Libby To Pursue Media (cont.)

It was previously reported that Libby's defense in the Plame investigation would include putting the media on trial. [In this context "the media" includes Matt Cooper of TIME, Judy Miller, formerly of the NY Times, and Tim Russert of NBC News, all of whom were named in the Libby indictment.  In addition, the new court filing indicates that Libby's defense may seek testimony from Andrea Mitchell of NBC News, Bob Woodward and Walter Pincus of the Washington Post, and perhaps others (I nominate Nick Kristof)].

The court filings, as described by Reuters, the AP, and the NY Times shed more light on the defense strategy [here is the WaPo, and links to the court filings are here].

From the AP:

Lawyers for a former top White House aide charged in the CIA leak investigation said Thursday the prosecutor should surrender a wide range of information about news organizations and their reporters, including The Washington Post's Bob Woodward.

Special Counsel Patrick Fitzgerald has failed to disclose information that would enable the vice president's former chief of staff, I. Lewis "Scooter" Libby, to properly defend himself, his attorneys argued in papers filed with U.S. District Judge Reggie Walton.

...

A federal grand jury accused Libby of lying when he said he learned about Ms. Wilson's identity from reporters. The indictment contends Libby found out about her identity from the CIA, the State Department and his boss, Vice President Dick Cheney.

"The government should not be allowed to charge Mr. Libby with lying about statements concerning what reporters knew about Ms. Wilson's identity, and at the same time deny him information that may establish one of these possible defenses," Libby's lawyers argued in a 23-page brief.

"The government has refused to produce information in its possession about what reporters learned from sources other than Mr. Libby about Ms. Wilson's employment status," Libby's legal team argued.

The prosecutor has asserted that "such documents are not relevant to a perjury and obstruction case."

"It is material to the preparation of the defense to determine the identity of all reporters who know that Ms. Wilson worked for the CIA, and to discover when they learned such information, from whom they learned it and whether they disclosed it further after learning it," Libby's legal team said.

Tim Russert is a bit of a focal point in the AP version:

The indictment says Libby lied when he told investigators he learned of Ms. Wilson's identity from NBC correspondent Tim Russert; when he told Time magazine reporter Matt Cooper that reporters were telling the Bush administration that Ms. Wilson worked for the CIA; and when Libby told investigators he did not discuss Wilson's wife with New York Times reporter Judith Miller.

Libby would have the right to produce testimony that tended to show many reporters knew about Ms. Wilson's CIA employment and that Russert did make the statement Libby allegedly attributed to him, but that Russert had forgotten about it, the court filing stated.

In addition, the defense could argue that Libby's statement to investigators that "all reporters knew" about Ms. Wilson's CIA connection is a factually correct statement that was made to Libby and that it shows Libby "is simply confused about whether Mr. Russert is the source of the statement," the papers added.

Ahh, the defense won't be accusing Mr. Russert of lying, but they will suggest that he may have misremembered.  Oh, boy.  We had extensive excerpts from Mr. Russert's problematic statements here, and misremembering is a distinct possibility.  Bonus speculation - all of Russert's oddly evasive answers are designed to let him say that he has never lied, or misremembered, to the American people.  Hmmph - Fitzgerald represents We the People, yes? 

Well, maybe Russert wants to be able to say he never lied directly, or on air, or some such.  No matter - if the defense can make this stick, he is doomed, and he knows it.  Mr. Russert won't mention that little conflict on air, of course, but he knows it.  In any event, fans of Mr. Russert will not want to miss the spanking he receives from Arianna over 'Lukegate'.

Reuters shines a light in a different direction:

The attorneys said the motion concerned their request for documents and information on three important issues: "What did the press know prior to July 14, 2003, about whether Valerie Plame Wilson worked at the CIA, from whom did they learn it and with whom did they discuss it."

They said turning over the information would enable them to decide the necessity and scope of pretrial subpoenas for journalists and news organizations.

The motion made clear that what the reporters knew will be an important part of the defense strategy.

