Defending Lewis Libby

Contrary to my earlier suggestion, Libby will not be going with an insanity defense.  Instead, he will hire Steve Martin as his new counsel and use the closely-related "I Forgot" defense (press release here).

Well, Libby had a lot to forget.  The indictment is here, but Fitzgerald talked through an outline of the Libby case at his press conference, so let's excerpt that:

That brings us to the fall of 2003. When it was clear that Valerie Wilson's cover had been blown, investigation began. And in October 2003, the FBI interviewed Mr. Libby. Mr. Libby is the vice president's chief of staff. He's also an assistant to the president and an assistant to the vice president for national security affairs.

The focus of the interview was what it that he had known about Wilson's wife, Valerie Wilson, what he knew about Ms. Wilson, what he said to people, why he said it, and how he learned it.

And to be frank, Mr. Libby gave the FBI a compelling story.

What he told the FBI is that essentially he was at the end of a long chain of phone calls. He spoke to reporter Tim Russert, and during the conversation Mr. Russert told him that, Hey, do you know that all the reporters know that Mr. Wilson's wife works at the CIA?

And he told the FBI that he learned that information as if it were new, and it struck him. So he took this information from Mr. Russert and later on he passed it on to other reporters, including reporter Matthew Cooper of Time magazine, reporter Judith Miller of the New York Times.

And he told the FBI that when he passed the information on on July 12th, 2003, two days before Mr. Novak's column, that he passed it on understanding that this was information he had gotten from a reporter; that he didn't even know if it was true.

And he told the FBI that when he passed the information on to the reporters he made clear that he did know if this were true. This was something that all the reporters were saying and, in fact, he just didn't know and he wanted to be clear about it.

Later, Mr. Libby went before the grand jury on two occasions in March of 2004. He took and oath and he testified. And he essentially said the same thing.

He said that, in fact, he had learned from the vice president earlier in June 2003 information about Wilson's wife, but he had forgotten it, and that when he learned the information from Mr. Russert during this phone call he learned it as if it were new.

When he passed the information on to reporters Cooper and Miller late in the week, he passed it on thinking it was just information he received from reporters; that he told reporters that, in fact, he didn't even know if it were true. He was just passing gossip from one reporter to another at the long end of a chain of phone calls.

It would be a compelling story that will lead the FBI to go away if only it were true. It is not true, according to the indictment.

In fact, Mr. Libby discussed the information about Valerie Wilson at least half a dozen times before this conversation with Mr. Russert ever took place, not to mention that when he spoke to Mr. Russert, Mr. Russert and he never discussed Valerie Wilson or Wilson's wife.

He didn't learn it from Mr. Russert. But if he had, it would not have been new at the time.

Let me talk you through what the indictment alleges.

The indictment alleges that Mr. Libby learned the information about Valerie Wilson at least three times in June of 2003 from government officials.

Let me make clear there was nothing wrong with government officials discussing Valerie Wilson or Mr. Wilson or his wife and imparting the information to Mr. Libby.

But in early June, Mr. Libby learned about Valerie Wilson and the role she was believed to play in having sent Mr. Wilson on a trip overseas from a senior CIA officer on or around June 11th, from an undersecretary of state on or around June 11th, and from the vice president on or about June 12th.

It's also clear, as set forth in the indictment, that some time prior to July 8th he also learned it from somebody else working in the Vice President's Office.

So at least four people within the government told Mr. Libby about Valerie Wilson, often referred to as Wilson's wife, working at the CIA and believed to be responsible for helping organize a trip that Mr. Wilson took overseas.

In addition to hearing it from government officials, it's also alleged in the indictment that at least three times Mr. Libby discussed this information with other government officials.

It's alleged in the indictment that on June 14th of 2003, a full month before Mr. Novak's column, Mr. Libby discussed it in a conversation with a CIA briefer in which he was complaining to the CIA briefer his belief that the CIA was leaking information about something or making critical comments, and he brought up Joe Wilson and Valerie Wilson.It's also alleged in the indictment that Mr. Libby discussed it with the White House press secretary on July 7th, 2003, over lunch. What's important about that is that Mr. Libby, the indictment alleges, was telling Mr. Fleischer something on Monday that he claims to have learned on Thursday.

