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December 02, 2006

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SunnyDay

I miss Carnack and Carson.

I can picture the judge holding an envelope up while saying "valerie Plame..." and trying to think of the question.

remember the format - he gets the answer, has to divine the question...

kate

People who follow this case via the major media outlets will be surprised that Libby wasn't spending all his time in discussions with Cheney and Rove on ways to punish, yes, punish a noble whistleblower and his lovely wife.

This case just is one more example of how Bush has abandoned the narrative of all stories to a hostile media.

This administration needs a war room to counter all leftist efforts to smear the Administration.

They could put out that Val was an undercover DNC operative at the Agency.

Then we'd have two competing narratives and then we could meet at the middle.

Both narratives are extreme but one is accepted as fact, poor PR, poor PR.

Anonymous

I don' think this is much of a big deal.

At the heart of the argument is Libby says he forgot and misspoke and the heart of Fitzs contention is that the Plame information was so important, he couldn't possibly have forgot or misspoke about his conversations.

THE 100,000 POUND PINK ELEPHANT NOT IN THE ROOM IS RICHARD ARMITAGE. Because Fitz accepted his excuse that he had forgot about his conversations as well or thought them unimportant.

Ranger

And don't forget Pincus, who 'forgot' that Woodward told him about Plame after Armitage told Woodward. Or Woodward himself who can't remember if he asked Libby about Plame in their next interview (but knows he might have because the question is in his notes). Yep, mighty memorable stuff that Plame tidbit.

jerry

"in a size 7 mayonaise jar under Funk and Wangal's porch, no one know the contents of these envelopes!"

There's got to be a way for the networks to replay all their old shows on cable. I realize some would have to be transferred off film or magnetic tape, but what a better use of money than Iraq (ha, worked in a little political commentary there at the end).

jerry

"in a size 7 mayonaise jar under Funk and Wangal's porch since noon today, no one know the contents of these envelopes!"

sbw

Jerry: a better use of money than Iraq

Bait not taken.

cboldt

-- "My impression is that the two sides have whittled the pile of classified info down to a reasonable size, and that this will not be the reason the case founders." --


The risk of dismissal doesn't turn on the amount or volume of classified information. It's just as likely that a single reference be the object that scotches the trial. It isn't volume of classified material, it's the downside risk of disclosure. If the Administration objects to one piece, and Judge Walton insists on that piece in order to obtain a fair trial, then "case dismissed."


Is it true that Walton gave Libby everything he wanted in the way of admitting classified material? Just look at all the important material Libby had to deal with! Very little, if any of it relating to the run-up to the Iraq war, "16 words," etc. So even if the case goes to trial, there is no way a reasonable jury will buy Fitz's fantasy that "Wilson's wife works at the CIA" was a memorable detail.

Tom Maguire

THE 100,000 POUND PINK ELEPHANT NOT IN THE ROOM IS RICHARD ARMITAGE. Because Fitz accepted his excuse that he had forgot about his conversations as well or thought them unimportant.

It's lovely to think so, and I am sure I have made a similar point myself, but... Libby also had conversations with Cheney and, allegedly, others about Ms. Plame, and Cheney did annotate the July 6 Wilson op-ed, so one might think that Plame should have been more memorable for Libby than Armitage. Or so Fitzgerald will argue, I expect.

I want to know if Colin Powell and Armitage discussed Joe, the Niger trip, and what not - maybe Libby can fan the flames of a State double-play conspiracy to leak that story and discredit both the CIA and the White House. Might baffle the jury, might even be true.

boris

Cheney did annotate the July 6 Wilson op-ed

Sort of indicates by July that detail had become more "interesting" than it had been when Libby noted it in the meeting with Cheney early June. At some point between those two events Wilson's wife became the answer to more than just "why Joe?".

The physical evidence, ie the memo, Libby's note, Cheney's annotation, indicates the importance of Valerie to the story evolved over the June/July time frame.

The memo mentions Val in passing. By the time of Cheney's annotation she is one of the players.

clarice

Like TM I look forward to watching Armitage on the stand.Really look forward to it. Saint Colin, too, if that's possible.

Patrick R. Sullivan

'The risk of dismissal doesn't turn on the amount or volume of classified information. It's just as likely that a single reference be the object that scotches the trial.'

Agree. Given the time and energy Fitz put into trying to deny the material to Libby, I have to think there's something there that can't see the light of day. Either for national security reasons or that it tends to exonerate Libby.

Anonymous

Is it possible for Libbys' lawyers to ask the witnesses about other peoples memories regarding their discussions about Plame?

Doesn't Fitz need to keep out any mention that Armitage, Woodward, Pincus, Miller, etc. have all had faulty memories about their discussions revolving Plame.

clarice

I feel reasonably certain that Wells will make a point of the numerous similar memory failures of the govt's witnesses.

SunnyDay

Sheesh, I play straight man, and nobody wants to tell the joke?

cboldt

-- "Given the time and energy Fitz put into trying to deny the material to Libby, I have to think there's something there that can't see the light of day. Either for national security reasons or that it tends to exonerate Libby." --

Fitz is still beating down the CIPA-related evidence. Doc 209 (here) is the redacted version of "empty" Doc 190 -- the Opinion/Order that Fitz recently appealed to the CADC.

Besides appealing the CIPA 6(a) "use, relevance, and admissibility" angle, there is yet another layer of the CIPA battle that has yet to be disclosed. Fitz can screw Libby here too, with CIPA 6(c) substitutions.

See docket entries ...

11/07/2006 171 MOTION to Seal Government's Motion Pursuant to CIPA Section 6(c) For Substitutions in Lieu of the Disclosure of Classified Information by USA as to I. LEWIS LIBBY. (Kedian, Kathleen) (Entered: 11/07/2006)

11/13/2006 177 ORDER denying without prejudice 171 Motion pursuant to CIPA Section 6(c) as to I. LEWIS LIBBY (1); Signed by Judge Reggie B. Walton on 11/13/06. (erd) (Entered: 11/13/2006)

11/16/2006 196 ORDER that this pleading be placed under seal in the Court files as to I. LEWIS LIBBY re 171 MOTION to Seal Government's Motion Pursuant to CIPA Section 6(c) For Substitutions in Lieu of the Disclosure of Classified Information filed by USA, Signed by Judge Reggie B. Walton on 11/15/06. (erd) (Entered: 11/16/2006)


Walter

So, Cboldt, if Fitzgerald's (doc 171) motion incorporates his proposed substitutions for classified evidence, why is it itself classified?