"It is necessary for the defense to determine and investigate which individuals served as sources for journalists who learned about Ms. Wilson's employment status prior to July 14, 2003," they said.

"Once we learn the names of the reporters' sources, we will attempt to interview them, investigate whether they discussed information about Ms. Wilson with anyone else and evaluate whether to subpoena them for testimony at trial," they said.

Libby's lawyers also sought copies of subpoenas issued to reporters and news organizations during the prosecutor's grand jury investigation into the leak, and any agreements to limit the scope of information provided by the reporters.

We are especially intrigued by the defense attempt to learn about "any agreements to limit the scope of information provided by the reporters [to Fitzgerald]".  Gentlemen such as Mr. Pincus of the Post may be asked questions by the defense that Fitzgerald passed over, such as, "Was the leak you received on July 12 your first hint that Ambassador Wilson's wife was at the CIA, or had other sources mentioned this to you earlier?".

David Johnston of the NY Times notes another distinct possibility, although he does not name his colleague Nick Kristof:

The defense request strongly suggested that Mr. Libby's defense could turn on the testimony of reporters, who are expected to be called as witnesses in the trial, including those who testified during the grand jury investigation about their conversations with confidential sources and perhaps others who have not yet been identified.

Emphasis added.  And let's suggest some more names - based on her famous Oct 3, 2003 statement that, among reporters pursuing the Niger story, the fact that Wilson's wife was at the CIA was "widely known", it seems a fair bet that chatting with Andrea Mitchell will be a part of the defense strategy.  To compound the confusion, in Oct 2005 Ms. Mitchell admitted that she had spoken with investigators, but later she decided to tell Don Imus that she had "in no way" cooperated with the Fitzgerald investigation.  Maybe she spoke with investigators before Fitzgerald took over?  She ought to have lots to chat about, so I doubt her conversation with Libby's lawyers will flag.

My Not So Bold Prediction - this trial will mark a watershed in the history of the media in America.

UPDATE:  The WaPo filed past my bedtime, but they add the news that Andrea Mitchell and Walter Pincus (as well as the obvious choice, Bob Woodward) are mentioned in the papers.

The court papers also mentioned an interest in questioning NBC News reporter Andrea Mitchell, who suggested in an October 2003 news program that it was "common knowledge" among some intelligence reporters that Plame worked at the CIA, and Washington Post reporter Walter Pincus, who allegedly learned about Plame from another unidentified source in 2003.

"Common knowledge"?  Among the people following the Plame story, it is widely known that Ms. Mitchell did not use the phrase in quotes.  Well, no good deed goes unpunished; Carol Leonnig of the WaPo did a good job reporting that Mitchell tidbit, and now we will attempt to pry a correction out of her.  The key Mitchell transcripts are gathered here; suggestions welcome (please keep them within the realm of physically possibility).

The WaPo nearly brought a tear to me eye with this:

The defense effort to delve deeper into Fitzgerald's investigation, if successful, could divulge the identities of some anonymous, high-level government sources whom reporters and news organizations have spent years and millions of dollars in legal fees protecting from public view.

Oh, poor dears.  This next bit echoes David Johnston of the Times:

The defense strategy is expected to pull several high-profile Washington journalists into a legal battle over the First Amendment, many of them for a second time.

Many for a second time, some for the first.  The subpoena, the court fight, the adverse rulings, the deposition, the testimony - these high profile journalists may as well prepare themselves to walk the line.

MORE:  Jeralyn Merritt has excerpts from the court filing.  Now, we have a question for Ms. Merritt, whose ghastly conflict of interest makes her a good person to ask - does the Libby request for this information seem likely to be granted by a judge?

The conflict - as a top-notch defense attorney, Ms. Merritt probably has never been satisified that a prosecutor provided everything she wanted; on the other hand, she is not exactly Libby's biggest booster in the blogosphere.

My two cents - this looks like a lay-up, for at least some of these reporters (Nick Kristof may be a fishing trip).

