Memeorandum


Powered by TypePad

« Hillary The Hawk Circles Over Iran | Main | The Supreme Court And The FEC »

January 21, 2006

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451b2aa69e200d8345c378369e2

Listed below are links to weblogs that reference Libby Defense To Subpoena Journalists:

» PlameGate: Libby and the Government At Odds Over Discovery from TalkLeft: The Politics of Crime
The Government and lawyers for Lewis "Scooter" Libby filed a discovery status report today with the court. Here are the items in contention (from the court filing): 6. It is the position of the defense, based on the government’s written... [Read More]

» You Reap What You Sow from America...F*ck Yeah!
from day one of Laffair de Plame (or for the lesser hip - The Valerie Plame leak case), people that could actually go beyond short sighted partisan sniping warned journalists and newspapers to be careful what they asked for. Since the in... [Read More]

» Jounralists on the Stand from Sierra Faith
This is gonna be fun. More interesting speculation from Tom Maguire. . . . [Read More]

» Another Confederacy of Dunces from Funmurphys: the Blog
I don't think I'm the only one who's licking his chops at the thought of the Scooter Libby trial and the thought of all those top drawer journalists hauled into court and forced to testify. What a gratifying spectacle that... [Read More]

» Libby's Lawyers Want to Subpoena Reporters from Unpartisan.com Political News and Blog Aggregator
Lawyers for a former top aide to Vice President Dick Cheney told a federal judge Friday they want to [Read More]

Comments

Kate

I am glad that Libby's defense team is taking such an aggressive stand. I think Fitzgerald was hoping to bully Libby into a plea deal.

One big advantage Fitz has is the venue, an overwhelmingly Democratic city.

I don't know much about the judge and if he will grant the defense's motion to broadly question reporters. My understanding is that he is tough but fair.

After watching coverage of the Jill Carroll kidnapping case, it occured to me how the media does see itself as morally superior to everyone. As really superior human beings. It's almost like they are saying it's OK to kill those evil American soldiers or evil contractors but not wonderful reporters. It's a disconcerting approach--why not--it's evil to kill any helpless captive?

They need to be treated as common witnesses with information to provide. It will really threaten their sense of exceptionalism and provides the best chance of a fair trial for Libby.

R C Dean

Great strategy. If the judge bars the testimony, he has set up an appeal by Libby that is likely to succeed, namely, that he was denied the opportunity to defend himself.

It is very hard to convict someone after denying them the opportunity to present material evidence in their defense.

And, of course, if he gets the journos on the stand, we will hear such a welter of conflicting ass-covering that no one will be able to say beyond a reasonable doubt WTF happened.

Dwilkers

Of course they're going to call the reporters.

And the reporters will have a helluva time keeping themselves out of court with their names plastered all over the indictment. There's no way they can avoid testifying.

And even assuming they could get a favorable ruling from a judge allowing them to avoid the courtroom it would be a serious miscarraige of justice and as R C Dean points out above any conviction that resulted wouldn't likely stand.

kim

Is the path defense is now taking one that Fitz couldn't or wouldn't take?
============================================

Dwilkers

That's what I can't figure out kim, and why I keep harping on "why did he put all that crap in the indictment?". I'm not a lawyer though. Maybe he had to do that.

Kate

I read the two links, the Post and the Times and was interested in the different tones in each.

The Post account is factual with a good account of the defense strategy. Since Jim Vandehei is listed at the end of the article as a contributor, it is interesting that the article tries to make sense of why Rove has not been indicted yet. One school of thought is that Rove is probably in the clear, the other is that Fitz, ever sensitive to the politics of the case, would quickly clear Rove unless he intended to charge him. Keep hope alive?

The Times article insists that reporters should be allowed to return to their important jobs and not be bothered with this legal nonsense.

Gary Maxwell

The popcorn concession outside of the courtroom while a veritable parade of reporters in shuttled in and out should be very very profitable. Butter anyone?

Cecil Turner

"why did he put all that crap in the indictment?"

I suspect he'd really like a do-over on that presser. I thought at the time it was somewhat gratuitous, and now some of those statements are looking pretty dubious (a point I expect the defense to make at length).

I was also struck by the media lawyer's response:

"Sounds to me like deja vu all over again," he said. "We just finished with one fishing expedition, and we're about to launch into another one. When is this going to stop? At some point, the court needs to let the reporters get back to their work, and the lawyers need to focus on the facts in their case."
Rough translation: "we only want to talk to the prosecution." Somehow, I don't think that's going to fly.

Florence Schmieg

I was struck by the difference in tone between Fitzgerald's announcement of the Libby indictments and that of Alberto Gonzalez yesterday regarding the animal rights terrorists. Gonzalez went out of his way to underscore that indictments were not judgments of guilt. He was matter of fact in laying out the charges, but that was it. Very professional. Fitzgerald on the other hand made a speech about harming national security, etc. that was damning and then proceeded not even to make a charge about that. The difference between a professional and a hack perhaps? Or is it that Fitzgerald's major experience, fighting the mafia, has caused him to become somewhat like them?

Kate

Florence, I agree. The media has made a hero of Fitz and we're all supposed to be gasping in admiration everytime he opens his mouth. The more I read about this case the less impressed I am with media hero Fitz.

