Libby On Cheney's Notes

Libby's defense team has filed a 10 page response on the topic of Cheney's handwritten annotation of Joe Wilson's July 6, 2003 op-ed.

The WaPo, MSNBC, and Byron York have coverage; I do not.

And here is an 8 page filing from Fitzgerald responding to a motion to compel.  This ties in to discovery related to, among others, Richard Armitage, and the concept of "innocent accused" resurfaces.  Should be something there for clue-seekers. (Since they allude to it, here is something on Jencks Act discovery.  Yikes.)

Lots to read, but I am off playing soccer dad (also baseball dad and driver dad).  Enjoy.

MORE:  At a quick glance, it really does seem that Fitzgerald may have stepped in it with this presentation - since Libby claims he did not see this document, he is now arguing this:

The government evidently wants to argue to the jury that “facts that were viewed as important” by the Vice President would have been important to Mr. Libby too, and that the Vice President’s notations can be used to show what Mr. Libby focused on during July 2003. These arguments are tantamount to an acknowledgement that the state of mind of witnesses other than Mr. Libby will be important at trial – precisely what Mr. Libby has been arguing in the pending motion. Documents reflecting the administration’s response to Mr. Wilson’s claims about what he learned during his trip and to whom his report was sent are discoverable, whether Mr. Libby has previously seen them or not.

In the same way that the government finds the views of the Vice President regarding Mr. Wilson and his trip relevant to its case, the defense finds the views of other government officials, such as former Under Secretary of State Marc Grossman, regarding Ms. Wilson relevant to its case. Such information is certainly material to the preparation of the defense, regardless of whether it is ultimately admissible. Just as Mr. Libby was interacting with the Vice President regarding Mr. Wilson’s charges, so was he also interacting with Mr. Grossman and other government officials and their respective agencies.

The defense is entitled, for the purpose of preparing its cross examination of such witnesses, to discover what and when they learned about Mr. Wilson’s trip; whether they were involved in the subsequent finger pointing among government agencies that resulted from Mr. Wilson’s allegations; how they learned Ms. Wilson worked at the CIA; whether they thought her employment status was classified; and whether they discussed Ms. Wilson’s affiliation with the CIA with officials other than Mr. Libby. The defense needs these documents to prepare to examine witnesses such as Mr. Grossman about such issues.

Well worth a try.

STILL MORE:  Here is a filing by the Libby team in the civil suit involving the subpoenas to news organizations.  It is a 43 page file intended to "supplement the record" with info on the subpoenas to Tim Russet, CNN, the WaPo, and Matt Cooper.

On p. 22, CNN is subpoenaed regarding the July 8 sidewalk chat between Bob Novak and a mysterious stranger that led to a phone call from Joe Wilson to Eason Jordan of CNN.

And I have a query about the subpoena to Andrea Mitchell and Tim Russert.  They ask for any communications between those two and Ari Fleischer, Mark Grossman, Eric Edelman, Bob Grenier, Cathy Martin, Joseph Wilson, George Tenet, and Bill Harlow".

What about Richard Armitage and Steve Hadley, either of whom (at the time of these subpoenas) were prime candidates for the leak to Bobs Woodward and Novak?

I would be especially interested to learn about any Armitage-Mitchell contact - if Armitage was willing to sit on his leak to Woodward, mightn't he be willing to sit on a leak to Mitchell?  In June 2003 Ms. Mitchell seemed to break the news about the misplaced INR dissent in the Oct 2002 NIE, and her normal beat was the State Dept. - why would she not have spoken with "Loose Lips" Armitage?

Perhaps a legal eagle can sort me out on this - for example, maybe there is a relevance issue with Armitage on these subpoenas.  Regardless, I suspect this will be covered at the trial.

And what about this - some silly Armitage push-back makes the NY Daily News:

Two sources familiar with the case said Armitage, Rove and Libby all had contacts with the press about Plame. Unlike Rove and Libby, Armitage appears to have tried to dissuade reporters from writing about her.

Special Counsel Patrick Fitzgerald recently had to sneak Armitage into a Washington courthouse to get past reporters - a sign of his value in the case, according to one source.

