Leakers - In 2008, one-time White House press secretary Scott McClellan will write of Miller and fellow journalist Matthew Cooper, also battling a subpoena (see August 9, 2004): “Of course, there was a curious twist to the defense used by Cooper and Miller. By refusing to divulge the names of their sources in the leak case, the two reporters were not protecting courageous whistle-blowers revealing government wrongdoing in the public interest. Rather, they were shielding government officials whom administration critics believed had used leaks as weapons of partisan warfare. It was hard for some in the public, and especially those critical of the administration, to see this as an act of journalism.… This episode… seemed to confirm for at least some administration critics that reporters were no longer heroic figures, but were now participating in the same partisan warfare they created.” [McClellan, 2008, pp. 256]
Members of the special counsel’s investigation into the Plame Wilson identity leak learn that former White House official Lewis Libby and/or his attorney, Joseph Tate, may have tried to influence or discourage New York Times reporter Judith Miller’s testimony. Miller received information from Libby about Plame Wilson’s covert CIA status (see June 23, 2003, 8:30 a.m. July 8, 2003, and Late Afternoon, July 12, 2003). Special counsel Patrick Fitzgerald and his staff learn from press accounts of possible witness tampering by either Libby, Tate, or both. It is known that Tate has discouraged Libby from giving Miller a waiver of confidentiality that would free her from her responsibility of protecting Libby as a source. Miller is currently in jail for refusing to testify in the investigation (see July 6, 2005). Upon learning about the potential tampering, Fitzgerald strongly urges attorneys for Miller and Libby to negotiate an agreement that would allow Miller to testify. (Libby will give Miller a waiver releasing her from their confidentiality agreement—see September 15, 2005). According to investigative reporter Murray Waas, because Fitzgerald is loathe to lose Miller’s testimony, and is unsure of what she might testify to, he will not aggressively pursue the possibility that Libby and/or Tate might have attempted to influence or discourage Miller’s testimony (see August 12, 2004 and After). However, the possibility of witness tampering does give further impetus to Fitzgerald’s inclination to bring criminal charges against Libby. Waas will write, “Potentially misleading and incomplete answers by Libby to federal investigators are less likely to be explained away as the result of his faulty memory or inadvertent mistakes,” according to his sources. A Justice Department official will tell Waas: “Both intent and frame of mind are often essential to bringing the type of charges Fitzgerald is apparently considering. And not wanting a key witness to testify goes straight to showing that there were indeed bad intentions.” [National Journal, 10/18/2005]
Special counsel Patrick Fitzgerald writes a letter to Joseph Tate, one of the lawyers representing White House aide Lewis Libby. Fitzgerald wants to clarify any potential misunderstandings regarding Libby’s possible release of reporter Judith Miller from their understanding of confidentiality. Miller is currently serving an indefinite jail sentence over her refusal to testify before Fitzgerald’s grand jury about her conversations with Libby (see June 23, 2003, 8:30 a.m. July 8, 2003, and Late Afternoon, July 12, 2003). Fitzgerald cites media accounts that indicate there may be misunderstanding between the parties; he affirms that any communication from Libby to Miller granting Miller a confidentiality waiver would be voluntary, and would not be construed as obstruction. [Office of Special Counsel, 9/12/2005 ] Three days later, Libby releases Miller from her confidentiality pledge (see September 15, 2005).
New York Times reporter Judith Miller is released from jail after agreeing to comply with a subpoena from the grand jury investigating the Valerie Plame Wilson identity leak (see July 6, 2005). According to Miller, the person who told her of Plame Wilson’s covert identity, former vice-presidential chief of staff Lewis “Scooter” Libby, “voluntarily and personally released me from my promise of confidentiality” (see September 15, 2005 and October 28, 2005). [Washington Post, 7/3/2007] Libby’s lawyer Joseph Tate says that his client released Miller from her confidentiality agreement over a year ago, and that he was surprised to learn that Miller and her lawyer, Robert Bennett, did not know that she was free to testify. “We told her lawyers it [Libby’s original waiver] was not coerced,” Tate says. “We are surprised to learn we had anything to do with her incarceration” (see September 12, 2005). [Washington Post, 9/30/2009] Times publisher Arthur Sulzberger says: “Judy has been unwavering in her commitment to protect the confidentiality of her source. We are very pleased that she has finally received a direct and uncoerced waiver, both by phone and in writing, releasing her from any claim of confidentiality and enabling her to testify.” Miller adds: “I went to jail to preserve the time-honored principle that a journalist must respect a promise not to reveal the identity of a confidential source. I chose to take the consequences—85 days in prison—rather than violate that promise. The principle was more important to uphold than my personal freedom.” [New York Times, 9/29/2005] In preparation for her upcoming testimony (see September 30, 2005), Sulzberger and Times executive editor Bill Keller take Miller from jail to have a massage, a manicure, a martini, and a steak dinner before she goes home to sleep in her own bed. [New York Times, 10/16/2005]