Sue

Surely the journalists didn't think it would end with the indictment. Or were they betting an indictment on the original charges was unlikely and never dreamed a perjury charge would be the outcome?

kim

If Fitz couldn't take this tactic, and it sounds like journalists only want you to hear what they have to say, that is one thing, Jim. But if he wouldn't take this tactic then he is misinformed or corrupted.

CT, It's not just 'we only want to talk to the prosecution', it's 'we only want to say what we want to say', too. Utterly untenable.

FS: Somehow, Fitz is warped. He seems honest and thorough, and he may yet catch on. That's a bright boy, there.
====================================

richard mcenroe

Sue — it is entirely possible they are that insulated from reality.

At the the counterprotest I attend every week, back before the election, a pedestrian walked into our group, punched a woman in the head, and then went on to his dinner engagement in a nice nearby restaurant. He seemed indignant when we barricaded him in the restaurant. And astonished when the cops actually arrested him. "I can't believe you're arresting me for this!" was his actual quote.

We got the conviction on him, no shock, and I think the reporters are about to receive a similar lesson in reality.

kim

Joe Wilson's treason is suspected, thug CIA elements are suspected, squirrely White House political response is suspected. We know diverse elements of the press are still fundamentally lying about the Plame case, and probably criminally so.
===========================================

clarice

TM,Except for the notion that Cheney told Greenspan which I find improbable to say the least, I think you've got it.(I think Cheney is a very circumspect person and he's not be discussing this with Greenspan who really has no need to know.) Andrea has been on this beat for years (unlike Cooper) and clearly in that time has developed sources of her own from which she surely picked up this info.

Of course as this is a criminal case a lot depends on how far the Judge permits this, but if he does, the case explodes.

Fitz set himself up for this with his claim in the presser that Libby was the start of the telephone chain.

glenn

You will know the truth about Fitzgerald probably in the 2008 or 2010 election cycle. If he runs for public office as a Democrat this whole Libby deal was a political springboard.

larwyn

In case all have moved on from
the HILLARY IRAN HAWK, I'm also
putting this here - think it is important - on GatewayPundit last
night.

Hillary Bashes Bush While Banking Iranian Donations! (PRO MULLAHS)

GatewayPundit has this and a post on John Kerry and Iran:

"She Even Held a Fundraiser with Iranians Accused of being Pro-Regime Supporters! **

Robert Mayer at Publius Pundit found this amazing news today...

At one fundraiser Hillary discussed immigration and acknowledged the difficulties Iranian nationals have in obtaining visas to visit family members residing in America. "Our visa policy is not only unfair but it’s not good for America. We’re losing out by keeping out keen minds and ideas, which is having a negative impact on our competitive advantage." (Payvand)

We're also keeping out the Mullah suicide recruits!

Here is a photo of Hillary at a fundraiser on Friday, June 3rd, 2005, at the home of Gita and Behzad Kashani in Los Altos Hills, California. (Payvand)

Senator Clinton accepts money from supporters of Iranian Mullahs


Senator Clinton has accused President Bush of downplaying the threat from Iran while she has been accepting money from supporters of the Iranian regime.

Wealthy businessmen Hassan Nemazee and Faraj Aalaei are associated with the American Iranian Council, a pro-regime anti-sanctions group. According to the Center for Responsive Politics, Namazee has contributed $4,000 to Clinton's reelection while Aalaei has given $1,000.

The press describes their lobby this way "the American-Iranian Council [AIC], a pro-regime lobbying group trying to get Congress and the Bush administration to lift the trade embargo on Iran." (Insight, 3/25/04)

Hillary Clinton is also raising money from Gati Kashani, another figure linked with the Mullahs.

ME:
Just more of "the ends justify the means" mentality of the Clintons.

vnjagvet

This scenario has been anticipated by experienced criminal lawyers since Libby's selection of defense counsel became public.

Comments on JOM will verify that.

The construct of the indictment and Fitzgerald's theory of the case that Libby was the "beginning of the chain" made this approach inevitable.

(Speculation alert)If I were writing a political novel from the most cynical perspective, I would have the Fitzgerald character out to get the MSM, and indicting Libby to allow the accused and his crack team of defense attorneys to expose the MSM's diabolical motives and its plotting with certain State Deapartment and CIA operatives trying to bring down a hated (by them) administration.

Fitzgerald by this tactic would achieve his objective (exposing the MSM as the true villains) without risking a MSM swarm attack accusing him of wholesale undermining of freedom of the press. The defense could get at information that the prosecutor could never get.

Neat plot twist. What we call "reverse english".

I do not think that is what is really going on, but it could be.


kim

I've wondered the same thing for awhile, v. It is a bizzare notion, and probably an almost unheard of prosecutorial strategy, but it does seem to be what is shaking out. These are unusual times.
=====================================

Cecil Turner

It almost looks to me like he was assembling a case with as many allegations as possible in order to scare Libby into a plea deal, and didn't expect to have to prove it in court. Then he got his bluff called. Because several of those charges just don't hold much water, and the presser went even farther. Fitz's best case is on Libby's rambling nonsense:

. . . 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 . . .
But assuming Libby isn't stupid enough to get up on the stand and do it again, it's going to be a pretty dry transcript review at trial. And if Fitz has to eat the presser statements, and then admit some of the charges are weak (e.g., Cooper's remembrance of the Libby conversation isn't really inconsistent with Libby's), I don't see the average jury being too happy with him by the end.

