Jeralyn Merritt has Team Libby's latest on the disclosure question (29 page .pdf or here) and has added some must-read UPDATES. It's hard to believe this will make as many headlines as Fitzgerald's last filing, but dig in.
Here, for example, is a headline that will not appear: "Libby Didn't Lie, But Fitzgerald Did". From a footnote on p. 3:
Perhaps not surprisingly, given the media’s overwhelming interest in this case, an erroneous statement in the government’s response brief led to stories in the press that falsely accused Mr. Libby of making inaccurate statements – or even lying – to reporter Judith Miller about the contents of the NIE. (See, e.g., Walter Pincus, Specter Says Bush, Cheney Should Explain Leak, WASHINGTON POST, April 10, 2006, at A04, attached as Ex. A.) The government has since written a letter to the Court to indicate that, consistent with his grand jury testimony, Mr. Libby did not tell Ms. Miller “that a key judgment of the NIE held that Iraq was ‘vigorously trying to procure’ uranium.” (See Ltr. from Patrick J. Fitzgerald to Hon. Reggie B. Walton, dated April 11, 2006, attached as Ex. B.) Instead, during his testimony, Mr. Libby drew careful distinctions between the key judgments of the NIE about WMD and its section on uranium. Accordingly, there is no basis for the media reports that accused Mr. Libby of misrepresenting the key judgments of the NIE to Ms. Miller.
My apologies - I see the NY Times is covering this, with a different headline: "Prosecutor Corrects Filing About Former Aide to Cheney". Folks who track this sort of thing will want to see how many of the blogs that pounded Libby for misrepresenting the key judgments of the NIE to Miller will note the correction [And I am advised in the comments that several have; here, for example, is TalkLeft]. And here is the letter itself.
And as we read on, we wonder - was our man Fitzgerald being a bit cute with other facts in his last filing? More from Team Libby (p. 20):
The government pretends that Mr. Wilson’s wife was a part of the response Mr. Libby was instructed to make to Mr. Wilson’s false claims, and even argues that “[d]isclosing the belief that Mr. Wilson’s wife sent him on the Niger trip was one way for defendant to contradict the assertion that the Vice President had done so . . .” (Id. at 19.) In fact, as the government is well aware, contemporaneous documents reflect the points that Mr. Libby was to make to reporters, and these documents do not include any information about Wilson’s wife. Further, the government’s theory ignores the fact that neither the indictment nor the evidence supports the notion that Mr. Libby told any reporter that “Mr. Wilson’s wife sent him on the Niger trip.” The only reference to such an idea in the indictment is the allegation in paragraph 23 that Matthew Cooper asked Mr. Libby on July 12, 2003 whether he had heard that Wilson’s wife was involved in sending him on the trip, and Libby said “he had heard this information too.”
Emphasis added - presumably this refers to some typed-up talking points. We harped on the broader point a bit, or meant to - Fitzgerald never presents evidence that Cheney directed Libby to discuss Ms. Plame, even though there are passages from the Fitzgerald filing where presenting such evidence (if it existed) would be totally appropriate. For example:
Defendant further testified that on July 12, 2003, he was specifically directed by the Vice President to speak to the press in place of Cathie Martin (then the communications person for the Vice President) regarding the NIE and Wilson. Defendant was instructed to provide what was for him an extremely rare “on the record” statement, and to provide “background” and “deep background” statements, and to provide information contained in a document defendant understood to be the cable authored by Mr. Wilson. During the conversations that followed on July 12, defendant discussed Ms. Wilson’s employment with both Matthew Cooper (for the first time) and Judith Miller (for the third time). Even if someone else in some other agency thought that the controversy about Mr. Wilson and/or his wife was a trifle, that person’s state of mind would be irrelevant to the importance and focus defendant placed on the matter and the importance he attached to the surrounding conversations he was directed to engage in by the Vice President.
And Judy Miller's account includes this on her July 8 interview with Libby:
Mr. Fitzgerald asked me whether Mr. Libby had mentioned nepotism. I said no. And as I told the grand jury, I did not recall -- and my interview notes do not show -- that Mr. Libby suggested that Ms. Plame had helped arrange her husband's trip to Niger. My notes do suggest that our conversation about Ms. Plame was brief.
And for their July 12 talk, it is not clear whether Ms. Plame was mentioned at all:
My third interview with Mr. Libby occurred on July 12, two days before Robert D. Novak's column identified Ms. Plame for the first time as a C.I.A. operative. I believe I spoke to Mr. Libby by telephone from my home in Sag Harbor, N.Y.
I told Mr. Fitzgerald I believed that before this call, I might have called others about Mr. Wilson's wife. In my notebook I had written the words ''Victoria Wilson'' with a box around it, another apparent reference to Ms. Plame, who is also known as Valerie Wilson.
I told Mr. Fitzgerald that I was not sure whether Mr. Libby had used this name or whether I just made a mistake in writing it on my own. Another possibility, I said, is that I gave Mr. Libby the wrong name on purpose to see whether he would correct me and confirm her identity.
I also told the grand jury I thought it was odd that I had written ''Wilson'' because my memory is that I had heard her referred to only as Plame. Mr. Fitzgerald asked whether this suggested that Mr. Libby had given me the name Wilson. I told him I didn't know and didn't want to guess.