In addition to discussing it with the press secretary on July 7th, there was also a discussion on or about July 8th in which counsel for the vice president was asked a question by Mr. Libby as to what paperwork the Central Intelligence Agency would have if an employee had a spouse go on a trip.

So that at least seven discussions involving government officials prior to the day when Mr. Libby claims he learned this information as if it were new from Mr. Russert. And, in fact, when he spoke to Mr. Russert, they never discussed it.

I added emphasis to the fact that Libby modified his story when he spoke to the grand jury, and reflected the fact that he had spoken about Ms. Plame with Dick Cheney in June.  The NY Times had front-paged that Cheney revelation on Oct. 25, and I had argued that this was almost surely old news to the prosecutior, and was based on Libby's notes.  It looks as if I had that right.  Where I went astray, however, was in suggesting that the leaks about Libby's "Blame the media" strategy were a misdirection play - evidently, he meant it.

However - one wonders whether the other contacts mentioned by Fitzgerald were in Libby's "copious" notes.  If so, Libby needs to sue his attorneys for malpractice, since they should have reviewed that material before submitting it to Fitzgerald and allowing Libby to testify.  Of course, attorney ineptitude notwthstanding, if his notes included these contacts then it is easier for Libby to argue that he had no real intention of obstructing the investigation.  On the other hand, if they were not in his notes, why not?

On a related note, the queston of just what prompted Libby to call Russert continues to intrigue me.  Here is what the indictment says about it:

On or about July 10, 2003, LIBBY spoke to NBC Washington Bureau Chief Tim Russert to complain about press coverage of LIBBY by an MSNBC reporter. LIBBY did not discuss Wilson’s wife with Russert.

But did they discuss Joe Wilson?  If they did, Libby's story looks more like bad memory and less like a total invention.

How might we guess what they discussed?  Well, one idea would be to check the MSNBC archives for July 9, 2003 (or July 8, or July 7), and see what mention of Libby (or Cheney, or Niger) might have prompted an outraged call from Libby to Russert.

So far, I am finding that to be easier said than done, but perhaps someone else will have better luck. 

[UPDATE:  Michael Crowley of The Plank at TNR strides ahead of me as if wearing seven-league boots, and nominates a July 8 Chris Matthews rant about Libby and Niger and Wilson.  Hmm - so Libby and Russert may very well have been discussing Wilson and his trip?  How about that - a whiff of oxygen for Libby.]

As to the media tone at the time, the ABC Note for July 11, 2003 is quite interesting:

The Niger story has been around (for what seems like) forever, but started to build to a hotter political boil after the Joseph Wilson op-ed over the weekend.

...this cycle's press coverage is by any objective standard tilted completely towards the Democrat(ic) point of view.

From the Howard Dean two-way on Good Morning America to John Kerry with a major role in the Andrea Mitchell spot on Nightly News last night, to John DiStaso giving Dean plenty of room to make his case in the Union Leader. LINK — the press is obviously right at this moment on the same, shall we say, wavelength with the Democratic Party on all aspects of the Iraq story.

So Libby might have had plenty to be irritated about.

Comments

[Mackenzie]

Thank you Tom Maguire for the attention that you have paid to this issue over the past 27 months, and for giving providing a forum for the exchange of facts, theories and opinions.

From reading the comments to your previous post, there seem to be many whose opinions are fixed and who do not accept the facts as outlined in the indictments. Perhaps some of them will come to understand the seriousness of these charges.

[!]

Isn't an "I Forgot" defense not to different from a Twinkie Defense?

Not the greatest thing in the world to hear from the VP's Nat'l Security pointman either. "There was just so much infomation that I couldn't keep it straight. Hence my frequent forgetfulness that I had this converstation before."

Maybe Libby should have tattooed himself a la "Memento."

In all seriousness, I can't see that defense, which worked for then sitting President Reagan, being effective for Libby, a high level staffer but not a president or in a posistion of having presidential stature.

[SteveMG]

Yes, thanks Tom for your intrepid attention to this issue (intrepid or incontinent, one of the two - starts with an "in").