But for us Plamaniacs, it's gonna be Christmas in July (or whenever). I want a slice of Gary's popcorn action.

clarice

I think that'd be a neat plot, but I think it is not what happened here. I think Fitz was a naive stranger in the thicket of D.C. and the media and its links to the DNC.

But the very sophisticated media was also wrong. I think they thought demanding a special prosecutor was a win-win situation for them:they'd never be forced to testify was their thinking and they could continue to suggest wrongdoing by the WH even after the prosecution ended with nothing.

Now, I think, they will be demolished.And they will be because Fitz fell hook line and sinker for their storyline that there was some deliberate leak to "retaliate" against a serial liar who blabbed about his wife everywhere.


Wilson, too, will be called as a witness. And I think he will dearly regret the role he played.

And they did it for that putz Kerry..

God works in wondrous ways his miracles to perform.

clarice

Comment above response to vnjagvet, not Cecil..

Gary Maxwell

Cecil

slices are for pizza, we are talking tubs here!

kim

And they fell for that putz because they were convinced 'Anybody but Bush' could win. Misunderestimation, and you're right, C, I love the way the wheel is turning.
==========================

topsecretk9

--Is the path defense is now taking one that Fitz couldn't or wouldn't take?
=======================================

Should've if only to protect his case? (because, duh, the defense would?)


---Or were they betting an indictment on the original charges was unlikely and never dreamed a perjury charge would be the outcome?

Yep. I am still perplexed why Fitz was so dead set on just extracting the bone and not disturbing the chicken body.

Isn't the chicken body the meat of the matter?

topsecretk9

---I am still perplexed why Fitz was so dead set on just extracting the bone


OP, leave it to Cecil. Should've read through.

Beto Ochoa

Kims comment on "squirrely White House political response" must be tempered by the observation that the Administration has done many things that seemed naive and later it turned out they had anticipated the outcome.
I'm not sure if this has anything to do with the Plame affair but on sept. 17th 2001 the justice department launched a probe into leaks between house and senate committee members and the FISA court leaking to the press. It was very hush-hush but there were seventeen people from those groups initially under scrutiny. Libbys defense may be about to expose some of those connections and I suspect that when all the dust settles there will be a certain Mr. Libby leaving the court by the front door and reporters and editors being led out the back.

acerabinowitz

Turn about is fair play? One very neat twist will be matching what the reporters say under oath in their depositions and trial testimony to what they said under oath to the grand jury. It gets harder and harder to cya as more and more facts emerge from a variety of sources. Perhaps one or more reporters will find themselves in the same situation as Libby.

richard mcenroe

vnjagvet — Not cynical enough. Fitz is really ROVE's front for discrediting the MSM...

clarice

ace--it will be interesting to see how many of them will take jail time over career destruction on cross exam.

Warmongering Lunatic

It's wonderful to see the utterly non-existent "right" of reporters not to testify about sources run smack dab into the wall of the Sixth Amendment to the Constitution of the United States

"In all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor[.]"

topsecretk9

--the justice department launched a probe into leaks between house and senate committee members and the FISA court leaking to the press. It was very hush-hush.--


Confidentiality Waivers. Bluffed the Journos (By all means speak, you don't have to protect me) and so now it goes onto the NSA leak too.

kim

BO, you're comments by any other name would smell as Rightguard On.
===============================================

danking70

But, But... Fitz said our testimony would be limited...

I want my mommy!!!!

vnjagvet

Are we having fun yet?

clarice

I am vnjagvet..I hope it's as good for you as it is for me %^)

RogerA

I didnt follow the inital twists and turns of l'affaire Plame because I thought it was just silly politics--But with Fitzmas, and the Fitzgerald Presser, it looks like a whole lot of butts have been overloaded by a whole lot of even bigger mouths--

This is going to be a circus--popcorn, hell--brats and beer--It will be fun to see the MSM reporters, Wilson, and Plame on the stand, taking oaths and for the reporters having their on stand accounts squared with their GJ testimony--

NOW, I am paying attention (well after the games tomorrow where in I predict: Steelers and Seahawks advance to the superbowl)

RogerA

One additional question for the legal types: Fitzgerald's presser about Libby being the first contact--is that transcript potential defense evidence? Does Fitz have to use that as the basis for the trial case? How does that work--other than making Fitz's investigation looks pretty flakey.

maryrose

Well what we have anticipated is finally here and promises to be loads of fun. I think Clarice said it best: His miracles to perform" Poor Fitz like a lamb to slaughter, unfortunate but inevitable.

clarice

No I doubt if it's even admissible. OTOH I think he said it because otherwise the answer is "so what"? That is who gives a dman about it otherwise? He hasn't claimed she was an undercover agent nor even that the publication of her name harmed national security--though he suggested that, too, in his presser, and he can't prove that (see Woodward's comments and the fact that the agency has to this late date apparently not even done a dmage assessment.)

Take out those things and picture his opening statment.

Nor can he argue credibly that this matter was a concerted retaliation--what kind of concerted retaliation depends on reporters calling you and asking?

clarice

P.S--BRATS!! I'm originally from Wisconsin you know--that's the entire food pyramid if you include mustard, onions, rolls and beer.

boris

Grilled up some Red Lager Brats from Bavaria Sausage Kitchen (just south of Madison) yesterday. I grill all year round, even in Wisconsin.

