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January 18, 2007

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clarice

Some of the bien pensants in this media center were noodling and considering whether Cheney will testify at all, suggesting that his name was put forth to make it hard to get a jury or to strike Dems from it.
I think--well you can figure it out--this is nonsensical.

Another guy near me whose name I'll protect as I am now part of the clan, didn't know that a preemptory challenge required no cause.

Cecil Turner

However, as of October 2003, the Bush/Cheney White House crew did not know about Armitage's leak to Novak (that was Powell's little secret), so in their minds, a thorough investigation may have seemed to be appropriate.

They knew somebody leaked, and that it wasn't them. (Though Rove was subsequently surprised to find "I heard that too" was taken as confirmation.) And, in fact, the subsequent "revelation" that Armitage was the first and best leaker took most of the political heat off the White House. (And, IMHO, would've taken all of it off, had it come out before the indictment.)

Rick Ballard

Whoa. Let us presume for an instant that Miz Plame had lain abroad for her country at some point in her spectacular career in a manner deserving of receiving NOC status. Such status is justifiably very tightly held - one must "need to know" in order to gain access. Why should anyone presume that such status was disclosed even to Tenet, let alone Cheney? To presume that such information would be delivered on a platter in response to a "Who is she?" question implies a laxity of process that would be rather discouraging to those serving as NOCs.

A wager more reasonable than an assertion of "L'etat c'est moi" would be that no information concerning Miz Plame's possible distant NOC status was ever passed "onward and upward" and that the only reason that it has ever come to light was through David Corn's dear friends - the Wilsons.

Ranger

It may be even more exculpatory than that. Just imagine:

Defense: Mr. VP, do you recall a conversation in the second week of July, before Mr. Novak's collum ran, where Mr. Libby said "reporters are telling us Wilson's wife works for the CIA"?

VP: Yes I do.

Defense: What was your response to that statement?

VP: Something to the effect of 'Don't we already know that?'

Defense: And what did Mr. Libby say in response?

VP: Something to the effect of 'We do? When did we learn about that?'

Defense: And what was your response to that?

VP: I said something to the effect of 'Didn't someone from State or CIA say something about that a few weeks ago?'

Defense: And what was Mr. Libby's response?

VP: Something to the effect of 'Really? Are you sure? I don't recall that at all.'

clarice

Judge is back--announces bench conferences will be under seal
Last juror was improperly told by CIA counsel that the case was about a leak of an undercover status of a CIA agent. Judge indicating he doesn't think they can "unring this bell"
Fitz responding--Says he "feels" that that was not an accurate recollection/ (HEH)
He's obviously trying to keep her on the jury.
Says Judge did explain that her sense of the case was wrong.

Wells: We weren't allowed discovery about "covert". We are asking for instructions telling Jurors to disregard Plame's status.
Now we have a potential juror told by CIA lawyer that Plame was covert and "outed" and that fact that Plame worked at DO might effect her view of case, Etc.
Re materiality this might have an impact on her..Judge not sure she'll have to consider this
Wells:Fits is going to go into motive--Libby may have feared loss of job if it came out that he leaked.Issue not on verdict sheet re elements..this will come up under motive part of case.

cboldt

-- There might have been some political heat, and there were Bush's statements about finding the leakers. However, as of October 2003, the Bush/Cheney White House crew did not know about Armitage's leak to Novak (that was Powell's little secret), so in their minds, a thorough investigation may have seemed to be appropriate. --

Assuming arguendo that Cheney ordered Libby to "share" with the press, warn them off using Wilson because, in part, Wilson was on a junket at the behest of his CIA-based wife:

  • I see no legal jeopardy to Cheney for disclosing any of that information, and I reach this conclusion under the assumption that it depends NOT on whether Cheney can declassify Plame's status.
  • I see significant risk of political embarrassment - WH as schoolgirls spreading gossip, then lying about it
  • Cheney admitting that he hinted to Scooter to spread this around is not helpful to Libby's memory defense, it might hurt the memory defense, and it would raise, as motive, "protecting Cheney" from risk of political embarrassment
  • The fact that Armitage leaked to Novak doesn't mean an investigation into the WH would overlook the (assumed to exist, arguendo) Cheney/Scooter conspiracy