I mean, Fitzgerald doesn't believe that the information contained within is harmful.

Or is it just that Fitzgerald goes point by point and reiterates Libby's proposed evidence next to each substitution?

Somewhat related: Are Libby's proposed exhibits publicly available online or at the courthouse?

cboldt

-- "Fitzgerald doesn't believe that the information contained within is harmful." --


All the more to nail him with prosecutorial misconduct after the trial.


-- "Are Libby's proposed exhibits publicly available online or at the courthouse?" --


Not at this point. The classified stuff is still tied up in CIPA, and the unclassified stuff is just between the parties as a matter of discovery. Oh, some of the hearing transcripts are classified too.

Walter

Thanks. Of late I haven't been skipping over your comments, so I had seen that reference to the transcripts.

For some reason, I recall the proposed exhibit as an attachment to a filing.

Oh well, less than two years 'til it all comes out at trial, right?

clarice

I think in a hearing in spring, Libby indicated some non-CIPA exhibits he intended to place in evidence, ncluding a Counterpunch article naming Grossman of the 1x2x4 tale.

John

Leopold is the one who broke the Grossman as the 1x2x4 source and i firmly believe he is right. There is no other person who fits that description better than Grossman

cboldt

-- "For some reason, I recall the proposed exhibit as an attachment to a filing." --


Some of the motions have had attached exhibits, occasionally MANY exhibits, but as far as I recall, the attached exhibits so far have been media accounts. Oh - some of the exhibits have been inter-counsel letters. Looking at a November 21 filing reminds me of that.

John

can i ask where you saw that Libby indicated or his attorneys indicated they would place the Grossman 1x2x4 in evidence? I would like to read it.

clarice

I think it was the May 6 hearing but can't be sure. Cboldt? Any clearer recollection?

MayBee

There is no other person who fits that description better than Grossman
I had thought so too, but the source is described elsewhere (Hubris, I believe. Or Novak's reading of that book) as Adam Levine, a lower level Rove aide.

I wonder about the Leopold/Grossman thing though. Obviously Leopold uses Wilson as a source, so I don't know why Leopold would have gotten that wrong. And I don't know why that particular article, if wrong, is interesting enough to Libby's lawyers that they want to use it at trial.

cboldt

I don't clearly recall what Libby has indicated he plans to offer ... nothing in the May 5 transcript matches "1x2".


Fitz is planning to introduce 5 articles.

clarice

I knoe that Libby attached it to one of his filings as an exhibit he intended to introduce.

MayBee, I expect Grossman will be asked about it by Libby.

John

but it wouldn't make sense if the grossman story came from Wilson considering how Wilson thinks he and grossman are good friends. So it must have come from another source. I don't think Wilson knows anything except what M.T. Wheel tells him

MayBee

I'm finding it being referred to as "Exhibit L" on a half-baked google search I did.

Anonymous

It would be nice if Libby got a chance to put Fitz's stuopid investigation on trial.

He should explain to the jury that it wasn't Libby that was obstructing the investigation, Fitz just THOUGHT he was because Fitz had a pre-conceived notion about who was guilty (IE, the White house wanted to smear Wilson as payback).

Fitz stating publicly that Libby was the FIRST to reveal Plame to a reporter was a statment by Fitz that revealed Fitz had completely bothced the investigation believing that the plan to out Plame was hatched in the White House.

If Fitz was actaully doing his job, it would have been Armitage who was under the gun for obstruction, but Fitz had the story line wrong.

Fitz thought the story was: BUSH SMEARS WAR CRITIC AS PAYBACK.

when it was: STATE DEPARTMENT REVEALS PLAME TO MAKE CIA LOOK LIKE BUMBLING FOOLS.

MayBee

I don't think Wilson knows anything except what M.T. Wheel tells him

There does seem to be a bit of circular sourcing that goes on.

But yeah, I can't figure out why, if Leopold was wrong, Wilson would have let that stand. Perhaps it is simply that Grossman gives the story power where Levine makes the story seem the nothing that it really was.

cboldt

-- "I'm finding it being referred to as "Exhibit L" on a half-baked google search I did." --

.L - 14 Apr 06 truthout article (Leopold), "Libby Filing: A Denial and a Mystery"


See Libby Versus The Press - May 02, 2006, also linked at December 02, 2006 at 02:37 PM just above.

Walter

Thanks for checking. I should have been more specific.

I was wondering specifically about the powerpoint presentation covering other CIPA evidence (as cboldt divined that I intended). It has been referred to variously as a collection of data points and a summary of 600 documents.

I recall it as a submission to the Court (possibly under FRE 10-06?).

As CBoldt reminded me, it's probably still classified itself. It may also be affected by Fitzgerald's appeal of J. Walton's CIPA ruling.

cboldt

That "Exhibit L" isn't in Fitz's case in chief. It's in a Libby consolidated response to press motions to quash subpoenas.


Those are a series of "Libby vs. press" cases in late April, early May. Exhibit L appears in Case No. 1:06-mc-00169-RBW, and is in one of the attachments to Doc 5.

CASE #: 1:06-mc-00123-RBW: NBC NEWS & AFFILIATES
CASE #: 1:06-mc-00124-RBW: MATTHEW COOPER
CASE #: 1:06-mc-00125-RBW: JUDITH A. MILLER
CASE #: 1:06-mc-00126-RBW: ANDREA MITCHELL
CASE #: 1:06-mc-00127-RBW: TIM RUSSERT
CASE #: 1:06-mc-00128-RBW: TIME, INCORPORATED
CASE #: 1:06-mc-00129-RBW: NEW YORK TIMES COMPANY
CASE #: 1:06-mc-00169-RBW: NEW YORK TIMES COMPANY
cboldt

-- "I was wondering specifically about the powerpoint presentation covering other CIPA evidence (as cboldt divined that I intended). It has been referred to variously as a collection of data points and a summary of 600 documents." --


Walton describes that presentation in FN8 of his November 15 Opinion and order, redacted and presented as Doc 209 on December 1. TM has linked it here so everybody can read it.