RogerA

Clarice and Boris: I spent two tours in Germany (NordBayern) with the cavalry--back in the days where each town or region had its own wurst--lots of wonderful memories (although the blutwurst was a bit over the top)

boris

Blood sausage. Nah. Deerheart sandwiches are good though.

clarice

When I was growing up in Wisconsin many small towns had their own sausage making companies, and the standard charitable fund- raiser in them was a festival featuring the town's own grilled wursts..With appropriate libations, of course.

David

This conversation has taken a turn for the wurst.

RogerA

PUN SWARM ALERT--as Charles Dicken's might have characterized the Fitzgerald Indictments: "It was the best of times; it was the wurst of times..."

David started it

maryrose

I have relatives in Wisconsin. Best beer ever. Try Slovenian sausage, also excellent and mighty tasty.

Charlie (Colorado)

RogerA: Re the Steelers, in yer dreams maybe.

RogerA

Charlie: next year the Broncos move to the Phillipines where they will become known as the Manila Folders

Dwilkers

OK very funny thread.

Clearly though, it'll be the Broncos and the Seahawks in the nipple bowl this year.

Sue

Broncos and Panthers. Hide and watch. ::grin::

Ed Poinsett

I'm delighted at the prospect of the MSM reporters on the stand under oath. No way that egotistical bunch can keep a coherent story together.

Vito

NOW THAT'S FUNNY, SUE //////////////////////

++ ++ ++ ++ ++ ++ ++ ++ ++ ++ ++ ++ ++ ++

DWPittelli

I don’t know whether Libby was intentionally false and misleading in his testimony, but it seems clear to me that (contrary to several commentators) the counts against him do in fact depend on the discrepancies in memory between Libby and the various reporters, told well after the fact, and not any discrepancies between Libby’s testimony and the well-established timeline of when Libby learned about Wilson’s wife.

Anyone who wants to argue about what Paragraph 32(a)(ii) in the indictment means should instead be looking at later (page 18) in the indictment, at (a selection of) Libby’s actual “perjurious” testimony, not at Fitzgerald’s characterization of it. It’s rambling and unfocused, like most oral testimony, and the punctuation is also, of course, Fitzgerald’s. I present the key portion with some quotes and commas added and some doubly stated phrases removed.

Concerning Tim Russert (~July 10, 2003)
And then he said… “did you know that Ambassador Wilson's wife works at the CIA?” And I was a little taken aback by 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.

To Fitzgerald, Libby is here claiming that Libby did not know about Wilson’s wife when Russert told him about it. But to me, Libby’s use of the word “intentionally” and Libby’s being “careful not to confirm it for him” show that Libby is talking about the role he was playing “at that point in time” and later (with Cooper) “in my mind.”

My interpretation requires Libby’s use of language to “frame” his lies to the press to be unclear. Specifically, I believe that when Libby says “at that point in time” or “in my mind” he is speaking of a role he was then playing with a reporter. Fitzgerald’s interpretation requires us to instead ignore that Libby added phrases about intent (bold) which make no sense at all under Fitzgerald’s interpretation.

Libby had “to be very careful not to confirm it for [Russert]” precisely because Libby says he was lying to Russert then, which would not be true if Libby’s claim were that he actually didn’t know about Wilson’s wife, and was actually telling the truth to Russert. This is so clear it tempts me to consider conspiracy theories wherein Fitzgerald really wanted an indictment that would fall flat on its face, benefiting the Bush Administration. But it seems more likely that Fitzgerald was too rushed and overworked at the end to think logically.

kim

Only such clarity is subject to doubt. You have pointed, Do Tell, right at the central problem; why doesn't Fitz see that? Better, since you point out it is his puncuation, why didn't Fitz hear that?
===========================================

r flanagan

Specifically, I believe that when Libby says “at that point in time” or “in my mind” he is speaking of a role he was then playing with a reporter. QUOTE PITTELI

because at that point in time I did not recall that I had ever known,QUOTE LIBBY

because at that point in time I was pretending I didn't know . IMAGINARY
QUOTE.

Syl

r flanagan

You and Jeff continue to ignore the fact that someone has to remember something in order to be careful not to confirm it to somebody else.

Libby was pretending not to know it.

We've been through this a dozen times already.

In fact it's rather obvious to anyone who deals with classified information. And the fact that Fitz claimed something else either means he has no experience with classified info (which I doubt), he was trying too hard (possible), or he 'misunderstood' on purpose (remote, but possible).

topsecretk9

A. is Woodward and who did he talk to

and

"D. Whether information concerning Mrs. Wilson’s status as a CIA employee, and the allegedly classified nature of that employment, is material to the preparation of the defense. The government intends to address this issue with the Court and the defense pursuant to CIPA."

ping!

maryrose

rflanagan:
What's wrong with Libby not wanting to confirm Plame's identity?

Gary Maxwell

Brats, beer and the Badgers. Being a Spartan I never got the last part but elsewise I was stride for stride with the cheeseheads!

Rick Ballard

TS,

I find D very intriguing. The phrase "allegedly classified" may be pointing to a sloppy procedural error on the part of the CIA. I'm still crossing my fingers that the defense can get to all of our gal Val's personnel file. If a CIA internal investigation determined that blabberhubby was the responsible party and that Val screwed the pooch ab initio by not getting a signed NDA when she set the boondoggle to Niamey up - then why didn't Fitz just close up shop?

If they can get to the internal CIA investigation then Beers, Clarke, Jackson and other seditionists are in for warm times.

