Sometimes Nothing Is A Real Cool Hand

Sometimes the cover-up is worse than the crime, especially when the underlying crime is not really there.  Put another way, Lewis Libby is an idiot (but we knew that).

Special Counsel Fitzgerald has made a filing in response to a motion to unseal the mysterious eight redacted pages from the Feb 15, 2005 court ruling that ultimately sent Judy Miller to jail.

And what, we all had wondered, was in those redacted pages that was of such significance that it could convince three judges to threaten reporters with jail?  Surely this was where Fitzgerald had noted the highly classified information detailing the dire national security implications of the Plame outing, yes?

No.  From the filing:

"After being served with the instant motion,the Special Counsel arranged for the classification review of the redacted portions of this Court’s February 15, 2005 opinion by the relevant agency.  Based on that review, it has been determined that the redacted pages contain no references to information that is classified as of November 30, 2005. Thus, the presence of classified information no longer provides a reason for maintaining the secrecy of the redacted pages."

In fact, the redacted pages detailed (secret) grand jury testimony pointing to possible perjury/obstruction charges, and were cited by Judge Tatel to buttress the point that the testimony of Matt Cooper and Judy Miller was critical to advancing the case.

Not that long ago we argued that, regardless of her classifed status and one-time covert past, the national security implications of the Plame outing were almost certainly minimal.  That was based on certain objective facts, such as the failure of the CIA to make a few phone calls to halt the publication of the Novak column.

A major caveat and wild card in that analysis was the eight redacted pages, whose importance seems to have faded.

But for old times sake, let's let Lawrence O'Donnell explain what those pages might have implied:

I’ll be surprised if all four of those elements of the crime [outing a covert agent under the Intelligence Identities Protection Act] line up perfectly for a Rove indictment. Surprised, not shocked. There is one very good reason to think they might. It is buried in one of the handful of federal court opinions that have come down in the last year ordering Matt Cooper and Judy Miller to testify or go to jail.

...Judge Tatel’s opinion has eight blank pages in the middle of it where he discusses the secret information the prosecutor has supplied only to the judges to convince them that the testimony he is demanding is worth sending reporters to jail to get. The gravity of the suspected crime is presumably very well developed in those redacted pages. Later, Tatel refers to “[h]aving carefully scrutinized [the prosecutor’s] voluminous classified filings.”

...Tatel’s colleagues are at least as impressed with the prosecutor’s secret filings as he is. One simply said “Special Counsel’s showing decides the case.”

All the judges who have seen the prosecutor’s secret evidence firmly believe he is pursuing a very serious crime, and they have done everything they can to help him get an indictment.

The astute Jane Hamsher was more succinct:

Does Fitzgerald have the nads to prosecute Rove et. al. as terrorists? Hell if I know, but I can say that the guy is a serious as a heart attack about national security -- his specialty is prosecuting terrorists, and if the eight redacted pages of Judge Tatel's decision to throw Jailhouse Judy in the slammer are any indication, much of Fitzgerald's inquiry is concerned with the breach of national security that her exposure and that of her CIA front company, Brewster-Jennings, may have caused.

Well, it was reasonable speculation at the time (and I'm glad I had company).  So, what charges might Libby have faced if he had told the truth and taken his lumps?  It looks like he will never know.

MORE:  Jane Hamsher does the heavy lifting (and caffeinating) and delivers a very helpful cheat sheet.

Adam Liptak of the NY Times saves the national security implications for the closing paragraphs:

Floyd Abrams, who represented Ms. Miller and Mr. Cooper before the appeals court, said Mr. Fitzgerald's filing was significant for the light it shed on the inquiry's progress.

"The revelation," Mr. Abrams said, "that Mr. Fitzgerald advised the court as early as the spring and fall of 2004 that his focus on Mr. Libby related not to potential threats to national security but to possible violations of perjury and related laws raises anew the question of whether the need for the testimony of Judy Miller and Matt Cooper was at all as critical as had been suggested."

Comments

[kim]

It is not as if we have the full testimony of Miller and Cooper, who's information seems to be so critical to the judges. Will we have to wait for defense before we hear why their testimony is so all-fired important?
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[Kate]

Look for more and more stories about how the Bush Administration is dreading the Libby trial and how they wish Libby would plead and be done with it.

Translation:

It is really the media that is dreading this trial. Of course, they control the message and believe they can control the damage, but there are far more media outlets now.

Not good for the media, not good.

[kim]

What we got here, is failure to communicate.
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[JM Hanes]

My own theory is looking better and better. Fitz already knew he was going for the ancillary crimes back in Feb. '03, but he avoided confirming that decision publicly because he had to give his "suspects" a reason to lie.