In addition, over the course of the hearings, it became apparent, as to the documents related to the memory aspect of the defense, that the defendant is not seeking to introduce the actual classified information contained in each and every document identified in his Section 5 notice. Rather, the defendant identified a substantial number of documents only for the purpose of establishing that an even occurred or that classified information was provided to him, without any intention of revealing during the trial the actual substance of the events or the information contained in the documents. ^8


FN8 The defendant will present this information to the jury through the use of "dots" depicted on a Power Point presentation for the purpose of showing how busy he was.

As for the number of points, Walton summarized events with this comment, "The Defendant's Consolidated CIPA Sec. 5 Notice was filed on August 5, 2006. The notice identified 412 documents and nine narrative summaries which contain classified information that the defendant reasonably expects to disclose or cause the disclosure of during the trial."

About 300 of those items will appear as "dots."

Walter

Thanks again, CBoldt.

So, it has been filed with the Court, but we won't see it for some time, if at all.

Because it (as well as the underlying documents) is currently classified and the standard for deciding whether to admit it or the underlying documents is currently under appeal.

John

there has got to be something to Grossman. He has to be a major player in this. He just fits so perfectly!

Cecil Turner

can i ask where you saw that Libby indicated or his attorneys indicated they would place the Grossman 1x2x4 in evidence? I would like to read it.

Libby's May 1 filing (part two), in which he implies it'll be used to impeach Grossman's testimony by demonstrating bias:

Marc Grossman will also be a key government witness. He is expected, for example, to testify that on June 11 or 12, 2003 he told Mr. Libby that "Wilson's wife worked at the CIA and that State Department personnel were saying that Wilson's wife was involved in the planning of his trip." Count One,¶6. Again, the government will presumably rely on this alleged communication to contend that Mr. Libby could not have been surprised when Mr. Russert told him the same thing a month later. Previously we have argued that Mr. Grossman may have a motive to misrepresent the facts. See Deft's Third Mot. to Compel at 23. It is also possible that Mr. Grossman is biased against Mr. Libby. A recent online column speculates that Mr. Grossman testified before the grand jury that the disclosure of Ms. Wilson's name was an "act of revenge." See Jason Leopold, Libby Filing Truthout.com, Apr. 14, 2006 (Exh. L). The same piece hypothesizes that Mr. Grossman may have been the official who told the Washington Post that "two top White House officials" called "at least six Washington journalists and disclosed the identity and occupation of Wilson's wife," and that they did so "'purely and simply for revenge.'" See Michael Allen & Dana Priest, Bush Administration Is Focus of Inquiry, Washington Post, Sept.28, 2003, at A01 (Exh M). Documents showing that Mr. Grossman contacted reporters during this time about Mr. Wilson's trip and his criticism of the administration would be powerful evidence that Mr. Grossman is a biased witness. [ware typos]
And hey, did the AP's coverage suddenly get a lot better than usual? The other thing that stands out about this filing is the defense strategy. I'm not too sure about Team Libby's apparent desire to have a completely unsympathetic figure drone on about a national security laundry list as an excuse for misdirecting investigators. Perhaps it's too subtle for me . . .

cboldt

-- "I'm not too sure about Team Libby's apparent desire to have a completely unsympathetic figure drone on about a national security laundry list as an excuse for misdirecting investigators." --

The testimony goes in three directions: motive of Grossman to lie, e.g., to frame Libby; absence of recall on the part of Libby, as Mrs. Wilson is a totally insignificant detail; and absence of motive to misdirect investigators, on Libby's part, because there was no OVP/WH conspiracy to discredit Wilson, other than "on the merits."

From the same Libby filing, starting at page 18 as filed (number at the bottom of the sheet) ...

As explained above, the government has indicated that it believes -- and may attempt to show at trial -- that Mr. Libby lied about his conversations with reporters in July 2003 to conceal the fact that he and other administration officials had engaged in a "vigorous effort" to attack Mr. Wilson and undermine his credibility by outing his wife. See id. at 18-19, 20, 26 [Government's Response to Defendant's Third Motion to Compel Discovery - Doc 80]. Mr. Libby can rebut this theory by showing that his conversations with reporters about Mr. Wilson and his trip were necessitated by, and focused upon, the false information being spread by Mr. Wilson, and were not focused upon Mr. Wilson's wife. In that regard, he may seek to elicit testimony from other administration officials -- including for example, his subordinates in the Office of the Vice President (OVP)-- to testify that they too were intent on rebutting Mr. Wilson's criticism on he merits; that they saw his wife's CIA affiliation as a peripheral issue (at most); and that they were never instructed by Mr. Libby to disseminate information regarding Ms. Wilson's CIA affiliation to the press.

The documents sought from The New York Times are directly relevant to that defense. Indeed by the newspaper's own admission, the documents they have reflect conversations with the individuals listed, but "contain no information whatsoever regarding ... the employment of Mr. Wilson's spouse by the CIA." NYT Mot. at 9. Such documents help to show that administration officials -- employed by the CIA, the State Department, and the White House (including the OVP) -- saw Ms. Wilson's employment as a point unworthy of mention in connection with Mr. Wilson's story. That makes it more likely that Mr. Libby saw Ms. Wilson's CIA affiliation as a sidelight as well -- and could have easily forgotten, months later, about conversations in which the topic was raised.

By demonstrating absence of conspiracy to out Mrs. Wilson, Team Libby creates a powerful defense; and by hinting at leaking and conspiracy to conceal by Grossman and State, he shows both that he (and the OVP) was being framed, and he obtains an alibi.

Cecil Turner

>>I'm not too sure about Team Libby's apparent desire
>The testimony goes in three directions . . .

Sorry for the confusion, but I'd shifted gears by that point and was talking about the current opinion (which I misidentified as a "filing"). It appears to me to suggest the Defense will put Libby on the stand to discuss:

  1. threatened attacks by Al Qaeda, Hezbollah, et al;
  2. Homeland Security;
  3. A.Q.Khan;
  4. North Korean nukes;
  5. Iranian nukes (and links to Al Qaeda/Iraq);
  6. Iraqi military, security forces, and Iraqi government;
  7. Israeli-Palestine and the emergence of Mahmoud Abbas;
  8. Turkish soldiers in Iraq; and
  9. unrest in Liberia.
I can't see any of that as a winner.

