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November 02, 2005

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Keith

You might want to forward this to Joseph Tate. I hope Libby's defense team is on the ball with this kind of stuff.

Keith

TM--an off topic question. Any take on the WaPo's incessant "Rove is still in trouble" theme this week? They mention that Fitzgerald has been talking to Cooper's lawyer this week. That suggests to me that Rove might have told them, at the last minute, that he talked a lot with Cooper (or at least more than once) and that perhaps the conversations blurred together so that he didn't remember this particular one. Now Fitz is checking that out.

Or maybe not. I'm not quite sure what is going on. Fitz didn't think that Rove was indictment material last week, but was he just being careful and waiting, or was he really persuaded back across the indictment line for the time being?

I have no idea.

Jeff

That is a great catch of the Mitchell bit from July 8, 2003 - a key day in all of this. She was already hearing the line from the White House that would be a mastertone in Tenet's July 11 statement. And remember July 8 is also the day that Libby was talking with Miller.

Maybe after Libby explains how he forgot his seven chats in May (and June) about Ms. Plame, Russert can explain how he forgot that his whole staff was dying to learn more about the Wilson trip.

I would be more than pleased to see both of those fellows get their just deserts. It would make our politics a whole lot better.

Jeff

I just went back and read Jim E's comment that includes the July 8 2003 comment from Mitchell from Capitol Report. Now, I know this is a stretch. But I had been thinking along these lines before. Recall who Mitchell's husband is, and recall who some of his apparently close pals are. Is it possible that Cheney himself leaked to Mitchell and to Novak? Is there some reason we have for ruling it out?

MJW

I've heard quite a few comments in various places that the indictment is not a he-said-she-said between Libby and the reporters. I think it largely is, and to support the proposition, I have taken each specific allegation of untruthfulness from the indictment. The regular type represents what Libby is alleged to have said, the italics represent what the indictment presents as the truth. All text is directly from the indictment, and is complete as far as I know, except for some stylistic changes and deletion of a few legalistic phrases, such as "in truth and in fact." I found eight direct allegations of untruthfulness; only (b) is somewhat independant of a reporter's testimony.

1. Obstruction of Justice

(a) Russert asked LIBBY if LIBBY knew that Wilson’s wife worked for the CIA, and told LIBBY that all the reporters knew it.

Russert did not ask LIBBY if LIBBY knew that Wilson’s wife worked for the CIA, nor did he tell LIBBY that all the reporters knew it.

(b) At the time of this conversation, LIBBY was surprised to hear that Wilson’s wife worked for the CIA.

At the time of this conversation, LIBBY was well aware that Wilson’s wife worked at the CIA; in fact, LIBBY had participated in multiple prior conversations concerning this topic.

(c) LIBBY advised Matthew Cooper of Time magazine on or about July 12, 2003, that he had heard that other reporters were saying that Wilson’s wife worked for the CIA, and further advised him that LIBBY did not know whether this assertion was true.

LIBBY did not advise Matthew Cooper, on or about July 12, 2003, that LIBBY had heard other reporters were saying that Wilson’s wife worked for the CIA, nor did LIBBY advise him that LIBBY did not know whether this assertion was true; rather, LIBBY confirmed to Cooper, without qualification, that LIBBY had heard that Wilson’s wife worked at the CIA

(d) LIBBY advised Judith Miller of the New York Times on or about July 12, 2003 that he had heard that other reporters were saying that Wilson’s wife worked for the CIA but LIBBY did not know whether that assertion was true.

LIBBY did not advise Judith Miller, on or about July 12, 2003, that LIBBY had heard other reporters were saying that Wilson’s wife worked for the CIA, nor did LIBBY advise her that LIBBY did not know whether this assertion was true.

2. False Statement

(e) 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.

Russert did not ask LIBBY if LIBBY knew that Wilson’s wife worked for the CIA, nor did he tell LIBBY that all the reporters knew it; and at the time of this conversation, LIBBY was well aware that Wilson’s wife worked at the CIA.


3. False Statement

(f) During a conversation with Matthew Cooper of Time magazine on July 12, 2003, LIBBY told Cooper that reporters were telling the administration that Wilson’s wife worked for the CIA, but LIBBY did not know if this was true.

LIBBY did not advise Cooper on or about July 12, 2003 that reporters were telling the administration that Wilson’s wife worked for the CIA, nor did LIBBY advise him that LIBBY did not know whether this was true; rather, LIBBY confirmed for Cooper, without qualification, that LIBBY had heard that Wilson’s wife worked at the CIA.