A day before New York Times reporter Judith Miller is scheduled to testify before the grand jury investigating the Plame Wilson identity leak (see September 30, 2005), Miller’s attorney, Floyd Abrams, writes a letter to Lewis Libby’s attorney, Joseph Tate, alleging that Tate had repeatedly made comments to him that may have been intended to discourage Miller from testifying. Miller is expected to provide testimony that will contradict Libby, the former chief of staff to Vice President Dick Cheney, who has testified that he never provided Valerie Plame Wilson’s identity as a CIA agent to Miller (see June 23, 2003, 8:30 a.m. July 8, 2003, and Late Afternoon, July 12, 2003). Miller was concerned that Libby would not provide her with a specific waiver of confidentiality, without which she was unwilling to testify. Libby had signed a general waiver provided by special counsel Patrick Fitzgerald, but Miller did not consider that as enough of a release from her obligation to protect him, her source. Miller has said that she spent 85 days in jail (see July 6, 2005) because Tate told her that the general waiver was not given freely. Libby provided her with a specific waiver two weeks ago (see September 15, 2005). Abrams writes that Tate told him that the general waiver was “by its nature coerced and had been required as a condition for Mr. Libby’s continued employment at the White House.” Abrams writes in part: “In our [various] conversations… you did not say that Mr. Libby’s waiver was uncoerced. In fact, you said quite the opposite. You told me that the signed waiver was by its nature coerced and had been required as a condition for Mr. Libby’s continued employment at the White House. You compared the coercion to that inherent in the effective bar imposed upon the White House employees asserting the Fifth Amendment. A failure by your client to sign the written waiver, you explained, like any assertion of your client of the Fifth Amendment, would result in his dismissal. You persuasively mocked the notion that any waiver signed under such circumstances could be deemed voluntary.” Tate says that Abrams’s claims are “outrageous” and “factually incorrect,” and that neither he nor Libby has said or done anything to discourage Miller from testifying or to influence any testimony she might give. Abrams says that Tate provided him with some information from Libby’s previous testimony to the grand jury (see March 5, 2004 and March 24, 2004), and attempted to find out from him what Miller might testify to. He says he refused to provide Tate with any such information. Miller has also written that Tate expressely asked her not to “go there” when she refused to say that her testimony would exonerate Libby, but other sources have said Tate did not say anything of that nature to her. [National Journal, 10/18/2005]
News organizations and reporters file a variety of motions to quash the Libby defense team’s subpoenas for their notes and testimonies for the upcoming trial (see March 14, 2006, April 18, 2006, and May 1, 2006). The arguments are similar: Lewis Libby’s subpoenas violate the journalists’ and news organizations’ First Amendment rights to privacy in their reporting, the subpoenas are overly broad and lack relevance—a “fishing expedition,” as Time’s lawyers phrase it—and Libby’s lawyers cannot expect to be granted such “unchecked leeway” in subpoenaing reporters without far more specific goals and objectives than the defense team has previously stated. The lawyers for NBC reporters Andrea Mitchell and Tim Russert write, “Defendant’s case rests entirely on serial speculation—i.e., if Ms. Mitchell knew about Ms. Wilson and her employment prior to July 11, and if Ms. Mitchell shared that information with Mr. Russert before he talked with Defendant, and if Mr. Russert then shared the same information with Defendant, then her testimony would ‘be important to the defense.’” [US District Court for the District of Columbia, 5/8/2006 ; US District Court for the District of Columbia, 5/8/2006 ; US District Court for the District of Columbia, 5/8/2006 ; THE NEW YORK TIMES' REPLY TO DEFENDANT I. LEWIS LIBBY'S RESPONSE TO MOTION OF THE NEW YORK TIMES TO QUASH LIBBY'S RULE 17(c) SUBPOENA, 5/8/2006 ; US District Court for the District of Columbia, 5/8/2006 ] Former prosecutor and FireDogLake blogger Christy Hardin Smith writes: “Here’s a rule of thumb—you can’t call a witness that you know is not going to be favorable to your case solely to raise questions about that witness to confuse the jury. It’s called bootstrapping, and judges do not like it. Let alone the fact that it is not allowed under the rules.” [Christy Hardin Smith, 5/12/2006] In her response, Judith Miller’s lawyer Joseph Tate objects to Libby’s speculation that he may have learned of Valerie Plame Wilson’s CIA status from Miller, and his request for Miller’s notes to prove or disprove his speculation. In the brief, Tate writes: “Mr. Libby asserts that he ‘has established a ‘sufficient likelihood’ that the documents he seeks are relevant to his defense.‘… In support, he maintains that ‘the documents sought are likely to contain evidence that some, if not all, of his testimony about… conversations [with reporters] was correct and that it is the reporters who have an unreliable recollection or have misstated the facts.‘… He also makes the startlingly baseless claim that it may have been Ms. Miller who mentioned Ms. Plame to him.… These contentions are unavailing. How can it possibly be maintained that Ms. Miller’s notes of discussions with persons other than Mr. Libby, regarding topics unrelated to the instant case, have any bearing on his, hers, or anyone’s recollection of the salient facts regarding her conversations with him?” Author and FireDogLake blogger Jane Hamsher writes that if Miller expected a response such as “‘If Pulitzer Prize winning journalist Judith Miller can’t remember, how can Mr. Libby be expected to remember?’ [w]hat she got instead was an invitation to play scapegoat.” [US District Court for the District of Columbia, 5/8/2006 ; Jane Hamsher, 5/9/2006]
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