"Rich has been cooperating with Fitzgerald since day one," said another source, who has close ties to Armitage. "He was one of the first people to offer his testimony."

Sorry for the no-links, but Walter Pincus said his source was trying to push him away from writing about Wilson; Rove told Cooper not to get too far out on Wilson, which is not exactly an exhortation to write something until more facts emerge; and Libby told Cooper, "I heard that, too", which is also not an exhortation.

Meanwhile, assuming it was in fact Armitage who leaked to Woodward and Novak, Novak went ahead and broke the story.  Go figure.

As to "Rich has been cooperating with Fitzgerald since day one", it would have been better if his cooperation had extended to taking up Woodward on his "drop the confidentiality" reminders and come forward with his news of the leak to Woodward in 2004.

Comments

[kim]

So, James, we have perceived ambiguity on the part of Fitz as to the meaning of the underlining and annotations. Is he after Cheney?

For what, being good? When I first read those underlinings, I noted that he had identified every point that was either a lie by Joe or a failure of policy or procedure. Probably cold, because a lot of what Joe had written was new(so what else is new). It is an amazing performance, and simply because Cheney had guessed(cherchez la femme) at the flash point in the woodpile, Fitz projects criminal conspiracy. It's just got to be early influence.
==========================================

[Kate]

I don't think Fitz is after Cheney at all. He's saying that Libby, being a good chief-of-staff acted on Cheney's wishes to undermine Wilson's lies, er, story.

I think Fitz is trying to save his case.

[kim]

Notice the repeated use of Mr. grossman's name? I'll bet Fitz would like to have a little conversation with Marc. He could say the devil made him do it.
===================================

[sad]

Fitz is scared of the left blogosphere and lamestream media. They lionized him and he has continued to let them down by "delaying" the indictment of Rove. He has to do salvage something or they will rend him like jackals.

[clarice]

I think the Cheney annotations claim was so preposterous it's time to file a complaint with the OPR and on yesterday's thread we are doing a draft of a complaint..VOlunteer for duty if you can and wish to.

[maryrose]

What is good for the goose is good for the gander. Libby's lawyers are matching Fitz point per point. He is up against some real top dogs. Take Kenny Rogers' advice-Know when to fold em Fitz!

[Sara (Squiggler)]

I went and read TM's cite for Jencks.

Question: does testifying in the GJ count or does the testimony have to be in an actual trial?

[Sara (Squiggler)]

Echoing Clarice ... be sure to come back over to the Straight Shooter thread and put in your two cents. If you don't want to read the whole thing, start in the 6ish AM timeframe forward.

[Bruce Hayden]

I think that Libby's attorneys are putting Fitz in a box and then making it smaller and smaller as they go on. This is because it seems like every time Fitz argues against proposed discovery by Libby, he gives up a little bit of his case. It is almost as if he is saying, I don't want to give you those documents, so I will give up going in that direction. Then, in another direction, and another, etc.

Of course, as Libby's attorneys admit, they do have an uphill battle, given the jury pool they will face.

But right now, I think that Libby's lawyers are outlawyering Fitz, though, as someone pointed out earlier, Libby might have avoided this whole thing if he had lawyered up right in the first place.

But that is the problem. If any time someone has to talk to the FBI, or go before a grand jury, they have to have the type of counsel Libby has now acquired, it would be cost prohibitive, esp. given the salaries paid for these positions.

[Jim E.]

I do have some local news to break: it look like our clarice will be leaving the United States. Yep, clarice’s so upset with America that she—according to clarice, anyways—will be leaving us. It’s not clear if she will renounce her citizenship as well, but it is clear—again, according to her—that she will no longer reside among the 50 states.

Last month, several commenters were discussing the several newspaper and magazine articles that Fitz said he would introduce as evidence. (See comments to TM’s post: “Libby’s Team Replies on Disclosure,” April 12, 2006.) clarice was very upset at the idea that news stories would be admitted into evidence. She was so upset, she wrote: “When this crap rises to the level of evidence, I'm leaving the country.”

Well, even Libby’s own lawyers disagree with clarice about what constitutes "crap." In their most recent filing, they write: “The defense does not object to the notion that news articles will constitute admissible evidence in this case.” In addition, they suggest that *they* will be entering some articles of their own into evidence. What clarice calls "crap," Libby's lawyers call "evidence."

