Fitzgerald On Discovery - May Call Cheney!

E&P reports on a new Fitzgerald filing and exhibits, but they bury the lede, which is this, from the filing:

By his own account, defendant understood from the Vice President that it was necessary to get out “all” the facts in response to the Wilson Op Ed. The response to the Wilson Op Ed was a matter of repeated discussion between the defendant and the Vice President following its publication.

It is clear from context that "all" refers to the annotated op-ed with the note from Cheney wondering whether the wife sent Wilson on a junket.  However, Libby says that Cheney did not discuss Ms. Plame with him after the op-ed until July 12 at the earliest, but after the Russert-Libby chat in any case.

[And let's not forget this defense filing (p. 20) which told us that:

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. ]

Well - back to E&P:

Vice President Dick Cheney could be called to testify in the perjury case against his former chief of staff, a special prosecutor said in a court filing Wednesday.
 
Special Counsel Patrick Fitzgerald suggested Cheney would be a logical government witness because he could authenticate notes he jotted on a July 6, 2003, New York Times opinion piece by a former U.S. ambassador critical of the Iraq war.

Fitzgerald said Cheney’s “state of mind” is “directly relevant” to whether I. Lewis “Scooter” Libby, the vice president’s former top aide, lied to FBI agents and a federal grand jury about how he learned about CIA officer Valerie Plame’s identity and what he subsequently told reporters.
 
Libby “shared the interests of his superior and was subject to his direction,” the prosecutor wrote. “Therefore, the state of mind of the vice president as communicated to (the) defendant is directly relevant to the issue of whether (the) defendant knowingly made false statements to federal agents and the grand jury regarding when and how he learned about (Plame’s) employment and what he said to reporters regarding this issue.”

This looks new to me:

In his grand jury testimony, Libby said Cheney was so upset about Wilson’s allegations that they discussed them daily after the article appeared. “He was very keen to get the truth out,” Libby testified, quoting Cheney as saying, “Let’s get everything out.”

 And a bit of drollery:

In a filing last week, Libby’s lawyers said Fitzgerald would not call Cheney as a witness and would have a hard time getting the vice president’s notes admitted into evidence.
 
“Contrary to defendant’s assertion, the government has not represented that it does not intend to call the vice president as a witness at trial,” Fitzgerald wrote. “To the best of government’s counsel’s recollection, the government has not commented on whether it intends to call the vice president as a witness.”

MORE:  This looks like a new high-water mark in the "Get Dick" Derby - from p. 8:

By his own account, defendant understood from the Vice President that it was necessary to get out “all” the facts in response to the Wilson Op Ed. The response to the Wilson Op Ed was a matter of repeated discussion between the defendant and the Vice President following its publication.

Oh, Fitzgerald so wanted Libby to confess that Cheney ordered him to out Plame!  Well, the trial is not until next January - Keep Hope Alive!  But IMHO, Fitzgerald doesn't have it and isn't getting it.

Exhibit A is a transcript of a portion of Libby's Grand Jury testimony.  He confirms that Cheney frequently clips out articles, claims he does not remember seeing the Wilson op-ed, but certainly discussed it with Cheney.

IN ENGLISH, PLEASE:   Apparently Cheney told Libby that Ms. Plame worked in "the functional office of the Counterproliferation of the CIA" (quoting Fitzgerald, presumably reading from something).  Is that a special part of the CPD, and what does "functional" mean here?

NO HEDGE:  When asked from whom he learned about Ms. Plame on July 10 or 11, Libby does not hedge, but names Tim Russert.  That said, the rest is redacted, so draw conclusions at your own peril - perhaps the caveats came later.

CALL CSI D.C.:  How could it be that Cheney wrote on the Wilson op-ed a note about the wife sending Wilson on a junket, but never discussed that with Libby until after the Novak column?  When asked this, Libby offers some circle-squaring speculation - Cheney sometimes kept columns on his desk, and may have jotted that final thought after the Novak column came out.

Well, get the CSI people to see if it was done in the same ink - that would be suggestive, but probably not dispositive, since Cheney might have a favorite pen he uses all the time.  Take a look, but Libby's suggestion seems far-fetched to me.  That said,  Libby added "You'll have to ask him", referring of course to Cheney.

SPEAKING OF WHICH:  With all this talk about Cheney's state of mind and Libby's recollection of his chats with Cheney, how could Cheney *not* be called as a witness?  And surely Fitzgerald covered this ground when he interviewed Cheney - one wonders what Cheney said.

