Judy Miller Responds, As Do Others

[The NBC News / Andrea Mitchell response seems to be continuing the same evasions that Tim Russert popularized last summer and fall.  In brief, the NBC position amounts to restating that prior to Novak's July 14 2003 column they didn't know who Wilson's wife was; however, they don't actually say they didn't know that Wilson had a wife employed at the CIA.  Hence the possibility that NBC reporters were aware that Wilson's wife, with a name unknown to them, worked at the CIA.  Interesting.]

Judy Miller's team responds to the Libby subpoena (8 page .pdf).

Nothing struck me, but maybe someone else can find gold.

The NY Times has the longest response at 21 pages.  From p.11:

In any event, The New York Times does not possess any records indicating that its reporters, other than Judith Miller, talked to sources about Valerie Plame.

I am not sure whether that also means that the reporters themselves also do not have such records, or whether this only means that, for example, there are no emails to editors mentioning Ms. Plame.  I suspect the latter, since (for reasons I don't recall) the NY Times somehow became legally separated from the control of Ms. Milller's notebooks during her legal tussle in 2004/2005, even though she was their employee at the time.

TIME has a 14 page .pdf reply.  From p. 5, no special Scooter file:

Mr. Libby is mistaken in suggesting, Opp. at 34, that Matthew Cooper maintained a special “Scooter Libby file” that has not already been produced. The documents to which Mr. Libby appears to be referring have already been produced to the Special Counsel, and turned over to Mr. Libby.

Matt Cooper has a two page response that amounts to "What TIME said".  But let's run this:

Second, Mr. Libby suggests that Mr. Cooper has a “pro-Wilson” bias, a claim that is both entirely without support and wholly inaccurate. See Libby Opp. Br. at 34, 35. Quite simply, Mr. Cooper denies having any such bias, and he rejects the implication from Mr. Libby that his testimony before the grand jury was anything but truthful.

NBC News and Andrea Mitchell 15 page .pdf is here.  They take a hard line on the notion that Russert's carefully phrased denials are concealing something:

Let there be no mistake: the public record, including portions of Mr. Russert’s grand jury testimony that were quoted by the D.C. Circuit in a related proceeding months ago,2 make clear that Tim Russert did not know that Ambassador Wilson’s wife worked for the CIA when he spoke to Mr. Libby in July 2003. Not surprisingly, therefore, none of the documents in NBC’s possession contains a sentence, a phrase, a word, or a syllable that suggests otherwise.

That would be even more convincing if the passage of Russert's testimony that they present in a footnote actually verified their assertion.  Instead, we are served some Swiss cheese:

See Levine Decl. Ex. A (NBC’s public statements) [ed - p. 73 of 83 page .pdf]; In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1180 (D.C. Cir. 2006) (Tatel, J., concurring in judgment) (describing and quoting Mr. Russert’s sworn testimony) (citations omitted) (brackets in original):

In his deposition, describing Plame’s employment as a fact that would have been “[v]ery” significant to him – one he would have discussed with NBC management and potentially sought to broadcast – Russert stated, “I have no recollection of knowing that [Wilson’s wife worked at the CIA], so it was impossible for me to have [told Libby] that.” Asked to describe his “reaction” to Novak’s July 14 column, Russert said, “Wow. When I read that – it was the first time I knew who Joe Wilson’s wife was and that she was a CIA operative…. [I]t was news to me.”

Groan - without seeing the question to which Russert is responding, it is hard to know just what some of those brackets are replacing.  But that aside, re-read "it was the first time I knew who Joe Wilson’s wife was and that she was a CIA operative". 

Isn't Russert saying, yet again, that he didn't know Ms. Plame's name or job function?  Is that really the same as saying "I had no idea Wilson's wife was at the CIA in some capacity"?  I don't think so.

However... although I remain a skeptic, Special Counsel Fitzgerald may have been convinced.  Here is what he says in his 8/27/2004 affidavit on p. 12 of 38:

Russert recalled that when he first read Novak's column on July 14, 2003 that he had a reaction of "wow" because reading the article was the first time he had heard of Wilson's wife's purported affiliation with the CIA (Transcript of Russert deposition annexes as Exhibit K).