Therefore. . . Bon Voyage, clarice!

[Patton]

Fitz would say that it is relevant what Cheney was saying/doing even if Libby was not there and not aware...and nothing anyone else said or did that may help Libby is relevant..

and the judge appears willing to agree.

[kim]

Yes, Jim E., evidence of the crap that you just stepped into largely.
========================================

[Patton]

Wow, Jim E. you really don't have a life do you.

He's really got you over a barrel here Clarice, I hate to see you go..but what can I say, the man has got your number.

Of course, he doesn't say what country you were in when you posted...you could be leaving France for all we know.

Jim E. put a call out to the lefty blogospere post haste, we need to track down
this huge issue you've discovered.

And if you don't do it immediately, I'm leaving the country!!

[clarice]

Jim E--the judge wants to keep this case within reasonable parameters and seemed at the hearing to find reasonable Fitz' suggestion that files elsewhere in the Administration should not have to be turned over to Libby because this was a small case. As TM notes, Fitz, however, through in the Cheney notes which would certainly not be probative in the small case because as Libby never saw them they could hardly have affected his state of mind.
Libby will win either way--that article will not be introdcued as evidence or Libby will get all the discovery he asked for.

And in the process, we have seen once again that Fitz is manipulating public opinion by misrepresenting the facts of this case in his pleadings..I think the judge will be very angry at Fitz.

[Barney Frank]

JIM E,

Is it just possible there was perhaps some context to clarice's statement?

For instance it is quite obvious that newspaper articles rise to the level of evidence in, say, a defamation suit.

[Patton]

And by the way Jim E. Clarice was referring to specific articles that talked about taking revenge against Wilson, not all articles, all the time.

But I must admit you really dug deep and found her wanting.....way to go kiddo...get yourself another beer.

[obsessed]

How you folks can summon the energy to defend the Bush Administration in the face of such damning information as this article on the mismanagement of the Iraq War.

Let's say that it was a good idea to invade Iraq. If I believed that, as you all do, I would be even MORE angry that the effort has been so horrendously bungled.

[Lurker]

1. Robert Kaplan's book, "Imperial Grunts" disproves Colin Powell's assessment of higher number of troops.

2. How long did it take to fight the Nazis after the conclusion of World War II and reconstruct Germany?

3. War is over.

4. Al Qaeda is losing the war.

5. In spite of "errors" (people do commit errors after each and every war), it's working.

[Sara (Squiggler)]

Oh puhleeeeeeeeeze obsessed: The Iraq War has been over for a long long time. Iraq and the United States are allies and on the same side fighting the War on Terror. Iraq is but one battleground. How can you all be so dense? It boggles the mind.

[kim]

Poor, ob, depending on the Old Gray Gossip for his take on Iraq. If Sistani hadn't been as forgiving as Jesus, we'd be in trouble over there. As it is, he's got it as well in hand as could be expected after a century or so of misguided secular rule.
=========================

[Sara (Squiggler)]

Of course, as the Zarquawi letter pointed out ... the only people left in the entire world that believe that al-Queda are winning are the American media. God Bless their lazy ass souls.

[kim]

Ob's just trying to pull a huge ugly blanket over the corpse of Fitz's case.

I'm beginning to wonder if this isn't all just a set-up to really get MSM and the Dems criticizing the war, then pulling the carpet magically from underneath their feet with electric Iraqi translations and pragmatic Iraqi legislations.
===============================

[Lurker]

One post at TO said that CNN reported this morning that Fitz will announce a Rove indictment Monday morning.

Oh puleeaze....

[kim]

So now, tell me; is Chalabi or Rove the Master of the Bazaar?
======================================

[kim]

Lurker, there was one a few days ago which actually stated that CNN had announced it on TV on early news. The celebration had started to swing, feet were jiggling, and the rug looked forward to the death of a thousand cuts, when someone remarked that they'd been watching CNN and there had been no such announcement.

They are such slaves to their pitiful little faith.
==============================

[jwest]

Since TM’s away and a few “open thread” liberties are being taken….