REFIGHT THE INTEL WAR: Fitzgerald has been trying to limit the discussion to Libby's state of mind and avoid a long exposition of the entire Niger trip.  Fine, but Sara points out he may have hurt himself by introducing Cheney's exhortation to get "all" the news out:

Hasn't he now opened the door for all that to come in and isn't that great news for the defense?

Hey, I think so - surely Libby ought to be able to explain what was meant by "all" - but I'm not the judge.  Still, keep an eye out for this defense come-back in the next go-around.

Comments

[kim]

As if bosses were reliable witnesses to the state of mind of their subordinates.
================================

[ed]

If your boss tells you to do something it vanishes from your mind?

[topsecretk9]

Fitzgerald needs these!

[danking70]

What was Libby's state of mind at the time?

Not important. Irrelevant.

And Cheney's is?

Is this another instance of Fitzgerald arguing both sides again?

[clarice]

He will never call Cheney.If those are his notes Cheney could authenticate them by stipulation.
I wonder how probative(and therefore admissible) the court will view the notes of a superior which were never shown to the defendant to prove they discussed something that the defendant says they never did in the time frame the prosecutor is trying to establish.

News paper article, morever, as Fitz argues are "self authenticating" but to the extent the fn implies that one with someone's notations on them are, he should retake Evidence.

[danking70]

Is Fitzgerald hoping for his Tom Cruise moment?

[Sara (Squiggler)]

By his own account, defendant understood from the Vice President that it was necessary to get out “all” the facts in response to the Wilson Op Ed.

Why was Fitz arguing against admitting the war stuff if now he is using this statement to try to mean trashing Val. "All the facts" to Cheney and the WH meant the facts about the NIE and the facts about Cheney having NOT been the one to send anyone to Niger. Hasn't he now opened the door for all that to come in and isn't that great news for the defense?

[topsecretk9]

--Is this another instance of Fitzgerald arguing both sides again?--

AND he's alluded to Libby being afraid to tell the truth for fear he'd make boss man mad and get fired.

Big Case, Little Case and a whole bunch of others that might work...you know what the chimpanzee's do with a certain you know what at the local zoo!

[Pisistratus]

Actually Libby testified they did discuss it in the time frame Fitz is trying to establish. Libby even wrote that Plame was CIA in his personal notes-per Libby's testimony.

It was important enough for Cheney to use his little pen knife and personally annotate Wilson's op-ed, but Libby just forgot all about it.

A real crackerjack staff man. No wonder Cheney didn't do more to head off his indictment.

[boris]

Gosh if only Libby had remembered that Cheney and Bush wanted him to blow Plame's cover he wouldn't have had to lie about forgetting ...

... wait ... um ... lemme see here ...

[Sara (Squiggler)]

It was important enough for Cheney to use his little pen knife and personally annotate Wilson's op-ed, but Libby just forgot all about it.

_____________

The questions that comprise the annotations were rhetorical. Why would Libby see them? Supposedly he did this all the time and stacked the articles or papers on the corner of his desk.

[clarice]

On a related note, ABC's Brian Ross seems to be channeling Jason Leopold:
"ABC News is looking very stupid tonight. It is now “reporting” this:

Despite a flat denial from the Department of Justice, federal law enforcement sources tonight said ABC News accurately reported that Speaker of the House Dennis Hastert is "in the mix" in the FBI investigation of corruption in Congress.

Speaker Hastert said tonight the story was "absolutely untrue" and has demanded ABC News retract its story.

Law enforcement sources told ABC News that convicted lobbyist Jack Abramoff has provided information to the FBI about Hastert and a number of other members of Congress that have broadened the scope of the investigation. Sources would not divulge details of the Abramoff’s information.

"You guys wrote the story very carefully but they are not reading it very carefully," a senior official said.

More here.

I don’t know who this senior official is, but not only did I read the original story carefully, I broke it down into little parts, and it still didn’t make any sense. (See below.)