I think of the time I've spent here reading your posts and links and consider the other wasted endeavors I could have accomplished instead.

Like perhaps learning a second language (Italian would be nice), starting a home-based business, having another kid or completing Mortimer Adler's Great Book series.

But nope, you've been too good staying on top of this opera bouffe.

And it certainly has been bouffe.

Thanks.

SMG

[Jeff]

Someone -- I can't remember who and I'm not going to do the work right now -- today observed that two or three days before Libby's call to Russert none other than Chris Matthews had been rather harsh on Libby himself and/or the VP's office for their alleged role or responsibility for the 16 words, which presumably is what Libby was calling to complain about. Whether the conversation touched on Joe Wilson remains unclear. But Libby seems screwed regardless.

It appears to my wishful eyes that Libby came within a hair's breadth of being charged with either IIPA or Espionage Act violations, and Cheney came nearly as close to being charged with conspiracy to commit same. In fact, I suspect there are parts of the indictment left over from that previously prospective possibility, since they serve no obvious function in the context of indicting for the actual alleged crime. That said, my suspicion is that Fitzgerald is done, contra the wishful thinking of many lefties.

As for SMG, all I have to say is, wow, that's dedication.

[owl]

Mackenzie..I am one of those that has not changed my opinion because I watched Wilson and recognized him as another of the Democratic campaigns in July. If you have seen one of the CIA/Democratic Party Media campaigns, you have seen them all. Futhermore, you can catch it every single day on MSNBC if you can stand to watch and catch the New Campaign. Ya just gotta know what to watch for....clues...Matthews joins at the hip and up, up and away....But first, it hits the NYT as news/editorial. Then WaPo or both on same day. Same-o same-o.

Not saying Libby didn't have his little memory problem. After all, what's a fellow to do when they are all waging a war behind shields? Protected right down to the witnesses.

Can someone tell me if Fritz can have a sealed indictment stored away on Official A? He sure sounded like a blackmailer.. Guess it doesn't matter since that Coup worked. Winning is keeping the WH quiet for 2 years and now being given a legit excuse for running this as a headline, everyday until 2008.

[Tom Veal]

Not to nitpick, but Mr. Fitzgerald seems to have misspoken on one point. It is clear from the indictment's summary of Mr. Libby's statement to the FBI that he said back then that he first learned about Valerie Wilson from the Vice President.

"During a conversation with Tim Russert of NBC News on July 10 or 11, 2003, Russert asked LIBBY if LIBBY was aware that Wilson’s wife worked for the CIA. LIBBY responded to Russert that he did not know that, and Russert replied that all the reporters knew it. LIBBY was surprised by this statement, because, while speaking with Russert, LIBBY did not recall that he previously had learned about Wilson’s wife’s employment from the Vice President." [Indictment, Count Two, ¶3]

My initial impression was the Mr. Libby had been caught well and truly in a stupid set of lies. I haven't completely abandoned that view but am now much less sure that he will be convicted, for reasons set out at too great length at http://stromata.typepad.com/stromata_blog/2005/10/what_the_libby_.html

[TM]

Maybe Libby should have tattooed himself a la "Memento."

North Korea, Iran... darn, *someone* is developing nukes...

[Syl]

I don't think it's a stupid set of lies. It's one lie, that may or may not be a lie.

Libby may very well have learned that the official information that Mrs. Wilson was CIA, was going around press circles unofficially.

His memory lapse may only involve timing and identity of who he 'learned' it from first and what his mental thinking was at the time.

If Libby uses an 'I forgot' defense and claims he forgot everything, I'm not sure that will work because each 'lie' will be considered a separate piece and all of them may/may not be discounted. And that's a high bar. One lie vs several.

But if the central lie/not lie concerns the unofficial rumor of mrs. wilson's cia affiliation, it would put Libby's testimony into a context and that context is what would be accepted/rejected.

And if Libby's defense does not include that context, there will be no investigation of what Kristoff and Pincus knew and who did they tell.

The press will get a pass.

[Syl]

In some earlier thread I had said you can't investigate what's not there.

someone: look over there
fitz: I'm looking here. There's no over there.