Beto Ochoa

Slam Dunk?
"It depends on what the meaning of the word 'is' is. If the--if he--if 'is' means is and never has been, that is not--that is one thing. If it means there is none, that was a completely true statement....Now, if someone had asked me on that day, are you having any kind of sexual relations with Ms. Lewinsky, that is, asked me a question in the present tense, I would have said no. And it would have been completely true."

DWPittelli

rflanagan,

Libby's statement is at worst ambiguous, and I continue to believe that my interpretation of the indictment's Libby statements is at least as likely as Fitzgerald's. (Granted, Fitzgerald may know otherwise, if for some reason he's holding back on other statements.)

Why else did Libby have to speak "intentionally" or "be very careful not to confirm it," unless his point is that he was lying to Russert?

Jim E.

DWP wrote: "To Fitzgerald, Libby is here claiming that Libby did not know about Wilson’s wife when Russert told him about it."

No. According to Fitz, Russert never told Libby anything about Wilson's wife; Libby made up the content of the conversation.

If are going to accuse Fitz of being illogical, you should at least acknowledge what he actually alleged, instead of making it up.

DWP later wrote: "Fitzgerald may know otherwise, if for some reason he's holding back on other statements."

Nope. It's in the public record that Russert will testify that Libby's account of the conversation never happened. Therefore, as far as Fitz is concerned, there's no need to worry about parsing Libby's language ("intentionally," "careful not to confirm') because Libby's lying about the whole phone call, a phone call that Russert mentioned to his boss immediately afterward.

Rick Ballard wrote: "why didn't Fitz just close up shop?"

Do you think people who are being investigated by the FBI get to pick and choose about what they lie about? If you're Fitz, and you think (and have evidence) a high ranking official has been lying to you left and right, what should you do? $21 million was spent on investigating Ciscneros in part because he admitted paying off a mistress, but lied about how big the payment was. All government officials should know by now that they really shouldn't mess around with investigations. So why was Libby? Yes, my question obviously assumes Libby was lying.

Then again, (and this is something missed by most of the rightwingers who comment here) even TM isn't inclined argue Libby was telling the truth under oath at all times. So I ask again: why should Fitz not pursue Libby if he genuinely and professionally thinks Libby has been lying?

boris

According to Fitz, Russert never told Libby anything about Wilson's wife; Libby made up the content of the conversation.

You misread the post.

Read it this way:

Fitz claims that Libby claimed ...

clarice

Because to be criminal the lie has to be material..If the prosecutor asks me what I had for lunch and I said a ham sandwich when I knew it was a cheese sandwich, he has no grounds for prosecution unless the charge was that I stole the cheese sandwich. If the case was about what happened at a nearby store a week earlier--who cares what I ate for lunch.

At heart this is a case about the non-outing of a non-overt agent. And it is stupid.

DWPittelli

Jim E.

You fail to understand my 2 posts. Fitz thinks the Libby-Russert discrepancy is the strongest evidence of Libby perjury because it is not, like the other Libby-reporter discrepances, a mere "he said, he said" of two fallible memories well after the fact, but a case where Libby is now claiming something ("I didn't remember about Wilson's wife then") which is implausible given that we know Libby heard about it several times before the Russert call.

What I said about "Fitzgerald holding back" would be if Fitzgerald then asked Libby point blank: "Did you actually not remember it then, or were you acting, pretending to Russert that you didn't remember?" and getting some answer.

If Fitzgerald did ask such a followup, it is only somewhat odd that that was not among the transcripts in the indictment, but if Fitzgerald did not ask such a followup, we have to question his competence or honesty.

DWPittelli

Clarice,

It has to be material to the investigation, but that does not mean that Fitzgerald has to prove that there was an underlying crime, merely that he was asking questions reasonably oriented to his investigation, which was reasonably oriented to find out if there was a crime. Further, leaking any classified info is a crime, although it is essentially never punished.

Rick Ballard

"why should Fitz not pursue Libby if he genuinely and professionally thinks Libby has been lying?"

If that is true he should. All careers come to an end sooner or later and if he's that dumb - and that willing to proceed without an underlying predicate - then it's time for him to find another line of work.

Wrt the Barret report, you are completely mischaracterizing the reason that it lasted as long as it did and cost so much. The successful effort on the part of the Connoly firm to bury the abuse of power by the Executive in its use of the IRS is going to ultimately prove unsuccessful politically as dirt that the court tried to sweep under the rug keeps coming to light. The Village Commissar is going to have to deal with her (or her husband's) proclivity for abuse beginning this fall. She'll get by, of course, but it will be one more albatross on her necklace.

Jim E.

DWP,

I agree that the question you suggest ("Did you actually not remember it then, or were you acting, pretending to Russert that you didn't remember?") would have been a good one for Fitz (or the FBI) to ask Libby when he testified early in the investigation. For all we know, that question was asked.

But in the time since Libby made his testimony, Fitz has discovered more evidence. Fitz now believes Libby's account of the phone is entirely false. Therefore, for Fitz, the answer to that particular question is irrelevant, because Fitz now thinks Libby and Russert never had a conversation about Wilson's wife in the first place.

kim

Why is that? Because Russert didn't know about her?
============================================

clarice

Fitz knew sometime in the progress of the Miller side issue, I believe , that Plame was not undercover and there was no harm to national security in naming her. I'm beginning to think he's using Libby as a "beard" to explain why he took all this time and money to pursue a non crime.

