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February 05, 2007

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topsecretk9

Clarice

You might want to supplement your post with an update to Byron York's newest. It dovetails nicely to yours

Walton repeated his admonition several times in the next few days, and then, on January 29, made a statement that seemed stunning in its implications, although it received virtually no attention outside the courtroom. Walton announced that not only did the jurors not know Mrs. Wilson’s status but that he didn’t know it, either. “I don’t know, based on what has been presented to me in this case, what her status was,” Walton said. “It’s totally irrelevant to this case.” Just so there was no mistake, on January 31 Walton said it again: “I to this day don’t know what her actual status was...

...f any of those statements has led jurors to ponder whether Mrs. Wilson’s status was, in Fitzgerald’s words, “covert or classified,” then those jurors are violating the judge’s order. And Fitzgerald seems perfectly happy about it. After all, the blackout on Mrs. Wilson’s status keeps defense lawyers from highlighting Fitzgerald’s failure to charge anyone with outing her, and it allows the prosecution to suggest, without actually saying, that Libby and the Bush administration committed some sort of crime.

The judge’s ruling has made some arguments in court seem more than a little ridiculous. Last Thursday, for example, both sides spent a long time, out of the presence of the jury, bickering over how Fitzgerald will present evidence concerning Libby’s alleged motive to lie. Libby was afraid for his job, Fitzgerald theorized, after President Bush announced that anybody who leaked classified information about a CIA agent would be fired.

Wait a minute, protested defense lawyer Ted Wells. “The jury has been instructed that the issue of whether it was classified or whether she was covert will not be presented in this case.”

“I’m not going to tell the jury the information was classified,” Fitzgerald answered. “I will tell the jury that there was an investigation into whether the law was violated.”

And what law might that be? Sure enough, it’s the one barring disclosure of a covert agent’s identity. And the person in question is Valerie Plame Wilson. And the person being investigated is Lewis Libby. That’s what the case is about. Fitzgerald knows that. Wells knows that. The judge knows that. But the jury — shhhhhh.

It’s a bizarre situation — a CIA-leak trial without the CIA leak. And, at least under its present restrictions, without much hope for justice, either.”

http://article.nationalreview.com/?q=OTdlMmE3MDkzZTkzZDMzZjgzMWJiNWY4MTk3ZmMzZTU=

highcotton

Isn't it a sad commentary on our justice system that in the two most prominent cases now being tried in this country, thousands of ordinary citizens have felt compelled to contribute money to the defense funds???

Greg D

Don't "lawyer up". That's expensive.

Just refuse to talk at all.

Ranger

"I to this day don’t know what her actual status was..."

Yeah, I remember that statement too, and it stuck out to me at the time.

I have to wonder, if Fitz gets all these newspaper article in, can the defense ask to enter Fitz's footnote from the Miller pleadings where he states that the he has "no evidence" that Libby was ever aware that any classified material was being discussed regarding Wilson's Wife?

It would seem fair, and a good counter to all the articles.

Ranger

And on the topic of the thread...

I have a problem with the law that makes it a crime to lie to the FBI because it sets up an asymetric situation. Courts have held for a long time that it is perfectly ok for LE to lie to people in the course of an investigation. Its a legitimate investigatory technique to coax information out of people. The GJ and the courtroom are different. The prosecutor can't lie to the witness or the defendant to get the answers he wants.

Now, I don't think people should lie to the FBI, they should just shut up if they don't want to help the investigation. But, it does seem somehow wrong that the FBI can lie to the subject of the interview to construct a situation where the answers will also be untrue. Creating a situation where LE can essentially construct a 'perjury trap' out of whole cloth is a little disturbing.

MJW

I would think that Sue's theory, as endorsed by Clarice, that the cross examination of Cooper about Dickerson was limited to matters brought up on direct may be good news for Libby. Presumably, the rule will be applied with similar exactitude if Rove and Cheney testify.

cboldt

-- even in that initial interview when he was relying solely on his recollection he said he believed the Vice President had told him on about June 12, 2003 that Wilson's wife worked in counter proliferation --


The paraphrase testimony is equivocal regarding Libby relying solely on his recollection during his first interview. The paraphrase can be read as Libby bringing some some of his notes (including the one in question) to his October 14 interview, but not producing them to the interviewers.


From the paraphrase, my impression is that he testified his notes didn't trigger recollection of memory - that the note is an independent record. If the note says it, it must have happened, but even faced with the note, Libby still didn't remember hearing from Cheney.