Cheney's testimony will be that Scooter is honest, never know to lie, and there was no plan or order to disclose Plame. Cheney won't recall when he annotated the Wilson op-ed, not that it matters because he also doesn't recall showing it to Libby. In short, he wasn't concerned about Plame, and he knows of no reason that Libby would be, either. Cheney's testimony will support the memory defense by minimizing the importance of Plame in OVP.

clarice

Wells--witness was told BY CIA GENERAL COUNSEL'S office PLUS she said she thought all employees at CIA were classified--Much more extreme than case were potential juror heard this on TV or read that in the paper.

clarice

Wells;The danger is in putting on the stand someone who has these beliefs--ie that all CIA employees are classified, ideas that are wrong but are based on 19 years of employment at CIA--

cboldt
Defense: And what was Mr. Libby's response?
VP: Something to the effect of 'Really? Are you sure? I don't recall that at all.'

Yes, that would be very good testimony for Libby to have. Cheney will have to counterbalance the testimony of the several government officials who will say they thought Libby groked that Wilson's wife works at the CIA.

clarice

Juror back on stand--judge honing in on what CIA general counsel told her and asks if she could put that totally oout of her mind.
(She says she mayhave misremembered the CIA counsel's statement heh)

clarice

WELLS; could your prior knowledge of how classified info is handled bleed over to this case. Witness:No

Judge:Do you think a Rep and Dem are entitled to equal treatment in court.? Witness:Yes
Wells: If the question comes up as to whther or not Libby thaought she was Covert could you put that out of your mind?
Apparently "we are here because she was covert" Judge remkinds here that is not in this case.

clarice

***WITNESS:Apparently "we are here because she was covert" Judge reminds her that is not in this case***

clarice

The noise scrambler is on--at the bench conference Fits is gesticulating like crazy.

Sue

Fitzgerald needs to let this one be struck and be happy she got struck. Why lose your case on appeal over a juror you didn't need to begin with?

clarice

Court just released her--at loast..

Out of 7 jurors questioned today 5 were excused for cause.

Maybe Libby can take comfort in all that terrible reportage..it may make it impossible to empanel a jury.

Tom Maguire

Clarice - love the commentary - I set up a new post dedicated to you, although presumably others will chime in.

As to the ide that Cheney will testify about how he had to jog Libby's memory (Kids - what they won't forget!) - I would not be able to stop laughing for years.

cboldt

-- If the question comes up as to whther or not Libby thaought she was Covert could you put that out of your mind? --

That just seems wrong. The question, "Do you think Libby thought she was covert?" is not the same as "Do you think she was covert?" The second question is out of bounds, the first plays into Libby's state of mind.


This Wells guy is slippery. I liked when he had Walton reading a case for the exact opposite proposition the case stood for. That was awesome.


I like a lawyer who bloody well knows that court is all about winning, and nothing to do (really) with truth or justice - although "truth and justice" are stock in the rhetoric trade.

Other Tom

How many peremptories are allowed in a federal criminal trial?

clarice

New potential juror- PLAME AND HER HUSBAND WENT TO aFRICA TO CHECK ON wkds..Plame's name was leaked by someone in the aDMINISTRTATION

Does she have an opinion of the case:"Yes.Guilty"Excused.

cboldt

-- Maybe Libby can take comfort in all that terrible reportage..it may make it impossible to empanel a jury. --

I'm sure a jury can be empaneled. From my January 15 suite of predictions: "The defense will aim to build an appeal based on inability to obtain an unbiased jury." and "Voir dire - at least the full week of January 15, maybe the full week of January 22."

Dwilkers

Huh.

Interesting that all these people that are so predisposed to guilt aren't trying to get on the jury anyway. I mean, you gotta know when you just flat out say "guilty" during jury selection you're going home.

Maybe they just don't want to serve.