4. Perjury

(g) . . . . And then he said, you know, did you know that this – excuse me, did you know that Ambassador Wilson's wife works at the CIA? And I was a little taken aback by that. I remember being taken aback by it. And I said – he may have said a little more but that was – he said that. And I said, no, I don't know that. And I said, no, I don't know that intentionally because 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. And so I said, no, I don't know that because I want to be very careful not to confirm it for him, so that he didn't take my statement as confirmation for him.

Now, I had said earlier in the conversation, which I omitted to tell you, that this – you know, as always, Tim, our discussion is off-the-record if that's okay with you, and he said, that's fine.

So then he said – I said – he said, sorry – he, Mr. Russert said to me, did you know that Ambassador Wilson's wife, or his wife, works at the CIA? And I said, no, I don't know that. And then he said, yeah – yes, all the reporters know it. And I said, again, I don't know that. I just wanted to be clear that I wasn't confirming anything for him on this. And you know, I was struck by what he was saying in that he thought it was an important fact, but I didn't ask him anymore about it because I didn't want to be digging in on him, and he then moved on and finished the conversation, something like that.

Russert did not ask LIBBY if LIBBY knew that Wilson’s wife worked for the CIA, nor did he tell LIBBY that all the reporters knew it; and at the time of this conversation, LIBBY was well aware that Wilson’s wife worked at the CIA.

5. Perjury

(h) Q. And it's your specific recollection that when you told Cooper about Wilson's wife working at the CIA, you attributed that fact to what reporters –

A. Yes.

Q. – plural, were saying. Correct?

A. I was very clear to say reporters are telling us that because in my mind I still didn't know it as a fact. I thought I was – all I had was this information that was coming in from the reporters.

. . . .

Q. And at the same time you have a specific recollection of telling him, you don't know whether it's true or not, you're just telling him what reporters are saying?

A. Yes, that's correct, sir. And I said, reporters are telling us that, I don't know if it's true. I was careful about that because among other things, I wanted to be clear I didn't know Mr. Wilson. I don't know – I think I said, I don't know if he has a wife, but this is what we're hearing.

. . . .

Q. And let me ask you this directly. Did the fact that you knew that the law could turn, the law as to whether a crime was committed, could turn on where you learned the information from, affect your account for the FBI when you told them that you were telling reporters Wilson's wife worked at the CIA but your source was a reporter rather than the Vice-President?

A. No, it's a fact. It was a fact, that's what I told the reporters.

Q. And you're, you're certain as you sit here today that every reporter you told that Wilson's wife worked at the CIA, you sourced it back to other reporters?

A. Yes, sir, because it was important for what I was saying and because it was – that's what – that's how I did it.

. . . .

Q. The next set of questions from the Grand Jury are – concern this fact. If you did not understand the information about Wilson's wife to have been classified and didn't understand it when you heard it from Mr. Russert, why was it that you were so deliberate to make sure that you told other reporters that reporters were saying it and not assert it as something you knew?

A. I want – I didn't want to – I didn't know if it was true and I didn't want people – I didn't want the reporters to think it was true because I said it. I – all I had was that reporters are telling us that, and by that I wanted them to understand it wasn't coming from me and that it might not be true. Reporters write things that aren't true sometimes, or get things that aren't true. So I wanted to be clear they didn't, they didn't think it was me saying it. I didn't know it was true and I wanted them to understand that. Also, it was important to me to let them know that because what I was telling them was that I don't know Mr. Wilson. We didn't ask for his mission. That I didn't see his report.

Basically, we didn't know anything about him until this stuff came out in June. And among the other things, I didn't know he had a wife. 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.

. . . .

Well, talking to the other reporters about it, I don't see as a crime. What I said to the other reporters is what, you know – I told a couple reporters what other reporters had told us, and I don't see that as a crime.

LIBBY did not advise Matthew Cooper or other reporters that LIBBY had heard other reporters were saying that Wilson’s wife worked for the CIA, nor did LIBBY advise Cooper or other reporters that LIBBY did not know whether this assertion was true.

Syl

Libby's testimony is self-consistent as someone who is separating what he knew officially from what he believes he learned unofficially. There is no lying about 'forgetting'.

The indictments depend on:

-Fitz understanding of this separation.

-Fitz understanding of what constitutes confirmation.

-Libby actually learning this information unofficially from a reporter.

-What Libby said to reporters before he learned this information unofficially.

-What Libby said to reporters after he learned this information unofficially, if he did.

And we don't even know what Russert said he said to Libby.

Pal2Pal (Sara)

Has anyone written to Shapiro or Russert and come right out and asked them what Libby was so upset about in his phone call? If not, why not? If so, what kind of reply, if any, was received? If not, and no reply, why not an bloggers' email campaign to insist they speak up?