FINALLY:  In response to overwhelming reader demand, here is some contact info for the Libby defense fund.  I noted my personal caveats here; frankly, I can think of a million more worthy causes than bailing out a millionaire Washington lawyer up for too-cute perjury.  (And this comes from a guy who buys tickets to watch Jeter and A Rod).

However - if you are agonizing between a check for Libby and a check for Hillary 2008, here you go:

Libby Legal Defense Trust
2100 M Street, N.W.
Suite 170-362
Washington, D.C. 20037-1233

ADDENDUM:  The WaPo provides helpful links to the Libby indictment, the press release summary, and the Fitzgerald press conference.

Comments

[topsecretk9]

I haven't seen mention of this too ( then again, maybe I missed it ) from AP, Jan. 23

Although the specifics of Monday's filing remain secret, Libby's defense team hinted in a court document last Friday that they will want to disclose to a jury the nature of Plame's work as a CIA operative.

Libby's lawyers said Plame's now-classified duties are among the "significant disagreements" they have with special prosecutor Patrick Fitzgerald, an issue they believe is "material" to the defense's case.

[Jim E.]

While I enjoy your mocking of Russert, you quote, but fail to dwell on the excerpt of the report which adds that, according to defense counsel, maybe Libby "is simply confused about whether Mr. Russert is the source of the statement." So Russert is a lying, weasely, misremembering dissembler . . . or he's totally telling the truth.

The whole point of the defense trying to go after *other* reporters is so they have an out in case Russert turns out to be a credible witness. The defense would then argue that, oops, maybe it's Libby, not Russert, who has misremembered.

[richard mcenroe]

How in the hell can the prosecution justify even attempting to withhold one word of information about the journalists they interviewed and the questions they asked?

I think the Libby term just started drafting their first appeal...

[clarice]

Right, JimE..Let's suppose for the sake of argument that it turns out 60 reporters knew this stuff from folks at DoS and other (not WH sources) and were blabbing to eachother and calling Libby--Would his statement that Russert told him he was hearing it from other reporters be more likely to have been an honest mistake than a deliberate act of perjury? Take your time, there is no penalty for thinking.

[Thomas]

Of course, even if the great conspiracy could be proved, they would still have to deal with the little fact that Libby having been told by Cheney about Plame before he talked to Russert did not mention this to the grand jury. Which is kindof the basis for the perjury charge, isn't it?

[clarice]

ts--As to this:
Although the specifics of Monday's filing remain secret, Libby's defense team hinted in a court document last Friday that they will want to disclose to a jury the nature of Plame's work as a CIA operative.

Libby's lawyers said Plame's now-classified duties are among the "significant disagreements" they have with special prosecutor Patrick Fitzgerald, an issue they believe is "material" to the defense's case.

This is why Fitz did that craperoo fiddle about her employment being classified. I think, he he knew that she was not overt, he knew he had no basis for a criminal investigation. And I think he knew this no later than the Miller appeal for when Dow Jones got to its suit to see the redacted submission, it turned out there was nothing in there that was classified..and if the claim was that she was undercover, there would have been.

[clarice]

trying to close the italgate.

[Jeff]

And I think he knew this no later than the Miller appeal for when Dow Jones got to its suit to see the redacted submission, it turned out there was nothing in there that was classified..and if the claim was that she was undercover, there would have been.

clarice - I could be wrong about this, but my understanding was that the Dow Jones suit was to see the eight redacted pages of the judge's opinion, not Fitzgerald's sealed filing, and that it's the opinion that contains nothing that, as of Nov. 30 or whenever, was classified. Again, my sense was the clear implication was that there very well may remain classified stuff in Fitzgerald's filing. But I could just be wrong.

[Jeff]

Libby having been told by Cheney about Plame before he talked to Russert did not mention this to the grand jury. Which is kindof the basis for the perjury charge, isn't it?

Not exactly. In fact, it appears that Libby did mention or was confronted with evidence of his conversation with Cheney. He claimed that he forgot and learned it as new from Russert (or at least that's the prosecution's charge, many people here have disputed that, as it is pretty crucial to the charges and seemingly obviously a lie if Libby did claim that he forgot). So I think the basis for the obstruction charge that Libby was deliberately deceptive about how and when he learned about Plame's CIA connection and how he conveyed it to the media has to do with all the other, ongoing discussions of Plame Libby had, which make it unbelievable -- even to his defenders here -- that he forgot and learned it as new in conversation with Russert.