PaulV

Excused juror has a valid point-"why would we be here if she was not covert"

Lew Clark

The frightening part is that Fitz is looking for 12 KOS KIDS and Wells is looking for 12 JOM Plameholics. I'm afraid there are more KOS KIDS in a jury pool in DC.

cboldt

-- And regarding Ms. Plame, the Intelligence Identities Protection Act requires that, in addition to having classified status, it must be the case that "the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States". --

If the political ploy is to leak for fun and gain, would you be more apt to leak the name of a person who you KNEW was covert, thought "might be" covert, or one that you knew bloody well posed no risk of crossing a criminal line such as Espionage Act or IIPA? The "more secret" the agent, the less likely the leak for political defense purposes. Just playing with another view of the same old problem. I suspect they all (OVP, Rove) thought or knew there was no legal jeopardy in leaking. That's the "get out of jail free" card. Bush made unwinding the mess all but impossible by casting the leak investigation as "important."

As long as we're playing with testimonial hypos, what if Libby says, "It's almost certain that I mentioned Plame to reporters, and it's entirely possible I did so after hearing it from officials. If that's the case (and my memory is fuzzy on the point, obviously) I can assure you that the disclosure was with a clear understanding that disclosing her name wasn't illegal."

hit and run

Lew Clark:
The frightening part is that Fitz is looking for 12 KOS KIDS and Wells is looking for 12 JOM Plameholics.

For the record, I am not a Plameholic. I only indulge in Plame socially. I can quit any time.

cathyf
I see significant risk of political embarrassment - WH as schoolgirls spreading gossip, then lying about it
So, cboldt, it's permissible to appoint a special prosecutor to track down schoolgirl gossip? Maybe I should warn my girl scout troop of this at our meeting this afternoon? I wouldn't want them to not understand the legal jepoardy that they are under...

It seems to me that there are significant constitutional problems with a special prosecutor (esp. not one under anyone's authority) snooping around private conversations of elected officials without probable cause...

Cecil Turner

Assuming arguendo that Cheney ordered Libby to "share" with the press, warn them off using Wilson because, in part, Wilson was on a junket at the behest of his CIA-based wife . . .

Why? Wilson's (false) story rests on four basic contentions:

  1. VP Cheney asked for an info on an intelligence report;
  2. Wilson was sent to check on it;
  3. He reported back that it was bunkum; and
  4. The VP must have read his report because he specifically requested it.

    [And therefore the Administration was lying . . .]

The problem with the story rests not so much with Wilson's early, anonymous, "behesting" claims, or who sent him. Points one and two are essentially true. Point three has a major problem (even discounting his false initial claim to've "debunked" the forgeries): most people reading it came away with the impression that the charge was true, that Saddam was attempting to acquire uranium from Niger. The fourth claim was flat false, and unknowable by Wilson in any event.

But the real problem with the "political payback" theory is that Wilson's charge is easily disproven merely by publicizing the NIE, because it specifically supports the "sixteen words" long after the CIA assimilated Wilson's report. By contrast, "his wife sent him" debunks the "behesting" point made by Kristof (but not specifically by Wilson), and really accomplishes very little.

Look for the VP to testify that the pushback was all on the NIE, and while they discussed Wilson's assignment in passing (because the pro-bono, not talking to current officials, no written report, and her involvement in recommending him all suggests it was a put-up job), it was considered a minor part of the whole affair, and not one of the talking points.

cboldt

-- So, cboldt, it's permissible to appoint a special prosecutor to track down schoolgirl gossip? --


Especially embarrassing when the gossipy schoolgirls lend their imprimatur to the appointment of the special prosecutor. But for the technicality that the WH didn't personally make the appointment, the "Ashcroft/Comey/Fitz" chain, and resulting independent investigation, is something that the WH "welcomed" as a matter of clearing the rumor that they were gossipy schoolgirls.

