There has still been no explaination as to how the incriminating letters that now seem to be forming much of the Special Counsel's case against Scooter Libby (including his torrid Aspen Trees missive) got into the hands of the New York Times, and possibly made their way to Patrick Fitzgerald. A source within the Times is now shedding some light on the matter.
Those who have been folliowing the story will recall that on October 1, following Judith Miller's release from jail on September 29 and her testimony before the grand jury on September 30, the New York Times ran an article that was accompanied by a PDF of three letters:
1. One from Scooter Libby to Judith Miller (the famous "aspens are turning" letter)
2. One from Scooter's attorney, Joseph Tate, to Judith Miler's criminal attorney, Bob Bennett
3. One from Judith Miller's First Amendment attorney, Floyd Abrams, to Joseph Tate.
The letters were so damning to Libby that I had to wonder where they came from, and what the motives were of the people who decided to leak them. And I speculated at the time that Patrick Fitzgerald may not have had those documents prior to that leak, and about how the complexion of the case might change as a result.
I have been really surprised that this question hasn't piqued the curiosity of more people, especially when Fitzgerald's September 12 letter (PDF) was leaked the next day to the New York Sun, and it became clear that he had in fact asked not to see any letter that Libby wrote to Miller, promising not to hit them with an obsturction charge so long as Scooter did not coach Judy's testimony. It is therefore probable that Scooter wrote his saccharine prose thinking that Fitzgerald would never lay eyes on it.
Since that time, I find that most of the people I talk to accept the conventional wisdom that the documents were leaked by the Times who thought it was in Judy Miller's interest to do so, since the letters demonstrate that she did, in fact, seek a waiver from Libby, contrary to what his attorney Joseph Tate was saying. But the notion that the corporate end of the paper (Sulzberger, etc.) whose primary directive seems to be watch your ass, boy would go out on that kind of legal and ethical limb never made any sense to me.
Now a source at the New York Times is confirming that the documents did in fact come to them via an outside leak. According to the person who wishes to remain anonymous, the documents were in circulation and available to "journalists working on the story" as early as September 29, the day of Judy's release from jail. By the time they were published by the Times on October 1, the content of the Fitzgerald letter was also known to people at the Times, although they had not seen it.
Who leaked the letters? Nobody who knows is telling. But in light of Bob Bennett's appearance on This Week on Sunday, Swopa"s theory is making a whole lot of sense, namely that when Bennett received Libby's letter he realized he had a hot potato in his lap. If he didn't turn it over to Fitzgerald, his client might be looking at serious obstruction charges if it was ever discovered.
On the other hand, the response that makes the most sense in that situation is to hand it over to the Special Counsel rather than leak to the media. Did whoever leaked those letters to the Times and others have an agenda to publicly bury Libby? Fitzgerald may or may not have had them prior to their publication, but the release to the media of those letters guaranteed that the public knew Scooter was going to walk the plank.