By demonstrating absence of conspiracy to out Mrs. Wilson, Team Libby creates a powerful defense; and by hinting at leaking and conspiracy to conceal by Grossman and State, he shows both that he (and the OVP) was being framed, and he obtains an alibi.

I agree with all of that (at least from the standpoint that it'd be very effective testimony for the defense) . . . though I suspect they'll have a hard time getting it all in.

Ranger

Also remember the timing of the 2X6 story. It was within two to three days of the announcement of a formal DOJ investigation into the leaking of Plame's place of work, and therefore was probably an attempt to get the investigation heading away from State. Novak fired back within a few days with his "no partisan gunslinger" line, which let the boys at state know he was not going to play along with their blame the White House game, and suddenly, Armitage confesses. But, with 2x6 out in the public, Armitage's leak is now a "innocent indiscretion" rather than part of a plan by State to push back against CIA.

cboldt

-- "[I] was talking about the current opinion ... It appears to me to suggest the Defense will put Libby on the stand to discuss [9 topical subject areas]


I can't see any of that as a winner.
" --

Maybe the point is to show that Libby was routinely occupied with many things that dwarf Wilson's trip in importance. That it's ludicrous to think, given the gravity of all the other matters, that Wilson's wife ever made the slightest impression on Libby's mind. These are the topics that Libby was interested in, and was tasked with being concerned about. The more of that that comes in, the better. If 10 days of testimony are on subjects other than Wilson and Wilson's wife, and those other subjects grab the jury as subjects of importance (they should - what's more important? a bogus trip report by an obscure ambassador, or reports relating to NK getting nukes?), then given half a day of testimony on the outing of Plame, the jury will also see how reasonable it is that Libby forgot a forgettable, irrelevant, trivial detail in the worldwide scheme of things.

Cecil Turner

Armitage's leak is now a "innocent indiscretion" rather than part of a plan by State to push back against CIA.

Hewing to the Finagle's Law ("Never attribute to malice that which can be adequately explained by stupidity."), I suspect "innocent indiscretion" is the odds-on favorite. It appears from the INR Memo that nobody at State would've presumed Plame's identity was protected (since the author apparently didn't). Which makes it a gossipy tidbit, rather than part of a nefarious plot. Whether the rest of the discussion was a "pushback" is a harder call, but absent that bit, it becomes relatively harmless.

These are the topics that Libby was interested in, and was tasked with being concerned about. The more of that that comes in, the better.

Perhaps, but it seems to me this has immense backfire potential. First, you've got a self-important lawyer lecturing on how important his job is (and all the "big deal" stuff he was involved with). Second, it's really not responsive to the question of how he could remember so much detail on a minor point (Plame), and yet be dead wrong about it. And third, most of those topics are of Administration policies folks with a liberal perspective tend to disagree vehemently on. So Libby will be sitting in front of them as an architect of those policies and claiming it entitles him to a sympathetic hearing. Personally, I'd be tempted to dredge up some of Walton's earlier advice:

I could be wrong about tactics but I mean I don't know if that's a battle you want to fight before a District of Columbia jury.

clarice

I would never deign to second guess a genius like Wells.

I expect even in summary fashion, the reports crossing Libby's desk on these topics were far more hair raising and involved a great deal more work on his part to cope with than the bare recitation suggests.
While Ambassador Munchausen et ux are always in their own minds the star attractions, I doubt they were and this evidence will prove that.

Walter

Happy birthday, Clarice!

cboldt

-- "it's really not responsive to the question of how he could remember so much detail on a minor point (Plame), and yet be dead wrong about it." --

He reasonably didn't remember much about Plame, that's the point. The question is "why not? (remember)" The answer to why he forgot has more than one component, but in general, that her identity and function was unimportant and irrelevant in the grand scheme of things.

He recalled, on being refreshed, that Cheney told him. That's easy to explain, and Fitz and Walton are helping him there. He remembers what Cheney says, because Cheney is his boss. He could hear the same thing elsewhere and it wouldn't register at all.

-- "most of those topics are of Administration policies folks with a liberal perspective tend to disagree vehemently on" --

They may think that the foreign unrest is just deserts for United States meddling, but the more hectic and heated affairs are overseas, the more likely Libby is to be concerned about THAT shop, and less likely to be aware of some CIA desk-jockey. He may be guilty of supporting policies that the jury disagrees with, and all the better for Libby, he's out of the administration.

Anyway, with the defense being one of "preoccupation," it's necessary to provide some volume and weight. After Fitz's presentation, the jury is going to have the impression that Libby's sole function is to "get Wilson, any way you can."

cboldt

-- "So Libby will be sitting in front of them as an architect of those policies and claiming it entitles him to a sympathetic hearing." --

It'll be interesting how he presents his role. If he's not so much the architect as the assistant, the #2 guy, "not the boss, not the leader, just a follower and implementer," then he isn't the architect of the policies.

He's just a hard-working guy who happens to have the job of taking in the full panoply of security risks to the citizens of the US. As such, his mind is full of very serious, very weighty information. He doesn't have the luxury of being a specialist. By presenting a wide range of threat to domestic security, he will demonstrate the microscopic importance of Plame in his mind. He doesn't need sympathy for administration policies, all he needs is an honest appraisal of his state of mind regarding knowledge of Plame.

clarice

Thanks, Walter!

Cecil Turner

I would never deign to second guess a genius like Wells.

It may be that I'm unqualified to evaluate the situation. But it seems like Fitz is winning on an awful lot of the rulings. And in particular, he's managed to keep almost all the "big case" details favorable to Libby out of the case, while retaining most of the prejudicial ones (or at least they haven't been ruled out yet). So, for example, we'll probably get Wilson's article (redacted) in evidence, and Novak's, but no mention of Armitage. I'd also note that stuff like cboldt's excellent argument above is only relevant (per the current state of rulings) as it serves to impeach Grossman's testimony. And it seems to me Fitz might be able to keep it out just by not calling Grossman (whose testimony wouldn't be stellar in any event).

