The Fitzgerald Affidavit - Was Libby Novak's Source??

With a hat tip to Cecil Turner we find the Aug 2004 Fitzgerald affidavit in the Libby case posted at the Wall Street Journal (a 38 page .pdf file, also available here ).

Don't let it ruin your Super Sunday, but this looks like a target-rich document.  I have stalled on p. 3, totally captivated by this redaction:

Thus, Russert could not have then imparted that information to Libby. Moreover, Libby has given accounts of conversation with two other reporters - [redacted] and Matt Cooper of TIME magazine - that are contradicted in many respects by the testimony of [redacted] and Cooper.

What other reporter?  As of August 2004, Judy Miller had not testified; it is surely not Bob Woodward, nor, from context, could it be Tim Russert.

That would seem to leave

(a) Glenn Kessler of the WaPo, who said that he was not a player in this;

(b)  Walter Pincus, who said that he talked to Libby but received the Plame leak from someone else;

(c) Bob Novak himself;

(d) some other reporter who avoided a public legal brawl.

However, regarding choice (d) - in his recent letter, Fitzgerald asserted that only five reporters of whom he was aware received the Plame leak - Woodward, Miller, Pincus, Cooper, and Novak.

So, either the mystery reporter in the above redaction *denied* receiving the leak, even though Libby 'fessed up to it, or we should be able to pull a name from Fitzgerald's list.

Did Libby say he tipped Pincus?  Maybe.  But that would seem to help Libby, in a "failed memory" sort of way.  (And hey, did Woodward tell Pincus in June, or didn't he?  Woodward says yes, Pincus says no.)

Otherwise, we are pretty much left with Bob Novak, which poses a lot of questions - for starters, why is this not in the indictment?

Well, there may be an answer on p. 4 - puzzle solvers will love this, and I welcome some help.

And a caveat - DayQuil and .pdf files don't always mix well for me, so if there is an obvious answer, break it to me gently.  Thanks.

Clarice Feldman has looked through this, and I bet the EmptyWheel will follow up her interesting tour of the Tatel redactions.

Page four, and beyond!

MORE:  I disputed his arithmetic, but Adam Liptak counted subpoenas and public cases in July 2005 and said this:

Four reporters have testified in the investigation: Glenn Kessler and Walter Pincus of The Washington Post, Tim Russert of NBC News and Matthew Cooper of Time magazine.

...Mr. Novak has not said whether or how he cooperated in the investigation.

UPDATE:  A reporter's name is redacted a couple of times on pages 9 and 10 in a context where Novak just would not make sense - the passages suggest that the redacted chat happened on the weekend of July 11-12.

Worth remembering - Wilson's op-ed was published July 6.  By July 8, Novak was aware of the "Wilson and wife" story and told it to a stranger on the sidewalk (who, oddly, knew Wilson).  If Libby was Novak's first source Libby could not have sourced the Plame news to a chat with Russert on July 10.

Kessler of the WaPo spoke to Libby on July 12; Pincus received a leak from someone (he says not Libby) on July 12, but maybe Pincus spoke to Libby that weekend as well.

Or maybe Libby was a third source for Novak?  Novak's column hit the wire services on July 11, but perhaps Libby chatted with him over the weekend.

I'm having problems with all three of these alternatives.

GROAN: Jeralyn Merritt makes a good case that it is not Glenn Kessler; the Emptywheel (with commenters) makes the case that it is.  From Jeralyn, a key cite from the CJR:

Glenn Kessler of The Washington Post notes that while he did agree to talk to Patrick Fitzgerald, as this article says, he wants to make clear that the scope of the questioning was very limited. Kessler says he did not divulge what two conversations he had with I. Lewis Libby in July 2003 were about, but merely affirmed that the subjects of Valerie Plame, Joseph Wilson, and Wilson's trip to Niger had not come up.

Well.  Libby could have insisted that Kessler *did* bring it up.  But why drop that from the indictment?  Surely it fits the pattern of Libby's lies, buttresses Russert's story, and is as compelling a "he said, he said" as, say, Judy Miller (the new Gold Standard in Unlikely Witnesses).

Dare I guess?  Kessler covers State, from whence the Woodward leak may have come.  Fitzgerald didn't know this when he drew the indictment, but he surely knew just how limited his questioning of Kessler had been, and he may have wanted to avoid surprises on the stand.

Bonus Paranoia with Harmonic Convergence:

On the question of when did Fitzgerald learn about the Rove-Cooper talk, the EmptyWheel says this:

This supports--but does not by itself prove--that Fitzgerald did not yet know who Cooper's source was on August 27, 2004. Or, to put it differently, this suggests that Fitzgerald may not yet have had the Rove-Hadley email verifying that Rove was Cooper's source.