Cecil Turner

I see significant risk of political embarrassment - WH as schoolgirls spreading gossip, then lying about it

This doesn't really work, either. The initial leak came from CIA, and was spread by Armitage. The gossip had already spread by the time the WH got involved, and in any event wasn't much of a secret. "Lying about it" was the issue, but that argues more for Libby not making up a bogus, easily disprovable story.

maryrose

I am amazed that so many potential jurors totally misunderstand this case. I don't believe they can actually enpanel a jury. That second last possible juror was so partisan and ready to convict Libby. If Walton has to keep repeating what the case is about then clearly the pool of jurors is not promising.

windansea

Change of Venue to Puerto Vallarta...we'll empanel Mexicans who have never heard of Jane Bond and Ambassador Munchausen

cboldt

-- Assuming arguendo that Cheney ordered Libby to "share" with the press --
-- Why? --


From Mr. Maguire's post at the top ...



if Cheney testifies that he "ordered" Libby to out Plame ... I am looking for ideas on the legal argument (Cheney had no reason for fear), the political argument, and some sort of rationalization the defense might offer that would reconcile Cheney's approval with Libby's flawed memory

Cecil Turner

From Mr. Maguire's post at the top ...

Wrong referent. This is the part that doesn't make sense as a media strategy:

warn them off using Wilson because, in part, Wilson was on a junket at the behest of his CIA-based wife . . .
For reasons cited above, it doesn't answer Wilson's argument. The NIE does.

highcotton

Other Tom, I'm not an attorney and therefore am relying on memory rather than actual 'knowledge'... but it's my understanding that the defense is allowed 12 peremptory challenges, and the prosecution gets 8.

topsecretk9

Help me here:

EmptyWheel

I'm with Atrios. I'm pretty appalled that Jay Carney just doesn't understand the danger of an Administration that can fire Prosecutors without cause.

Andy McCarthy reminds today:

One of President Clinton’s very first official acts upon taking office in 1993 was to fire every United States attorney then serving — except one, Michael Chertoff, now Homeland Security secretary but then U.S. attorney for the District of New Jersey, who was kept on only because a powerful New Jersey Democrat, Sen. Bill Bradley, specifically requested his retention.

Were the attorneys Clinton fired guilty of misconduct or incompetence? No. As a class they were able (and, it goes without saying, well-connected). Did he shove them aside to thwart corruption investigations into his own party? No. It was just politics, plain and simple.


http://article.nationalreview.com/?q=MDZmMzQ5Zjg4ZGI1OTgxODA1OWM5YzFjYTRmYTlhNzk=

MayBee

Yeah. Feinstein wants the courts to appoint prosecutors.

For a group that thinks Bush is completely stomping on the constitution, between trying to put constraints on the C-i-C in non-financial ways and wanting the judicial branch to appoint prosecutors-- they sure don't mind a little constitution stomping when it suits them.

aum

'He reported back that it was bunkum.' He reported to a operations officer. He wrote the report. He may have been upset at what was written, not what he went to Africa for.

KOS is Peace Corps like Wilson. KOS has dinner with Plame, Wilson and the star who made the money from that africa movie. KOS makes over 100,000 a year from dems.

JOM? The Christy blogger at FDL cute?

noys

non-financial ways? Plame's job was to move the money to Congress from DOD, NGOs, etc?

It's Bush's last year. They are going to constrain the CIC powers becasue it may be a democrat 2008. Standard for dems who put Bush in, but everybody knows that now........

She's not cute? The CIA employee who had her own US govt paid counsel for free because she had to do her jury duty?

aum

I didn't think anyone charged..........

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emptywheel

Tom

FWIW, this is an idea I've been playing around with for some time. Particularly given Cheney's non-denial denial with Russert when asked directly if he had the authority to declassify Plame's identity, I think Cheney may be honing in on admitting he ordered Libby to out her. And while I'm not convinced that executive order would cover this (there's the obvious problem of declassifying someone's identity without telling her), I do think that would quickly get Fitz and Cheney into constitutional challenges, which I suspect Fitz would try to avoid. Ergo, you charge perjury.

So why would Libby lie? Because Cheney told him to--this does not come under oversight of the courts. Libby gets up in a few weeks and does his best Ollie North interpretation, and he's home free.

How many people got off during Iran Contra in similar circumstances (or on appeal for non-substantive reasons)? I could see Cheney doing it out of dedication to the unitary executive theory.

Terrye

I have to admit I am completely and utterly bored with this subject.