As Cathy pointed out the other night, Fitz was/is constrained by "the DoJ rules about limiting fishing expeditions when taking
testimony from journaliststs" but defense lawyers do not have those same constraints.

Fitz couldn't inquire of the journalists anything beyond what was said in their specific conversations with specific individuals. There was no there there to even doubt the testimony of any journalist.

A defense lawyer could get to the bottom of this, but not by using a simple 'I forgot' defense.

If Libby doesn't explain this backchatter of journalists to his lawyers, then he truly forgot or it truly wasn't there.

[MJW]

In his press conference, Fitzgerald stressed that he couldn't go outside the "four corners" of the indictment. He then, however, strongly implied Libby was guilty of violating the agent disclosure law and the Espionage Act, and the perjury and obstruction charges were just an alternate way of seeking justice. Not only does this go well outside the four corners, it also leaves unanswered what Fitzgerald is doing to punish the agent-outer who first leaked the information to Novak.

[JayDee]

As grand marshall of the go-to site for Plame-aholics, I'm sure TM is glad this story has now been given the oxygen to stay in the headlines at least another year.

Although there's a lot of sad pubbies who want to continue to whine about Joe Wilson, the case has moved on past him now, and it might be time to start getting over it. Here's where we stand: Pat Fitzgerald has Libby nailed dead to rights. The question is does the little frou frou elitist take a dive for his boss? Is he willing to spend even a year in Club Fed? Somehow the guy doesn't strike me as having Martha Stewart's backbone. Clearly, he can't go to trial because a. he'll lose and b. the big boys would have to come out from behind their shields and be truthful with the American people (no way!).... For the moment, the suspense is Libby's next move. Does he decide to save his frail little rich baby butt or does he bite the bullet for all the creeps who are getting off scott free...I wonder how he felt watching his "friend" Karl giggling and gloating like a greasy pig on Friday afternoon.

And in the meantime the American people get to absorb this fact, amidst the clatter of rightwing bitching and moaning that they've been forced to obey the silly, foolish laws of the government they once swore to defend. If Karl can keep the charade of Republican Victimization (by the socialist commie power craving dems and the activist judiciary and the eeeeeeeeevil librul MSM, lol) going after this debacle, then either he truly is Machiavelli reincarnated or the American people are officially dumber than 300,000,000 boxes of rocks.

[TM]

He then, however, strongly implied Libby was guilty of violating the agent disclosure law and the Espionage Act, and the perjury and obstruction charges were just an alternate way of seeking justice. Not only does this go well outside the four corners, it also leaves unanswered what Fitzgerald is doing to punish the agent-outer who first leaked the information to Novak.

Well, Fitzgerald silence, and lack of indictments, was eloquent on that point.

He knows who the sources were for Novak and Pincus, and Libby's misdirection was penetrated by the November FBI interview at the latest - October is ambiguous, perhaps deliberately so), where Cheney's talk with Libby was mentioned.

So the idea that Fitzgerald had a case is pretty well answered by the fact that he didn't bring one.

[Cecil Turner]

From reading the comments to your previous post, there seem to be many whose opinions are fixed and who do not accept the facts as outlined in the indictments.

It seems to me more of a case of people not reading the indictment carefully. As Tom points out above, Libby does not say he first learned of Plame's identity through the press (which would, as several folks pointed out in the previous thread, be a slam-dunk based on other White House testimony). He did, however, claim that during a particular phone call with a reporter he forgot about Plame's employment. That's not nearly as far-fetched, especially if he was, as he apparently claims, blind-sided.

As to the charges, they all appear to me to be allegations of lying, and in every case it's a two-sided conversation with a reporter. (I'd further note two particular conversations--with Tim Russert and Matt Cooper--account for practically every disputed fact.) That appears to me to be a very weak case.

Further, the notable part of the indictment is what it doesn't say. Fitz talks about outing Plame in the press conference, and he'll essentially have to prove Libby leaked Plame's identity and then lied about it to prove the perjury charge. It'd surely be easier simply to prove he leaked her identity--which is also the crime Fitz was assigned to investigate--and yet that's not charged. Why not? Fitz obviously knows it's an issue:

Well, why is this a leak investigation that doesn't result in a charge? I've been trying to think about how to explain this, so let me try . . .