I predict that the topic will be further addressed in cross and/or redirect, unless the actual testimony of Bond (including the order and contents of questions) was less equivocal than EW's paraphrase.

Terrye

I suppose the thing to do is just take the fifth, remain silent.

cboldt

-- and from the FBI's testimony about his [Libby's] correcting his initial statements --

Amplifying on the above, regarding when Libby possessed the note, and when and what he testified to regarding hearing from Cheney on about June 12, my impression from the paraphrase testimony is that Libby did not change or "correct" his testimony between the first interview on October 14 and his second interview in November. Nor did he change his initial statement between the October 14 interview and October 21 when he produced some of his notes to the FBI investigation.

Zeidenberg; Were you present for an interview with Mr Libby on 10/14/2003. Who else was present? ...

Z During interview, Libby give you documents.

DB Yes. He told us that in prep for interview, he had prepared a document and had it typed, 4 bullet points that Wilson was claiming in press.
Introducing exhibit. (Govt 10) ...

Z did you talk about how he learned of Plame's id

DB he first learned about Plame from VP, during telephone call on or about June 12, 2003. Description of phone call. A handwritten note he claimed he had written during this conversation. [whether or not he had the note during his first interview on Oct 14, testimony seems to indicate that he referred (at least orally, and maybe by contemporaneously looking at the note) to the presence of the note.] ...

Z Did Libby tell you what happened to memory.

DB He forgot it. When he heard it from Russert in July that he learned it for the first time. Not until Fall 2003 that he realized he learned of it in June 2003. ...

DB First interview on 10/14. Set up second interview. Eckenrode contacted attorney. 11/26 second interview, Wednesday before X giving. Same participants, same seating arrangements, same office.

DB Story didn't change in second interview. He had refreshed his memory with documents.

DB As he told us before, he said he had had a conversation about 6/12/2003.

Z Had you acquired Libby's notes by this time. Did you discuss note he referred to and showed you. [Seems to indicate the investigators observed, but did not take possession of the note, on Oct 14] ...

Wells; This is document Libby produced prior to his interview.

DB: No. I believe it was October 21.

W: It wsa discussed. [When? Oct 14 or Oct 21?]

DB Libby brought it. Libby did not give it to us. [When brought, not given? on Oct 14 first interview? produced (given) on Oct 21? - Or, brought, not given on Oct 21?]

W Jun 12 2003, Libby had a telephone call during which Cheney disclosed to Libby that Wilson's wife worked in Counter Proliferation. At the very outset of interview [first interview?], he said to you he had reviewed this exhibit [had reviewed the note, so recollection was not from memory, but was refresehd before interview], it had refreshed his recollection, he now recollected that he first learned of Plame from VP.

DB THat's what he claimed. ...

W He made clear that he did not first learn from Russert,but rather, he learned from Cheney on or about 6/12.

DB He told us he had forgotten about it until her reviewed his documents. but his first memory of it was that he learned of it from Russert.

My current take from the above equivocal paraphrase:

  • Pre Oct 14: Libby finds handwritten note of about June 12, which (he will later assert) reminds him of an about June 12 Cheney conversation
  • Oct 14: First interview with FBI investigators, Libby provides (produces) a typed 4-bullet-point summary to the investigators, he advises them of the about June 12 note, he advises them that but for the note, he had no recollection of the discussion with Cheney
  • Oct 21: Libby produces the about June 12 note to the FBI
  • Nov 26: Second interview with FBI investigators, Libby reiterates his knowledge and memory - same as the October 14 interview, first memory of hearing is hearing from Russert. Libby made no "correction" or modification of having but forgetting about the Cheney conversation, nor did he make any "correction" about having an about June 12 contemporaneous note.
Thomas H. Ryan

The editorial board of the WSJ came down hard on Fitz over the weekend. Read the transcript at:

http://www.opinionjournal.com/jer/?id=110009623

Sample:

Rabinowitz: Andrea Mitchell's boss. So he knew. Everybody knew.
The point is not that these two major reporters are lying deliberately. It's just that the prosecutor had no interest--much like Mr. Nifong in Duke University, I am afraid I have to say--no interest in pursuing anything that contradicted his theory. These people were never questioned about this. They were never called. Does this tell you something about the nature of a prosecution?