I guess I will adios, because I...just....don't....care.

windansea

I see the left is lining up their excuse ducks

Cecil Turner

I think Cheney may be honing in on admitting he ordered Libby to out her.

Sorry, but that doesn't make much (if any) sense. There was no need to "out" Plame, it was going to happen in any event (as it happens, it had already occurred). Further, they could prove Wilson wrong on the facts, simply by releasing the NIE . . . which they finally did. Absent some actual evidence, this one goes down as a lefty daydream.

ducks

'And while I'm not convinced that executive order would cover this (there's the obvious problem of declassifying someone's identity without telling her), I do think that....'

There isn't an executive order. There is nothing like the movies. It's just done. She would be notified if she had the clearance.

Clinton did this every day.

Sue

So why would Libby lie? Because Cheney told him to

But what to do with the leftover parts of your theory. Like why they allowed this to continue? Why Cheney didn't whisper into Bush's ear and say shut it down, he leaked on my orders? I don't think Cheney told him to leak or lie.

MayBee

Sue, I agree.

ew- Because Cheney told him to--this does not come under oversight of the courts

What do you mean by that? If this case is at trial and before the jury, that seems to me it has definitely come under the court, although perhaps I'm misunderstanding what you mean by oversight of the courts.
North was convicted, by the way.

sad

For the record, I am not a Plameholic. I only indulge in Plame socially. I can quit any time.

Thats what they all say.

MJW

cboldt: Especially embarrassing when the gossipy schoolgirls lend their imprimatur to the appointment of the special prosecutor. But for the technicality that the WH didn't personally make the appointment, the "Ashcroft/Comey/Fitz" chain, and resulting independent investigation, is something that the WH "welcomed" as a matter of clearing the rumor that they were gossipy schoolgirls.

Gave their imprimatur? Funny. Gave into pressure from politicians and the media is more like it.

But for the technicality that the WH didn't personally make the appointment... Funnier still. How 'bout Comey chose Fitz on his own, and the White House had no say in the matter once Ashcroft relinquished control.

the "Ashcroft/Comey/Fitz" chain, and resulting independent investigation, is something that the WH "welcomed" as a matter of clearing the rumor that they were gossipy schoolgirls. Funniest of all. What politician, when faced with an investigation, hasn't said he or she welcomes the investigation? What other choice do they have, especially in a situation where they gave in for political reasons to media pressure.

hit and run

sad:

For the record, I am not a Plameholic. I only indulge in Plame socially. I can quit any time.

Thats what they all say.

No, but really, it's not a problem, I have it under control. And really, compared to others, I'm not really that bad. And it may seem that I'm hear every day all day, but really, it's not the way it looks. And, I really just need a little fix, just enough to take the edge off. Besides, it's not hurting anybody. It's just who I am, I'm not gonna pretend to be someone I'm not. Oh, I'll stop at some point, it's just that right now just isn't the right time. No one is gonna tell me what to do.

cboldt

My point, phrased in direct language instead of a metaphor, my point, which you expressed disagreement with, is that if there was to be political embarrassment to the White House for leaking that Wilson's wife works at the CIA (whether the leak was legal or not), embarrassment in part because that "leak" is gossipy (although it makes Wilson a liar on "sent at OVP behest"), and embarrassing in part because the WH vigorously denied leaking that fact (I happen to think there would be political embarrassment on those grounds), my simple point is that in that situation, permitting the appointment of a special prosecutor ENHANCES, MAGNIFIES, ADDS TO the embarrassment, if the investigation finds that there was in fact a leak from the White House.


It's as though they (at least Libby and Rove) suspect they did something embarrassing, but not illegal, and intended to use the legal process as a tool to "conclude" there was no embarrassing leak or coverup (of a legal but cheap leak).


I just searched the WH web site this morning, for references to "Plame", "Wilson's wife" and "CIA agent," and came away with the distinct impression that the statements from the WH on this subject need to parsed as carefully as the best garbage that ever came out of the Clinton White House.