Could someone with the research skills/nexis access help with a question I’ve wondered about for a while now?

Out the original Kerry “Band of Brothers” (I believe there were 9 in all) is there any information post-election on interviews, comments, anything? Has anyone seen or heard from these guys or are they still chained to the wall in the dank recesses of one of Teresa’s French chateaus?

Only one was allowed to speak to the press during the election cycle, so I was just curious if any one of them had anything to say after it was over.

[Sara (Squiggler)]

Well Kim, the translations of those documents are coming fast and furious, multiple elections have been held AND Iraq's parliament approved a national unity government Saturday (today)...In a show of hands, the 275-member parliament approved each of the 39 Cabinet ministers proposed by incoming Prime Minister Nouri al-Maliki. The new Shiite Muslim, Sunni Arab and Kurdish ministers then took their oaths of office during the nationally televised session in Baghdad's heavily fortified Green Zone.

The installation, coming after months of political wrangling following Dec. 15 parliamentary elections, completed a democratic process that began after the overthrow of Saddam Hussein's regime in the 2003 U.S.-led invasion.

But then you knew that ... too bad the Kiddie Korps doesn't understand it yet.

[kim]

jwest, I suspect that the Man of God, David Alston is searching his soul. He may get right with his God or he mayn't. It is his choice.
====================================

[Cecil Turner]

There is an interesting dynamic in the discovery for this case, where the Defense relies on the Government for much of its information (including all of the classified bits), in that the roles seem to switch from traditional arguments on materiality. That is, the Defense view of relevance is much broader than usual, and the Government is much narrower. I suspect those roles will largely reverse when the arguments switch to admissibility, though some of the dynamic is inherent in the subject matter.

Also worth noting is that Fitz appears to imply that Libby saw the annotated article (060405 response, p.19):

At some point after the publication of the July 6, 2003 Op Ed by Mr. Wilson, Vice President Cheney, defendant’s immediate superior, expressed concerns to defendant regarding whether Mr. Wilson’s trip was legitimate or whether it was in effect a junket set up by Mr. Wilson’s wife.

Of course, that would be literally correct if the VP merely wrote the marginal notes intending Libby to see them (whether or not he actually did) . . . and Fitz seems to tend toward overstatement (e.g., the bit about confirming to Cooper). However, it also meshes awfully well with the indictment point 18:

Also on or about July 8, 2003, LIBBY met with the Counsel to the Vice President in an anteroom outside the Vice President’s Office. During their brief conversation, LIBBY asked the Counsel to the Vice President, in sum and substance, what paperwork there would be at the CIA if an employee’s spouse undertook an overseas trip.

Expect Fitz to argue he can show Libby probably saw the article, and hence it's different from the stuff the Defense wants. Walton, based on past rulings, will probably buy it.

[kim]

jwest, his own crewmembers were on 'family vacations' according to Newsweek all through August, when they could have been manning the guns for Kerry. But Alston knew that he had run the whole candidacy's boat up on high ground, tilting the guns too high; so why bother, let the madman chase off alone.
=====================================

[Sara (Squiggler)]

Cecil, I read the VP's remark to be a WTF remark and reflecting his incredulity about the pro bono trip. It doesn't square with his many, many years in the government or how normal government business is conducted. I do not see those remarks as showing an interest in Plame's CIA status. It is a "when did we start doing things in this manner?" question.

[kim]

Even if great minds only ran in the same channels, it still remains that Fitz has misunderstood a confusing answer to a confused question, and has labeled it perjury. He can't prove it was perjury because it wasn't. The big case, gradually emerging from the mists, will render the little case moot.
========================================

[jwest]

Kim,

It sure would be fun to find an MSM “investigative reporter” to track these guys down now for a “reunion” of sorts, see what their story is and find out what country they were promised ambassadorships to during the campaign.

[maryrose]

But why would Libby deny seeing the article if he had?
It doesn't make sense. Is Fitz saying this that Libby lied about seeing the article? If he is this is the first I've heard of it.
Well it's his word against Libby's if he is and I don't think he has any concrete proof.