Interesting.  Well, maybe the response the judge cited as an example was just one answer Russert gave, but several better answers were included in the transcript - Fitzgerald apparently is happy to repeat and rephrase questions.

Or maybe Russert pulled a fast one.

Or maybe there is nothing here.  As usual, Russert can be relied upon for a clown show on this.

Andrea Mitchell's situation is interesting.  She said on Oct 3, 2003 that it was "well known" to the beat reporters that Ms. Plame was with the CIA; in subsequent public statements she has backpedaled from that.  NBC restates that:

As explained in their initial memorandum, neither NBC nor Ms. Mitchell possesses any documents arguably responsive to this request that either indicate or suggest that she, or any other NBC employee, was aware, prior to July 14, 2003, who Ambassador Wilson’s wife was or that she was employed by the CIA. As a result, the Court’s ruling in connection with Defendant’s Rule 16 motion forecloses the possibility that any responsive document could be relevant to this case within the meaning of Rule 17.

However, they also offer an odd argument that will (I think) be shot down:

[Because she has since repudiated the Oct 3, 2003 statement] Defendant’s suggestion that he is entitled to the documents at issue because he “will likely call Ms. Mitchell as a witness” and will “ask her about the meaning of her October 3, 2003 statement” on Capital Report, Response at 28, makes no logical sense.  Because Ms. Mitchell would testify that she did not know that Ms. Wilson worked for the CIA prior to July 14, Defendant’s only possible evidentiary use of this statement would be to attempt to impeach her testimony. However, it is well settled that Defendant may not properly call a witness he knows will not provide testimony helpful to his case, so that he may then evade the requirements of the hearsay rule and put before the jury what he claims to be a prior inconsistent statement by that witness. Such “subterfuge” is a long established “abuse” of the Federal Rules of Evidence, and is strictly prohibited in the federal courts. See United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984) (Posner, J.).3

Well.  The defense may well argue that they have no idea what story Ms. Mitchell will choose to tell after raising her right hand and accepting the risk of perjury.  Testimony to Don Imus carries a bit less weight, one might think.  And NBC does not cite any statements to investigators, so it does seem that Ms. Mitchell has never formally given evidence.

The response starting on p. 12 to Mitchell Subpoena Category 5 is pretty amusing - as a general rule, snarkiness is a "tell" for a weak argument; in this section, the NBC team offers plenty of snark but not much sense.

Happy hunting.

MORE:  Let's get the first motions to quash here:

TIME: TIME

NBC: [OK, now where is it?]

NY Times/Miller: Miller

Comments

[Jeff]

Did you ever see a copy of Andrea Mitchell's initial response to the subpoena? I never saw it anywhere. Any chance of putting that up as well?

[topsecretk9]

Jeff, I think it was one conclusive NBC response. I would email it to you, if you want.

[clarice]

Re the NBC/Mitchell response she is insisting she did not know about "Mrs. Wilson's wife".

Otherwise, mostly arguments on the law of relevance and admissibility and criminal discovery limits.

[topsecretk9]

but I'm assuming @jeff.com is not a *working* outfit

[Jeff]

Miller evidently found her misplaced notebook.

[topsecretk9]

Well, in Miller...they do not dispute that Miller had Wilson's phone number/contact info...wonder who she got it from?

[Neo]

Mr. Russert’s grand jury
testimony that were quoted by the D.C. Circuit in a related proceeding months ago, make clear that Tim Russert did not know that Ambassador Wilson’s wife worked for the CIA when he
spoke to Mr. Libby in July 2003. Mitchell page 6-7

Lingering question, but did Mr. Russert know .. answered ?

[Neo]

neither NBC nor Ms. Mitchell possesses any documents arguably responsive to this request that either indicate or suggest that she, or any other NBC employee, was aware, prior to July 14, 2003, who Ambassador Wilson’s wife was or that she was employed by the CIA.

But of course, this doesn't mean that Ms. Mitchell, herself, didn't know. This question definitely lingers on.