He reasonably didn't remember much about Plame, that's the point. [. . .] He recalled, on being refreshed, that Cheney told him.

It doesn't explain the disconnect between the conversations in early July with other officials and the conversations with reporters a couple days later like this one:

So then he said – I said – he said, sorry – he, Mr. Russert said to me, did you know that Ambassador Wilson's wife, or his wife, works at the CIA? And I said, no, I don't know that. And then he said, yeah – yes, all the reporters know it. And I said, again, I don't know that. I just wanted to be clear that I wasn't confirming anything for him on this. And you know, I was struck by what he was saying in that he thought it was an important fact, but I didn't ask him anymore about it because I didn't want to be digging in on him, and he then moved on and finished the conversation, something like that.
He doesn't need sympathy for administration policies, all he needs is an honest appraisal of his state of mind regarding knowledge of Plame.

In order to reconcile his version with everyone else's, he needs a lot of sympathy. (And a memory expert woulda helped.) This kinda stuff ain't gonna do it (IMHO).

cboldt
I could be wrong about tactics but I mean I don't know if that's a battle you want to fight before a District of Columbia jury.

Heheheh. That was Walton questioning Wells on a plan to make a liar out of Wilson - to show that Wilson outed his own wife. I can see where that approach would open a can of worms with a liberal-sympathetic jury that has been conditioned to see Wilson as a hero.

But in this case, it was later demonstrated that Armitage was the leaker, not Libby. So Wells won't have to finger Wilson as the source of the leak - he has Armitage to make the same point.

cboldt

-- "It doesn't explain the disconnect between the conversations in early July with other officials and the conversations with reporters a couple days later" --


Sure it does. Libby didn't remember hearing it from "other officials." Why didn't he remember? Because he had important things on his plate, and on his mind.


Or if he did hear it from an official, he's so preoccupied with important work that he misattributed "hearing it as if for the first time" to Russert - when it could have been Woodward or maybe somebody in the administration. But in Libby's mind, he was pretty sure (mistakenly, it appears in hindsight) that it was Russert he first heard it from (accounting of course for hearing from Cheney, but forgetting over the course of a month).

Cecil Turner

Sure it does. Libby didn't remember hearing it from "other officials." Why didn't he remember? Because he had important things on his plate, and on his mind.

Heh.

Or if he did hear it from an official, he's so preoccupied with important work that he misattributed "hearing it as if for the first time" to Russert - when it could have been Woodward or maybe somebody in the administration.

That one might fly. If it's presented properly. Though I'd submit the proper presentation does not include Libby droning on about everything under the sun . . . and concluding with Monrovia. (I love this stuff . . . you couldn't make it up if you had to.)

maryrose

Plame andWilson's comings and goings don't register that highly when you have earth shattering events on a worldwide scale to focus on. This is much ado about nothing and I believe the D.C. court's jury will see that provided the case is kept simple and accurate for them.No harm, no foul except for ruffled feathers and hurt feelings on the part of the Wilsons. The classic part is Armitage being added on to the lawsuit. Initially it was about continuing the Whistleblower,revenge theory. In the end it was targeting the real leaker Armitage.

Ranger

Hewing to the Finagle's Law ("Never attribute to malice that which can be adequately explained by stupidity."), I suspect "innocent indiscretion" is the odds-on favorite. It appears from the INR Memo that nobody at State would've presumed Plame's identity was protected (since the author apparently didn't). Which makes it a gossipy tidbit, rather than part of a nefarious plot. Whether the rest of the discussion was a "pushback" is a harder call, but absent that bit, it becomes relatively harmless.

Posted by: Cecil Turner | December 03, 2006 at 12:28 PM

Well, that would be understandable, except for the fact that 2x6 set the investigators looking for "the first leaker" and Armitage seems to have been willing to confess to being a leaker, but not the first leaker. Therefore, 2x6 seems very convieniently timed to provide cover for Armitage, as long as it never becomes known that he also talked to Woodward.

cboldt

-- "Though I'd submit the proper presentation does not include Libby droning on about everything under the sun . . . and concluding with Monrovia." --


That shows that even the lowly Monrovia is more important than Wilson's trip to Niger, and infinitely more important than that "zero," Wilson's wife.

MayBee

That was Walton questioning Wells on a plan to make a liar out of Wilson - to show that Wilson outed his own wife.

I'm recalling that tidbit being about making this a 'big case' about the reasons for going to war, and how that fit into the Wilson debacle. Not about saying Wilson outed his own wife.
Walton was saying DC jurors aren't going to have warm feelings about the rationale for the war.

cboldt

-- "Walton was saying DC jurors aren't going to have warm feelings about the rationale for the war." --

Yeah, I guess the exchange is probably better taken that way. He has to make Wilson out as a liar on the reason for going to war, then build form that "if he's a liar about that, then he's a liar about THIS, too."

Either way, it's a head-on attack on Wilson. Walton ought to let this line of attack proceed.



MR. WELLS: Because the jury has a right to determine with respect to Mr. Wilson. If the government stays with this argument that his wife was classified and nobody knew about her outside of the intelligence community, and I want to take that allegation on, and I put Mr. Wilson on the stand.

First I put five people on the stand who say he told me about his wife working for the CIA. I'm not involved in the intelligent in any way. That was no secret. He's then going to get on the stand and he is going to say they're not telling the truth, it didn't happen.

At that point I have the right to try to show that he is a habitual liar. One of the things I can use to show that is that he lied on the trip and one of the things I can use are government documents --

THE COURT: It is somewhat collateral to the issue, isn't it?

MR. WELLS: No. It goes right to the question of whether he's telling the truth or not.

THE COURT: Not on this issue as to whether he revealed information to other people prior to that about his wife's status. I don't see how the fact that he purportedly -- because that ends up being a debate on, because I assume he's going to say no. These are, in fact, the truth, and you would be seeking to show something different based upon the administration's position so we're back in the same boat.

We are seeking to try to address the issue of whether or not this information was true or not which I don't think really has any bearing on whether your client falsely made representations to the grand jury and the FBI.