The phrase “in the mix” can refer to anyone Jack Abramoff ever lobbied. This story tells us absolutely nothing. And “the sources” do not appear to have direct knowledge about what they’re leaking. Moreover, the Justice Department would not release a statement flatly denying the existence of an investigation of Hastert without checking with internal primary sources. I know this as I used to be a chief of staff to an attorney general and I have no doubt the department checked this thoroughly before speaking on the record. "
http://levin.nationalreview.com/post/?q=OGNiNGM5ZmE2MTA3MTJkNzFlM2JmNzc4NmQ5YTVlNDI=

[clarice]

I see this stretchhhhhhhhh effort as an admission that he doesn't think his motive to lies stuff is very strong. Well, if so, Fitz and I are in agreement for the very first time.

[topsecretk9]

imcompentent

[boris]

This is Fitz's way of asking Cheney to shut down the whole thing in a way that saves face for Fitz.

[clarice]

Were I judge Walton I'd be flagellating myself in chambers every morning for denying the Motion to Dismiss.

[kim]

Right, boris, and keep lefty conspiracy theories alive forever, too. Looks like winners all around. Deal?
===============================

[steve]

Doesn't this look bad for Libby?
So Wilson and his wife are talked about with him (or at least in his presence) twice in June w/the CIA dudes. Then he and Cheney talk about Wilson 'daily' right after the op-ed comes out. And even though he learned in June that his wife was involved somehow, and even though Cheney apparently knew enough to annotate the op-ed, Libby never knows about Plame?

As much issue as I have with Russert in this, finding out that Cheney and Libby (allegedly) talked daily about Wilson and never mentioned Plame strains credibility. If they were pushing back on the "OVP sent me", wouldn' they have been likely to discuss who DID send Ambassador Munchausen?

[Tom Maguire]

"All the facts" to Cheney and the WH meant the facts about the NIE and the facts about Cheney having NOT been the one to send anyone to Niger. Hasn't he now opened the door for all that to come in and isn't that great news for the defense?

Seems like an excellent point to me. Any takers?

[Tom Maguire]

finding out that Cheney and Libby (allegedly) talked daily about Wilson and never mentioned Plame strains credibility.

It seems odd, but - not calling Cheney to help establish that point also strains my credulity.

Unless, that is, Cheney told a story to Fitzgerald that matched Libby's; if Cheney had contradicted Libby he would be called, yes?

[clarice]

To me, too. Including of course the stop/go/stop in the declassification of the NIE and any stuff relating to what was on Grossman's mind in this period and Tenet's..Hell, I want to know the dire reports I know they were getting when this all took place..I want to see the whole picture so we can see if Fitz put the right degree of importance on what to me seems diddly squat.

[kim]

Yep, state of mind is going to drag the big case in like a tarbaby. Oops. I was supposed to check if that was originally from pine tar.
===================================

[clarice]

Well, I don't think Fitz will put Cheney on the satand and, yes, I think Tom's point is shrewd about what Cheney testified to. But if push comes to shove and Fitz at trial tries to convey the idea that Plame was numero uno on the OVP's to do list, I wouldn't be surprised if Cheney breaks precedent and testifies for the defense on rebuttal.

[clarice]

And when he does I wouldn't be surprised if it comes out that he told the very same thing to Fitz at the very outset of the investigation.

[kim]

And the satand is where you'll find the details.
============================

[clarice]

**THWAAAACK*

[ghostcat]

Bonus points to kim.

[Jeff]

This is Fitz's way of asking Cheney to shut down the whole thing in a way that saves face for Fitz.

You can't be serious.

[TalkLeft]

To answer your question about how he could not call Cheney, here's my thought:

He doesn't need to call Cheney to authenticate the documents under Rule 901,FRE. And he says the notes corroborate his other evidence and witnesses --

Therefore, the annotations corroborate the government's other evidence indicating that these issues were communicated to defendant by his immediate superior, who also directed defendant during the critical week after July 6 to get out into the public "all" the facts in response to the Wilson Op Ed.

...

Evidence placing defendant's conversation with the Vice President shortly after the publication of the Wilson Op Ed also corroborates the accounts of a number of government witnesses who will testify that defendant discussed Mr. Wilson's wife on or before July 8, 2003.

He writes that the notes and other evidence make it "more likely than not" the conversation about Plame working for the FBI occurred during the first week in July.

The fact that comments regarding Wilson's wife were included among the Vice President's annotations also supports the proposition that defendant's conversation with the Vice President regarding Mr. Wilson's wife more likely than not occurred shortly after the publication of the Wilson Op Ed, rather than later, as defendant claimed

He may be content to go with "more likely than not" since the jury will be instructed it can draw reasonable inferences from the evidence presented.