Baseball blather (sorry TM) follows.

[kim]

Since Fitz is there because of the conflict inherent in DOJ investigating the White House, and since no such conflict exists with DOJ investigating the CIA, Fitz will hand off now to DOJ investigation and prosecution.

Football blather follows. After this commercial interruption so exquisitely timed for the injury time-out for Libby's fractured patella. I wanna see clips of the ambulance run.
===================================================

[stevesturm]

(since trackback doesn't work for me)

I see a couple of problems with what Fitzgerald alleged. First, Libby lying to the investigators would not make them go away, it would only lead them right to the people who would incriminate Libby. Is he that stupid?

And, if Libby's story were true, the reporters would have a tremendous reason to lie... in order to protect their sources who gave them the information they in turn fed to Libby.

And, as far as Libby's attorney, he not only (presumably) looked at the documents, he sat in on the interviews with the FBI. Was he really that incompetent and/or in the dark to let Libby lie?

[kim]

I agree, steve. I half think this may be a deliberate tactic of Fitz's, to see if those reporters refuse to testify or perjure themselves. Novel prosecuting style, and probably just my imagination run amok, but this is a weak case on intent, and other aspects(specifically, Fitz has not explored avenues defense will).

I expect a plea with community service if the White House is still vulnerable. I expect a losing battle, on this indictment, for Fitz if the CIA, or Joe, or MSM are vulnerable.
===========================================

[TP]

I'm new here and am very grateful for the discussion. I have one kind of dumb question. What happens if Libby subpoenas all of the various reporter notes during discovery, including those of Kristof and Pincus and is refused? Is this not a violation of his right to a fair trial and wouldn't there be a motion to call a mistrial?

[Gary Farber]

A certain take as a form of commentary.

[SteveMG]

Jeff:
"As for SMG, all I have to say is, wow, that's dedication."

It's also malarkey. Was tongue in cheek shot at TM's (near) obsession with this issue.

Guess my humor is too sophisticated sometimes (sure).

My thanks to Tom, however, were sincere.

SMG

[Syl]

Worry

"it also leaves unanswered what Fitzgerald is doing to punish the agent-outer who first leaked the information to Novak."

Did Novak ever say it wasn't Libby? May not matter because something just occurred to me.

If Libby was getting and passing on what he heard unofficially from journalists, even if he officially knew (ie, he could unofficially have learned the name 'valery plame') he could be the one who spoke to Novak OR could be the one who gave information to the one who spoke to Novak.

So Libby's trial would have to establish this journalist as source business. If Libby got no information from journalists then BAM Fitz slaps him with the other charges.

That may be the reason Fitz has to wait.

[kim]

Did you notice, GF, that Libby has a defense attorney who will not forget to defend?
============================================

[kim]

That may be particularly so, Syl, if there was general WH awareness of the 'trap' that Rove mentioned re: Cooper. It may be that because of DOJ sensitivity about journalists, that this may be the best way for Fitz to see that justice is done. It is not unusual for the defense to unveil the just path, but it usually surprises the prosecution. Maybe not, in this, special, case.
======================================

[clarice]

TP, there is no right to refuse to testify on the part of a witness to a crime. And the defendant has a constitutional right to confront his accusers. Therefore, the reporters would have to comply.

But there is an interesting underlying question here. If the SP represented to the Court originally that Plame was a covert agent whose "outing" damaged US interests, and in fact she was not, (Tatel's opinion in the UD Ct of Appeals seems to suggest that was the represenation), wasn't the forced testimony of the reporters based on a false premise? And what is the remedy for that?

I suppose the fact that someone works for the CIA in any capacity might be deemed classified information but surely except for covert operators, that sort of thing is an every day occurrence and I am not sure the Ct would have taken this step except for a representation that she was more than that and for the further representation that her "outing" damaged national security and required such unusual steps.

[clarice]

Syl, Novak has repeatedly said that his source was not in the WH and not a "partisan gun slinger"--Not buying that theory that Libby was the ultimate source.

