Byron York On The Plame Investigation

Byron York has a useful article describing the cross-currents of the Libby case:

A pattern is emerging in pre-trial arguments in the perjury and obstruction of justice case against former Cheney chief of staff Lewis Libby. That pattern is the recurring conflict between the Little Case and the Big Case.

The Little Case is the narrow, tightly defined charge that Libby lied to prosecutor Patrick Fitzgerald's grand jury. For example, did Libby lie when he testified that NBC's Tim Russert "said to me, did you know that Ambassador Wilson's wife…works at the CIA? And I said, no, I don't know that"? ... At every hearing, and in every court filing, [Fitzgerald]has argued that the case is simply a matter of a few specific false statements allegedly made by Libby. Nothing else matters—just the Little Case.

The Big Case is what Fitzgerald originally set out to investigate: Who leaked Mrs. Wilson's identity, why was it done, and did it violate the Intelligence Identities Protection Act, the Espionage Act, or some other law? ...[Fitzgerald] has learned about the Big Case as much as one man with subpoena power, no supervision, unlimited funds, and no hesitation to threaten reporters with jail can learn. He just doesn't want to talk about it.

But Libby's defense team, led by attorney Theodore Wells, does.

After reading this, I have two quibbles and a plea.

(1)  Mr. York is presenting a defense argument here, so let's not whack him, but...:

Libby and his colleagues in the Bush White House, Wells continued, had their hands full trying to get out the word that "Mr. Wilson's report contained some inaccuracies." Chief among those inaccuracies, although Wells did not dwell on it, was Wilson's assertion that he had proven that papers purporting to document a sale of uranium to Iraq had been forged. The Senate Intelligence Committee later showed that Wilson could have done no such thing, because the documents which he had supposedly debunked were not even in the possession of the government at the time Wilson said.

Timing is everything - the SSCI reference was to questions to Mr. Wilson about anonymous quotes (later attributed to Joe Wilson) which appeared in a June 12, 2003 Wash Post article by Walter Pincus (see page 55 of the 521 page .pdf).  In that article, as well as two Nick Kristof columns and a New Republic article, Ambassador Wilson seems to be claiming to have debunked the forged sale documents.

However, in his original NY Times op-ed, Wilson told a different story:

(As for the actual memorandum, I never saw it. But news accounts have pointed out that the documents had glaring errors — they were signed, for example, by officials who were no longer in government — and were probably forged. And then there's the fact that Niger formally denied the charges.)

So what caused this confusion?  Matthew Continetti of the Weekly Standard lays out Wilson's "misquotes or misattributions" theory, which Wilson also explained to Paula Zahn:

If they're referring to leaks or sources, unidentified government sources in articles that appeared before my article in the New York Times appeared, those are either misquotes or misattributions if they're attributed to me.

Well, then, that clears that up, for the totally credulous anyway.  One might have hoped that the Times would have alerted their readership to Wilson's shifting story (or Kristof's bum reporting) on the day they delivered the July 6 2003 op-ed.  But hey - Nick Kristof addressed this on his hidden blog over two years later so that is almost as good.

Anyway - it would be worth knowing just what the defense said in court here.  They may be on thin factual ice if they are citing the op-ed exclusively.

(2)  Mr. York baffles me by blurring the distinction between "classified" and "covert":

That got to the questions that are at the heart of Fitzgerald's investigation: Who revealed the identity of Valerie Plame Wilson? Was she a covert CIA agent, and if so, who knew about it, and did the disclosure of her name damage national security?    

The Libby side has asked for three things relating to those questions. The first is evidence showing that Mrs. Wilson's job status was classified. (Fitzgerald demurs whenever the word "covert" is mentioned, so the argument is about whether her status was "classified," even though most experts don't see a significant difference between the two.)