MR. WELLS: Your Honor, if you step back and focus --

THE COURT: I don't mean to cut you off. I could be wrong about tactics but I mean I don't know if that's a battle you want to fight before a District of Columbia jury.

kaz

I have a question or two about the 1x2x6 statement and Grossman. It was suggested earlier in the thread that Fitz could avoid having Grossman impeached by not calling him. The question I have, and can't recall is whether or not the newspaper article proclaiming the 1x2x6 was part of Fitz's "evidence" and whether the reporter who wrote the article is on the witness list. It would seem that if both of these are true, Walton will have a heck of a time preventing close questioning of the reporter about the source for the quote and the calling of the source - whether Grossman or not. Now, IANAL, but do the able practitioners of the bar that frequent this board have a notion?

MJW

In answer to the above question, cboldt's post at 3:00 PM, Dec. 2 links to the Fitz's filing concerning the articles he intend to introduce. I don't believe the 1x2x6 article is mentioned.

(I'm surprised Libby didn't file more motions in limine. For instance, I'd would have expected he'd try to keep out most the newspaper articles as being more prejudicial that probative -- an condition that to me should be strongly suspected whenever evidence is introduced with the disclaimer that it's not for the truth of the matter.)

MayBee

MJW- I believe it is Libby's lawyers that have a 1x2x6 article to introduce, not Fitzgerald.

For instance, I'd would have expected he'd try to keep out most the newspaper articles as being more prejudicial that probative --
IIRC, Fitzgerald produced those articles at the request of Libby's lawyers because they didn't agree they were probative. Fitzgerald was saying they were not for the facts of the matter, but to show state of mind. The judge ordered them to be shown and they would decide what could go to the jury.

MJW

MayBee, the reason I sort of expected Libby's lawyers to file a motion in limine in regard to the newspaper articles is that the purpose of such a motion is to get a ruling on the admissibility of evidence prior to the trial. Perhaps Libby's team decided it was a fight they were unlikely to win, or had some other tactical reason for not seeking a decision at this point. However, with the exception of the Novak and Pincus columns, a major slant of the articles is that the White House and the office of the Vice President are full of liars. Of course Fitz has nobly agreed to instruct the jurors that the articles aren't offered for the truth of these assertions; which, of course completely negates any prejudice that might have otherwise resulted.

MayBee

MJW-
But (I'm doing this from memory) I thought Fitzgerald was told to produce the articles he hoped to introduce to the jury so the judge could determine whether he could or not. I thought he produced them due to a Libby challenge on their admissibility prior to the trial.
I am unsure how that was resolved.

sid

With no regard as to whether it is a smart thing for team Libby to do, I don’t see how Fritz or Walton can keep the 1x2x6 article out of the trial. The indictment lays it down as the ENTIRE basis for the Extra Super Duper Council investigation. Remember, Novak had already said who his source was. Armitage had already confirmed that he was THE source. Investigation complete! Without the 1x2x6 article, there was nothing to investigate. I think Fritz has to introduce it to set up the “material” matter. Otherwise Libby moves for a directed not guilty verdict for lack of any evidence that there was a legitimate investigation to be obstructed.

cboldt

-- "I thought Fitzgerald was told to produce the articles he hoped to introduce to the jury so the judge could determine whether he could or not." --


Not literally produce them, as they are already in public. But Fitz had to name the articles he planned to use in his case in chief, and he did so on May 12 (see "Fitzgerald on newspaper article"). Judge Walton didn't make final admissibility rulings on the articles that Libby indicated an intention to use as part of his defense - see Granted In Part, Denied In Part - May 26, 2006. I figure Judge Walton will make final rulings on redactions and such for the articles Fitz wants to bring in, closer to the time of trial.

cboldt

Doc 210 filed by Libby today.

REPLY in Support by I. LEWIS LIBBY re 202 MOTION for Disclosure Under CIPA Section 6(f) and the Fifth Amendment Due Process Clause (Jeffress, William) (Entered: 12/04/2006)


It's one of those scanned-in PDF files, so I'm not going to prepare an HTML conversion.


Libby's argument here looks airtight to me. His defense, being based on classified information, is itself riddled with classified information. The statute requires the government to disclose material that rebuts classified information, in this case, that means the government must disclose all of its material that rebuts Libby's defense.

It isn't clear when Walton might rule on this set of motions, but the filings are all completed.

SunnyDay

Where is the PDF file?

MJW

MayBee: But (I'm doing this from memory) I thought Fitzgerald was told to produce the articles he hoped to introduce to the jury so the judge could determine whether he could or not. I thought he produced them due to a Libby challenge on their admissibility prior to the trial.

As cboldt confirmed, that is what happened. My point (which I didn't make too clearly) was that I don't see why Libby is content to wait until later to get a ruling on the admissibility, when he could have forced the issue with a motion in limine. I don't see any particular reason to put off the decision: the issues to which they have probative value are already well established, and the prejudicial aspects are obvious. An early decision would not only assist Libby by letting him know whether or not he needed to prepare a rebuttal, but might also cause Fitz to show his hand a little.

John

anyone have a copy of or know if the witness list is available? does anyone know if leopold is on the witness list and will be asked to testify about Grossman being 1x2x6?

Also, does anyone have any insight into whether Card is a better 1x2x6 candidate?

cboldt

Another filing, this one by that allegedly unethical prosecutor, Fitzgerald.



Case 1:05-cr-00394-RBW Document 211 Filed 12/04/2006 Page 1 of 2


NOTICE OF FILING

The United States of America, by and through its attorney, Special Counsel Patrick Fitzgerald, hereby provides notice that the government has filed an ex parte and in camera affidavit with the Court pursuant to Section 6(c)(2) of the Classified Information Procedures Act.

The docket entry is sparse, "NOTICE of Filing by USA as to I. LEWIS LIBBY (Kedian, Kathleen) (Entered: 12/04/2006)"

cboldt



18 U.S.C. App. III § 6. Procedure for cases involving classified information

(c) Alternative Procedure for Disclosure of Classified Information.--

(1) Upon any determination by the court authorizing the disclosure of specific classified information under the procedures established by this section, the United States may move that, in lieu of the disclosure of such specific classified information, the court order--

(A) the substitution for such classified information of a statement admitting relevant facts that the specific classified information would tend to prove; or

(B) the substitution for such classified information of a summary of the specific classified information.