[Jeff]

Yes, p. 3-4 of NBC's reply:

Let there be no mistake: the public record, including portions of Mr. Russert's grand jury testimony that were quoted by the D.C. Circuit in a related proceeding months ago, make clear that Tim Russert did not know that Ambassador Wilson's wife worked for the CIA when he spoke to Mr. Libby in July 2003.

It's an odd way of clarifying, but there it is. And if Russert were to testify otherwise, presumably someone would be in big trouble.

[Jeff]

Regarding Mitchell, though, this seems considerably stronger than the issue of documents:

As Ms. Mitchell has publicly stated on multiple occasions, including in the exhibits submitted to the Court by defendant, see Response Exs. U & V, she did not know that Ambassador Wilson's wife worked for the CIA prior to July 14 and did not share any such information with Mr. Russert.

[topsecretk9]

Testimony to Don Imus carries a bit less weight, one might think.

No kidding.

Actually I am struck here for a second...many, most, all of these responses all have a "because we say so" tone

Also, Libby *a defendant* does not have any right to defend himself -- as if it is just his dumb luck the people who may materials that would help are protected, privileged reporters -- not some everyday blokes on the street.

The next question that comes to mind, and hopefully Walton -- if they have nothing or very little of value to Libby then why are the so vigorously fighting and just not turning over the dismal stuff - like the Washington Post?

[clarice]

If I recall the prior Court reference was that Russert didn't know Valeria Plame. NBC should be clearer..surely they know there has been a question about that.

[MJW]

I wonder if the "odd way of clarifying" Russert's knowledge about Plame may result from Russert making no statement on the matter to NBC's attorneys, who relied instead on their interpretation of Russert's publicly available statements.

When oddness gets piled on top of oddness, for no apparent reason, there usually is a reason.

[Veeshir]

This is one of the funniest issues out there because the only people who know the real story are the media and they ain't talking.
That's just funny.

[PeterUK]

"neither NBC nor Ms. Mitchell possesses any documents".
The careful use of the present tense,possesses, is very revealing here,not the usual lawyers disclaimer," nor have ever possessed".

[Patton]

It is kind of weird that Andrea Mitchell nor NBC has anything regarding Mitchells Oct 3 statement.

Didn't anyone at NBC WATCH the show??

Noone e-mailed her or anyone else saying..."what the hell, you knew and you didn't tell us"

Her admitted on National television that she knew in advance raised NO stir out of NBC, Russert, or anyone???

[Dwilkers]

Fitzgerald apparently is happy to repeat and rephrase questions.

Unless he's questioning Armitage, apparently.

I say that because I continue to believe that the only way Armitage could have dodged an indictment is if he technically didn't lie - and the only way I can see that as possible is if they never asked a question that cornered him into admiting his convo with Woodward.

[fletcher hudson]

The indictment does not mention "Plame". What seems critical is whether Russert's deposition references "Plame" and was transposed by Fritz in the indictment and in his earlier affidavit to "Wilson's wife" (WW). It does not help much when the posts, the commenters, and the pleadings tend to use these phrases interchangeably and on top of this confusion equate "knowing who Wilson's wife was" with knowning Wilson had a wife, I am hoping the Judge will see through this and require more specificity. I would expect this will be discussed when these motions are argued. I am guessing both Mitchell knew Wilson had a wife and that she worked for the CIA. They may well have not known who "she was" ie "Plame". I suggest we all be more precise when we refer to "WW" or "Plame'. This would help slower people like me understand what this is all about.

[fletcher hudson]

"both Mitchell" = "both Mitchell and Russert"

[kim]

I'm hoping that lack of precision was what they hoped would keep 'slower people like me' from understanding what this is all about.
=====================================

[sad]

OT but has anyone noticed that the new CIA head and KR look a great deal alike? Think of the possibilities...

[Cecil Turner]

It's an odd way of clarifying, but there it is. And if Russert were to testify otherwise, presumably someone would be in big trouble.

Why? They're not claiming any particular knowledge, only that "the public record" makes something clear (that it doesn't, to my reading, appear to do).

Or maybe there is nothing here.