How about that?  The Anon Lib had convinced me of something similar - the second subpoena to Cooper did not seem to name a government official. suggesting that Fitzgerald invoked the "exhaustion of reasonable alternatives" clause in DoJ guidelines.

But on to the paranoia - there is a good hint in the new documents about why Fitzgerald may be so intrigued by Rove.  From an old WaPo:

Cooper and his attorneys were surprised that Fitzgerald agreed to ask Cooper questions only about his conversations with Libby, sources familiar with the investigation said.  The sources said Fitzgerald looked surprised in the August 2004 deposition when Cooper said it was he who brought up Wilson's wife with Libby, and that Libby responded, "Yeah, I heard that, too."

Well, I was surprised the other day to learn that Libby claimed that he raised the subject of Plame with Cooper (see "Another Note", at bottom).  However - suppose Libby was trying to keep Karl out of it by putting himself forward as Cooper's original source?  Might Fitzgerald have been wondering about that?

Comments

[kim]

Empty Wheel is tilting at fantastic ones.
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[Sue]

Well, that was almost anticlimatic. Unless, of course, you wanted to practice reading the word REDACTED.

[Lew Clark]

Just a note on this WINPAC/Counterproliferation thing. Even though Empty Wheel and others thinks this is a slam dunk. WINPAC=non-covert; Counterproliferation=covert. That is as silly as the Corn meme. "She works at CIA so, of course, she is a covert agent."

Granted, a covert agent working on WMDs would be more likely to work for Counterproliferation than WINPAC. But not everyone assigned to Counterproliferation is a covert agent. Not by a long shot.

[Beto Ochoa]

Mr. Justice Douglas wrote in the majority opinion on Brady V Maryland 1963
“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.
The principle of Mooney v. Holohan is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly…”

This may be a situation where Mr. Libby has been targeted by a prosecutor whose' office is compromised at some level. The level of opposing statements by Mr. Fitzgerald is alarming yet illuminates the compromise suspicion. Why would Mr. Fitzgerald bring this charge, a charge that with every new release of information appears to be a contrivance? The judge seems absolutely bamboozled by the prosecutions statements of findings to the court and is expressly of the opinion that he is dealing with a violation of the Intelligence Identities Protection Act. Mr. Fitzgerald gives this same impression in his statement to the press last October; yet in answer to the December 14th request by Mr. Libbys lawyers to turn over any evidence of the claims made to the court that Ms Wilson was covert or not, Fitzgerald first answers by saying "We have neither sought, much less obtained, 'all documents, regardless of when created, relating to whether Valerie Wilson's status as a CIA employee, or any aspect of that status, was classified at any time between May 6, 2003 and July 14, 2003." and later saying "We do not agree that if there were any documents indicating that Ms. Wilson did not act in an undercover capacity or did not act covertly in the five years prior to July 2003 (which we neither confirm nor deny) that any such documents would constitute Brady material in a case where Mr. Libby is not charged with a violation of statutes prohibiting the disclosure of classified information."

What the hell is he talking about? The very genesis of this investigation was the violation of the IIPA and if that was never “fully” investigated then what has been going on all this time?

It is a violation of title 18 if the prosecutor has manufactured a crime to a federal grand jury and it appears now he has. Mr. Libbys first, fourth and fifth amendment rights have been violated as well.

Who got to Fitz’ and how did they?

[Lew Clark]

I've only read about this Redacted dude lately. But reading all the stuff released lately, I'm convinced that Libby, Rove, Cheney, Miller, Cooper, Novak, etc. etc. are off the hook, but this Redacted dude has a lot of explaining to do.

[kim]

Like I said on another thread, BO, it seems Fitz is either corrupt or stupid.
========================================

[Sue]

Just out of curiosity, does a whistleblower have to be telling the truth? If someone is afforded whistleblower status and it turns out later that not everthing you whistled about was true, do you lose that status?

[Rick Ballard]

Sue,

I don't find it anticlimactic at all. It's an opportunity to follow Fitz's logical train of thought (that's the little one with "Lionel" in big letters on the engine - easy to find as it's running on a circular track).

He is proceeding from a premise that the 16 words had to refer to Niger. Hust absolutely had to. Because then, Joe "Whistleblower" Wilson was performing a great public service by coming forward with the findings of his exhaustive investigation in Niger and that is very important because Niger = Africa and Niger has uranium mines therefore Niger is the only possible "source" that the Brits could have been referring to "and" the phony docs were found out in a split second by the eagle eyes at the most reputable IAEA so the President must have been lying and felt the need to cover up his lie by outing Valery Plame.