What?  A "covert" agent is defined by the Intelligence Identities Protection Act as:

[Sec. 606 (4)](A) a present or retired officer or employee of an intelligence agency or a present or retired member of the Armed Forces assigned to duty with an intelligence agency—

(i) whose identity as such an officer, employee, or member is classified information, and

(ii) who is serving outside the United States or has within the last five years served outside the United States; or

Plenty of ink has been spilled on the probability that, whether her CIA affiliation was formally classified or not, Ms. Plame was not "covert" because she has not served outside the US in the last five years.  That may hinge on whether "served outside the United States" is satisifed only by a formal posting abroad, or whether an airport stop-over in Europe qualifies.

Now, if Mr. York is telling us that experts don't see a significant distinction between "covert" and "classified" because "served outside the United Sates" is easily satisfed by any CIA-related overseas travel, that strikes me as worth emphasizing.

Well, enough with the quibbles and on to the plea - Mr. York's article is rich with quotes from the courtroom.  If he has a transcript, he ought to think about sharing.  Please.  It would greatly aid me in my vendetta against David Shuster quest to establish the truth about the implausible MSNBC report (seemingly contradicted by the AP) which told us that Libby was warned to stop the Plame leaking.  The more plausible AP version is that he was given a stop-go on the NIE leaking.

Comments

[clarice]

Give him a break. He seems to be the only one who sat thru the hearings and he has accurately described the big case small case convergence..I think he might be trying to say that most people think contending her identity was classified is the same as saying she's covert..Well, that's the razzle dazzle Fitz is trying, but WE know better. Only the identity of a Covert agent cannot be disclosed and that she seems not to have been in July 2003.

[xrayiiis]

Hi. First time posting here, but I've been following your excellent discussions for some time. I just wanted to put a few questions out there.

The judge has said he does not want to try the legitimacy of the war. He has also said he does not want to try the veracity of Wilson's statements. York seems to think these are "the big case".

I think the point team Libby should be (is?) trying to make is that there was a concerted effort to frame him and Rove.

Are they trying to make that case? If so, is the judge trying to stop them from doing so? Can Fitzgerald get away with limiting this case to a minor technical detail? Can the judge limit the case to the letter of the law?

[xrayiiis]

I need to amend my previous post, where I wrote:

"The judge has said he does not want to try the legitimacy of the war. He has also said he does not want to try the veracity of Wilson's statements. York seems to think these are 'the big case'."

York actually said the big case was who was the original leaker and was it really a leak. I agree with that but I think the question of a concerted effort to frame Libby and Rove is also very important.

[Tom Maguire]

I think he might be trying to say that most people think contending her identity was classified is the same as saying she's covert...

In a moment of panic (I have added a paragraph to the post) it dawns on me that maybe he is saying that, per experts, the overseas service is so easily satisifed as to be a non-issue. Yike.

But if he *is* saying that, it merits more emphasis.

[Kate]

This York article below from The Hill elaborates a little more on what a joke the Libby case has become and if he indicts Rove it will be two sorry cases:
http://www.hillnews.com/thehill/export/TheHill/Comment/ByronYork/051106.html

[Kate]

I'm starting to doubt that Rove will be indicted. I've been reading the articles by the journalists with the best access: Waas' last article admitted it was a he said/he said article; the New York Times has been bland on this; and York isn't sure. Even the leftist The Note seems to unenthusiastic. The most definite is Shuster who has been studying body language and is developing a numerology theory.

However, if Rove is indicted, I hope Bush doesn't come out with mush. He needs to be quiet and let others start critiquing this shabby case and this prosecutor's poor work.

[Cecil Turner]

Superb article. (And a very nice post on it, as well.) York covers the essence of the Big Case/Little Case tension very well. He also captures the frustration of those of us with an interest in the larger case, and correctly points out Libby's prosecution is not the same, nor even close.

It seems to me most commenters on the left want to try Libby as a symbol of the Administration (and then connect the dots in the newspapers, with "fake but accurate" points as necessary). I want to know what happened, from the initial leak (Wilson's) to the media blitz, and the Administration response. Libby's perjury charges just interfere with the main event.

[Sara (Squiggler)]

I'm with you Cecil. And I would add that it makes me damn mad to have Fitzgerald waste my money on this junk with Libby and totally ignore what he was charged to investigate in the first place. Aside from the fact that it is just downright tacky, I do not think he has a snow ball's chance in hell to win this case against Libby when a jury is asked to believe that a bunch of sleazy reporters are more credible than someone with the creds of Libby.