The court shall grant such a motion of the United States if it finds that the statement or summary will provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information. The court shall hold a hearing on any motion under this section. Any such hearing shall be held in camera at the request of the Attorney General.

(2) The United States may, in connection with a motion under paragraph (1), submit to the court an affidavit of the Attorney General certifying that disclosure of classified information would cause identifiable damage to the national security of the United States and explaining the basis for the classification of such information. If so requested by the United States, the court shall examine such affidavit in camera and ex parte.

clarice

So, he's claiming that they cannot release some info Libby says heneeds, but we do not know if the judge has ruled that that info is critical to Libby's defense. If he has, it's over, I think.

cathyf
The United States may, in connection with a motion under paragraph (1), submit to the court an affidavit of the Attorney General certifying that disclosure of classified information would cause identifiable damage to the national security of the United States and explaining the basis for the classification of such information. If so requested by the United States, the court shall examine such affidavit in camera and ex parte.
Since Fitzgerald is the Attorney General with respect to this case, all of his filings are affidavits of the Attorney General, right?
clarice

I think this means the real Atty General. cathy f.

boris

So the Atty General, the judge and Fitz are all poised with one hand hovering over the kill button like contestents on Jeapordy.

Walter

CBoldt,

While I disagree that Fitzgerald may be fairly characterized as ethically challenged for applying the law as written, I concur that there is an issue of fundamental justice in failing to invite the ugly kid to a kindergarten birthday party. Especially if it could impact the ugly kid's future.

Even the more so were the UK to have had a security clearance dwarfing that of the birthday kid prior to the party.

cathyf

I don't know... What the attorney general (real or acting) says in the affidavit could cause the judge to dismiss the case, right? This is precisely the issue over which the AG shirked his duties under the constitution recused himself, right? Seems to me that Fitzgerald has to be the one who submits any AG affidavits in this case.

Walter

Clarice,

Waaaaay off topic, but you had asked earlier for examples of San Francisco corruption-related journalism.

My father-in-Law is quoted (anonymously) in this article. No direct Pelosi or Libby link, but an interesting* look into the casual mistreatment of justice by our sworn protectors.

*Maybe more so for those of us who lived through it. Sheila waited on me at Java Beach (a must-see for SF visitors who enjoy watching surfers or tourist drownings (or much more rarely, the elusive tourist surfer drowning)) and her mother served me at her West Portal job. In contrast to the NYT phone record litigation, you can see the jack-booted thugs enforcing their vision of justice quite well.

cboldt

I see an instance in the Moussaoui case where a CIPA 6(c)(2) affidavit (sometimes referred to as an 6(e)(1) affidavit, as this is where the effect of the affidavit plays out) was planned to be filed by the Assistant AG or his delegate.


Gov't Opposition to Court Order - Case 01-455-A, E.D.Va, April 30, 2003. Footnote 1 provides that "The United States files with this Opposition a Petition of the Assistant Attorney General that the hearing scheduled for May 7, 2003, be held in camera, pursuant to CIPA section 6(c). Further, the United States is preparing a second affidavit, to be filed shortly, pursuant to CIPA section 6(c)(2), in which the Attorney General or his delegate will state that disclosure of the classified material in the summaries at issue here would cause identifiable damage to the national security of the United States and explain the basis for the classification of such information."


I wouldn't put it past Fitz to play the part of both prosecutor, and keeper of the classified material.

cboldt

Oops. 6(c)(2) and 6(e)(1) affidavits are two separate critters. My bubu. The statute is clear on the point.

Walter

CBoldt,

Kidding aside, doesn't seem odd to you that Fitzgerald didn't get this affidavit filed before the 6(a) appeal?

I suppose it isn't necessary per se, as Fitzgerald is attacking J. Walton's ruling on which standard to use in order to determine what evidence is necessary.

But, if I were on the appellate panel, I'd like to know (at least in general) how important the information is and whether acceptable alternatives are available.

cboldt

Interesting reading on "Independent Counsel" vs. "Attorney General" in the context of CIPA.


Application to SCOTUS for a Stay Pending Appeal - US v. North, see part "2. The Merits."

clarice

" a. The responsibility under CIPA for protecting classified
information, and for deciding whether it may be disclosed, clearly
belongs to the Attorney General, as the agent of the President.
Neither the Independent Counsel nor the district court nor the court
of appeals has ever suggested to the contrary. In fact, all persons
involved in this proceeding have taken it as a given that it is the
Attorney General, and not the Independent Counsel, who makes the
disclosure decisions under CIPA."

Just in case anyone wants to see this without spending a lifetime reading thru the entire opinion.

boris

Thanks clarice. I started at the wrong 2. and got hung up on ...

In light of that view, the court said, it was unnecessary to decide whether the Attorney General could appeal from a denial of such an appeal

... thinking to myself, "self WTF?"

boris

and cboldt thinks I'm cryptic

cathyf
In fact, all persons involved in this proceeding have taken it as a given that it is the Attorney General, and not the Independent Counsel, who makes the disclosure decisions under CIPA.
But Fitzgerald isn't an Independent Counsel (a position which no longer is authorized) and he's not a Special Prosecutor (because he doesn't match the legal qualifications.) He does, however, have all of the powers of the Attorney General in this matter.

In other words, in the context of the quoted text, is Fitzgerald's position analogous to the "Independent Counsel" or to the "Attorney General" ? It seems to me that the stronger argument is for Attorney General...

cboldt

-- "Just in case anyone wants to see this without spending a lifetime reading thru the entire opinion." --


Yeah, I see that pointing to 2. The Merits caused some people to find plain old 2. and skipping the look for "The Merits," thereby starting near the top. Cryptic indeed. Sorry for the confusion.