[kim]

C, it does seem, and odd it does, that Fitz only caught on late that maybe V was not covert.
==========================================

[Syl]

Clarice

Libby could have told someone else who told Novak. That's what I was thinking.

But it does seem weird that Fitz knows who told Novak and Novak was the one who went to print...yet nothing.

Maybe it was CIA afterall who told Novak.

[Syl]

clarice

remember the referral to justice? It might not have gone anywhere except that somebody leaked it to Andrea Mitchell. The NYTimes went ballistic and screamed for an investigation.

[Syl]

This is spooky. Just too many coinkydinks had to occur for Valery to be 'outed'.

[clarice]

Don't you think there is a problem with the SP not having made this initial determination --was she a NOC--first? Was he misled? Did he unknowingly misrepresent her status to the Ct when he sought reporters' testimony?

If the prosecutor obtains testimony by means of a false representation--whether or not deliberately--isn't there some reason to preclude its use?

[Rick Ballard]

Clarice,

Doesn't that return us to Andrea's reporting on the CIA referral to DoJ?

I must say that I hope Libby fights this through trial. I'm sure that a good defense lawyer can artfully take TattleTim and 'No Scoop' Cooper through their ties to the Democratic Party. The current secondary investigation into the counterintel breaches concerning the Niger docs may disclose the reporter's moles in the CIA.

If TattlerTim and No Scoop first knew of Val's status from CIA moles, they're going to be in a bind when asked "From whom did you first hear of Mrs. Wilson's involvement? Tell the truth and out the moles? Depend on the moles not having been truthful to the investigators in the counterintel probe?

There is not much space bettween the rock and that particular hard place.

[clarice]

Tatel's comment (p. 29 of the Ct of Appeals opinion) surely suggests that the SP represented that Plame was covert.|"Compared to the damage of undermining covert intelligence gatherins, however, this slight news value [explaining her husband's selection for the Mission] cannot, in my view, justify privileging the leaker's identity."

But what is the news was not of slight value. I don't think discrediting a liar who is undermining the Administration's reason for going to war in the middle of it is slight. And what if the agent was not covert.

It seems to me the calculus has dramatically shifted in favor of not rewuiring disclosure.

[clarice]

Corrected for errors:

Tatel's comment (p. 29 of the Ct of Appeals opinion) surely suggests that the SP represented that Plame was covert."Compared to the damage of undermining covert intelligence gathering, however, this slight news value [explaining her husband's selection for the Mission] cannot, in my view, justify privileging the leaker's identity."

But what if the news was not of slight value. I don't think discrediting a liar who is undermining the Administration's reason for going to war in the middle of it is slight. And what if the agent was not covert.

It seems to me the calculus has dramatically shifted in favor of not requiring disclosure

[kim]

I wonder if the last minute 'unexpected turn' was the dime being dropped on Joe.

And maybe on al.
=================================================

[clarice]

OTOH, Tatel's opinion was not the opinion of the Court and Senetelle rejected making such a weighing at all.

The real question it seems to me was had the prosecutor known at the outset that Plame was not a NOC would he as a matter of policy or under DoJ guidelines have undertaken such steps to secure the reporters' testimony?

[clarice]

BTW Tom Veal's analysis at his website is the best discussion of the indictment I've seen.

[TP]

If Jill Abramson (sp?) was the editor at the NYT who was working with both Miller and Kristoff, does she not get called in by the defense? It would seem that any defense that Libby would make about hearing information from reporters would be to establish that reporters were talking about it among themselves before they talked to him. Doesn't the Kristof article and any chatter about it come in to play in a trial?

How likely is it that they will agree to turn over all of their notes? Will they be willing to go to jail a la Judy Miller?

I really don't understand why the lawyers for the reporters allow them to continue to talk about this case in public when they may be called as witnesses for either the prosecution or the defense.

[Rick Ballard]

Tom Veal's analysis

[clarice]

Cooper reports today that he can't figure out what Libby said in his conversation that was wrong:

The Wilson part that really interested Fitzgerald was tiny, as I told TIME readers. Basically, I asked Libby if he had heard anything about Wilson's wife having been involved in sending him to Niger. Libby responded with words to the effect of, "Yeah, I've heard that too."