[AnonZ]

Big Case, Little Case. Has a nice ring. Evokes memories of another Big Case, Little Case: Whitewater/Perjury - one that Byron probably didn't get his panties into such a wad about.

Byron criticizes Fitzgerald for not being more forthcoming with information. How dare Fitz honor the integrity of the investigation/trial by not explaining his moves to the public!

Byron clearly missed Fitz's superb baseball analogy: He couldn'd fully investigate and solve the Big Case because Libby lied and obstructed the investigation. And Libby's supposed to get a free pass because his efforts succeeded? How much clearer does this have to get? Eesh, these people.

[kim]

I would argue strongly with the contention that Fitz knows as much about the big case as any one with his powers could. It seems obvious that if that were so, and he is not pursuing justice in the big case, then he is corrupt. He only gets a pass if he hasn't learned as much as he should about the big case. Then the question is, why not. Is he stupid, or corrupt. Is his ignorance deliberate or not?
========================================

[Jane]

I'd like to know more about Fitzy's motives as well. It's the missing piece here.

[kim]

anonz, it is apparent to all but the most biased observers that something besides Libby's testimony has obstructed Fitz's investigation. Most of the curiosity provoking points of the big case are untouched by what Libby had to say. So why the lousy investigation, if Fitz had unlimited funds and power?
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[Sara (Squiggler)]

I have so many threads going on JOM, I have no idea where to post this, so it is going here.

This is the last paragraph of a 9 May article in Accuracy in Media by Jennifer Verner entitled "Post Reporter Dana Priest's Troubling Connections"

http://www.aim.org/special_report/4557_0_8_0_C/

Priest's Pulitzer Prize-winning story not only lacks evidence, it looks like a carefully designed and planted effort to sabotage the war on terror, a move that has put Americans at increased risk of terrorist attack. The Post has a lot to answer for at its annual meeting on May 11.

A blistering denunciation of Priest and the whole CABAL. Go read it.

[Sara (Squiggler)]

More from the middle of the article:

Luckily for Goodfellow, his wife's work has come in handy on occasion. In CIP's 2004 published report on Latin America, "Blurring the Lines," Dana Priest's work is cited to make the case against U.S. military involvement in the region.

But since 9/11, Latin America has taken a backseat to the Middle East, especially Iraq. In 2002, Goodfellow joined forces with Fenton communications—a "progressive" PR firm whose client list includes CIP, IPS, moveon.org, the Heinz family foundation, the Ford Foundation, George Soros' Open Society Institute, and an assorted host of left-leaning environmental and "human rights" groups—to fight George Bush's "lies" and "rush to war."

With Fenton's help, CIP initiated the Iraq Policy Information Project (IPIP), a group of diplomats and academics opposed to the Bush administration's Iraq policy. Among IPIP's star speakers was former Ambassador Joseph Wilson, who became famous for writing a New York Times column attacking the rationale for the war in Iraq and whose wife, Valerie Plame, was exposed publicly as a CIA employee. It would turn out that Plame helped arrange her husband's mission to Africa, supposedly to investigate an Iraq-uranium link, resulting in the Times piece. Both would later surface as contributors to the Kerry campaign. (Recently, the newsletter containing photographs of Priest, Wilson and Goodman at a meeting was mysteriously removed from the CIP website.)

Why should Mr. Goodfellow's ideology and political action have anything to do with Priest? Perhaps we should ask her why she chose to appear in CIP's "Cowboy Diplomacy" congressional conference, a frontal attack on the Bush Administration's foreign policy, in October 2003. Ms. Priest shared a panel with CIP national security director Melvin Goodman, a vicious Bush administration critic who encourages CIA "whistleblowing." Another speaker at the conference was Wilson.

Wilson, whose statements about what he found in Africa and his wife's role in his mission have been completely undermined by a Senate Intelligence Committee report, seems to be in the same category of Dana Priest, whose Pulitzer Prize-winning story still remains unsubstantiated by any official government source in either the U.S. or the E.U. Her story, like Wilson's tale, has been a gold mine for the enemies of the Bush Administration.