Note that the application for stay isn't a statement of what the law is - it is a statement of what the movant wants the law to be. I see that SCOTUS did rule on the motion too.

cboldt

-- "doesn't seem odd to you that Fitzgerald didn't get this affidavit filed before the 6(a) appeal?" --


Not at all. Fitz filed Doc 134 on September 5, the "6(a) ... if the Attorney General certifies to the court" certification that causes the hearings to be held in camera. That 6(a) certification was signed by Fitz himself.

cathyf

Interesting language from the North ruling:

In fact, CIPA expressly states, in Section 14, that the Attorney General's decisionmaking responsibility under CIPA may be delegated only to the Deputy Attorney General or an Assistant Attorney General (all presidential appointees, removable at will) and "may not be delegated to any other official."
This comment is particularly interesting to me in contrast:
Given Congress's clear, constitutionally based commitment of CIPA authority to the Attorney General as an agent of the President, it would be extraordinary if the independent counsel statute had to be read to strip any of that authority from the Attorney General.
The independent counsel was created by statute. Fitzgerald's appointment was improvised, and it's pretty clear that neither Comey nor anybody else gave any thought at all to this sort of sticky constitutional question.

cathyf
That 6(a) certification was signed by Fitz himself.
Why isn't this immediate grounds for an appeal of the Appointments Clause ruling? Doesn't this mean that Fitzgerald is exercising specific authority that the Attorney General has no authority to delegate?
clarice

The 6(a) certification seems fairly administerial but the decision as to whether something will be disclosed is a pure executive decision under the law. I would never consider it could be delegated, especially not to someone with such a dicey appointment.

Yes, however, this is just another example of what happened because Comey winged it to kiss Schumer's rearend.

MJW

If in Fitz's filings he places himself in the position of Attorney General (which it seems he does), I wonder if Libby's lawyers will have the opportunity to challenge the validity of the certification.

clarice

The "yes" is to cathy's brilliant observation:"The independent counsel was created by statute. Fitzgerald's appointment was improvised, and it's pretty clear that neither Comey nor anybody else gave any thought at all to this sort of sticky constitutional question."

MJW

I see cathyf beat me to the question.

cboldt

-- "the decision as to whether something will be disclosed is a pure executive decision under the law" --


Well, "something" has already been not disclosed under the law, namely a bunch of hearings and motions. But as for the eventual issue of coming into trial or not, the CIPA proceedings here haven't got to that point just yet. Walton hasn't ruled on Fitz's 6(c) motion. See post at

November 18, 2006 at 06:17 AM
pointing to post at

November 17, 2006 at 10:38 AM
, both posts linking to

Fitzgerald Response re: CIPA Legislative History
[Doc 197]. I believe that was in response to a memorandum that Libby filed under seal (11/14/2006 Doc 183 MEMORANDUM by I. LEWIS LIBBY on Legislative History of CIPA Substitution Provision. (CLASSIFIED INFORMATION) (mlp) (Entered: 11/14/2006)).

MJW

The unanswered question is: what happened to the AG's motion in U.S. v. North? A partial answer is contained in the Independent Counsel's final report:

On February 8, 1989, the day before the jury was to be sworn and opening statements were to be delivered, the attorney general attempted to intervene in the case. He filed a motion to compel literal adherence to CIPA procedures, seeking to stay the trial until the issue was litigated. Independent Counsel opposed the attorney general's motion. Judge Gesell denied the attorney general's request. In response, the attorney general, over the opposition of Independent Counsel, filed an appeal. Judge Gesell excused the jury to await action by the Court of Appeals.

The Court of Appeals denied two motions by the attorney general for a stay of North's trial, agreeing with Judge Gesell and Independent Counsel that the attorney general had no standing to appeal. Although the attorney general obtained a stay from the Supreme Court, during a weekend of negotiations Independent Counsel and the Department of Justice agreed on procedures satisfactory to Judge Gesell. The stay was lifted. Independent Counsel and the attorney general proposed to Judge Gesell a list of nine categories of information requiring prior notice to Independent Counsel by North, so that Independent Counsel could give the Government the opportunity to weigh the impact of public disclosure. The court approved most of the proposal, but stated that Independent Counsel, not the attorney general, bore sole responsibility for the prosecution and would be the Government's sole representative in court.

It's not clear what the Supreme Court's conclusion was, or would have been. Obviously they felt the AG's argument had enough merit to issue a stay, but beyond that, who knows?

clarice

It doesn't deal with the more weighty issue of whether the AG will make classified info available to the defendant. If the special counsel says he will and he won't, he cannot force the AG to do so. If he says the AG won't and he will, he is misrepresenting a cruical matter to the court.

The ultimate question (authority, if you will) is the AG's and Comey was without power to peddle that away.

cboldt

-- "Obviously they felt the AG's argument had enough merit to issue a stay, but beyond that, who knows" --

The North case has illumination aside from pushing the argument of "the phrase 'Attorney General' in the CIPA statutes should be literally construed." In North, "the central conspiracy charges were dropped due to classified-information problems."

The Libby case hasn't reached that point yet, and the pending CADC appeal doesn't get to the ultimate issue of disclosure either.

cboldt

-- "It doesn't deal with the more weighty issue of whether the AG will make classified info available to the defendant." --


Libby not only has much of the classified information, he produced a good deal of it (his notes). The Court has a duty to the defendant to permit him to put on his defense. At that point, one question is admissibility, and another is what amount and form of classified information will be made available to the public.

clarice

Well, we are going round and round--It seems to me that the latest filing deals with this last issue--what classified info the AG will allow to be made available to the public (i.e. the jury)

:NOTICE OF FILING


The United States of America, by and through its attorney, Special Counsel Patrick Fitzgerald, hereby provides notice that the government has filed an ex parte and in camera affidavit with the Court pursuant to Section 6(c)(2) of the Classified Information Procedures Act.


cboldt

-- "It seems to me that the latest filing deals with this last issue--what classified info the AG will allow to be made available to the public" --


All of the CIPA filings (mostly the classified ones) have that quality, going all the way back to Libby's Sec. 5 Consolidated Notice. The pile of classified stuff presented there is filtered through two major steps (6(a) & 6(c)). The trial Court's 6(a) Order is under appeal, and the trial Judge hasn't ruled on the 6(c) step yet - of course, it's getting closer, but the ultimate issue of "exclude that" (as asserted by the AG) to the extent is scotches the trial (i.e., runs afoul of Walton's rulings and invokes the remedy of 6(e)(2)) hasn't been reached yet.


I wonder if Fitz is arrogant enough to reject a "do not disclose" order from Gonzales or Bush?

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Wilson/Plame