Morrisson

Clarice has presented ample evidence why the charges against Libby should be dropped.

tina

I'm a big time lurker here, and a drive-by poster, but I thought this would interest you all. From Imus this morning, Evan Thomas from Newsweek was a guest and said he can't talk about the Libby trial because he might be called to testify this week. Don't know if you had him on a potential witness list or not.

Jane

It seems like the culture a lot of us grew up with (If you tell the truth, and embrace integrity, you have nothing to fear) is pretty much gone.

That makes me very sad.

cboldt

Apuzzo's article of February 5 indicates that the first thing Judge Walton will be dealing with this morning is the battle over providing recordings of Libby's grand jury testimony as (online) published exhibits. Press motions and Libby responses have been filed, apparently, but are not available online from the Courthouse (not in 05-cr-394, not in 07-mc-002, at any rate -- and no new cases under the name "Libby").

Libby: Don't Release Grand Jury Tapes



The tapes are expected to take up much of Monday and part of Tuesday. Russert is scheduled to be Fitzgerald's last witness, most likely late Tuesday.


There has also been reasonably well-founded speculation about a mystery prosecution witness, a witness other than Russert, and other than the grand jury foreman. Unless the so-called mystery witness is the grand jury foreman - which makes some sense in that Libby's defense team said there were issues of discovery, etc. involving the mystery witness, and there are issues of discovery, etc. with Libby's grand jury testimony.

lordy

Nice to see you guys trashing federal agents too. How proud you must be.

cboldt

-- Evan Thomas from Newsweek was a guest and said he can't talk about the Libby trial because he might be called to testify this week. --

Evan Thomas's name is on the list of names presented to prospective jurors, as people who may testify, or whose names may be part of the trial.

It isn't clear to me, how Libby would use a parade of reporter witnesses. Is it to be a parade of reporters that he spoke with, none of which recall hearing him say anything about Wilson's wife? Or is to to obtain a population of reporters who knew that Wilson's wife worked at the CIA, in a sense, corroborating Mitchell's "everybody knew." (Rabinowitz asserts Mitchell's "everybody knew" is accurate.). Clearly, the two groups of reporters aren't mutually exclusive, and if it is fact true that literally all the reporters knew, then all of the reporters that Libby talked to knew - but even if they all knew, that doesn't mean any particular reporter asked, told, or heard it from Libby.

sbw

"Nice to see you guys trashing federal agents too."

I know it might be subtle, but there is a difference between trashing federal agents generally and trashing misbehavior. People here seem to me to be trashing misbehavior.

Lordy, you seem to be tacitly approving of misbehavior. I trust that is not what you meant. Or, if you do approve of trashing misbehavior, how proud you must be.

cboldt

-- But, it does seem somehow wrong that the FBI can lie to the subject of the interview --

What lie or lies did the FBI tell Libby?

On a separate subject, looking at the general sense, I disagree that lying by investigators represents an asymmetry, per se. Criminals have been known to lie to investigators, so lying by investigators becomes a symmetry. See too, "traps" to nab sexual predators of children - total fabrications by law enforcement.

cboldt

-- People here seem to me to be trashing misbehavior. --


Mostly, but not exclusively. A few people are implied to be habitually untrustworthy. Eckenrode, Bond, and Fitzgerald come to mind. Not that all the posters are "trashing" all of the prosecution team - and there is always the "this doesn't rise to the level of 'trashing'" defense - but from my perspective, Bond, Eckenrode and Fitzgerald are subjects of derision here. One finds very little substantive defense of them, at any rate.

Martin

Ummm SBW-the fpp calls for anyone ever asked by a President to cooperate with an investigation to resign and take the Fifth!

Pofarmer

Or is to to obtain a population of reporters who knew that Wilson's wife worked at the CIA, in a sense, corroborating Mitchell's "everybody knew." (Rabinowitz asserts Mitchell's "everybody knew" is accurate.). Clearly, the two groups of reporters aren't mutually exclusive, and if it is fact true that literally all the reporters knew,

I'd say it's to prove Russert is lying when he says he didn't know, so couldn't have asked in the phone conversation. Everybody new but the head of the NBC Washington division? Impeach Russert, and what is left?

It may also be used to prove that the administration was giving out the information in the now released NIE, but that none of the reporters were interested in it. IE, if the administration wasn't shopping Plame around, how were they out to "get" anybody?

tryggth

In spite of concerns about memory, didn't Libby maintain the same story several months later in front of the Grand Jury. Plenty of time to get refreshed in the interim.

Pofarmer

What lie or lies did the FBI tell Libby?

How would one know? You only get the FBI version of events, at this point.