It's actually a miniature Lionel engine running on HO gauge track in a very tight circle - and he's been a jerk following it since day one.

[Lew Clark]

I'm with Rich. To be a "whistleblower" you have to have expose criminal conduct by government officials. Fitzgerald admits that he had bought off on the "Bush Lied" story. And that makes Wilson a hero and Bush, Cheney, Rove and their little dog "Scooter" a bunch of lying crooks. That answers a lot about the conduct of his investigation from that point on.

The other part, which I can't cut and paste from the document is, Fritz's admission that he has no evidence that Libby knew Plame was protected by IIPA. There are two explanations for this. The six or more government officials that told Libby she worked at CIA didn't know either, or, more believable, there is no evidence Libby knew she wasn't protected by IIPA, because Libby knew she wasn't.
Now maybe, somewhere in the "Redacted" are the documented proof she was covered. I doubt it. I think by this point Fitz also knew she was not covert. But dammit, he also "knew" the White House was dirty and Joe Wilson rescues homeless puppies, and he was gonna prove it!

[Kate]

Didn't Novak tell us that we'd all be chuckling and wondering what all the fuss was about when he finally revealed his source. Somehow, doesn't sound like Libby, sounds more like Armitage--you know, one of the good leakers.

[Jim E.]

Doesn't it look like the last name of the reporter starts with the letter 'M,' 'N,' or 'P.'? I can see a vertical line at the beginning of the space. (I suppose it could also be a number of other letters with a vertical line, too, but I think it might be Novak.)

[Lew Clark]

Yep Kate,

And Woodward implies that his source(s) told him she was not covert and it was all Mickey Mouse political "much to do about nothing".

[topsecretk9]

I might be confused, but does Libby fit into the "no partisan gunslinger" category?

[Jim E.]

On the bottom of page 4 of the affadavit, where it talks about Wilson speaking with reporters, there's a redaction in the middle of the sentence. In her article, clarice said she'd bet money that the redacted portion said something along the lines that Wilson and wife, Valerie Plame, spoke with several reporters. I think clarice is wrong.

I would like to agree with part of Cecil Turner's suspicion in a previous thread. Cecil thinks the redacted portion is a clause related to Wilson himself, perhaps something along the lines of "and who wasn't ever required to sign a confidentiality agreement."

While I have no clue what the redacted clause says, it can't be referring to another person. If it were referring to another person, there should be a comma after the word "trip." Since there isn't, the missing words refer to something specific about Wilson--not anther person.

[topsecretk9]

so many little nit picks to keep track of, but wasn't the "no gunslinger" a former official too?

[Sue]

Why on earth would that portion be redacted if it merely said he wasn't required to sign a confidentiality agreement? What was secretive about that? Obviously he didn't sign one or he would have been in trouble for writing the op-ed to begin with.

[Jim E.]

I wonder if any of the Rathergate/kerning experts can play with the affadavit. It seems like there are several places where one could plug certain phrases into the retacted areas. For instance: "Robert Novak of the Chicago Sun Times" seems like a pretty good fit on pg. 9.

[Syl]

I still think the redacted reporter could be Miller. She didn't testify until later, but Libby probably already had.

[Syl]

Also, Libby said re Miller the same thing he said re Cooper--that he had told her he'd heard it from reporters and didn't know if it were true.

[Jim E.]

"Why on earth would that portion be redacted if it merely said he wasn't required to sign a confidentiality agreement?"

Well, I have no idea what the redacted portion says, only that it refers to WIlson, and not another person.

[Jim E.]

Syl,
Since the document we're discussing is about Judith Miller, we know it's not referring to Judith Miller. The document basically says Libby spoker to Cooper, Miller and [redacted].

[Syl]

nevermind.

[Jim E.]

OK, I no longer think it's Robert Novak. I think it's Walter Pincus. This is why:
1. "Walter Pincus of the Washington Post" is almost identical in length to my original guess (yes, I know about prop font, kerning, etc. -- I'm relying on my eyeballs) and thus fits well on page 9.
2. On the page 3 redaction, the Walter Pincus redaction works. The redaction ends at the beginning of a line, and leaves only about 4 or 5 spaces. In that space "Post" would fit nicely, whereas "Times" would not.

[Syl]

Well, excuse my earlier brain fart. Now let me have another one.

Pincus. If Libby said he told Pincus, and Pincus said he didn't, that simply shows that Libby is lying about everything to fitz and would be a reason to point it out in the document.

[Syl]

Sheesh. Two cross-post instances betwixt me and Mr. E.