And the only conversation that could pass the laugh test cited in the indictment is the conversation with Russert as to which a fair understanding of English might well lead the listener to believe Libby was describing his state of mind when he spoke to Russert, not when he first learned Wilson's wife worked at the CIA.

Syl

because Fitz now thinks Libby and Russert never had a conversation about Wilson's wife in the first place.

Which boils down to he said/she said.

I think the reality may very well be that Russert did say something to Libby. Russert didn't remember that he did and testified that he didn't say anything. I think Russert himself may wonder. But he's buried that doubt now--even to himself.

So we have permutations leading to 16 possible scenarios. Libby lied, or didn't lie. Russert mentioned Plame's wife, or didn't. Fitzgerald believes Libby, doesn't believe. Fitzgerald believes Russert, doesn't believe.

DWPittelli

"For all we know, that question was asked."

Yes, but given the ambiguous Libby quotes included in the indictment, I stand by my characterization of the omission of said question and answer (if it exists) as "somewhat odd"

"But in the time since Libby made his testimony, Fitz has discovered more evidence. Fitz now believes Libby's account of the phone is entirely false. Therefore, for Fitz, the answer to that particular question is irrelevant, because Fitz now thinks Libby and Russert never had a conversation about Wilson's wife in the first place.

The only such evidence that I have heard about is Russert's testimony, and presumably Russert's notes. Do you know of any other?

Notes are generally pretty sloppy, and omission in such is not evidence of anything, especially if Russert did (as Libby claims) bring up Plame, and Libby had nothing confirmatory to say about the matter. Only a tape of the conversation would really be strong evidence here.

At any rate, without a clear Libby statement which is contradicted by clear records, we are again left with a "he said, he said" between Libby and Russert (as there is between Libby and Miller, and Libby and Cooper).

The 3 journalists' testimonies might collectively eliminate reasonable doubt, but if their notes or memories can be shown to be sloppy or ever self-contradictory, or if it can be shown that they have common interests in shading the truth, then reasonable doubt remains.

Jeff

You and Jeff continue to ignore the fact that someone has to remember something in order to be careful not to confirm it to somebody else.

Incorrect, Syl! Far from ignoring this alleged fact, I have repeatedly, and, undoubtedly to many commenters here, at too much length, denied it. Short version: reporters looking for confirmation on a hot piece of info are prone to misunderstand, whether deliberately, wishfully or sincerely, something a top government official tells them as confirmation. (Consider, for instance, the fact that both Robert Novak and Matt Cooper took "I've heard that too," from Rove and Libby, respectively, as confirmation. Rove reportedly expressed surprise that he was Novak's second, confirming source.) Reporters are also prone to try to trick top government officials (and others) into confirming a piece of information, again something that is well known among top government officials. (Judith Miller acknowledges this practice in her account of her entanglement, er, I mean her involvement in the case.) For these reasons, probably among others, those top government officials are going to be very careful about what they say to reporters and how, so that it is not prone to being misunderstood and taken as confirmation, even if it is something that they do not, in fact, know -- especially when the information is sensitive, as you would suspect it might be when you hear it has to do with a CIA agent. That's exactly the scenario Libby is describing: he was very careful in what he said to Russert, according to him, because he wanted to be very careful that nothing he said could be misunderstood, willfully or sincerely, by Russert as confirmation. So while I agree with most of DWP's added punctuation, especially the quotation marks, I think s/he is just wrong to say that Libby would not have to be careful and intentional about what he said unless he were lying to Russert.

My suspicion is that LIbby was lying to cover for his boss and disconnect his boss from Libby's own actions in the matter, so that if anyone got in trouble for an underlying crime, it wouldn't be Cheney. Or maybe Libby was just surprised that the FBI knew about Cheney and Libby discussing Plame's employment on the mostly clandestine side of the CIA back in June 2003, and came up with the story. The thing worth noting is that while we know from the indictment that in fact Libby was talking with all sorts of people through June and July about Plame, and had learned about her from others before hearing from Cheney, it was specifically the Cheney conversation that Libby apparently told FBI agents he had forgotten about when he heard from Russert, according to p. 9 of the indictment. My suspicion is that at that point the FBI didn't know about Libby's other sources of info on Plame (Grossman at State, specifically), and Libby may have assumed they were never going to find out, the investigation sure to go nowhere thanks to Ashcroft.

kim

Experts on memory are not going to agree with your conceptions of the phenomenon, when asked on the stand, Jeff. You are as bad as Rider at beating a dead horse, long after you've forgotten why.
===========================================

clarice

DWP , then why didn't he simply ask Libby when did you first learn that Plame was Wilson's wife? When did you first learn she worked at the CIA? I have to believe that if Fitz thought that was so fucking important he could have asked it in unambioupus English and we wouldn't be trying to read the Libby Rossetta Stone.

And don't tell me he probably did. I don't believe it. If he did, and he had a clear statement cont=rary to what we know to be the facts, he'd have put it in the damned indictment.

Jim E.

DWP,

It is my understanding that Russert immediately called his own boss (Shapiro?) to tell him about the content of the call, which would be contemporaneous evidence. But I'm not totally sure about that.

Fitz would have to argue that Russert has credibility and no motive to lie*, while Libby lacks credibility and did have motive to lie. (* the exception being, of course, if Russert actually knew about Plame, did tell Libby, and wanted to keep himself out of prison for not divulging his own source. In which case, Russert would not only be playing with fire with his testimony--why wouldn't his source rat him out, for example?--, he'd be the devil incarnate. I hate Russert, but I don't think he'd lie like that. I mean, what would Big Russ think??)