The contempt citation was lifted against me that day, and I breathed easy. As it turned out, a week later, Fitzgerald came back and insisted he wanted to know what another source had told me, and the struggle began all over again, with my refusing to name the source and TIME Inc. fighting the case all the way to the Supreme Court—which in June upheld the lower court's demand that the company turn over my notes and that I testify. Until now, that is the part of my involvement in the Plame affair that has drawn the biggest headlines: TIME Inc. did turn over my notes, over my objections, and my other source—Rove—did grant me a waiver to testify (see "What I Told the Grand Jury," July 25, 2005).

I was surprised last week that the Libby indictment even mentioned me. But apparently his recollection of the conversation differed from mine in a way that led the prosecutor to think he was lying. As for me, I still have no idea if Libby or anyone else has committed a crime. I only know that if there is a Libby trial, I'll testify truthfully and completely, as I did before the grand jury.

From the Nov. 07, 2005 issue of TIME magazine http://www.time.com/time/magazine/article/0,9171,1124234,00.html

[Rick Ballard]

Gee, I wonder why Cooper would want to avoid testifying?

Fitzgerald just lost half his case - I hope someone has told him about the quantity discounts for Maalox.

[clarice]

So--since JM doesn't appear to be the sort of witness that will help the prosecutor--remember her report of her testimony, for example..the case is Russert's memory v. Libby's? Am I missing something?

[Rick Ballard]

In less than 48 hours the indictment has become the legal equivalent of Gertrude Stein's Oakland.

Good luck with TattlerTim, Fitz. He's no one I'd hang my hat on but if it's the best you can do...

[clarice]

And as Tom Veal notes--what would Libby's motive be to intentionally lie about the Russert conversation? (He wanted to hide the fact that he'd learned about Plame perfectly legally from someone else under circumstances that were perfectly understandable?)

[TM]

Goodness gracious - here we were, pointing out that Cooper's memory of his conversation with Rove was prettysuspect, and now Cooper himself admits that he will be hazy on Libby.

And Judy Miller's account in the Times practically has bits where she may as well invoke space aliens as her source - someone told her Valerie Flame, but she doesn't know who; she wrote "Victorial Wilson", but maybe she heard if from soneone else, or maybe she was trying to trick Libby - yeah, she will be a great witness.

That said, I do have a mini dot-connector which explains the lack of an indictment on the Novak leak, as well as Fitzgerald's desire to Get Libby.

(Sidebar) - the NY Times identifies the former WH Press Person as Catherine Martin, who worked for Cheney, if I am reading it correctly, so it is not Ari Fleischer. That may not matter.

The scheme is this - Libby basically lies to Martin on July 7, telling her he has heard from reporters about Wilson and wife, and asking her to check it out (wink, nudge) with folks who might know, like Novak.

Martin talks to Novak, who checks with Rove, and publishes.

The DoJ and Fitzgerald try to investigate; Libby goes with the story that he heard about Wilson's wife from reporters as well as Cheney, and passed only the reporter contacts to Martin (which, one might argue, was legal, especially if Martin was kept in the dark about the inside stuff Libby had heard).

Eventually, Fitzgerald sorts out the dates and stories, and concludes that Libby engineered the leak to Novak in a way that precludes an indictment of Martin or Rove.

But he wants Libby, so he settles for this indictment, which essentially relies on Tim Russert.

Now, I can't anwer the question of what Libby told the FBI with his lawyer there, and I would love to know if his other contacts were detailed in his notes - that seesm pretty exculpatory, as far as evidence of cooperation and arguing that this is all a misunderstanding.

How, Libby will ask, could anyone at the FBI or the grand jury have thought I was saying I first heard it from Russert when they had my own darn notes saying I heard it many times earlier?

Clearly, he will go on, I was simply saying that I wanted Novak, Russert, and others to think I was hearing it from reporters.

Yes, it is still shaky, since the Novak leak preceded the Russert cover story. Well, it is probably shaky for a lot of reasons.

But that theory is on the drawing boards.