He was still deliberately implying that national security charges were in play at his press conference announcing Libby's indictment. If you parse his words carefully, however, and also compare them to the language in the actual indictment, you'll find a lot of wiggle room for deniability on that score.

[Kate]

JM Hanes: full employment for Fitz. Is it a sting or is it entrapment?

[Gary Maxwell]

What BS. And just for the record Laurence O'Donnell may be the biggest idiot of all in this whole mess ( just could not type kerfuffle). It was classified because no one took the time to review it and now there is NOTHING the least bit classified or even of much interest in those 8 pages.

Anyone want to start alying the pictures of Fitz and ronnie Earle side by side and start looking for obvious family resemblances?

[kim]

Please, Fitz, surprise us all. Get the bad guys.
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[JM Hanes]

TM
Speaking of scores, you should pass your O'Donnell item along to Mickey Kaus, so that he can factor it into Mr. O's official batting average.

[JM Hanes]

Kate
When does entrapment turn into a sting? When the Deputy Top Dawg gives you permission to go for it.

[DougJ]

Most likely, the eight pages contain information about Wilson's misdeeds. That's the part of the case that is most sensitive for the CIA: the fact that the husband of one of its own operatives was working for a foreign intellignece agency! That will be tough to explain and I can see why there has been so pressure to keep those portions redacted.

When those "mystery pages" are released, the public will see what this probe has really been about.

[danking]

Will David Corn be called by the Libby defense to find out who told him Plame was a CIA NOC?

Wasn't his story the first to describe Plame as such?

Isn't it relevant to Libby's defense?

[Neo]

Why is it that as I read this, my mind didn't see this whole story as even a bad episode of the old TV show "The FBI" with Efrom Zimbalist, Jr. Rather, it keeps reading like a scene for Les Miserables.

All this started with a "non-crime". All the "crimes" occurred during the investigation.

Imagine if this had targeted some group like AARP, NARAL, NRA, ACLU, NOW or the Church of Scientology. Their officials and staff brought before a grand jury until some information mismatched and they all went to jail for "investigatory crimes."

This is sad.

[Simon]

More evidence Fitz is investigating the wrong column.

All Novak (and his sources) said was she worked for the CIA. Which was true. Was that sensitive information? Hard to believe someone with a desk job at HQ was worried people would find out they are CIA.

What is potentially illegal is outing a covert agent, or in this case, revealing the classified information that she used to be covert.

That means investigating Corn's sources, which, for the column in question, was mostly Wilson.

[kim]

Is Fitz failing to see the forest for the trees. Well, remember, we are looking at shadows on the wall. We really don't know what Fitz is seeing. But why I should believe in an omniscient prosecutor when I'm skeptical of such a deity, I don't know.
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[maryrose]

I agree with Gary. Lay those pictures of Fitzgerald and Earle side by side because both are over-zealous prosecutors who have to justify their existence and the amount of money that has been invested in this. Neither has a substantial case and both are to proud to admit it. Beware the justice system. Even today they are still whining about the redistricting in Texas. It's because the dems lost that battle and have to continue to press to have it there way.

[DougJ]

Wilson is going down. Libby walks.

The only question at this point is who Wilson takes with him. Pincus? O'Donnell? Russert? All three? Okay, maybe all three is wishful thinking. But I can dream, can't I?

[DougJ]

Maryrose, why is it that when the Dems don't like something, they take it to the courts? I guess it is because they can't win elections the usual way. But look at what we have going on right: politically motivated investigations of lobbyist Jack Abramoff (forgive me, but you can't put a guy in jail for having stupid clients, no matter how much his emails piss you off), a poitically motivated SEC investigation of Bill Frist, as well as the complete sham investigaitons of Libby, Rove, Cunningham, DeLay.

It's atrocious really that this is allowed to go on.

[maryrose]

I like how you think Doug and I agree with your assessment.

[Jim E.]

TM wrote: "The underlying crime is not really there. Put another way, Lewis Libby is an idiot (but we knew that)."

Such a pity, then, that Libby lied repeatedly and obstructed the investigation for no good reason. This is the caliber of person helping guide our nation?

Even more of a pity that you folks think this line of reasoning makes any sense at all.

[Jim E.]

DougJ,
None of the investigations you cite were instigated by the Democratic party. None.

And Cunningham pleaded guilty. I suppose, like Libby, Cunningham is dumb and pleaded guilty to a crime he never committed. Pity he's going to prison so willingly.