I understand the political pressure, but I have a low tolerance for doubletalk and sophistry. I regret that the WH didn't just step up in July 2003 and tell the world what it thought of Joe Wilson. Better to come right out then, than to play peek a boo with the public, the DOJ, the Special Counsel, and now the criminal prosecution process.


Nobody is going to come out of this a winner - and I blame the WH (at the least, Libby and Rove) more than I blame that lying sack of shit Wilson for the situation being where it is today.

boris

and I blame the WH

For their feet of clay? Bravo!

Do you belong in the company of all the other whiners criticizing the administration for not engaging the dimorat opposition aggresively?

Or do you belong in the company of all the other blockheads criticizing the administration for not ignoring the slings and arrows of rampant BDS?

Cecil Turner

(although it makes Wilson a liar on "sent at OVP behest")

Except Wilson never said "behest," so it doesn't work on that point, and it's at best a distraction. Further, Cheney's margin notes show that he was asking whether Wilson was sent on a "junket" some time after the 6th of July. So unless we're positing a media strategy that was developed on the 6th and implemented on the 8th, outing Plame wasn't part of the pushback, it was just gossip.

I understand the political pressure, but I have a low tolerance for doubletalk and sophistry.

They were responding to false allegations they outed a CIA agent for political reasons, and they didn't know the source of the actual leak (Armitage). Tell me how you'd parse the perfectly legitimate denial, and I'll have some time for your winge.

cboldt

-- I'll have some time for your winge. --

Winge

clarice

TM--Now typepad says I am a member ..Some time before I cover the trial again let's figure out how to set up a thread for MBA pickup, please. URGH I'm too old and technically klutzy for all this. It's just too jocular for me.

Cecil Turner

Winge

Yep, exactly what I meant. Was I wrong in reading this as one long bitch about things you wish the Administration had done differently (but don't specify how)? If so, I'm all ears . . .

sad

It's just too jocular for me.

Keep 'em coming. I'm already suffering withdrawl due to lack of live blogging!! Court proceedings need to continue thru the weekend for some of us.

antimedia

Cecil Turner: re the NIE

I'm having trouble understanding why Plame's involvement was peripheral and the NIE was the answer to Wilson's editorial. Yes, it would have addressed the facts of the case, but dry facts do not interest people. The fact that his wife sent him and he lied about that goes directly to the credibility of his claim that the WH lied, does it not? It introduces the doubt that makes the NIE comparison more compelling and more likely to be taken seriously by Joe American.

The entire point of introducing Plame into the story is to (accurately) portray Wilson's trip as a rogue foray of the CIA to offset the (accurate) claims of the WH that Iraq was seeking sources of yellowcake in Africa and therefore his editorial was merely the final piece in the false puzzle.

maryrose: I am amazed that so many potential jurors totally misunderstand this case. I don't believe they can actually enpanel a jury.

Apparently you've never watched Leno's Streetwalking episodes. There is a surfeit of under- and misinformed Americans.

Isn't that the principle reason the Democrats won this time?

Cecil Turner

The fact that his wife sent him and he lied about that goes directly to the credibility of his claim that the WH lied, does it not?

I don't think so. First, he didn't lie about it directly. Kristof said "behest," but Wilson merely said:

The vice president's office asked a serious question. I was asked to help formulate the answer.
Which is perfectly correct, as far as it goes. (The VP actually asked for CIA analysis, and there were other drivers for Wilson's trip, but those are mere quibbles. Wilson was sent in response.) Second, she didn't send him, she just suggested him. And there was nothing wrong with sending Wilson, so the "rogue agency" meme doesn't really work.

Where Wilson's story falls down is in points 3 and 4: he didn't debunk anything (in fact, most analysts thought his report supported the "sought" allegations), and the VP never saw it (and wouldn't have known it was his in any event, since he wasn't mentioned). The NIE answers it directly, and shows Wilson to be either: 1) clueless; or, 2) lying.

Finally, who benefited from Plame's mention? Wilson, whose inconsistencies were glossed over in the subsequent furor over CIA officer outing? Or the Administration, who've spent the last 3+ years with a bum rap about "twisting intelligence"? Why would any sensible Administration spokesman want to open that can of worms in the first place?

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