There have been other suspicions as to why Fitz would be inclined to believe Russert over Libby, but I an unaware of any proof for them. One suspicion--again, I've seen zero credible evidence for this--is that Russert tapes his phone calls. The other one--speculated by Kaus and the host of this website--is that Libby used harsh language and accused Chris Matthews of being an anti-Semite, something which would increase the liklihood that Russert (and his boss, after the fact) would remember the phone call quite vividly.

clarice

AMBIGUOUS--*hitting head on keyboard*

Jeff

The 3 journalists' testimonies might collectively eliminate reasonable doubt, but if their notes or memories can be shown to be sloppy or ever self-contradictory, or if it can be shown that they have common interests in shading the truth, then reasonable doubt remains.

I think the first part of this is exactly the point. Each of the journalists independently contradicted Libby on precisely the points that stand or fall together and make up the crucial parts of Libby's narrative getting him off the hook. Now, I think there is probably good reason to think there couldn't be common interests in shading the truth in this case, not because the journalists are virtuous, but because they didn't have a prerequisite to that interest or to pursuing it: knowledge. They wouldn't know how to shade the truth exactly in order to pursue whatever goal they might have, say, getting Libby. As for notes and memories, I presume that's exactly the route the Libby defense is going to take. My own view, at this point, is that Miller is the easiest mark -- she appears to remain sympathetic to Libby to begin with, she appears to be a terrible note-taker, and she lied about so many things that she ended up, at least in her own account of her grand jury testimony, talking more about what was in her notes than what was in her memory. I presume Miller's relative unreliability is the reason that she figures so relatively little in the indictment from Fitzgerald, especially given what we learned about her testimony from her own account.

clarice

Tellme, Jeff..Why do you think there is no unamiguous question in the indictment asking Libby to say when he first learned that Wilson's wife worked in the CIA?

Jeff

Experts on memory are not going to agree with your conceptions of the phenomenon, when asked on the stand, Jeff.

What discipline do "experts on memory" belong to? And name four of them for me, or their work that you are basing this claim on. And just to be clear, your experts on memory are going to claim that if someone is asked about something they don't know to be true, under no circumstances are they careful to make sure that the person asking the question goes away thinking it's been confirmed for them -- is that it?

On a related note, you think, then, that if Cooper's version of events were true, he would be completely justified in taking "I've heard that too" as confirmation of the fact that Plame was CIA? And Novak was with Rove? So why was Rove reportedly surprised that he was Novak's confirming source?

TM

What I said about "Fitzgerald holding back" would be if Fitzgerald then asked Libby point blank: "Did you actually not remember it then, or were you acting, pretending to Russert that you didn't remember?" and getting some answer.

If Fitzgerald did ask such a followup, it is only somewhat odd that that was not among the transcripts in the indictment, but if Fitzgerald did not ask such a followup, we have to question his competence or honesty.

I am finding this to be a very interesting point, which relates to the definitions of lying and perjury. One might argue that, since Libby had just spent hours (minutes?) on the stand reviewing his many Plame-related conversations in June, it never dawned on him that any reasonable juror could think that he meant he had literally forgotten about her when he spoke to Russert in July.

And if that misunderstanding was taking hold, a clarifying question would have been in order, and why don't we see it?

That said, the indictment does contain several direct questions on the topic of why Libby sourced the info to other reporters, so it appears that Fitzgerald (or grand jurors) were not shy.

clarice

Thank you, TM--I think that the absence of a direct question on point is very telling..and very misleading and unfair to the witness. It suggests the prosecutor was trying to ensnare someone rather than clarify the facts.

DWPittelli

"It is my understanding that Russert immediately called his own boss (Shapiro?) to tell him about the content of the call, which would be contemporaneous evidence."

If, as Libby claims, Russert brought up Plame after another conversation, and Libby feined ignorance, why would Russert mention that part of the conversation to his boss? Such "evidence", being both second-hand and by-omission, is close to worthless.

But even if we had ironclad evidence that Russert did not discuss Plame with Libby (i.e., a tape, which I'm almost sure we do not have), Libby, who talked to scores of people every day, can plausibly claim to be confused about whom he had such telephone conversations with, months after the fact. The perjury case is still much weaker than Fitzgerald's vaunted "Libby lied about knowing about Plame at the time of his 7/10/03 conversation with Russert."

kim

Psychology, Jeff, and you can google names as well as I can. Syl, in particular, and others have repeatedly pointed out your oddly insistent characterization of 'memory'. You hang too much of your case against Libby on it. There be hippogryffs and shoals.
================================================

clarice

I know that this kind of ambiguity is far from unusual especially in long interrogations. If I sensed there was any in a witness' answers, I always went back over the question and answer to make sure the witness understood the question and his answer was equally clear.

Jeff

Here's the thing: if Libby's story is that he lied to Russert and was very careful not to confirm Plame's CIA affiliation for Russert, why didn't he do the same with Cooper on July 12? And Miller?

clarice

I don't know what he said to Miller, and apparently she doesn't either..

As to Cooper, what did he say again,"I heard that, too?" I forget. In any event I think by July 12 Novak's story had already hit the wires, hadn't it?

Jeff

In any event I think by July 12 Novak's story had already hit the wires, hadn't it?