[Jim E.]

Anyone else want to vouch for Cunningham's innocence?

[richard mcenroe]

Jim E. — Cunningham had more integrity even in his resignation than Murtha. Look at the speculation Murtha had his little outburst to smokescreen his own ethical lapses... for that matter, a journalist with any integrity would look at who else Cunningham's sugar daddies had on their payroll. Fortunately, Souther California is short on those.

...and of course, Reid and Dorgan are really wishing their own party had not gone after Abramoff now, and no doubt more of the minority party will soon be following them.

Frist cleared his dealings three times with the Senate Ethics Committee. In writing.

Libby was charged as a sacrificial goat, nothing more. I'll be gobsmacked if he's convicted, even with a DC jury.

As for DeLay, this is going to be another Hutchison farce. Ronnie Earle used indicting him as a campaign fundraiser, for God's sake; how can you say this was not politically motivated?

[Tom Maguire]

My own theory is looking better and better. Fitz already knew he was going for the ancillary crimes back in Feb. '03, but he avoided confirming that decision publicly because he had to give his "suspects" a reason to lie.

I am stealing that, thanks.

Such a pity, then, that Libby lied repeatedly and obstructed the investigation for no good reason. This is the caliber of person helping guide our nation?

Even more of a pity that you folks think this line of reasoning makes any sense at all.

I'm open to suggestions, but my current guess is that Libby was not sure of her status and invented his "Plamed for the very first time" story to cover himself.

[boris]

My suggestion:

Libby was the self selected countermeasure for the conspira-seeking fitzssle. He knew what he was doing when in answer to a poorly worded question he expounded the bafflegab sure to draw fire.

Libby: I didn't recall that I had ever known

Known What?

Libby: What Russert was telling me

Since Russert claims he didn't tell Libby anything, the link to Plame, while implied, is FUBAR.

Russert: Did you know Wilson's wife is the real life prototype for the Sydney Bristow character on Alias?

Libby: Wow, I'm suprised, I don't recall ever knowing that !

So Russert "tells" Libby something he didn't actually say and Libbt is suprised.

[poputonian]

Now, just one minute.

I know you're only poking fun at O'Donnell's expense, but some people seem to think you've ordained the war cabal's innocence.

Let's look at what Fitzgerald said in mid-November, responding to the Dow-Jones action:

"In reviewing Rule 16 material discoverable by Mr. Libby, it is clear that, while the volume of material may be fairly discrete in light of the nature of the charges, a significant amount of that material is classified. It is anticipated that the classified material produced as discovery will be governed by a separate protective order, and the Government has proposed such a protective order to the Court with the consent of Mr. Libby's counsel."

So, are you dinging O'Donnell because the classified information is behind door number two (other material the judges reviewed), instead of door number one (the eight redacted pages)?

Fitzgerald also said in the final response: Secrecy is necessary for other material in the court ruling to .. protect the integrity of the ongoing investigation."

[clarice]

Secrecy is necessary because as I suspected quite some time ago there was nothing behind that classified curtain and Fitz has known that for some time and failed to notify the court of that.

[Simon]

What was classified was that Plame was covert.

But Libby et al. didn't tell Novak that.

Wilson (it appears) told Corn that.

[Simon]

("was" meaning used to be covert in the '90s)

[JM Hanes]

TM
"I am stealing that, thanks."

Anything for the cause (such as it is)!
I spelled it out in previous comments on 20 Nov and 05 Nov.

[pollyusa]

Something interesting from WAPO.

There is a new WAPO out that states that the Viveca/Luskin conversation occured in early 2004.

This article goes on to say that Rove's first Grand Jury testimony was after the Viveca/Luskin conversation and Rove did not disclose the fact that he spoke with Cooper during that testimony.

One person familiar with the case said the Novak-Luskin conversation is not what prompted Rove to change his testimony in the case. In fact, this person said, Novak told Luskin about the Rove-Cooper connection before Rove's first appearance before the grand jury in February 2004. In that appearance, Rove testified that he did not recall talking to Cooper about Plame.
WAPO 12/03/05

[poputonian]

Judge Tatel: "That said, without benefit of the adversarial process, we must take care to ensure that the special counsel has met his burden of demonstrating that the information is both critical and unobtainable from any other source. Having carefully scrutinized his voluminous classified filings, I believe that he has."

So, the judges carefully reviewed the "voluminous classified filings," which would seem to indicate they actually exist.

[maryrose]

Right again Clarice, nothing behind any of the doors, nothing classified. Hope you had a nice birthday!