If Cheney is a target of his investigation (or indicted by trial time) he won't call him because he'd take the 5th.

If Cheney's in the clear, Fitz might not want to call him because of concern Cheney would try to help Libby.

I think he's using Cheney's notes more to corroborate his other witnesses.

[Jeff]

I take it we can put to rest the idea that Libby's story is that he never claimed he learned the info about Plame as though it were new from Russert, right? That we was just feigning a state of mind of ignorance with Russert? Or are there still takers for that idea?

And is the claim that Joe Wilson was a matter of great concern in OVP July 7-14, but his wife was peripheral? That is, is Libby going to acknowledge that Wilson's article was a matter of great concern in OVP? Or just daily, but not great, concern?

[Jeff]

Tom and Talkleft - Maybe I'm missing something, but I thought Fitzgerald made clear in this filing that the defense is simply wrong to assert that he, Fitzgerald, has made representations that he won't be calling Cheney. He's not saying one way or the other. But he is clear that he never told Team Libby, as far as he's concerned, that he wouldn't be calling Cheney.

[clarice]

Haven't the parties listed in connection with the judge's requests the names of the witnesses they are calling in their case in chief? I know Libby provided one and a notation he intended to call 5 or more (unnamed) to testify that Wilson disclosed Plame's identity and employment to them.

[Jeff]

Fitz at trial tries to convey the idea that Plame was numero uno on the OVP's to do list

He will try to convey no such idea.

[topsecretk9]

He will try to convey no such idea.

Jeff's channeling Fitz again...or Jason Leopold's source.

[Kate]

Fitz will not indict Cheney. It's looking inceasingy unlikely that Fitz will indict Rove. This is it. A weak perjury case that Libby won't plead. I agree that Fitz is signalling the WH and OVP that this can get embarrassing for them.

I notice the Fitz uses every filing to slam Cheney. Cheney must think Fitz is such a nuisance, such a weasle.

[Kate]

To me Cheney and Libby were focused on the war, defending the intel, the NIE. Plame was a triffling issue that just reinforced the incompetence of the Agency in their minds.

Here you have the Agency, instead of sending a competent, knowledgable analyst, engaging in nepotism and sending an incompetent hack who blabbed all over town.

A minor, but related, personnel issue: an Agency official with bad judgement, practicing nepotism.

Plus they needed to know who sent the incompetent Wilson since they were being blamed for this fool's errand.

[Kate]

I would like to remind TalkLeft that before she starts weaving tales of Cheney's indictment, something that not even Fitz suggests, she remember that she posted an article from Wayne Madsen.

I hope she now regrets that and may want to be really careful about speculating. Please indicate to me that this is anything more than a perjury case. Didn't Fitz himself say in October that he was essentially finished his investigaion.

[TalkLeft]

Kate, not fair. In writing about Madsen, I said, "I don't know Wayne Madsen so I don't know whether his report is credible, or just a rehash of Jason's with the most skeptical portions removed."

Nor did I suggest above in my comment above that Cheney will be indicted. I wrote:

"If Cheney is a target of his investigation (or indicted by trial time) he won't call him because he'd take the 5th. If Cheney's in the clear, Fitz might not want to call him because of concern Cheney would try to help Libby."

I don't regret writing either. And I try not to do any Republican bashing on Tom's site.

[Kate]

TalkLeft: thanks for the clarification. There has been so much speculation and nonsense on this story that I don't think we (and I include myself) should add to it.

As for Madsen, I took a look around his site and he is truly out there, I just suggesting that you not link to him again.

[Rocco]

On July 6, 2003, Wilson began a media blitz with his op-ed in the NYT's, a Pincus article in the WP and an appearance on Meet The Press.

July 6, 2003 was also the eve of Bush's five nation trip to Africa with 15 billion to fight the spread of AIDS.

July 6, 2000 was also the date on one of the Niger forgeries.

And July 6 is President Bush's birthday.

Happy Birthday President Bush!

[MayBee]

Talk Left-
On the first night of Leopold's report, you mentioned that you believed him. Have you retracted that statement yet?

[Dwilkers]

This strikes me as a huge logical leap:

"Defendant shared the interests of his superior and was subject to his direction. Therefore, the state of mind of the Vice President as communicated to the defendant is directly relevant to the issue of whether the defendant knowingly made false statements to federal agents and the grand jury regarding when and how he learned about Ms. Wilson's employment and what he said to reporters regarding this issue."