Pofarmer

In spite of concerns about memory, didn't Libby maintain the same story several months later in front of the Grand Jury. Plenty of time to get refreshed in the interim.

The story stayed pretty well consistent from beginning to end. He just disagreed with reporters version of events.

Neo

Do we really want a situation in this country in which, whenever the FBI comes knocking, the citizenry's first reaction is to lawyer up and assert their 5th amendment rights for fear of being prosecuted for any inaccuracies in what they might say?

Given the events in the Clinton Administration regarding ALEXANDER et al. v. FBI, et. al., this situation already exists. Worse yet ALEXANDER et al. v. FBI, et. al. leaves the interviewee subject to a possible civil action for invasion of privacy and defamation.

Ranger

What lie or lies did the FBI tell Libby?


On a separate subject, looking at the general sense, I disagree that lying by investigators represents an asymmetry, per se. Criminals have been known to lie to investigators, so lying by investigators becomes a symmetry. See too, "traps" to nab sexual predators of children - total fabrications by law enforcement.

Posted by: cboldt | February 05, 2007 at 06:05 AM

I didn't say they did lie to Libby. I was talking about the general principle of being able to charge people with lieing to the FBI when the FBI has the legal right to lie to them in the course of an investigation.

I have no problem with the FBI or other LE lieing to people in the course of an investigation, nor do I have any problem with the FBI or any other LE using sting operations against people predisposed to a crime in general.

I do have a problem with enticing generally law abiding people into commiting crime for the purpose of enhancing the governments purposes (such as the Randy Weaver case, where an FBI informant befriended Weaver and begged him repeatedly to saw off a shotgun for him, and then when he finally agreed to do it, they charged him and threatened to prosecute unless he became an informant for them and infiltrated groups he didn't even belong to at the time). I think if the FBI wants to catch people by setting up 'honey pots', that's fine, but leave people to live their lives if they are not activly seeking to break the law in the first place.

For example, the FBI could provide an entire false timeline for a subject, and lie and tell them they have evidence that supports it, then ask the subject if that is what happened. Then, when the subject agrees, charge them with lieing to the FBI for agreeing with their fabricated time line. That just seems to me a little outside the bounds of reason. We survived for roughly 220 years without this particular law, I don't see why it was nessessary to enact it in the 1990s.

Sue

- but from my perspective, Bond, Eckenrode and Fitzgerald are subjects of derision here. One finds very little substantive defense of them, at any rate.

From my perspective, the derision is specific to actions that were taken by them. Or maybe actions not taken by them.

boris

also they appear to be infected with BDS

sbw

Martin -- Ummm SBW-the fpp calls for anyone ever asked by a President to cooperate with an investigation to resign and take the Fifth!

Martin, don't attempt that neo-liberal, habitual and dastardly change-the-subject rhetorical sleight-of-hand with me. Your comment has nothing to do with either misbehaving FBI or Lordy's comment.

cboldt

-- the Randy Weaver case --


Not that it makes much difference, but I thought ATF made the initial set-up, while FBI was called in for the wet job. And FBI shooter Horiuchi was promoted. Sheesh. Mount Caramel too, and no doubt numerous others who should, IMO, be dismissed from the ranks of law enforcement.


But I figured the issue of "FBI lying during an interview", in the context of a Libby prosecution thread, might have indicated a belief (founded or not) that Bond and Eckenrode lied to Libby. No such lies spring to my mind, off the top of my head (doesn't mean there weren't any), so I tossed out the relevant question. "What lie or lies did the FBI tell Libby?"

lordy

"From my perspective, the derision is specific to actions that were taken by them. Or maybe actions not taken by them. "

Oh, please. Personal character assasination is a very common tactic and is employed quite freely here. Funny that you guys employ the same tactics that got Libby, Cheney et. al. in trouble in the first place. If you dealt with the substance of the charges - you would have more credibility. I don't see much trashing of Wells on the anti-Libby side for example. But if the roles were reversed, you guys would certainly trash Wells as a scummy trial lawyer.

You have personalized this case to Fitzgerald. You may not agree with his case, but he has a judge who thought the case was solid enough to bring to trial, and an an entire prosecution team and FBI investigators who apparently agree with him. I await your trashing of those individuals too. After all, that's what Ann Coulter is urging you to do.

Martin

sbw-why would someone offer a blanket prescription to 'resign and plead the fifth' whenever the President asked them for cooperation unless that person was "trashing federal agents generally"?