MayBee

So Russert hangs up the phone and...?????

He gets a call from Libby, Libby is (presumably) complaining about Matthews for misrepresenting the Wilson situation.

So Russert just hangs up and says, "dum de dum. Let's work on next week's show"?
He doesn't begin to wonder what Libby is talking about? His reporter's instinct (to find out who is this Joe Wilson guy, anyway?) doesn't kick in? Does he assign someone to look into it? Never thinks about it again?

Surely that would induce someone at NBC/MSNBC to start asking questions about what is going on. What did they learn? Why can't we know?

TM

Any take on the WaPo's incessant "Rove is still in trouble" theme this week? They mention that Fitzgerald has been talking to Cooper's lawyer this week.

My official editorial position is that both Rove and Libby are saying that Libby lied to Rove about hearing the Plame story circulating with a reporter; as a bonus, Fleischer says that Libby lied to him about that as well.

Lying to a press secretary evidently happens, as McClellan can tell us.

But Fitzgerald just can't quite believe Libby lied to Rove. OTOH, he can't shake their story. So here we sit.

Tollhouse

I thought the grand jury's term was up? Did Fitz get an extension? A new grand jury?

Dwilkers

A great example of why these reporters are absolutely horrible witnesses for the prosecution.

If I were Fitz I'd try to find a way to get one conviction with - none - of these guys testifying. They can only harm his case. Each time he calls one of these folks the defense is going to rip them to shreds.

Assuming Libby's defense team is minimally competent, which considering his letter to Miller is an open question.

Jessica

I hope they fry Libby for what he said and did. And then I hope they move on and go after the Bigger fish like the Presidents

Syl
Any take on the WaPo's incessant "Rove is still in trouble" theme this week? They mention that Fitzgerald has been talking to Cooper's lawyer this week.

Rove to Novak: I heard that too.

Rove to Cooper: double super secret background

Yes, Rove 'spilled the beans' to Cooper but on deep background. Fitz isn't going to indict on that because it seems he would be using the Espionage Act and the consequence would be that no reporter would be able to get background info for context ever again even if there was a chance it contained classified data.

I think the only thing Fitz could get Rove on would be in conjunction with Libby IF they conspired somehow. You tell so-an-so you heard this from reporters and I'll tell them I heard it too.

And though we have no idea what Rove and Libby said to each other, it seems Fitz thinks it's pretty weak.

Cecil Turner

If I were Fitz I'd try to find a way to get one conviction with - none - of these guys testifying. They can only harm his case. Each time he calls one of these folks the defense is going to rip them to shreds.

Ain't that the truth. I think it's obvious he should have tried for a leaking charge (and the way the indictment and press conference is crafted, it appears he did). By far his strongest case is that Libby couldn't have forgotten, but since that bit is connected only to the conversation with Russert, it's likely to be overshadowed by whatever else they discussed. If we find that Plame was talking to any of these folks, which I strongly suspect, this case is history.

Syl

"background info for context ever again even if "

Strike 'even'.

Jim E.

Below is more of the transcript from Andrea Mitchell's July 8, 2003 appearance on Capital Report. While I already pulled the most relevant sentence (which TM put at the end of the main post), I figured I would post more of it for context.

Mitchell is clearly emphasizing the possibility that the VP's office was genuinely not in the loop about Wilson's trip (exactly what the leakers were hoping to accomplish with the news coverage). At the same time, maybe her leak about Wilson's trip was from the CIA itself. Notice how she goes out of her way to report that the honchos at the CIA didn't know about Wilson's trip. She's saying that the CIA didn't know about a CIA trip?? Did she have sources who claimed to speak for the CIA *and* the VP's office? Maybe Fietz/Wurmer/Hannah (claiming to speak for the CIA) and Fliescher/Libby (for the administration) were her sources? In which case, they were really all administration sources. The so-called war between the CIA and the WH was not yet a WH talking point -- they're still on the same team at this point in the war. Anyways, here's the relevant portion of the Capital Report transcript:

-----------------------------

CAPITAL REPORT, Tuesday, July 8, 2003
GLORIA BORGER, co-host:

But first, NBC's chief foreign affairs correspondent, Andrea Mitchell, joins us with the latest.

Andrea, how much of a problem is this for this administration right now?

ANDREA MITCHELL (NBC News Chief Foreign Correspondent): Well, it's becoming a political problem; at least the Democrats are putting out statements. And, in fact, Democrats on the Hill in the Intelligence Committee, Senator Rockefeller demanding investigations, the inspector general of the CIA is already investigating. And while the Republican leadership on the Hill is pushing back and trying to prevent full-scale investigations, they themselves are going along with inquiries into it.