[windansea]

Ex-deputy secretary of state new figure in CIA leak probe

BY KENNETH R. BAZINET and JAMES GORDON MEEK
DAILY NEWS WASHINGTON BUREAU

WASHINGTON - Former Deputy Secretary of State Richard Armitage has emerged as a key witness in the CIA leak probe, the Daily News has learned.
Armitage has been questioned several times, but is not expected to be indicted by the federal grand jury investigating who outed CIA spy Valerie Plame to journalists in 2003, sources said.

Armitage's testimony could hurt Vice President Cheney's indicted former chief aide Lewis (Scooter) Libby, or President Bush's political guru, Karl Rove.

Two sources familiar with the case said Armitage, Rove and Libby all had contacts with the press about Plame. Unlike Rove and Libby, Armitage appears to have tried to dissuade reporters from writing about her.

Special Counsel Patrick Fitzgerald recently had to sneak Armitage into a Washington courthouse to get past reporters - a sign of his value in the case, according to one source.

"Rich has been cooperating with Fitzgerald since day one," said another source, who has close ties to Armitage. "He was one of the first people to offer his testimony."

link

[foloufon]

reconnais les chandela bras chez bete?

[jerry]

Do we have Libby fingerprints?

[Sara (Squiggler)]

Two sources familiar with the case said Armitage, Rove and Libby all had contacts with the press about Plame. Unlike Rove and Libby, Armitage appears to have tried to dissuade reporters from writing about her.

More moving of the goal posts. When did the case become about who tried to dissuade reporters rather than who told reporters in the first place? Sheesh!

[topsecretk9]

"Rich has been cooperating with Fitzgerald since day one," said another source, who has close ties to Armitage. "He was one of the first people to offer his testimony."

but he forgot to tell him Woodward was pestering him for a year.

[kim]

jerry, on the candlestick, in the hallway; quick while they're quick.
=========================================

[Sara (Squiggler)]

Reporters already knew before they got to Libby and Rove. They either knew because Armitage told them or they knew because it was common knowledge around Washington and Armitage confirmed and then they came to Libby and Rove for their 2nd source confirmation. Even Novak says that his confirmation source was by calling the CIA and asking them.

[verner]

On Fitz's page 7:

"Defendant’s arguments make clear that he intends to use the documents he seeks for
impeachment, or to re-focus the jury’s attention to the conduct of others, rather than his own."

So Fitz puts in a news article that Cheney scribbled on, that Libby never saw, that Fitz has no proof that Libby ever saw, but complains about Libby showing what others in the SD, CIA etc. were doing at the same time--completely taking this case out of all context--except the "context" Fitz wants the jury to see.

WOW. That's legal? I can't believe the judge would let him get away with that junk.

[windansea]

no kidding squiggler...this whole Armitage pushback does not square with Woodward quotes saying that when he confronted his source after Libby indictment the source acted alarmed and said "I have to got testify"

perhaps the source (Armitage) was playing Woodward and had been testifying all along?

[windansea]

Woodward's quotes of his source never mentioned "don't write about this" either

[Sara (Squiggler)]

And, I don't remember the quote nor the reporter (perhaps Cooper) that Rove did try to dissuade. Didn't he say something to the effect of "don't go there" to one of them.

Whew! I'm tired. Sorry. Been up for over 48 hours.

[topsecretk9]

or wind...

it could be spin, for the off chance he is not indicted

[kim]

Behind the walls on the left lie, hands chained but wriggling, half a dozen scribes, and behind the walls on the right stand, gagged, a half a dozen brothers.
========================================

[windansea]

it could be spin, for the off chance he is not indicted

yep...unamed sources are probably his lawyers

[windansea]

And, I don't remember the quote nor the reporter (perhaps Cooper) that Rove did try to dissuade. Didn't he say something to the effect of "don't go there" to one of them.

I wouldn't get to far out on this

to Cooper

[topsecretk9]

Even if Rove escapes indictment, he could still be forced to resign for talking about Plame with a Time magazine reporter.

"People don't seem to want to talk about the possibility that Karl could be named an unindicted coconspirator," a third source close to the case said. "Can an unindicted coconspirator remain at the White House? Personally, I don't think so."

Sounds like the same sources as Leopold's...move the goal posts to unindicted coconspirator to get Rove