If there is something, I don't see it. I'd also like to second Jeff's request for Mitchell's initial response, if anyone has it.

[kim]

And I'm hoping that one of the 'slower people' confused by that distinction get pissed when they realize they've been played for a fool, like Fitz.

This whole response looks like stonewalling. It's not the crime, it's the coverup. I'm dubious that they are all as innocent as they claim, and they risk Walton's wrath if they are found to have been less than forthcoming. Thay are not proving, but they are alleging, a negative. Good luck.
====================================

[Tom Maguire]

Did you ever see a copy of Andrea Mitchell's initial response to the subpoena?

I am skipping to the bottom without reading the thread, so stop me if you've heard this before:

As best I can tell, her initial response was a statement delivered by Tom Brokaw on the NBC Evening News:

TOM BROKAW: NBC News correspondent Andrea Mitchell has been identified by some as one of the recipients of a leak about the undercover agent. But tonight, Mitchell said that was not the case, that her first discussion with an administration official about the matter was after the Robert Novak column was published. And that discussion, she said, was off the record.

As background, Ms. Mitchell had been identified as one of the Six in the 1 x 2 x 6 fallout (if not the specific story which broke that).

Relatively quickly, her version - she was tipped *after* the Novak column, when Rove thought Plame was "fair game" - was put out. (OK, IIRC Matthews used the "fair game" quoye, but still).

[owl]

Okay....here comes a slow witness. Never was able to find it and later decided it was knocked out of the transcripts as a possible "talkover"......but the first time I heard Mitchell comment on "knowing" was on Matthews. Actually do not remember hearing her ......but it's a fact.....she was grunting and nodding YES as he was just keeping on about maybe this was just one of those things that everyone around town knew.

[Tom Maguire]

Sorry, brainlock, Jeff meant the Mitchell legal filing.

Jeralyn Merritt had the links last April 19.

[kim]

So, set's see that would make her the recipient of a leak, which was not a leak, because it came after Novak's column, yet if she were one of the six, she could still be considered the recipient of a leak, by some. Plausible deniability, for sure. How about under oath?
================================

[Jeff]

Tom - No, talkleft refers to but does not post or link to NBC/Mitchell's legal filing in response to Libby's subpoena.

[Tom Maguire]

I would say fletcher hudson nails it:

It does not help much when the posts, the commenters, and the pleadings tend to use these phrases interchangeably and on top of this confusion equate "knowing who Wilson's wife was" with knowning Wilson had a wife, I am hoping the Judge will see through this and require more specificity.

Andrea Mitchell is just recycling a judge's recycling of a Russert response that, as excerpted, is clearly ambiguous. How interesting.

And this is more of the same ambiguity:

neither NBC nor Ms. Mitchell possesses any documents arguably responsive to this request that either indicate or suggest that she, or any other NBC employee, was aware, prior to July 14, 2003, who Ambassador Wilson’s wife was or that she was employed by the CIA.

What does "was aware, prior to July 14, 2003, who Ambassador Wilson’s wife was" actually mean? Is NBC denying that Mitchell knew that Wilson's wife, name unknown, worked at the CIA? Not really.

Jeff - what did you mean by this:

Regarding Mitchell, though, this seems considerably stronger than the issue of documents:

As Ms. Mitchell has publicly stated on multiple occasions, including in the exhibits submitted to the Court by defendant, see Response Exs. U & V, she did not know that Ambassador Wilson's wife worked for the CIA prior to July 14 and did not share any such information with Mr. Russert.

I don't think you are exhorting us to rely on unsworn public statement submitted as exhibits. Why couldn't her attorneys ask her for a new affidavit to clarify this, since she is, we presume, accessible?

(Hmm - having asked, I am wondering why her attorneys would volunteer sworn evidence from their client. But it might help quash this subpoena, and it would buttress a point they seem to want to make, so why not?)

[owl]

Saw R Novak on FOX this morning...saying he did not out Val....Ames did...his lawyer won't let him talk and Rove still waiting.