[Lew Clark]

Oh no!

We've been reduced to divining what hides behind the "redacted" door. We'll be total nut cases by the trial (as if we weren't already).

My guess. Everywhere you see "redacted" there is a statement by Fitzgerald. "Just kidding! Wink wink, nudge nudge. Know what I mean?"

[Jim E.]

This is weird: at the top of page 12, a former female employee in the communications staff in OVP, testified that she heard in June or early July 2003 that Wilson's wife worked in the CIA. Who did *she* hear it from?

And who is she? Mary Matalin?

[kim]

A Multicephalic Redactyl just crawled out from underneath the bed.
======================================

[topsecretk9]

Pincus. If Libby said he told Pincus, and Pincus said he didn't, that simply shows that Libby is lying about everything to fitz and would be a reason to point it out in the document.

Libby 'fessed up to it, or we should be able to pull a name from Fitzgerald's list.

I dunno, but Pincus considered his source to be casual and not planting a story and Pincus didn't believe him (which I still think is weird, why not?)

Maybe Libby, being fully honest fessed up to a conversation with Pincus, but because Pincus didn't consider it a leak the interpretations of all that was discussed varied (and we know Pincus was able to way limit questioning)

Could be a case of Libby saying more about a discussion than Pincus.

I've been of the mind that reporters have all been squirelly in their responses.

[Sue]

Actually, rather than redacting something about a confidentiality agreement it says,
"and therefore was under no obligation to actually tell the truth".

Teehee...my guess is as good as anyones.

Unless he described Plame as his wife, Valerie Plame Wilson, a covert operative with the CIA, working in WMD, it doesn't fit that Valerie is the redacted portion.

Something else, though, just because we are only seeing the redacted portion won't Libby and his defense lawyers see the unredacted portion?

[Gary Maxwell]

Is it just me? Cuz it sure seems that with every peel of a layer of onion here two things are certain, a strong odor is given off and even through the stinging eyed tears, things do look like this is a prosecution that is not going to be trial in 07, not Lewis Libby despite his name being second on the court case.

What about all that triumphant caterwalling that our leftie friends were putting on display just about 36 hours ago? Where is it now?

[Gary Maxwell]

Strike first "not".

[Sue]

Which reporters, besides Miller and Cooper filed motions to have their subpoenas quashed?

[topsecretk9]

Based on my noodling in photoshop and Word, JimE is right "Walter Pincus of the Washington Post," fits and "Robert Novak of the Chicago Sun Times" is too long.

Walter Pincus of the Washington Post,
Robert Novak of the Chicago Sun Times,

Of course this is not scientific

[TM]

On timing, Wilson published his op-ed on the 6th; by July 8, Novak was ranting to "Wilson's friend" about Plame and Wilson in their sidewalk encounter.

So, if Libby had spoken to Novak by then, how in the world did he source that back to Russert?

Or did he just flat-out deny leaking to Novak?

And either way, how does that stay out of the indictment?

The Pincus alternative does avoid all these questions.

[Cecil Turner]

I wonder if any of the Rathergate/kerning experts can play with the affadavit.

I couldn't make anything out of it. However, it looks like a couple capitals are in there (maybe italicized) and possibly a lower case with a dangling bit just before the end. I tend to agree with Jim E. that it might be the name of some organization (possibly a news outlet), but I can't make anything sensible fit.

[Dwilkers]

Fascinating.

I just finished a couple hours reading the linked pages and studying the associated comment threads. We are really getting into the arcane.

You guys have done some amazing work TM. I'm going to have to digest a bunch of that over a few days I suspect.

[topsecretk9]

Hey, just a thought...but could the portion on page 4 be referring to another source...like Rand Beers.

Wilson, who was not a government employee at the time of the trip and Mr. Rand Beers, a former National Security Council Official spoke to several reporters...

or some such.

[topsecretk9]

On the Rand Beers thing, that may be why Fitz. is buying into "whistleblower" --and why he never cared to disturb the "Chicken Body" and it explains p.4 as backgrounder

Does this makes sense?

[clarice]

Still away with little time to play with it..does
and his wife, Valerie Plame or some other iteration fit the redaction space?

[Jimmy's Attack Rabbit]

****Note to Future Historians****

The event known as "Nada-gate" should be considered as a narcotic. Be advised that the continued contemplation of a "Nada-point", or "Nada-points", can cause nothing but the need for another.

[clarice]

Rand Beers certainly has been one of the people I strongly suspect as Wilson's shopping partner. Also try Richard Clark.

Surely, Wilson needed someone else to establish his credibility--

[p.lukasiak]

a couple of points....