[AnonZ]

kim: So the grand jury members who handed down the Libby indictment for obstruction of justice and the judge who presided fall into the "biased observer" category?

[kim]

anonz, read my post again. What you want to put in the class of biased observer is people who haven't looked at the big case.
========================================

[Dwilkers]

We have to find a better way to investigate this sort of thing.

These special prosecutors have been running amok for years now. At least since Lawrence Walsh's infamous election eve indictment of Caspar Weinberger.

With the independent counsel statute at least there was some formal supervision of these guys however ineffective it might have been. Prior to wandering off into lala land AnonZ makes a fair point about the Whitewater investigation - IMO that is symptomatic of the problem as well.

I'm not sure what the solution is, but for my part I am sick of these decades long investigations into every administration.

Maybe these guys should be strictly limited to the investigation for which they are appointed. If they uncover evidence of other crimes fine, that could be handed off to someone else. That way the Whitewater investigation doesn't turn into an investigation of Vince Foster's death, the Plame leak investigation doesn't become a decade long effort to create a case of perjury against each administration official that spoke to investigators.

[windansea]

apparently Joe is a great kisser...on the third date Val couldn't help but out herself

and this was when she really was super secret

who knows what kind of secrets she told him after years of marriage

[ordi]

anonz,

I would hope you realize that the GJ is only presented what Fitz wants them to see and hear. Both sides have not been heard yet.

[kim]

I'm really curious just how involved they are with each other on this matter. Are they foux a deux? Are they an extremely subtle manipulative pair? Is he a liar and she a fool? Did her love for him survive her post-partum question? What did she tell him about the Yellow Cake papers? How did he get picked to go to Africa? Were he or they in contact with Democratic Party operatives, and more than idle contact.

Granted, it was shaded with irony, but Byron York apparently wants to believe that Fitz knows the answer to these questions. Does he?
======================================

[sad]

TM

Here's another York article in THe Hill.

http://www.hillnews.com/thehill/export/TheHill/Comment/ByronYork/051106.html

[kim]

This is a nation under the rule of law. What law rules Patrick Fitzgerald?

No wonder we're having difficulty, it's an alien invasion.
=======================================

[kim]

An alien concept of justice, anyway.

I'll get in trouble, here, but wasn't he Jesuit trained?
=========================

[kim]

I'm just trying to figure out how and why he has gone so far awry. You don't have to be Jesuit to do that.
====================

[kim]

I highly recommend Chesterton on 'The Dumb Ox'.

There, do I really have to do all those Hail Marys?
=============================

[kim]

The Grand Jomery WOULD like to hear from the prosecutor.
====================================

[sad]

Kim

Val's book will clear up all the questions. Fitz doesn't want to ruin her opportunity to make money now that her job is gone because of the big, bad White House.

[Dwilkers]

I'm just trying to figure out how and why he has gone so far awry.

Because he was allowed to.

If he was only allowed to investigate the Plame leak he'd have to focus on, you know, the Plame leak and whether that was a violation of the law or not.

What would Fitz be doing right now if he weren't chasing people around trying to create cases of perjury?

As far as I can tell he'd be finishing up his final report telling us Plame wasn't covert and that therefore no laws were violated.

[windansea]

If he was only allowed to investigate the Plame leak he'd have to focus on, you know, the Plame leak and whether that was a violation of the law or not.

he may still be focused on this...we haven't seen the referal yet

of course the referal may be part of the game :)

[steve]

So do you guys REALLY have a problem because Fitzgerald seems to be focusing on the 'little case'? Seems to me like if he WAS focusing on the "big case" we'd all be whining about a prosecutor run wild. Can you really have it both ways?

To me, it comes down to did Libby lie. Did he make false statements to the FBI, etc...

All the focusing on Wilson (and have they scheduled his indictment yet?) doesn't distract from the charges: Did Libby lie to the FBI on such and such a date, did that obsturct justice, blah blah blah...