[maryrose]

Owl:
I saw the Matthews show where she nodded her head in agreement and heard her declare on Imus that those in the loop of CIA information knew: Everyone knew comment was made right on the Imus show. Then Imus asked her to elaborate and she quickly started to cover her tracks. Is there no videotape of Hardball or Imus to prove this? I know I'm not imagining it happened or has that all been scrubbed?

[owl]

Yep....she was not at the table but standing off camera when the nodding went on...

[Jeff]

Jeff - what did you mean by this

All I meant is that they are staking out the claim that she didn't know about Wilson's wife, not just that they don't possess any documents. However, on the one hand, I agree with you that with both Mitchell and Russert, the fudging has not been definitively put to rest; on the other hand, it strikes me as an extremely high-risk strategy on the part of NBC if either of them actually did know. It is high-risk in the sense that if their efforts to quash subpoenas and more generally to keep Mitchell out of the trial - and Russert we know is going to be part of it - don't work, and Mitchell and/or Russert end up testifying that they did know, I can only imagine that someone, whether it be the lawyers, NBC or the individuals involved, is going to be in some kind of trouble for letting statements like the ones in NBC's reply appear. It's completely plausible to me that NBC's lawyers avoided actually asking real questions of Mitchell and just relied on public statements. But at some point somebody would get into trouble, to say nothing of major public embarrassment, if the assertions in this filing turn out to be total bs (which they very well might be).

[Jim E.]

TM wrote: "as a general rule, snarkiness is a 'tell' for a weak argument."

I would think a bloggers would be the last people to make such arguments.

[maryrose]

I remember it perfectly; Libby's lawyers need to as they say in the business: Go to the Videotape. I'll be happy to be a witness for Libby for both the Hardball interview and Imus. I tune Imus in as I'm getting ready for work. I'm more of a tv person in the morning rather than a radio listener. TM had a number of blogs on Mitchell.perhapa we can send those over to Team Libby.

[kim]

NBC, twisting slowly, slowly, in the wind.
========================

[cathyf]

But at some point somebody would get into trouble, to say nothing of major public embarrassment, if the assertions in this filing turn out to be total bs (which they very well might be).

I think that recent history shows that this won't be much of a problem. Look at the TANG memos and how much damage they did to CBS. Or Kerry's attacks on the swift boat vets -- basically successful. The country seems to be fracturing between a small group of people who don't believe anything the media says, and the vast majority who aren't interested at all.

cathy :-)

[maryrose]

JimE:
Yet NBC and MSNBC appear to be snarky because they are in a weak position...Time will tell; we'll just have to wait and see.

[maryrose]

Legally would there be a problem for them if they were not forthcoming?

[Tom Maguire]

I would think a bloggers would be the last people to make such arguments.

Oh, right, like you would know...

Actually, it was more of an observation, but I think it is correct - appeals to something other than fact, such as ridicule, are more likely tactics when the facts aren't there.

Jeff - OK, where, we wonder, did I read those responses? I am checking my files, and ought to post them shortly.

[cboldt]

Press Support for Motions to Quash converted from PDF to text form.

[MaidMarion]

Did anyone see Hardball last night?

In covering Rove's possible indictment, Chris decides to now reveal ... at this late date ... the exact portion of his Hardball show that ticked Libby off enough to call Russert. The entire transcript is worth reviewing, but here's Chris's answer to our long-standing question:

(start Video clip from July 8, 2003)

MATTHEWS: Why would the vice president‘s office, Scooter Libby, whoever is running that office, why would they send a CIA effort to verify something, find out that there wasn‘t a uranium sale and then not follow up by putting that information or correcting that information in the president‘s State of the Union? If they went to the trouble of sending Joe Wilson all the way to Africa to find out weather that country had ever sold uranium to Saddam Hussein, why wouldn‘t they follow up on that?

(END VIDEO CLIP)

MATTHEWS: God, I‘m getting older. Anyway, that was what all the fight was about, Stan. It seems to me we have an issue this week. Everybody who has been following this case, wants to know whether Scooter Libby, he‘s already in trouble, he‘s facing six indictments, what about Karl Rove, is he going to get indicted this week? Apparently the grand jury is meeting Wednesday and Friday this week.

http://www.msnbc.msn.com/id/12703148/

[maryrose]

MaidMarion:
I saw the show. This is the misinformation put out by Matthews show which even yesterday he did not refute or debunk.I posted some info on this on another thread. They will not give up the idea that Wilson was sent by Cheney.