ALAN MURRAY, co-host:

Andrea, are you getting any explanation for how this could have happened? I mean, we now know that Ambassador Joe Wilson had come back a year earlier telling the State Department that it looked like bad intelligence. It seems to have been a widespread notion this was bad intelligence, and yet somehow it got put in the State of the Union address. How did it happen?

MITCHELL: Well, that is a great question, because this is the bad information that just wouldn't go away. It would not die. People tried to put a stake through it. And the only conclusion that Joe Wilson comes to and that other critics of the administration is that this was bad information, but it reflected so negatively on Saddam Hussein, it was the scariest thing they had against him, so those who wanted war used it to make their case. It was repeated by the Brits on September 24th of 2002, months and months after Wilson had come back and debunked it. It was repeated in September on "Meet the Press" by Dick Cheney to Tim Russert.

Again, it popped up in the national intelligence estimate, which is the consensus document that goes to the Hill and the White House, and this was October 1st. It was briefed to the Senate Intelligence Committee or Foreign Relations Committee, rather, on October 4th. And even though there was a caveat from the State Department that this information was highly dubious, this was buried in a footnote. And again it cropped up in December in a white paper put out by the State Department, even though people in the State Department knew it wasn't true.

BORGER: Andrea, this being Washington, somebody's going to have to take the fall for this. The president giving faulty information in a State of the Union address is not something that makes the president very happy. So who is going to end up taking the fall?

MITCHELL: Well, people at the CIA say that it's not going to be George Tenet; and, in fact, that high-level people at the CIA did not really know that it was false, never even looked at Joe Wilson's verbal report or notes from that report, didn't even know that it was he who had made this report, because he was sent over by some of the covert operatives in the CIA at a very low level, not, in fact, tasked by the vice president.

So one of Wilson's assumptions, which is that Dick Cheney asked the CIA about this allegation from a foreign intelligence service and that he was sent as a result of that, may not, in fact, be true. It could very well be that the vice president is correct, that he never asked for Joe Wilson to be sent, that it was a much lower level. And Condi Rice may, in fact, have been accurate when she said very recently to Russert on "Meet the Press" that this was buried deep in the bowels of the CIA.

But the bottom line is, though, that it did get into the national intelligence estimate, which is a very important document, and this came from the CIA to all the policy-makers and someone should have warned them--I talked to someone at the CIA today and they said this was a throw-away line and it should have been thrown away and it should never have gotten into the State of the Union, and we do need to find out how that happened.

owl

Have not read for 2 days so out of it, but first thing I saw this morning was the WaPo "Rove's Future Role". OT--last Sunday I commented that the news from TV was a "shift", and it was Cooper leading the full frontal attack on Rove. A definite shift.

Florence Schmieg

So today we have yet more leaks out of the CIA to the NY Times regarding secret prisons. They don't seem too worried about these leaks! The hypocrisy is stunning.

Cecil Turner

I talked to someone at the CIA today and they said this was a throw-away line and it should have been thrown away and it should never have gotten into the State of the Union, and we do need to find out how that happened.

You're kidding, right? I can't remember the last time we had so much detailed information over such a trivial point. Short version:

  • everyone knew about the 1999 Iraqi business trip to Niger;
  • it was suspicious (since 2/3 of Niger's exports are uranium)
  • the Brits had some HumInt that corroborated the suspicions
  • the CIA got some forgeries that corroborated the suspicions
  • State and CIA checking (mostly not Wilson) didn't support the forgeries' credibility
  • the Brits published the claim in their dossier
  • the CIA didn't really believe the Brits (and told 'em so)
  • the Brits thought the CIA was on crack
  • the NIE restated the claim for policymakers, with the INR caveat misplaced
  • speechwriters had the two claims, thought they were the same (even though they weren't), and went with the Brit one because it was unclassified
Comedy of errors, standard bureaucratic nonsense, happens all the time--especially on minor points, which this was. The follow-on leak war over whether the Vice President was responsible for, or ignored a report he never got, is just compounded silliness. I'm sure we'll get more post-mortems (because it's working for the Dems and they want to ride it). But the only possible reason for it is political . . . there sure isn't a big mystery here.

creepy dude

Why do you people hate and mistrust America's attorney so much?

Syl

Jim E

Thanks for posting that.

We can argue whether a sales agreement, forged or not, cancels out any attempts to purchase, which show intent...