Isn't it possible that Fitzgerald can't charge on the IIPA BECAUSE Libby lied to him? If so, doesn't he need to prove the perjury charges before moving on to charging him with IIPA or Esp. Act violations?
(In other words, let's say he convicts Libby..Atthat point doesn't he have more leverage to use on Libby to admit to/roll over/whatever on IIPA violations?

[windansea]

yes thats possible Steve as my comment above yours notes

it is also possible that Fitz has been fooled or is running amuck

OT new DNA evidence in Duke rape case

The Durham Herald Sun newspaper reports today the tissue sample used for testing did not allow for a 100 percent match, but that it is "consistent" with the DNA of the third player. Because a complete DNA pattern was not obtained from the sample on the fingernail, it was impossible to match that sample with near certainty to the third player, the newspaper says.

http://abcnews.go.com/US/LegalCenter/story?id=1948939

[boris]

The other article mentioned above is York On the Hill "Plame leak probe descends into absurdity".

Some overlap.

[Cecil Turner]

I would add that it makes me damn mad to have Fitzgerald waste my money on this junk with Libby and totally ignore what he was charged to investigate in the first place.

It also makes me mad at Libby. If he hadn't tried that Clintonian parsing crap in the first place . . . (Though, after reading that "aspens" letter and hearing of some of his other "weird" conversations, I'm starting to think his rambling might just be the way he talks, encouraged by some multipart open-ended questions. Still, the verbal diarrhea didn't add.)

Byron clearly missed Fitz's superb baseball analogy: He couldn'd fully investigate and solve the Big Case . . .

Oh, nonsense. Fitz knows who leaked to Novak, he just won't tell us about it. The whole of Libby's purported misdirection didn't affect that one whit, and if Fitz can't make a case, it's because there isn't one there.

Isn't it possible that Fitzgerald can't charge on the IIPA BECAUSE Libby lied to him?

Ah, the Soviet approach: "Confess Comrade" and conviction on obstruction if you don't? Since when does a prosecutor need a confession in order to investigate?

The biggest problem with an IIPA prosecution is that Plame wasn't covert in any meaningful sense. (The second biggest is that Libby isn't the one who outed her.)

[maryrose]

steve:
There are no IIPA violations. Libby did not obstruct his case nor did he lie to the FBI or the gj. He's too smart a lawyer to do that. The original complaint by Wilson needs to be deconstructed because that's where the lies are. Joe is a careless person -he outs his wife and then tries to cover his tracks about his trip and his wife by using bafflegab and macho phrases like "frogmarch" and "fair game" You can't trust him as far as you can throw him.

[boris]

Did Libby lie to the FBI on such and such a date

Maybe not.

Also, the Big Case may provide context for evaluating testimony that appears untruthful and unwise.

[Steve]

There are no IIPA violations. Libby did not obstruct his case nor did he lie to the FBI or the gj. He's too smart a lawyer to do that.

Okay, I'm not near as obsessive as some of you peeps, but you're stating that with no qualification. If he told the FBI or the GJ that he heard it from reporters, and there's evidence that he and Cheney were briefed on it on such and such a date, isn't that de facto, a lie? Sure, maybe he was so busy, misrememebered, whatever, but doesn't it still come down to that statement being false?

That's what I don't get about the Libby supporters. There's not a possibility that he's guilty because 'he's too smart a lawyer'? That's really waht you're basing your opinion on?

[Cecil Turner]

If he told the FBI or the GJ that he heard it from reporters, and there's evidence that he and Cheney were briefed on it on such and such a date, isn't that de facto, a lie?

No. He does not claim he never heard it from the VP, only that he heard it from reporters, too. That's a common misreading.

[boris]

As someone about Libby's age seems to me I've heard "Don't you remember me telling you that?" about a brazillan times.

[kim]

Steve, read Libby's statement again. What is it's context? One context is that many of the players had ongoing revelations about this affair that constantly recast it in a new light. In fact, that is still going on.
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[Sue]

Big Case, Little Case. Has a nice ring. Evokes memories of another Big Case, Little Case: Whitewater/Perjury - one that Byron probably didn't get his panties into such a wad about.