Yes, exactly right. But what difference would that make?

clarice

It was already public knowledge..I heard that, too..means what--I read the wire clipping?

Jeff

Or I should say we heard, unsourced, from Sue Schmidt on November 26, 2004 that Novak's column hit the wires on July 11. And Schmidt's reporting has been unreliable. Indeed, in that very article she falsely portrays Cooper's testimony as matching Libby's, something we now know definitively to be false, and she appears to source it to someone knowledgeable about Cooper's testimony. Possible, but more likely it came from Libby's team. (Schmidt also seems for all the world to reappear on the Plame beat after quite a while off in order to publish on the very day Miller was going to testify -- Sept. 30, 2005 -- what Libby's story about their conversations were. As though Libby wanted to convey that to Miller by some legal means.) So I'd like to hear that about Novak's column from a more reliable source. It's probably true, but still.

clarice

I never have understood the anti-Schmidt shtick--

In Time, here's what Cooper said of his conversation with Libby. I do not recall that it varies from Libby's testimony on this score (only that Libby said that Cooper called ostensibly about welfare reform and IIRC, Cooper at first denied that but his notes indicated otherwise.)

[quote]This was actually my second testimony for the special prosecutor. In August 2004, I gave limited testimony about my conversations with Scooter Libby. Libby had also given me a specific waiver, and I gave a deposition in the office of my attorney. I have never discussed that conversation until now. In that testimony, I recounted an on-the-record conversation with Libby that moved to background. On the record, he denied that Cheney knew about or played any role in the Wilson trip to Niger. On background, I asked Libby if he had heard anything about Wilson's wife sending her husband to Niger. Libby replied, "Yeah, I've heard that too," or words to that effect. Like Rove, Libby never used Valerie Plame's name." [/quote]

And I think that Novak's story was on the wire by July 11 is not in serious dispute by anyone.

Jeff

From Cooper's own account:

Libby never used Valerie Plame's name or indicated that her status was covert, and he never told me that he had heard about Plame from other reporters, as some press accounts have indicated.

From Schmidt:

Time reporter Matthew Cooper has told prosecutors that he talked to Libby on July 12 and mentioned that he had heard that Wilson's wife worked at the CIA, a source knowledgeable about his testimony said. Cooper testified that Libby said he had heard the same thing from the media.

And the indictment is very clear on this discrepancy; it's all over it.

If Libby was well aware of Plame's CIA affiliation, what difference would the appearance of Novak's column over the wire make? Don't you remember the way a bunch of newspapers still refused to publish Plame's name for quite a while after Novak's column, because of concerns about classified information?

clarice

Oh, come on! That would be like saying every newspaper which carried the NYT NSA leak story should nbe in the dock with the NYT.

Schmidt said her source was a knowledgable source--heck that's what they all say. The question always is how knowledgable and how unbiased I suppose.

Frankly, I see no difference between Cooper's version and Libby's--Cooper doesn;t suggest in his Time piece that there is a major discrepency in their recollections..The Schmidt thing says Libby specified it was "from other reporters", Cooper says he told the SP Libby simply sais he'd hurt it , too. (Are you suggesting this was a wink, wink, he heard it officially? I see no basis for such a reading, BTW).

The indictment may be big on this minuscule difference in recollection, but I bet the jury will not find it a big deal.It certainly zips past me why this is a major difference.

JM Hanes

Cecil,

In re: "At some point, the court needs to let the reporters get back to their work, and the lawyers need to focus on the facts in their case."

I was curious about that same absurd extra-legal suggestion from the "media lawyer" in question, and -- no surprises here -- turned up Charles D. Tobin -- whose CV includes former in-house counsel at USA Today's parent company, Gannet. If he represents the media point of view, I'd say reporters will be going down in flames.

I also agree that Fitz's presser was a serious piece of smoke and mirrors which he may be regretting sooner rather than later -- perhaps, in fact, as early as next week when the defense seeks rulings on materiality. Exhibit Numero Uno? "A statement from the Prosecutor himself, Your Honor...."

clarice

Yeah, they need to get back to their critical work, but everyone in the WH should be driven to distraction by this fako generated by a serial liar. Got it.

And I agree absolutely with the presser being a downer for Fitz as we move into the big leagues--OTOH if he doesn't overstate things, what is his damned case?

Syl

I'll bet that what Libby actually said to Russert was also 'I heard that too'.

On a related note, you think, then, that if Cooper's version of events were true, he would be completely justified in taking "I've heard that too" as confirmation of the fact that Plame was CIA? And Novak was with Rove? So why was Rove reportedly surprised that he was Novak's confirming source?

Because Novak was wrong. Because reporters are stupid? Lazy? 'I heard that too' is simply a confirmation only of gossip.

Granted, I think a better formulation would be:

You heard that too?

And, perhaps, that's actually what Libby said to Cooper and Rove to Novak.

Yep, there's gossip going around about Wilson's wife.

MayBee

But Libby, whether he was pretending another reporter (Russert) had previously told him, or whether another reporter actually had told him, would be free after that to say to Cooper "I heard that too". Because by then he could assume (or pretend to assume) that the information was already public, and he could point to hearing it from someone else (other than an official).

Do I have my dates wrong? After Russert, there's no reason to pretend to hear it 'as if for the first time'.

The comments to this entry are closed.

Amazon





Traffic

Wilson/Plame