Pofarmer

After all, that's what Ann Coulter is urging you to do.

You didn't read Ann very closely did you? Ann is urging conservatives to stick up for one another. It's good advice.

As for personalizing the case. It's rather hard not to. You've had a chance to look at the testimony.

cathyf
Do we really want a situation in this country in which, whenever the FBI comes knocking, the citizenry's first reaction is to lawyer up and assert their 5th amendment rights for fear of being prosecuted for any inaccuracies in what they might say? I doubt that the FBI itself wants that to happen, but the excesses of prosecutors like Fitz[gerald] and Comey will lead toward that becoming more the norm than it is.
I'd use a more specific example that would be much closer to the fears of the average DC juror -- the next time there's a sniper driving around DC randomly murdering children and adults who just happen to be out on the streets, do you want your friends and neighbors who might find themselves witnesses to clam up and lawyer up rather than risk being punished for misinterpreting or misremembering something?
Sue

Oh, please. Personal character assasination is a very common tactic and is employed quite freely here.

Oh please yourself. At least we haven't stooped to calling Bond a whore or Echenrode a turd.

But if the roles were reversed, you guys would certainly trash Wells as a scummy trial lawyer.

You don't need anyone here trashing Libby's defense team. There is enough of that at other websites to more than make up for the lack of it here.

At least your post shows up here. ::grin:: Can't say the same for other sites that, shall we say, lean the other way.

Neo

Good Grief !!

Everytime I see someone infer that anybody is a blind follower of Ann Coulter, I can see that the extended "Al Franken Decade" continues.

clarice

I have great respect for Dorothy Rabinowitz. If you recall in the days of the great hysteria about purported mass child molestations at child care centers, she stood up for the Falls Acre defendants--almost alone, IIRC.

Here is something from the cited interview:
"Carney: This is the most confusing thing about Fitzgerald's theory of the case is that he brought in a whole train of witnesses in the first week to say, I had a fleeting conversation with Scooter Libby in which Valerie Plame, or her status as Joe Wilson's wife, may or may not have come up. Or I think it did. Or I am pretty sure it did. These conversations tended to last about 30 seconds, and Fitzgerald seems to be trying to establish that Libby knew that Wilson had a wife and that she worked at the CIA prior to his conversations with Tim Russert and Matt Cooper and Judith Miller. But Libby himself testified, both to the FBI and to the grand jury, that he learned about Valerie Plame from Dick Cheney a month before all of this happened.

Gigot: James, how credible is the press turning out to be in this? Are we looking pretty good or bad?

Taranto: Well, what do you mean we?

[laughter]

I would say some members of the press, especially the New York Times, really must be hanging their heads in shame over this. The New York Times beat the drum on this for purely partisan reasons, and they found themselves with a reporter in jail, with the whatever slender reed of protection--legal protection journalists enjoyed for protecting their sources pretty much stripped away, and, you know, with reporters being forced to go and testify about their newsgathering operations. I think this has been a disaster for the press.

Gigot: Dorothy, we don't have much time. But if Scooter Libby does happen to be convicted--and I gather you don't think he will--but if he is, should President Bush pardon him?

Rabinowitz: Yes. I think President Bush should pardon him, because this is one of those classic--one of the most extreme cases of crimeless prosecutions ever, and in the most obvious way. And can you blame the American public for scratching their heads and saying, Why am I hearing about this at all?"


FBI lies to interviewees:It is a standard practice especially when they believe there's a conspiracy involved..One person interviewed in this case confrimed to me the investigators did that here, too.

clarice

From Charlie in Colorado who still can't post:
"cboldt: No such lies spring to my mind, off the top of my head
(doesn't mean there weren't any), so I tossed out the relevant
question. "What lie or lies did the FBI tell Libby?"

The first one that springs to the top of MY head is when Bond told
Libby and his attorney that she was including a note that Libby hadn't
had access to his notes in her 302. This promise only came out when
she was pressed on cross."
---------

hit and run

But if the roles were reversed, you guys would certainly trash Wells

Of course. If Wells were trying to railroad someone - we would trash him. Is that what you meant?

I mean, if Our Dark Overlord Cheney (PBUH) were trying to railroad an innocent man, we would probably break ranks. Carefully, though. You never know when Cheney may start shooting people.

[/tic]

hit and run

FREE CHARLIE!!!

FREE CHARLIE!!!

FREE SYL!!!

FREE SYL!!!