[Cecil Turner]

In that appearance, Rove testified that he did not recall talking to Cooper about Plame.

Which begs the question: did Rove ever testify that he did recall talking to Cooper about Plame? ISTM we're mostly relying on Cooper's side of that conversation, even though it appears that he forgot the lead-in at least.

By the way, did anyone else get a chuckle out of that WaPo story? The bit starting here had me rolling:

"There's no way that Viveca Novak knowingly, wittingly gave up a confidential source to Robert Luskin," Kelly said.

The only thing it lacked was the "Vivica had nothing to do with the matter" denial. [What, reporters gossiping about confidential sources? Inconceivable!]

[clarice]

Thanks, Mary.

I know this is off point, but as long as we are talking about reporters..how stupid do you have to be before the claim of bias, not ignorance, is warranted to explain awful reportage?I complained about this to the editors, but I doubt they'll print it and I have to vent:

The L.A. Times carries a piece today which begins http://www.latimes.com/news/nationworld/nation/la-na-niger3dec03,0,4700538.story?coll=la-home-headlines :

[quote]WASHINGTON -- The FBI has reopened an inquiry into one of the most intriguing aspects of the pre-Iraq war intelligence fiasco: How the Bush administration came to rely on forged documents linking Iraq to nuclear weapons materials as part of its justification for the invasion. The documents inspired intense U.S. interest in the buildup to the war -- and they led the CIA to send a former ambassador to the African nation of Niger... [/quote]

Here's the problem with that lede.

(a) We never relied on the forged documents. As is well known, we relied on independent intelligence from the UK of Iraqi efforts to buy uranium in AFRICA and the Butler Commission established that the British intelligence did not rely on the forged documents or a PURPORTED SALE FROM NIGER TO IRAQ of uranium .

(2) The documents did not inspire us "to send a former ambassador to the nation of Niger." As the Senate Select Committee on Intelligence observed we never received those documents until EIGHT MONTHS AFTER the Wilson trip to Niger.


These are not minor errors and they involve well-known facts long on the public record.The misreporting is so bad as to constitute journalistic malpractice.

[DougJ]

"Jim E. — Cunningham had more integrity even in his resignation than Murtha."

Amen, R-Mac. I just don't thnk what Cunninghamd did -- essentially accept gifts from lobbyists -- was all that bad. Yes, some of the gifts were embarrassing (the period commodes come to him), but surely if we dug through the gifts Pelosi and Murtha have received we would things just as bad or worse.

Cunningham, like DeLay and Libby and Scanlon, is guilty primarily of being a Republican. Apparently, that's a jailable offense nowadays.

[pollyusa]

The new WAPO looks to be damaging to both Rove and Luskin.

Ther new information on the timing of the Viveca/Luskin conversation must be coming from Viveca's side.

It looks like Luskin knew about Rove telling Cooper in early 2004 and still Rove testified that he did not recall talking to Cooper about Plame.

[DougJ]

"The new WAPO looks to be damaging to both Rove and Luskin."

Oh, please. There is no turn this case can take that the moonbats won't describe as harmful to Rove. The day Fitz dismisses all charges against Rove and Libby, I'm sure you'll be saying that Rove is in more trouble than ever.

[pollyusa]

DougJ

I can only assume that you are uninterested in the new information in the Washington Post article regarding the timing of the conversation between Viveca Novak and Luskin.

Why you would feel it necessary to refer to me as a moonbat is unclear.

[cathyf]

he did not recall talking to Cooper about Plame.

The WaPo is being cute again. If Rove said, "I don't remember talking to any reporters about Plame" or "I didn't talk to anyone not authorized for classified info about Plame, as far as I can recall" then sure, their paraphrase "he did not recall talking to Cooper about Plame" is technically correct. But so is "he did not recall talking to the Easter Bunny about Plame." The WaPo construction implies that Rove volunteered something about Cooper specifically in the GJ testimony, which would makes his testimony implausible, as opposed to a construction that states that Rove said nothing about Cooper at all.

cathy :-)

[DougJ]

Sorry I called you a moonbat, pollyusa. But it is annoying how liberals seize upon every scrap of evidence -- even exculpatory evidence -- in the Rove case and say "Aha, he's guilty."

The truth is that there was no underlying crime here on the part of the White House. Unfortunately, it looked for a time as though Fitz was going to prosecute people, in effect, for having bad memories. With Woodward's and now Viveca Novak's testimony, that looks increasingly unlikely. One can only hope that the probe will shift its focus to the work Joe Wilson did on behalf of European intelligence agencies.