[PeterUK]

"Apparently the grand jury is meeting Wednesday and Friday this week."

IIRC,didn't somebody say on this blog that the GJ usually meets those days?

[clarice]

Yes, they did. That is their schedule though it is obvious on many days they do not meet, or meet on other matters.

[Tom Maguire]

Re the Andrea Mitchell filing - at PACER, the April 18 NBC filing is not available electronically, which is odd.

Yes, grand jury meets Wed and Fri.

On the Hardball thing - did Matthews say *why* he thought it was the July 8 show that set Libby off? That was the guess by Jeralynn and Michael Crowley at TNR (my faux pas here), but I belatedly nominated the July 9 show:

MATTHEWS: Let me go back to David Gergen on the question of who may be culpable here, because we do have a paper trail, thanks to Joe Wilson, the ambassador. He said he was sent to Niger, the government in Africa that is in question here. There we have a picture of him. He was on "MEET THE PRESS". He also wrote a letter, an op-ed piece for the "New York Times" this weekend.

He made it very clear he was sent down there at the behest of the vice president's office last year. Months, almost a year before the president's State of the Union Address, he came back with the information that there was, in fact, no deal. Isn't vice president's office responsible, right now, to come out and say why they didn't act on that information? Why the CIA, which also must sign off on presidential speeches, they didn't come out with the information and clear the president so that he wouldn't have to, in his own words, by the way, to use his words, revise history as he seems to be doing, saying that this was not a mistake.

GERGEN: Chris, it was my understanding that he went to the -- to Africa at the request of the CIA, not the vice president's office. Vice president's office was...

(CROSSTALK)

MATTHEWS: At the behest of the vice president's office, the CIA was tasked by the vice president's office to do it. Senator, isn't that right?

ROCKEFELLER: That is correct.

GERGEN: Well, I thought what he said in "The New York Times" was -- in his piece, was that he was asked by the intelligence agencies for whom he had worked, they paid his way. He went pro bono in terms of his...

(CROSSTALK)

MATTHEWS: At the request of the vice president's office. Right, Senator?

ROCKEFELLER: Absolutely correct.

GERGEN: Well, if that's the case, if there is a paper trail back to the vice president's office and if there were papers filed with the vice president's office, that's one thing. If it was filed with the CIA, that's quite another. And I think we should be -- I certainly accept Senator Rockefeller's characterization of the facts here, but I -- my understanding was that he was a former head - that he was a former state department person...

(CROSSTALK)

MATTHEWS: True...

GERGEN: ... who had done CIA work...

MATTHEWS: ... he was a former (UNINTELLIGIBLE)

GERGEN: ... and he was reporting to...

MATTHEWS: That's technically how it happened. Let me ask you the big question, gentlemen. I want to get into a very important -- A lot of people watching right now may say, so what. A lot of people may say this is wild, especially the critics of the war. But, those who supported the war, what does it say to them? Senator?

Since Russert and Libby talked on July 10, maybe it was this, or both.

[clarice]

Isn't it amazing how much a dolt like Chris can earn? Isn't it even more amazing that what purports to be an interview is always a monolgoue?

[clarice]

http://americanthinker.com/comments.php?comments_id=5101

[Lurker]

I have been lurking here for the last few weeks once I learned about this website. I've posted in the past but seem to be ignored. While I have a new request, I hope this will not be ignored. I am afraid to open up Sweet and Light because Norton System Works tells me that Sweet and Light is trying to introduce an intruder worm into my computer and network. Norton blocked these intruder worms from my network and Sweet and light comes up ok. However, for some with unprotected computers should take heed that their computers might be intruded. I don't know what kind of a worm it is and it might be very harmless.

Sweet and Light, can you take a look into this and let me know? Thanks!

[clarice]

If you'd like I'll copy the entire article and email it to you. Please tell me if that's what you want.