DEATH TO ALL WHO...oh, wait, wrong blog.

Christopher Fotos

Byron York update at The Corner:

Judge Reggie Walton has just ruled that audio tapes of Lewis Libby's grand jury appearances from March 2004, which will be played for the jury today, will be released to the public after the jury has heard them. Walton said he had no legal reason to withhold the tapes, as Libby's lawyers had requested, but he voiced concern that the press might use snippets of Libby's testimony out of context, and that a juror might hear such reports, which could cause a mistrial. But Walton said all he could do was hope that reporters will use the Libby material responsibly, that "the press, which hasn't, in some respects, looked good in this trial, will do what it can do to make sure it doesn't look even worse."

Someone else can try to link it! Half time when I try to do urls here, I get shut out.

clarice

Here Chris:
http://corner.nationalreview.com/post/?q=ZTFiZmI3N2FlN2FkYjhmNzdmYzIyNTM4Njg1OWVmZTA=>Tapes

Dan S

On this topic of not talking to fibbies, I think Ari had the right idea:

Refuse to talk unless you get blanket immunity (including immunity on possible internal inconsistencies in what you say... don't know that Ari is covered here, but he had the right idea) from the prosecutor.

I agree with Ranger that we have an asymmetry that is a real problem. While I can see the utility of allowing the LE investigators to lie, I think this has led and is leading to problems that will soon (if not already) outweigh the benefits.

Make lying on both sides punishable offenses, or on neither, in investigatory situations. Allow not telling "the whole truth," but not mistating facts.

As has been stated, in court (including GJ and on sworn affidavits) events should remain as they are where everyone is required to tell the truth, the whole, truth, and nothing else.

Is Fitz gonna charge Bond now? She's already in violation in my eyes.

cboldt

Walton seems to have ruled that Libby tapes will be published as exhibits. I bet that swamps a few servers later today and tomorrow.

---===---

-- Bond told Libby and his attorney that she was including a note that Libby hadn't had access to his notes in her 302. This promise only came out when she was pressed on cross. --

From the direct examination ...

DB he first learned about Plame from VP, during telephone call on or about June 12, 2003. Description of phone call. A handwritten note he claimed he had written during this conversation.

I won't disagree that the FBI testimony (actually, all of the prosecution witnesses) could have been a bit more forthcoming on direct - it's a tactical choice. Substantively, seeing as how Libby did NOT change his story between the interviews, and he asserts that he had opportunity to review more of his notes between interviews, I don't see the harm in telling the jury on cross exam, rather than in direct exam, that Libby's counsel, Tate, had expressly noted that Libby had inadequate preparation time - not enough refreshing of memory - at the time of the first interview.

On reading the transcript, Libby's presentation at the interview is a mix between "I prepared typed bullet points, I have notes that show a conversation with Cheney (and a few other notes)" and "I have not adequately refreshed my memory." For some cases, e.g. Russert and Cooper conversations, Libby had no notes, therefore nothing tangible to refresh with.

Anyway, I see your point (the FBI lied to the jury about Libby's access to notes), but I don't see that lie as having a detrimental effect on Libby's case - if anything, it's damaging to the FBI agents credibility as an objective observer.

Pete

Clarice - you overstate your case. Fitzgerald was not even appointed when Libby was interviewed by the FBI. The investigation was then under the Administration friendly hands of Ashcroft (who insisted on being briefed about every minor detail of the investigation). At that time the policy was not to aggressively go after reporters, so Libby could hide behind reporters then.

Looks like we are going to hear Libby's grand jury tapes. I bet you are cheering that we get to hear the tapes, right?

windansea

Firedoglake is live blogging, Judge rules tapes can go to media

Dan S

"Nice to see you guys trashing federal agents too. How proud you must be.

Posted by: lordy | February 05, 2007 at 05:44 AM"

Sheesh, like this trial isn't ABOUT trashing an agent of the Federal government?

Whay is Libby but that?

sbw

Martin, I see no reason to summarize the Libby case to indicate substantial reason for concern about the behavior of both the SP and the FBI.

Other Tom

Not exactly "symmetry," since the interviewee can go to the slams for lying, but the agent cannot.

If I were still in practice, if ever I were to produce a witness for an FBI interview I would do so only on condition that the entire interview be videotaped and transcribed by a certified shorthand reporter, with both the transcript and the tape being filed under seal with the court to preclude dissemination pending trial. And I would memorialize those conditions in a letter to the agent in charge, with copies to every man, woman and child under the sun.