[topsecretk9]

Funny, I thought the WAPO was "worser" for Cooper.

"but it was not as closely guarded a secret as Time editors now believe it should have been."

[clarice]

I love when the media reports on itself--I think they need a National Commissioner of babblegook to cut thru the crap--

[pollyusa]

Apology accepted Doug.

We definitely look at the Plame story from different angles.

Here is why I think this WAPo story from VandeHei is damaging for Rove.

First:
The article closes in on the date of the Viveca Novak/Luskin conversation. Since the article states that the conversation occured before Rove's 1st Grand Jury testimony in Feb 2004, the conversation must have occured in Jan or Feb 2004.

Second:
The article states that "In that appearance, Rove testified that he did not recall talking to Cooper about Plame."

This is important for 2 reasons, it implies that Rove was asked about talking to Cooper in his 1st GJ appearance and second we know that Rove's lawyer already knew about Cooper.

Third:
The email comes up again. The article says that

The e-mail was written from Rove's government account, which investigators searched early in the inquiry. It is unclear why the e-mail was not discovered at that time.

Maybe it was discovered by investigators early in the investigation, maybe not. If not why not?

I have thought it possible that Investigators might haver known about Rove's conversation with Cooper. Waas had this:

decision in late 2003 to appoint a special prosecutor to investigate the leak of the identity of undercover CIA officer Valerie Plame in large part because investigators had begun to specifically question the veracity of accounts provided to them by White House deputy chief of staff Karl Rove,

The same sources said Ashcroft was also told that investigators firmly believed that Rove had withheld important information from them during that FBI interview.

[DougJ]

Polly, before you start celebrating Rove's "demise", you really should read a little about what Joe Wilson was really up to. Here's a good place to start

http://americanthinker.com/articles.php?article_id=4970

[arrowhead]

"It looks like Luskin knew about Rove telling Cooper in early 2004 and still Rove testified that he did not recall talking to Cooper about Plame."

Luskin could have talked to Novak about the Cooper conversation and Rove could still claim not to recall that conversation. We know that the matter did not become critical until the very end of the gj based on the Fitz/Luskin meeting on the eve of the Libby indictment. It looks like Luskin hastened to "remind" Fitzgerald at the last minute that the basis for the brief conversation instigated by Cooper was welfare reform - not speculation about Wilson/Plame. Regardless of the timing of the Luskin/Novak conversation, I don't see how Fitzgerald gets from those facts to his theory that the WH conducted a campaign to ruin the sainted Wilsons.

[Truzenzuzex]

pollyusa:

Second:
The article states that "In that appearance, Rove testified that he did not recall talking to Cooper about Plame."

This is important for 2 reasons, it implies that Rove was asked about talking to Cooper in his 1st GJ appearance and second we know that Rove's lawyer already knew about Cooper.

It also implies that Rove and Luskin conspired to allow Rove to perjure himself and obstruct justice.

Sorry, but that doesn't make sense. Luskin is an officer of the court, and he cannot knowingly be complicit in perjury and obstruction without facing the same criminal liability as Rove.

A more reasonable explaination would be that Rove actually didn't remember it, and even the rumor Luskin heard from Novak didn't help his memory. The idea that they found the memo confirming Rove's conversation before he first testified and still lied about it to the grand jury is patently absurd.

[clarice]

I did a quick google on Tom Hamburger one of the 2 LAT reporters who co-authored the piece of merde I cited above and notice that he was on a recent PBS program where he was introduced as someone who'd been closely following this case.

LOL..Do you have to flunk some really easy intelligence test to make it in the msm?

[Neuro-conservative]

I don't understand how this affects the veracity of his testimony. Can't he have heard about Cooper's testimony from V-Nov, Luskin, and the tooth fairy but still not independently remember it himself? This gets back to a point that has been made here many times -- it is not a crime to have a fallible, non-autistic memory. Just ask Bill & Hillary Clinton.

[anon]

This DougJ character who has been posting here recently is a lefty who lives over at John Cole's blog. Check it out if you don't believe me.

His "rightwing nut" ramblings here are his version of a joke that he boasts about over at Balloon-Juice.

He is a troll. Ignore him.

TM should ban him.

[Rick Ballard]

No, actually DougJ is the same DougJ who posted at Totten's place for a good long time, has posted at Simon's place regularly and is remarkably consistant in his complete disdain for lefties. Maybe the tone has become a bit more strident over time but dealing with seditionists (no one on this board at the moment merits that term) is wearisome. As is reading dull lies written by incredibly dull people.

Anon of anon email might be construed as being that very type.