[Jeff]

more likely to have been an honest mistake than a deliberate act of perjury?

More likely, but not by much, since, remember, Libby's story is very tightly constructed, with no discussion of Plame on July 8 with Miller and then boom July 10 happens and he starts talking about it with reporters. So there's not a lot of wiggle room, it seems, in terms of dates, and there seems to be very good records of Libby's contacts with reporters during that time. But then, of course, the question is, is Libby going to say that Miller is lying or misremembering or misaccounting her notes, or is he going to say that he misremembered that conversation honestly too?

[clarice]

My recollection is that the redacted pages were the basis of special prosecutor Patrick Fitzgerald's claim that Judith Miller should be jailed for contempt and contained information that Judge David Tatel said in a concurring opinion demonstrated Fitzgerald had "met his burden of demonstrating that the information was both critical and unobtainable from any other source.

Now, since the anti-Libby crowd cited ad nauseum the Tatel "balancing test" as proof Plame was a covert agent, one would expect the redacted pages would have contained some evidence to that end. And to my recollection they did not.

Now my recollection may be imperfect..does anyone have any contrary information?

[topsecretk9]

Well what does this mean?

Libby's lawyers said Plame's now-classified duties

[clarice]

Jeff, I'm not wasting time repeating extensive discussions over ages. Libby did disclose his conversations with Cheney, the questions he was asked seem rather baroque if they were simply designed to elicit that, his description of the Russet discussion seems very clearly to describe his state of mind--that is, not wishing to tell Libby he knew about Plame--and not from whom he first heard the relevant information (which in any event under the Agee Act which formed the basis of the investigation seems irrelevant). He may well have believed Fitz was being rational and trying to ascertain if HE told anyone.

[clarice]

TS--Isn't that interesting? I have no idea.

[topsecretk9]

They weren't, but now they are?

[Rick Ballard]

You might have to parse status versus duties on that one.

her now classified duties is not quite the same as her now classified status

[clarice]

We've all been assuming she was overclassified, not that she wasn't classidied at all. Fitz said at the presser that she was classified..was she not when the incidents in question occurred? Or is this just to seek what her present classification is..I think this is more likely..and when was this done?

[Tom Maguire]

My recollection is that the eight redacted pages had no classified info, but were just grand jury testimony.

However someone else pointed out to me that Tatel does note in his opinion that Fitzgerald did submit classified info to the court.

How in the hell can the prosecution justify even attempting to withhold one word of information about the journalists they interviewed and the questions they asked?

Does anyone want to stab at this?

I can imagine a prosecutor arguing that Libby's stroy about hearing the news from Russert as if for the very first time is a lie that is independent of anything Woodward, Mithcell, Russert, et al might have known.

But there are other counts in the indictment, and the state of knowledge in the journalist community seems to be relevant to whether Libby might, for example, have plausibly said to Cooper, "I am hearing this from other reporters."

Or, it might reconcile Miller's disagreement about dates - sloppy notes, other sources, who knows?

And it certainly might nearly impeach Russert directly, if Andrea Mitchell testifies that she told Russert about it (then we are relying on Russert's word/memory that he did not ask Libby about something that was buzzing in his newsroom and about which he was aware).

I'm not a judge, but I don't see this being turned down.

[Jeff]

since the anti-Libby crowd cited ad nauseum the Tatel "balancing test" as proof Plame was a covert agent

I don't remember this nausea, but in any case this is neither here nor there on the redacted pages. (I believe the claim had more to do with the idea that this was a serious case, since Tatel stated that even with a standard that had to be reached to overcome reporters' privilege, this case reached and surpassed it.) And I just looked back at Fitzgerald's filing that there was nothing now classified in Tatel's opinion, and the actual classified material is at even a further remove from Tatel's opinion than I thought. Tatel's opinion contains references to Fitzgerald's sealed filing, but Fitzgerald's sealed filing itself included detailed descriptions of the investigation that included specific references to grand jury testimony and materials identified as "classified," as well as other stuff. Given that much of a remove from the actual classified materials, and where in time we find ourselves, it's not shocking to me that Tatel's opinion itself is fine to release.