However, we are beginning to see the reality behind intelligence, no? It is never Yes/No. Never certain. Even though there's an entire process inside the bowels of the intelligence agencies to determine the strength of each little bit, different groups within the agencies come to different conclusions.

We only have seen probably 1/10,000 of the bits that were involved. Does that mean that 5000 bits were pro regime change and 5000 bits were con? Not at all.

It is always the case that an administration makes policy decisions based on overall estimates of these intelligence bits plus several other factors, then makes a political case to the people for carrying out the policy decision.

Doesn't matter whether it's clinton, bush, or carter. The process is the same.

I would think it is obvious that asserting that one of those intel bits is 'wrong' is only meaningful if one can prove that that one bit was absolutely essential to the overall policy case for war.

cathyf

TM -- seriously, man, I'm worried about you and the lexisnexis. Remember back when iTunes first came out, and people found that they had lost their houses, cars, kids' college funds, etc., all spent 99 cents at a time? I have this vision of TM in rags on the streetcorner with his tin cup in one hand and his "will blog for lexis-ala-carte" sign in the other...

cathy :-)

demosthenes

I have yet to see a serious discussion as to why Joe Wilson is not being prosecuted for lying to Congress. He clearly lied to the Senate Intelligence Committee. Indeed, the Senate Intelligence Committee - on a bipartisan basis - specifically found that Wilson's testimony before it had been false.

Why Libby should be prosecuted - but Wilson should not be - despite his repeated, obvious lies to the Congress (and the public and media, for that matter) - is a mystery.

Of course, as always, the mainstream media has been in a frenzy about possible Republican lies, but yawns and ignores possible Democrat lies.

So, is it as simple as: if you're a Republican there's one standard, and if you're a Democrat there's another?

See, also: http://www.captainsquartersblog.com/mt/archives/005721.php

Patrick R. Sullivan

What is really obvious here is how lacking in any ability to think clearly and precisely is (for lack of a better name, I'll call) the journalistic community. The transcript from Jim E is two days after Andrea Mitchell interviewed Joe Wilson on Meet the Press. She must have known this then, yet she didn't bother to question him about it. How odd.

We saw the same thing with the Swift Boat and Texas ANG controversies. Competent interrogation would have gotten the truth out, but no one was capable of so doing.

Well, I'm guessing Libby will hire a competent cross-examiner to defend him, so the prosecution better hope they get a partisan Washington DC jury.

cathyf
Assuming Libby's defense team is minimally competent, which considering his letter to Miller is an open question.
Don't be so sure that the letter is a mis-step. If the defense theory is that Libby often talks in this hi-falutin way and the investigation was "obstructed" because the investigators made the mistake of taking him too literally, then the letter makes sense. So the defense says "Libby wrote in the letter that Judy Miller is a tree. The prosecutor has multiple sources who can testify that Libby knew before August, 2005, that Judy Miller walks and talks, and everyone knows that trees are plants and can't walk and talk. But they didn't indict Libby for 'falsely stating' that Judy Miller is a tree because they knew that they shouldn't take his statement literally. They should not have indicted him for 'falsely stating' that he didn't know Ms. Plame's employer before reporters told him for the same reason -- that they shouldn't have taken his statement literally. Overliteral denseness on the part of the prosecutor should not result in punishment for the defendent."

When the letter was released and people said, "Huh? who talks this way?!?" there were several commentators familiar with the guy who claimed, "HAHAHA, yeah, that's Scooter for you."

So I could be completely wrong about the defense theory, and maybe they are just incompetent, but there is at least one scenario where the letter would make sense.

cathy :-)

Jim E.

Patrick Sullivan wrote: "The transcript from Jim E is two days after Andrea Mitchell interviewed Joe Wilson on Meet the Press. She must have known this then, yet she didn't bother to question him about it."

Why "must" she have known about this info on July 6? In fact, the odds are that she *didn't* know any of this information on July 6. The administration renewed it's anti-Wilson pushback effort AFTER July 6. As the indictment shows, Libby had lunch with Fleischer on July 7 to tell him more about Wilson's trip -- the implication being that Fleischer was to distribute the information to reporters. And on July 8, Libby was meeting with Judy Miller. Therefore, that Andrea Mitchell was bringing up new information on July 8 fits the leakage pattern of the administration.

Mitchell claims that no one leaked information to her. I don't believe her. (Judy Miller still claims no one leaked information to her, and I think even administration defenders concede Miller is wrong on this point.) The Washington Post reported back in 2003 that Mitchell was leaked to. Fitz, remember, supposedly knows who leaked to Novak and presumably has had cooperation with that witness. Wouldn't it be a hoot if the leaker has already admitted under oath that he leaked to Mitchell on July 7 or July 8? Too bad we'll never know, because I'd love to laugh in Ms. Alan Greenspan's face.