Neo

I think Bond comes under the rule of "bureaucratic immunity", a rule that all bureaucratic can do and say anything as long as it is in the "public good," only God knows that that is and God is barred from making any statements under that rule of "separation of church and state." LOL

Rick Ballard

We must all remember that cracking a non-existant conspiracy is one of the toughest jobs the FIB undertakes. It's not as if she shot an innocent woman or incinerated a group of children.

Besides, I'm absolutely certain that Agent Bond was only following orders.

Dan S

"I won't disagree that the FBI testimony (actually, all of the prosecution witnesses) could have been a bit more forthcoming on direct - it's a tactical choice. Substantively, seeing as how Libby did NOT change his story between the interviews, and he asserts that he had opportunity to review more of his notes between interviews, I don't see the harm in telling the jury on cross exam, rather than in direct exam, that Libby's counsel, Tate, had expressly noted that Libby had inadequate preparation time - not enough refreshing of memory - at the time of the first interview."

cboldt,

Maybe you can explain to me the difference between what Bond did and what Libby did. Looks pretty much like a perfect parallel at first glance.

And Libby's "crime" hasn't had a material effect on a prosecution either.

cboldt

Judge and lawyers not in earshot of reporters - Walton was looking for a "certain" Court Reporter, indicating to me that the re is perhaps a CIPA issue swirling around.


I also haven't heard any resolution to the publication to the jury of the two articles that Libby marked up. I haven't thought about which witness will be used to support the introduction of those.


I'm off for awhile - leaving the commentary to more qualified people ...

Dan S

Rick,

Let's not bring up Nazi's and the SS! :P

windansea

"Oh, you're going to the big courthouse… the one where they tried to get Mr. Clinton."

That's what the cab driver said to Jane and I as we took our seats for the journey to the E. Barrett Prettyman Courthouse. Jane said, "We're going to get 'em back."

pretty much sums up the case...anywhere else I can see live blogging without the snark?

cboldt

-- Maybe you can explain to me the difference between what Bond did and what Libby did. --


Bond augmented her testimony to the jury when prompted by a questioner. Even if she hadn't, the additional information (that Libby asked for and obtained time to get even more notes than he brought to the first interview) resulted in no change in Libby's testimony. As a result, Bond comes off as "hiding" what can be cast as (but isn't in fact) exculpatory information.


Libby never changed his story to investigators. The jury is still out, but it can be argued that his adhereance to a single story is indicative of truthfulness.


-- And Libby's "crime" hasn't had a material effect on a prosecution either. --


if the lies "aren't material to the investigation." Does the media still have to tell the truth then?

Dan S

Cboldt,

But that little oath they both took says something about "the whole truth," right? And leaving out a little bit that IS material (like Libby's caveats) could result in him being convicted for something he might not be guilty of. So her little "lapse" there removed the civil rights of a citizen to a fair trail.

Honest mistakes are one thing. Her testimony in this court has shown there is justified doubt that leaving out the caveats was not a mistake, but driven by an agenda. She's clearly biases against Libby.

So, as I read what you just posted, you believe what she did is worse than Libby's supposed infraction.

I'm going through this exercise to show the trolls we aren't just Fed-bashing, but really looking at what we believe to be real and at-least-as-serious-as anything Libby is charged with violations of law.

Neo

Now exactly which "CIPA" is involved ?

Children’s Internet Protection Act (CIPA)
Chartered Institute of Patent Agents - CIPA
CIPA - Canadian Information Productivity Awards
Classified Information Procedures Act
Camera & Imaging Products Association (CIPA)
CIPA - "Independent Publishers Working Together"

If it's the first one, this grand jury testimony
must be really over the top.

narciso

It's true that Fitzgerald was appointed after the initial interview; but they
had the transcripts right, or at least
the Justice Department clerks had them
right. Interestingly, Judith Miller, was
inprisoned for a story she didn't write;
but Woodward who. . .Armitage, who first
leaked the information, because the INR
was under his purview. I don't get it.
No one can argue that the Counter-Prol.
branch was under Operations (or Plans,
in the old nomenclature, but effectively
this was not known. It strikes me that
Wilson's mission, as much you can consider
it such; is closest to the spirit of the
Old? Domestic Contacts division, whose
debrief of businessman like Clay Shaw;
was the thin reed on which Jim Garrison,
retroactively used to justify his witch
hunt.