1) Pincus could have contradicted Libby's claims about their conversation -- Libby claims he told all the reporters he spoke to that he'd heard about 'wilson's wife' only from other reporters. Pincus, who did speak to Libby about Wilson's wife, is probably contradicting that claim.

2) Viget makes an good "typographical" case that the missing name on page 2 is Kessler because "Pincus" is too short. However "Pincus," would probably fit.

3) re: (And hey, did Woodward tell Pincus in June, or didn't he? Woodward says yes, Pincus says no.)

actually, there accounts are now consistent. Woodward claims that he told Pincus literally "in passing" -- Woodward was walking past Pincus who was working at his desk. Woodward says that Pincus's reaction consisted of one word "What?", which Woodward originally interpreted as meaning "Really? That's interesting", but which Woodward now concedes could have simply meant "I didn't hear what you said."

Woodward's story about Pincus has always been suspicious, IMHO. If Woodward thought Pincus knew, he would have assumed that Pincus had told Downie and the Post lawyers -- especially given all the legal stuff that was going down with the Post. So, if Woodward really thought that Pincus had told Downie, there would have been no reason for Woodward to not have told Downie himself -- indeed, he would have been expecting Downie to ask him about it.

[p.lukasiak]

Which reporters, besides Miller and Cooper filed motions to have their subpoenas quashed?

paragraph 98 makes it clear that someone from the Washington Post was being supoenaed. Pincus's own account makes it clear that he was supoenaed in the summer of 2004 -- and this supoena is dated August 2004. Pincus's own account also says that arrangements were made to talk to FitzG, and he did so in September 2004.

this strongly suggests that Pincus was being supoenaed along with Miller -- and that is what most of the redactions were about.

[topsecretk9]

If Woodward thought Pincus knew, he would have assumed that Pincus had told Downie and the Post lawyers -- especially given all the legal stuff that was going down with the Post.

Not necessarily. Woodward was collaborating on this (Wilson/Plame) reporting with Pincus and asked Pincus to keep his (Woodwards) name off the byline. And there is nothing to suggest that Pincus would unilaterally involve Woodward without Woodward's permission.

[clarice]

I love the last sentence of the WSJ article:
But the information Mr. Fitzgerald provided the appellate judges takes pains to use language mirroring that of the law, describing Ms. Plame as "a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last five years."

Last night Rick noted that only Tatel had been taken in by fn 15--I have to wonder though. Jailing reporters for failing to reveal their sources is so unusual I doubt the Ct of Appeals would have gone along with believing Fitz' claim of need, even though two of the judges rejected Tatel's test.
Can we say with certainty, Fitz' dance of a hundred veils didn't mislead them? And if they felt it did, how happy will they be to know they were misled?

[clarice]

Correction:

I doubt the Ct of Appeals would have gone along withOUT believing Fitz' claim of need, even though two of the

I'd have to rereview the Miller opinion to be sure they weren't taken in somewhat by the dance..

[p.lukasiak]

Not necessarily. Woodward was collaborating on this (Wilson/Plame) reporting with Pincus and asked Pincus to keep his (Woodwards) name off the byline. And there is nothing to suggest that Pincus would unilaterally involve Woodward without Woodward's permission.

there was no "Pincus/Woodward" collaboration at the time in question (in June 2003, before "any other reporter" was known to have been told about Plame.) In fact, Woodward stayed away from the story until right before the indictments were handed down. The "keep my name out of your reporting" request from Woodward came much later than June 2003 -- IIRC, in October, when Pincus was preparing the piece in which he revealed that he had been a leak recipient himself.

[Lew Clark]

Clarice points to something I wondered about. Can Fitzgerald be sanctioned if he misled the court into believing he had more than just the word of his reporter buds. I assume not.

Maybe Libby could file civil suit after this is over. But that has little chance.

The good news for Libby is, that after he's not convicted, his new job as book writer and talk show guest is not near as ulcer causing as the job he had.

[clarice]

Courts do not take kindly to counsel misleading them. Lawyers are considered officers of the Court, and even something like failing to bring to a court's attention an apposite case can lead to rebuke and sanctions.

They hold government counsel to even hgigher standards.

The DoJ has an Office of Professional Responsibility which investigates charges of ethics violations by DoJ employees. In Illinois where Fitz was investigated by a District Court Judge on similar ethics violations, the Ct of Appeals halted the inquiry on the ground that the Dist. Ct lacked jurisdiction (google Newsmax for details).

IMO had the blind sheik in the WTC bombing case had better counsel, Fitz would have been in similar hot water--he got him convicted on his cooked up conspiracy grounds where the record was clear--he had refused to participate in the bombing.