As to setting Libby free - Fitzgerald is down to one good witness, Russert, who has diligently concealed that Libby probably called to talk about Chris Matthews' coverage of Libby, Wilson, and the Niger trip. A good defesne attorney might be able to create some daylight there in the darkness.

[clarice]

Dinocrat is theorizing that Fitz thinks Libby lied to tie up the whole thing until after the election.

I think the presupposes a lot--like Fitz actually trying to get the reporters to talk. And don't you think, TM, that it is obvious from Tatel's opinion, that the SP represented to the Court that Plame was undercover? And I agree with your assessment she wasn't.Just as I agree that with DeGenova that if Fitz tries to throw in anything about Plame's status being "classified information", he opens up a huge can of worms for Wilson/Plame and the entire CIA meshpucha.

I still think Novak's source was higher up..and not at the WH..

[clarice]

More from Time--two conflicting stories:

The Drudge Report has links to 2 TIME stories today.
Quoting from Michael Duffy's article we read:

"Although Libby maintained under oath that he first heard about Plame's identity from reporters and passed it on to others as mere gossip, Fitzgerald's indictment offers considerable evidence that it was the other way around—that Libby told two reporters, including TIME's Matthew Cooper, about Plame's work for the CIA, and that he lied to investigators about one of those conversations and confected a third out of whole cloth One is written by Matt Cooper himself, in which he details his conversations with "Scooter" Libby."

Matt Cooper :

"The Wilson part that really interested Fitzgerald was tiny, as I told TIME readers. Basically, I asked Libby if he had heard anything about Wilson's wife having been involved in sending him to Niger. Libby responded with words to the effect of, 'Yeah, I've heard that too.'"
************************
Indict them all for perjury!!LOL

[arrowhead]

"I asked Libby if he had heard anything about Wilson's wife having been involved in sending him to Niger. Libby responded with words to the effect of, 'Yeah, I've heard that too.'"

Isn't that what Novak's notes say Rove responded when asked about the matter? Sounds like that may have been the standard reply that Fitzgerald alludes to in the indictment (see para. 22 of indictment re: "...discussion with other officials aboard Air Force 2 regarding what Libby should say in response to pending media inquiries).

[Patrick R. Sullivan]

I think Libby's defense will have a good chance of getting a trial judge to throw out most, if not all, of the charges as immaterial. If they go to trial, however, I think he'll be convicted for much the same reasons Martha Stewart was (though the trial judge in Stewart's case made egregiously unfair rulings that made it impossible for her to defend herself).

Fitzgerald should have been able to conclude early on that there was no IIPA violation, and that Wilson's reckless behavior in publicly talking falsely about his CIA assignment inevitably led to the fact that his wife played a role in his trip. At that point (and I was making it before Fitzgerald even was named SP, so what's his excuse for not knowing what I did) it's all over. Calling numerous Admin insiders before the GJ then appears to be a perjury trap.

[pollyusa]

How, Libby will ask, could anyone at the FBI or the grand jury have thought I was saying I first heard it from Russert when they had my own darn notes saying I heard it many times earlier?
TM

Maybe because that is exactly what Libby told them.

"I didn't want him to take anything I was saying as in any way confirming what he said, because at that point in time I did not recall that I had ever known, and I thought this is something that he was telling me that I was first learning".
Libby's Testimony to the GJ/Russert

"That was one of the things I said to Mr. Cooper. I don't know if he's married. And so I wanted to be very clear about all this stuff that I didn't, I didn't know about him. And the only thing I had, I thought at the time, was what reporters are telling us."
Libby Testmony to the GJ/Cooper

[clarice]

If Plame was not undercover and it seems clear she wasn't in the critical time frame,when did Fitz learn that? What was his obligation to the court since it is apparent he had claimed that she was when he sought the reporters' testimony..(Tatel p. 29).

Wasn't it the sp's obligation to ascertain that before making that allegation or did he simply pass on some diddle shit from the CIA to that affect? If he did. who gave him that?

Why do I call it "diddle shit", because it it were true that she had been "undercover" I can't understand his presser tapdance..Can anyone?

[pollyusa]

Cooper himself admits that he will be hazy on Libby.
TM

Where did you see this about Cooper?