Gary Maxwell

I just got finished watching Megan Kendal's eyewitness report of the Libby arraignment. Several small but significant tidbits to pass on. Libby has 4 new lawyers. She said the firm name but I missed it. I am sure cracker jack criminal lawyers. The other guys are no longer in charge.

Libby waved his right to a speedy trial, no surprise to many of us, as time is his friend here. Both defense and prosecution told the judge that this is a complex case. Fitz said something about security clearances causing some delays, defense said we need months to review what it has taken the prosecutor two years to accumulate. No turnover of items in the prosecutors possesion yet.

One ominous note too. Defense told the judge they expected a number of "first amendment issues that will need to be dealt with." I read that to be a clear indication that the public proctology exam of the media is coming.

BurbankErnie

Looks like Newsmax">http://newsmax.com/archives/ic/2005/11/3/102415.shtml">Newsmax reads JOM.

Jim E., great work by the way.

BurbankErnie

Gary,
Here is a snippett shamelessly stolen from FreeRepublic:

"Libby bolstered his defense team this week with two well-known criminal trial lawyers, Ted Wells and William Jeffress.

Wells won acquittals for former Agriculture Secretary Michael Espy and former Labor Secretary Raymond Donovan. He is a partner at the New York-based firm of Paul, Weiss, Rifkind, Wharton & Garrison.

Jeffress is from the firm Baker Botts, where Bush family friend and former Secretary of State James A. Baker is a senior partner. Jeffress has won acquittals for public officials accused of extortion, perjury, money laundering, and vote-buying, his firm's Web site says."

Ugh, Klintoon peeps used 'em and Dem peeps too. Felonious behaviour results in Big Time Lawyers who don't care who they represent, as long as they have MONEY. This tastes bad.

Jim E.

I think it is irrelevant what previous clients lawyers have had. It doesn't matter -- that's their job. But if it concerns you so much, please know that Libby was Marc Rich's lawyer.

Gabriel Sutherland

Interesting selection of lawyers by Mr. Libby. Anyone that ever said this White House isn't bi-partisan is full of it.

:)

TP

Can any of the attorneys on here comment on what usually happens when the 1st Amendment Rights of the press are in conflict with the 6th Amendment rights of a defendant? Will this play a big role in discovery?

cathyf
Can any of the attorneys on here comment on what usually happens when the 1st Amendment Rights of the press are in conflict with the 6th Amendment rights of a defendant? Will this play a big role in discovery?
I'm no attorney, but I've heard plenty of real lawyers give a derisive snort to the idea that the 1st amendment gives the press any sort of shield at all against providing evidence and testimony in court, especially in a criminal case. The 1st amendment allows them to gather information, and to print what they choose and not print what they choose not to print. Case law (in libel cases) even gives them substantial freedom to print lies. But if they are witnesses to crimes, they have no right to perjure themselves, and they have no right to refuse to testify. Statute gives spouses and priests under the seal of confession the privilege to refuse to testify. The 5th amendment gives the criminal a right against self-incrimination. But neither the Constitution nor statute gives anybody else the right or privilege to refuse to testify.

cathy :-)

R C Dean

Can any of the attorneys on here comment on what usually happens when the 1st Amendment Rights of the press are in conflict with the 6th Amendment rights of a defendant? Will this play a big role in discovery?

The First Amendment cannot conflict with the Fifth. The First guarantees our right to say and publish what we please. It does not give anyone the right to either access certain information or withhold certain information, whether in a courtroom setting or elsewhere. It is simply irrelevant, under evidence law, whether a given witness is employed as a reporter.

Syl

I think the First Amendment issues in this case may go beyond journalists testifying. Even though revealing classified information was not charged, the motive to conceal what you're revealing or the effort to protect from revealing would go to motive, no?

Remember Fitz explaining hesitance to charge under the Espionage Act? The relationship between journalists and the government is at stake.

This may turn out to be a very big case for reasons other than what people are expecting.

Syl

Which makes me worry what background any of his lawyers have dealing with either 1st Amendment issues or classified information.

To me it looks like none. Though we really don't know.

tp

Syl,
Isn't this more about newspapers standing in the way of a defendant's right to a fair trial if they balk at allowing adequate discovery. It seems to me that Libby will not make the same deal with them that Fitz did. Libby needs to go to reporter's and editors notes to prove he heard this rumor from newspeople or to at least impeach testimony? I guess I watch too much TV.