I can see Cheney's state of mind being relevant to the issue of how important this was to Libby and therefore whether his claims of forgetfulness are believable. It seems to me they are not relevant to the fact of whether he lied or not and certainly not "directly relevant".

Whatever. Its going to be interesting to see how Walton rules on these discovery motions. The defense would like to introduce anything up to and including a conversation about Libby's opinion on the space shuttle to muddy the water. Fitz wants to introduce everything that can be even remotely implied to indicate a grand conspiracy but absolutely nothing else.

[boris]

You can't be serious.

Always a good bet.

[sad]

A little something to brighten your day. LJ is making some interesting, yet oblique suggestions as to what he is these days. The following is from his website in response to some criticism:

**********FROM LARRY:
GEE TIM, YOU ARE A REAL TOUGH GUY. OBVIOUSLY YOU HAVE TROUBLE HOLDING A JOB AND THINKING CLEARLY. THERE WAS A REASON I DIDN'T TELL BYRON YORK WHAT I'VE BEEN DOING SINCE LEAVING STATE DEPARTMENT IN 1993. IF YOU WERE REALLY THE BAD ASS YOU CLAIM THEN YOU WOULD KNOW WHAT I'M DOING. OBVIOUSLY, YOU ARE PROBABLY FLOPPING BURGERS IN SOME DIVE AND DREAMING OF BEING SOMETHING YOU'RE NOT. YOU ARE WELCOME TO KISS MY ASS. *******

[Jeff]

boris - Good one! (No kidding.)

[boris]

Or are there still takers for that idea?

When Cheney said it was necessary to get out “all” the facts in response to the Wilson Op Ed, what did that mean?

Out to the public ...

The keyfindings of the NIE ... Yes

The NIE yellowcake intel ... Yes

Wilson sent unofficially by cabal of CIA dissenters ... Yes

Wilson's wife was CIA ... No

Background to the reporters ...

All of the above including "don't quote me on this but have you heard reporters are saying Wilson's CIA wife arranged the junket? Explains a lot don't you think?"

In that context hearing the Wilson wife info from Russert would be significant. "Ah Ha! now we can implement plan B!" Thus the act, as if for the first time.

[Tom Maguire]

Folks, we are delighted to have Ms. TalkLeft here, since she is at least as well informed as Jeff on these subjects. And she has been diligent about tracking both sides of the Leopold story, despite her unhidden predisposition for one side.

(1) As to the notion that Cheney had a "You're damn right I ordered the Code Red" moment and told Fitzgerald he ordered Libby to out Plame - wouldn't Fitzgerald have noted that by now, as direct evidence of Libby's state of mind, for example? And doesn't it seem highly unlikely that Cheny would 'fes up regardless of the truth? Why not just forget?

(2) An earlier defense filing noted specifically that the WH prepared talking points in response to the Wilson op-ed, and Plame is not on them. Isn't that also evidence of Cheney's priorities, and Libby's? And who discussed these talking points, who drafted them, and was the wife discussed, then dropped?

(3) Will come back to me, but I'm sure it was witty *and* insightful. Just not memorable.

[verner]

Between Seixon and Byron York, we've got Larry's number. And Cliff Kincaid at AIM is doing a job on Ray MCGovern. It will only get worse. MOM's firing was a sort of tipping point, and the haze is beginning to clear.

If I were Larry and the VIPers, I think I'd move to Cuba and buy a vacation villa from Phillip Agee. They might be answering questions in front of a GJ is they're not careful.

[Tom Maguire]

Ahh, it was not witty at all, but I get double-time as Cheney spinmeister - maybe the "junket" question was an earnest attempt to solve a puzzle - *IF* the wife sent him, there should be paperwork to prove it; if not, then no paperwork,

Get the paperwork, make the case (internally, anyway), maybe go public, otherwise keep quiet, is what may have been in Cheney's mind.

Since the paperwork did not exist, they never went forward with plans to talk about her, and this all stayed in Cheney's mind.

Yikes - do not attempt this at home without supervision...

[maryrose]

sad:
flopping burgers ,isn't that flipping burgers?
Anyone taking pains to denigrate someone else obviously is none too pleased with where they themselves are at this point in their lives. Nothing worse than that.
Actually I believe this is good news for Libby because it looks like Fitz is grasping at straws at this point. This is all supposition on his part and not a lot of concrete facts. It's really hopeless for Fitz at this point and he knows it.