My notes of this phone call show that Mr. Libby quickly turned to criticizing Mr. Wilson's report on his mission to Niger. He said it was unclear whether Mr. Wilson had spoken with any Niger officials who had dealt with Iraq's trade representatives.
With the understanding that I would attribute the information to an administration official, Mr. Libby also sought to explain why Mr. Bush included the disputed uranium allegation in his 2003 State of the Union address, a sentence of 16 words that his administration would later retract. Mr. Libby described it as the product of a simple miscommunication between the White House and the C.I.A.
So, based on this defense filing, Libby had prepared talking points which did not include a mention of Ms. Plame, nor did he mention a connection between Ms. Plame and the Niger trip to any reporter.
The defense re-emphasizes this:
The government’s argument that Mr. Libby attached importance to “the controversy about Mr. Wilson and/or his wife” (id. at 20) cleverly masks the fact that the evidence on which this argument relies – e.g., the involvement of the President and Vice- President, the declassification of the NIE, the Vice President’s direction that Mr. Libby speak to the press, the rarity of “on the record” statements by Mr. Libby – has nothing whatsoever to do with Mr. Wilson’s wife.
Here is yet another reason to look forward to a trial - the defense tells us yet again that they may call Joe Wilson:
Further, because the defense may call Mr. Wilson as a hostile witness, we need to prepare to examine him, if necessary, on the details of the trip, including his wife’s role in selecting him for the assignment and the findings he reported to the CIA, and later, to the press.
I'm not a lawyer, so help me out - is there a category of witness beyond "hostile"? "Incandescent", maybe?
MORE: Fun's fun, but who's having fun now?
The press had a great time taking a Fitzgerald comment out of context - in making a banal point about the difficulty of delivering documents with the objective of proving a negative, Fitzgerald wrote that "it is hard to conceive of what evidence there could be that would disprove the existence of White House efforts to 'punish' Wilson." (Here, for example, is the Tuesday Times pretending that Fitzgerald was claiming to have an overwhelming case demonstrating a conspiracy.)
However, the defense is turning that back against Fitzgerald:
The government asserts that documents exist that could be characterized as demonstrating that the White House planned to punish Mr. Wilson, and that the plan involved talking to reporters about Mr. Wilson’s wife. (Gov’t Br. at 29-30.) However, the government says that although it has divulged some of those documents to the defense, it is currently withholding others. Rule 16 entitles the defense to all such documents. On this critical issue, the defense needs to know everything the government knows, to avoid getting blindsided with unexpected testimony about such a plot at trial.
One hopes that Mr. Fitzgerald enjoyed his headlines - now, if the defense is successful in using all that press attention as additional leverage, he gets to deliver the documents he was trying to retain.
STILL MORE: How Covert Was Valerie Plame? The defense makes a good arguement for finding out:
Finally, the government’s arguments about motive further underscore that the defense is entitled to discovery about whether Ms. Wilson’s employment status was classified, as the defense has requested in previous motions. The government resists disclosing information regarding the allegedly classified status of Ms. Wilson’s employment, and the knowledge and understanding of others as to whether that employment was classified, on the ground that the information is not relevant to the defense. Yet, almost in the same breath, the government presents an argument on Mr. Libby’s motive to lie that makes this information highly relevant and material to preparation of the defense.
The government states that it will argue Mr. Libby feared losing his job because the President “had vowed to fire anyone involved in leaking classified information” (id. at 28), and because Mr. Libby had requested that the White House Press Secretary say that “Libby was not the source of the Novak story. And he did not leak classified information.” (Id.) Mr. Libby was not, of course, a source for the Novak story. And he testified to the grand jury unequivocally that he did not understand Ms. Wilson’s employment by the CIA to be classified information. The government’s argument puts squarely at issue the credibility of Mr. Libby’s position that he did not leak classified information. The government surely cannot, on the one hand, contend that Mr. Libby knew he had revealed classified information (and thus felt in jeopardy of being fired), and on the other hand withhold from the defense information that would tend to prove her employment status was not classified and that others who knew of that employment had the same understanding.
I find this to be a bit muddled - even if her status was in fact classified (and IIRC, Fitzgerald has asserted that in various filings, and the original CIA referral was for a leak of classified information), the key point would seem to be, did Libby know (or fear) that at the time he testified to the FBI and the grand jury?
Well. The defense also reiterates its request for the CIA referral document. Here is just one of their arguements:
And, to the extent that Director Tenet was involved in the creation of the referral documents, or actively pushed the DOJ to investigate the disclosure of Ms. Wilson’s identity, the referral documents would show that the bias against Mr. Libby reached to the highest levels of the CIA and did not simply represent the complaints of lowerranking employees. Further, Mr. Tenet is a likely witness. If he was personally involved in the referral process, then the referral documents would be important for preparing to examine him on the issue of bias. To prepare for trial effectively, the defense must have the opportunity to explore all of these issues further.
I have not seen (or don't recall) a timetable for the judge's final decision on these discovery questions.
UPDATE: A very interesting point from the Anon Lib - does the filing contain a hint that Libby had a secret understanding with Bush and/or Cheney such that Libby was not worried about being fired for leaking classified information?
My quick reaction - if Fitzgerald had such evidence, his most recent filing would have been a great place to introduce it. Fitzgerald is clearly scraping around for any evidence at all of a Bush or Cheney role in this, so again, his silence speaks volumes.