TM

From Jim E:

MITCHELL: Well, people at the CIA say that it's not going to be George Tenet; and, in fact, that high-level people at the CIA did not really know that it was false, never even looked at Joe Wilson's verbal report or notes from that report, didn't even know that it was he who had made this report, because he was sent over by some of the covert operatives in the CIA at a very low level, not, in fact, tasked by the vice president.

From Robert Novak, July 14, 2003, opening paragraph:

WASHINGTON -- The CIA's decision to send retired diplomat Joseph C. Wilson to Africa in February 2002 to investigate possible Iraqi purchases of uranium was made routinely at a low level without Director George Tenet's knowledge.

I am deeply intrigued by that seeming coincidence, although maybe "low level" is the only way to describe the non-high level people. Isn't anybody "mid-level"?

Of course, Condi used "bowels of the Agency", but honestly, such imagery...

Jim E.

TM: "seeming coincidence."

You're going with coincidence?

Freaknik

Don't forget that Fitzgerald subpoenaed the guest list of a state dinner at which it turns out Chairman Greenspan and the Mrs. were seated at Cheney's table right about this time.

Jane Hamsher was all over this.

Jim E.

I thought the guest list was for Gerald Ford's birthday celebration. And unless I'm wrong, that was AFTER July 8. (Mitchell made her interesting statements on July 8).

TM

Jim - as to a coincidence, let's just say that Lexis is not giving me a lot of other hits on low level CIA operatives in that date range.

A point to ponder - there may be "good" leaks and "bad" leaks in play here. Even though I am relying on Ms. Mitchell's statement from Oct 2003 that people knew, she may have gotten a pushback leak on July 7 that did not mention the wife (nor would it need to, if the goal was to explain why neither Tenet nor Cheney should be blamed for this debacle).

Based on her own sourcing, shouldn't we think a high level CIA person blamed uncommunicative underlings, using the word operative?

Hard luck for Novak, then - if a senior CIA chap mentioned operatives, and Novak later placed Wilson's wife in the group that sent Wilson, and figured syllogistically that she must be an operative too, then he is (don't faint from surprise on me) full of BS with his "operativatic" tap dance.

Of course, if a high level CIAer mentioned the wife to Novak (Somerby and others have wondered; OK, me, too) what is the security lapse?

But then what did Fitzgerald investigate?

OK, then - a high level CIAer mentioned low level operatives to Mitchell and Novak, both of whom got the "wife is at CIA" elsewhere.

TM

As an aside, I like that Newsmax article.

Possible new site motto: Providing Muzak for the Republican Noise Machine, 24/7.

(But why is that new? And why Muzak, and not "fingernails on blackboard effects". Ongoing design challenges...)

MJW

Here is a more concise summary of the allegations against Libby, with the wording taken almost directly from the indictment.

1. Obstruction of Justice

(1)(a) Contrary to Libby's statements to FBI investigators and grand jury testimony, Russert did not ask Libby, on or about July 10, 2003, if Libby knew that Wilson's wife worked for the CIA, nor did he tell Libby that all the reporters knew it.

(1)(b) Contrary to Libby's statements to FBI investigators and grand jury testimony, at the time of Libby's conversation with Russert, on or about July 10, 2003, Libby was well aware that Wilson's wife worked at the CIA; in fact, Libby had participated in multiple prior conversations concerning this topic.

(1)(c) Contrary to Libby's statements to FBI investigators and grand jury testimony, Libby did not advise Matthew Cooper, on or about July 12, 2003, that Libby had heard other reporters were saying that Wilson's wife worked for the CIA, nor did Libby advise him that Libby did not know whether this assertion was true; rather, Libby confirmed to Cooper, without qualification, that Libby had heard that Wilson's wife worked at the CIA.

(1)(d) Contrary to Libby's grand jury testimony, Libby did not advise Judith Miller, on or about July 12, 2003, that Libby had heard other reporters were saying that Wilson's wife worked for the CIA, nor did Libby advise her that Libby did not know whether this assertion was true.

2. False Statement

(2) Contrary to Libby's statements to FBI investigators on Oct. 14 and Nov. 26, 2003, Russert did not ask Libby, on July 10 or 11, 2003, if Libby knew that Wilson's wife worked for the CIA, nor did he tell Libby that all the reporters knew it; and at the time of this conversation, Libby was well aware that Wilson's wife worked at the CIA.

3. False Statement

(3) Contrary to Libby's statements to FBI investigators on Oct. 14 and Nov. 26, 2003, Libby did not advise Cooper, on or about July 12, 2003, that reporters were telling the administration that Wilson's wife worked for the CIA, nor did Libby advise him that Libby did not know whether this was true; rather, Libby confirmed for Cooper, without qualification, that Libby had heard that Wilson's wife worked at the CIA.