You must have slept since then. The Little Case (perjury) was not from the Big Case (Whitewater), which was investigated (ad nauseum, I might add). So...where does that leave your analogy?

[Jeff]

York is probably trying to salvage one of the hallmarks of his recent reporting on the Libby case - his complaint that Fitzgerald was not offering evidence that her status was classified. Now Fitzgerald is going to offer evidence that her status was classified, so York has to figure out some way to not simply acknowledge that the complaint in no way weakens Fitzgerald's case against Libby.

It's weird to me that someone as smart as York doesn't seem to recognize the difference between what happened and the strict limits of the case Fitzgerald is making against Libby.

[Epphan]

Fitzgerald knows as much as any person…

That may well be true, but he remains oblivious to a whole lot of stuff. Don’t forget that he indicted Libby and was completely unaware of the Bob Woodward connection. TM has documented Andrea Mitchell and other pieces that Fitzgerald seems completely unaware of. To suggest that he is seeking a perjury conviction as a precursor to a more important charge gives Fitzgerald a lot of credit. If he has a master plan, he’s doing a good job hiding it behind incompetence.

AnonZ unwittingly stumbled across the broadest point. Fitzgerald has at times suggested he could not pursue the “big case” because Libby lied to him. Unfortunately for Fitz, that suggestion is ludicrous and not backed up by any of the facts.

[Sue]

Jeff,

Try this. Instead of thinking York doesn't recognize the difference, think of it as expressing to a larger audience the same frustrations we feel here, day after day.

[Sue]

Re-read his presser. He isn't going to indict Libby on anything else. He as much as says so.

[Sue]

And he isn't going to indict on the leak because, as I said last night, everything that Libby is fighting for will suddenly become relevant and Joe Wilson is an obstacle Fitzgerald can't get around.

[steve]

No. He does not claim he never heard it from the VP, only that he heard it from reporters, too. That's a common misreading.

But does that "absolve" him of what he's charged with? Like I said, i'm not overly-obsessive, and I won't pretend to know this stuff backwards and forwards, but the 'lie' he's charged with is telling the FBI or the GJ that he heard it from the reporters, right? If Fitzgerald has the evidence (either through briefing material, Cheney's testimony, etc...) that Libby knew about it via Cheney on such and such a date, wouldn't he most likely have covered that angle in questioning? i.e. locking Libby into his testimony, a la "from the Veep? nope, only place I heard it was reporters'...

[Sue]

He didn't say that.

[boris]

a la "from the Veep? nope

Basic facts should not require endless repetition. Fitz stipulated Libby acknowledged learning from VP.

[Cecil Turner]

Now Fitzgerald is going to offer evidence that her status was classified . . .

Well, that will be nice, if a bit overdue. Is he going to stop resisting the defense's discovery on the point, or insist that a one-sided presentation is sufficient?

. . . York doesn't seem to recognize the difference between what happened and the strict limits of the case Fitzgerald is making . . .

Seems to me that's precisely the focus of the article.

But does that "absolve" him of what he's charged with?

Now you're changing the subject. Proving he heard it from the VP proves nothing (besides, he admits it). The dispute in this case is over his recollections (specifically whether his statements about forgetting where he heard it) were true, faulty, or falsified. In order to convict, you need to show he knew it and intentionally lied about it. To paraphrase your earlier point, this is what I don't get about those who want to get Libby: they don't seem to care if they get the facts right, as long as they get him.

[steve]

Okay, Fitz stipulates that Libby learned it from the VP.

But isn't Libby testimony that he heard it from reporters? And not 'one of the places I learned it was from reporters'?

If he did learn it from the VP (in some fashion) doesn't that make the 'learned it from reporters' statements false statements to teh FBI, perjury to the GJ, obstructin of justice to Fitz, yadda yadda yadda...

Like I said earlier, that's what I just don't get here. Fitz is trying the actual case, and people are bitching. No matter what a scumbag Wilson is (and I'll concede that, easily), that doesn't really impact the perjury charges does it? Or can we really reduce it to "it's okay for Libby to lie because Wilson's a sleaze'?