[Jeff]

his description of the Russet discussion seems very clearly to describe his state of mind

Oh come on, clarice, you can argue for your interpretation of Libby's story. But to suggest that it is very clear is ridiculous. It's not just Fitzgerald who understands Libby's story differently from you. It's the entire grand jury who heard his testimony themselves. And the FBI agents. And Tom Maguire, evidently.

[clarice]

TM, I think it will be hard to turn down the request to make Fitz turn over what he has on this. I think he has bupkus. He didn't ask, did he? And if he doesn't we go back to what I said a long time ago, Libby has set up a good argument as to why the normal rules of criminal discovery would be inadequate to provide him a fair trial and he will be given more--esp. the right to further question the reporters and subpoena their notes.

No regular prosecution would ever have been run this way--ignoring the distinct possibility of so much evidence absolving Libby and concentrating so narrowly on teeny bits to get the indictment.

[topsecretk9]

Hey, just when you start to think you are crazy for obsessing over every word...click here and you'll feel just a little better!

[Sylvia]

I don't remember the wording of the charges exactly, but wasn't it that Fitz was certain that Libby heard and inquired about Plame officially many times before he heard it from reporters? This based on Fitz's belief that LIBBY was the one who told all the reporters. So Libby committed perjury when he said that he heard about Plame from reporters first, whom he can't remember. If Libby can prove that other reporters knew about Plame at the time, even if he can't prove which reporter told him, he's off the hook, because there is no way to prove that ALL reporters didn't tell him- or NO reporter told him. You can't prove a negative. Really, the charges should be dropped.

[clarice]

I think it's even more--one of the accounts indicates reporters talked to other offiials who related that to Libby.

By the time discovery is over, it'll seem that everybody in the press was talking to someobody in the Administration and we get back to the absurd proposition that one can pin down with certainty the person who started such a well deseminated rumor.

[clarice]

DISSEMINATED (approaching the Midnight Hour)

[kim]

Maybe he's just a hell of a fine bloodhound, great at tracking down what he has been sent in pursuit of, but utterly unable to tell whether he has tracked a good man or a bad man.
================================================

[Rick Ballard]

Clarice,

They may be fishing for the original referral as well, with an eye towards Fitzgerald's lack of pursuit of the underlying premise. And I know they want the results of the internal CIA investigation which had to include that little phrase from Novak of "the CIA confirmed". There is a mad skunk in both the CIA files and Fitz's files and I sure hope that the judge gets past the "What stink, your honor?" cover fairly quickly.

Fitz's demand for extension of his area of interest is going to look pretty sleazy if it turns out that the original referral was as big a crock as it appears to be.

[Sylvia]

Right, it's like the telephone game. Also, if Libby can prove that other reporters whom he spoke to around the time of the first disclosure also were at least "likely" to know about Plame, it will be hard for the prosecutors to prove who told whom, and who is lying here - Libby or the reporter, even if the reporter denies it.

[Jeff]

Sylvia - Go read the indictment. It's considerably more precise than your characterization in several relevant respects.

[kim]

Yeah, and who told whom what about Plame is not precise at all. Besides, Tenet is the elephant in the living room. He and Fitz really ought to have a little conversation.
=========================================

[clarice]

Rick, wouldn't it be something if it appears that early on Fitz knew Plame was not properly classified as a cover agent within Agee and still continued to pursue the case? And if it was before he had Miller jailed--where did Tatel get that stuff from if not from Fitz?

[clarice]

coverT

[Jeff]

The original referral had no anchor in IIPA, if I remember. It had to do with the unauthorized disclosure of classified information. So clarice that argument won't fly. It was mostly those fine legal minds DiGenova and Toensing how recurrently put all the emphasis on IIPA and the attendant virtual impossibility of violating it.