4. Perjury

(4) Contrary to Libby's grand jury testimony on March 5, 2004, Russert did not ask Libby if Libby knew that Wilson's wife worked for the CIA, nor did he tell Libby that all the reporters knew it; and at the time of this conversation, Libby was well aware that Wilson's wife worked at the CIA.

5. Perjury

(5) Contrary to Libby's grand jury testimony on March 5 and 24, 2004, Libby did not advise Matthew Cooper or other reporters that Libby had heard other reporters were saying that Wilson's wife worked for the CIA, nor did Libby advise Cooper or other reporters that Libby did not know whether this assertion was true.


(1)(a), (1)(b), (2), and (4) exclusively involve Russert.
Only (1)(b) does not depend on Russert's testimony.

(1)(c) and (3)(b) exclusively involve Cooper.
(5) mentions only Cooper but alludes to others.
All depend on Cooper's testimony.

(1)(d) exclusively involves Miller.
It depends on Miller's testimony.


(3) not only depends on Cooper's testimony, but seems highly nit-picky, depending on wheter Libby said "I've also heard from reporters," or "I've also heard that." Also, the sentence, "Libby confirmed for Cooper, without qualification, that Libby had heard that Wilson's wife worked at the CIA," is almost amusing. He said without qualification that he'd heard something? Wow, that's definative!

(4) concludes with, "nor did Libby advise Cooper or other reporters that Libby did not know whether this assertion was true." Didn't Fitzgerald read his own indictment? -- the part that says, "LIBBY informed [Miller] that Wilson’s wife might work at a bureau of the CIA." [My emphasis] (Based on Miller's report of her testimony, I doubt Libby even went that far, but Fitzgerald should at least be consistant in his claims.)

pollyusa

RUSSERT: Oh, my God, that's it. Now I see. It's his wife, Valerie Plame, CIA, sent him on the trip. Now I understand what everybody was trying to figure out.'

What was everybody trying to figure out? Everybody now knew that Wilson was the envoy, but Fleicher and Bartlett were telling reporters on AF1 that week that there was more to the story and that the reporters should look into the origins of the Wilson trip.

Then, on a long Bush trip to Africa, Fleischer and Bartlett prompted clusters of reporters to look into the bureaucratic origins of the Wilson trip
Newsweek 7/05

BTW, I am not ready to let Russert entirely off the hook yet either.

pollyusa

Freaknic

Jim E. is quite right the guest list that was subpoenaed was for a party on July 16. Jane Hamsher orignally had an incorrect date in that post and corrected it.


And on July 16, her husband, Federal Reserve Board Chairman Alan Greenspan, was honored at a White House reception held to celebrate former President Gerald Ford's 90th birthday. The grand jury subpoenaed the guest list, which has not been released.
Newsday

MJW

One more comment about, "I've also heard that." Unless a source for the information is specified, I think it's implicit that someone saying that is expressing some reservation about the truth of what's being talked about.

boris

Your summary looks good to me MJW. What do the legal eagles think?

TM

Fleicher and Bartlett were telling reporters on AF1 that week that there was more to the story and that the reporters should look into the origins of the Wilson trip.

Well, whatever Russert thought the mystery was, if he had Libby on the line it seems that it would have been very natural for him to ask about the Wilson trip.

MJW

A slight adjustment to my conclusions about which alleged misreresentations could only be proved by a reporter's testimony.

On rereading count 4 (perjury), I realize that (4), like (1)(b), doesn't entirely depend on Russert's testimony, since part of the allegation is that Libby claimed he was not aware that Plame was with the CIA at the time of the conversation, though he actually was.

While the same might be argued about Libby's testimony in count 5 (perjury), that claim isn't included in the accompanying factual basis.

MJW

Though this thread seems to have passed into the Great Beyond, I feel compelled to make another correction in my summary of the charges against Libby.

In each of the Obstruction of Justice charges, I say, "Contrary to Libby's statements to FBI investigators and grand jury testimony..." This is incorrect. I should say, "Contrary to Libby's grand jury testimony..." The FBI interviews were Oct. 14 and Nov. 26, 2003, but the GJ did not begint its investigation until Jan., 2004. Since obstruction can't be charged for statements made prior to the GJ issueing its first subpoena, only the GJ testimony matters.

kim

I hope, MJW, that someone forwards your analysis to Libby's defense.

What are the chances Russert isn't hiding something that defense can get at, but Fitz can't.
====================================================

kim

20-1? 100-1? C'mon punters.
=================================

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