[clarice]

Rick, it makes me feel more confident that you share my suspicion about the underlying stinkiness of the referral, Early on I raised questions about it..Among other things, my understanding is that in prior similar cases, this stuff was held by the DO for full internal investigation and didn't get out of the agency. Here it literally flew out of there to DoJ and into Andrea Mitchell's field of vision,

[clarice]

There is no way IIPA was ever under serious consideration. It was Agee or nothing. And an honorable prosecutor would have proceeded to establish FIRST whether it applied and if it didn't would have ended it.

[Rick Ballard]

Jeff,

Doesn't the first leak of the referral dispute that contention? Mitchell's pimping of the referral on Sept. 26 made a big deal of Plame's "undercover" status.

Do you have a copy of the original referral that you're referencing or do you just 'know' this?

[topsecretk9]

RB
HEH

[clarice]

In the SP's pleading on the Dow Jones redacted pages he says in November 2005 the agency involved reviewed the redacted pages and determined the material was no longer classified. not classified any more (I can't copy it for some reason ) This statement comes right after a discussion of Tatel's separate opinion which relied on the redacted pages in the opinion. Is the agency the CIA? Is it saying Plame's employment is no longer classified? Wasn't classified at the time of the referral?

[Jeff]

Rick Ballard (snotnose) - Leave aside the fact that I qualified what I was saying, not claiming to "know" (as you put it). Let's see, there's this:

But the CIA's initial "crimes report" to the Justice Department requesting the leak probe never mentioned that law, says a former government official who requested anonymity because of the confidential material involved. Fitzgerald may be looking at other laws barring the disclosure of classified info or the possibility that current or former White House aides made false statements or obstructed justice.

In Comey's initial letter authorizing Fitzgerald, there's no specific mention of IIPA either. You can find that here. There's more, but I hope that's enough.

[Jeff]

clarice - What is Agee if not IIPA? I'm confused.

[kim]

What about that referral? Was it just hiding in a pile of papers Tenet signed? Why else did he let it run by?
===========================

[clarice]

I misspoke (or rather misposted) I meant the Espionage Act. In either event it was --or should have been clear--within days that it was inaplicable as it is in the hundreds of such referrals made by the CIA every year.

[clarice]

kim, that is what has been reported. That is was in a stack of administrative papers awaiting his signature and had not been specifically drawn to his attention.

[anngi]

Clarice thinks the prosecution of the Blind Sheik was a crock too. (Fitzgerald again.) The coming "swift-boating" of Fitz by administration apologists is so sadly predictable. Fitz, being such a bad guy for busting terrorists, crooked politicians, and corrupt companies.

Libby lied and then tried to cover it up. Get over it.

[topsecretk9]

Snotnose?

I like it. I like it better than my "snarkbutt" --sort of a nice ad hom

[clarice]

OT--But some DU poster claims Kerry's office told him that Reid says he's ok with the filibuster and urged them to pester fellow Dems--Byrd, Landrieu, etc. If Kerry ever returns from Davos he better watch his back.)http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364x251957

[topsecretk9]

B R I N G I T ON!!!!!

[clarice]

I think the case is weak, I always did. I think the prosecution of the Blind Sheik is, too. But I'd hardly say anything I or any of those critical of the prosecution have said comes close to a single day of the vituperation Starr endured for years.I realize the fitzmas fizzle was hard to take, so I'm warning you the Libby fizzle will hurt you even more,anngi.

[topsecretk9]

I am frankly tired of people beating up on Clarice, particularly drive by trolls. I am not sure why you so seem to be their favorite target, I have my hunch. Anyways Clarice I admire that you always reply and answer the attack. You don't have to. Regulars here ignore them and I just hope you don't feel you have to.

[Rick Ballard]

"says a former government official who requested anonymity because of the confidential material involved."

GSA janitor? DCI? Fileclerk?

Larry Johnson?

Ahchooo!!! That cleared it up.