PaulL

Wind and Sea,

I think we're stuck with the rabid Bush-hater Swopa at Firedoglake. If we're lucky the testimony will fly fast enough that he or she won't have time to interject more love notes to Clinton.

clarice

To date, Bond is a disaster for the prosecution, and if you can't see that you never will, In a matter of minutes she has portrayed her role (and that of Eckenrode) as hostile and dishonest.
Remember, she also noted that Eckenrod took the notes of the second interview, left out some stuff that Libby said and that in reviewing his summary she did nothing to correct it by supplying the missing information.

cboldt

-- leaving out a little bit that IS material (like Libby's caveats) could result in him being convicted for something he might not be guilty of --


I don't see how that could possibly be true. It MIGHT be true if the information NEVER came out, but only if Libby had changed his story between the first and second interview, and the FBI used that change as the basis for the charge, without EVER admitting the reason for the change (access to notes).


-- as I read what you just posted, you believe what she did is worse than Libby's supposed infraction. --


No, I don't. But I really appreciate you letting me know that's your take on it.

cboldt

Walton ruled the articles are coming in too (the articles that were the subject of motions over the weekend)

Pete

It is the responsibility of the defense to make their case, not the responsibility of the FBI to make the case of the defense.

It has been known for a long time that the FBI initially concluded that Rove and Libby had concoted cover stories. These FBI agents are seasoned professionals who deal with white collar crime on a daily basis.

Dan S

cboldt,

Ok, we agree we disagree. I see intent as a major factor (as the law does or Fitz wouldn't be working so hard to establish a motive in this case) and I see Bond's intent as being to keep out the caveats unless she was put on the spot, as she was. (I'm not saying I can prove it, just that there is evidence of this in the testimony she gave.)

Arguing that it netted no harm as it turned out is no different in logic from arguing that we should allow any attempted crime as long as it doesn't succeed.

That argument would, of course, (and again as I think you agree, though I've been wrong before) moot this whole trial from the get go. Fitz hasn't, nor can he, show any harm caused by Libby. (He really doesn't want to argue Libby wasted taxpayer money... really. He loses on that one BIG time.)

sammy small

Pete,

They're also part of the political circus that is Wash DC. Would this trial ever take place if it weren't totally immersed in DC politics.

Dan S

Pete,

The FBI isn't required to turn over exculpatory evidence?

If it's so widely known that Libby and Rove concocted cover stories, where's the evidence and the charges?

Ranger

I'm wondering if now that the articles are in, can Wells you them to show the 'state of mind' of the investigators and why they ignored Armitage and focused on Libby. I have to think that part of Wells' defense strategy is to show the jury that Armitage rather than Libby should be the one facing charges, and the 2x6 article is a big reason why he isn't.

Dan S

Putting the situation a different way...

If from day one of the questioning of Libby the fibbies had included the caveats of both Libby and his lawyer, could Fitz have successfully convinced a grand jury and the judges along the way that he had a case?

azaghal

Rick,

Let's not bring up Nazi's and the SS! :P

Posted by: Dan S | February 05, 2007 at 07:41 AM


This may be a suitable point at which to cite Godwin's Law:
Godwin's Law From Wikipedia, the free encyclopedia Godwin's Law (also Godwin's Rule of Nazi Analogies) is, in Internet culture, an adage originated in 1990 by Mike Godwin that states: As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one.[1] There is a tradition in many Usenet newsgroups that once such a comparison is made the thread in which the comment was posted is finished and whoever mentioned the Nazis has automatically lost whatever debate was in progress. It is considered poor form to arbitrarily raise such a comparison with the motive of ending the thread. There is a widely recognized codicil that any such deliberate invocation of Godwin's Law will be unsuccessful. Although in one of its early forms Godwin's Law referred specifically to Usenet discussions[2], the law can be applied to any threaded online discussion: electronic mailing lists, message boards, chat rooms, and so on. Debate and controversy One common objection to the invocation of Godwin's Law is that sometimes using Hitler or the Nazis is an apt way of making a point. For instance, if one is debating the relative merits of a particular leader, and someone says something like, "He's a good leader, look at the way he's improved the economy," one could reply, "Just because he improved the economy doesn't make him a good leader. Even Hitler improved the economy." Some would view this as a perfectly acceptable comparison, because this example uses Hitler as a well-known example of an extreme case that requires no explanation to prove that a generalization is not universally true. Some would argue, however, that Godwin's Law applies especially to the situation mentioned above, as it portrays an inevitable appeal to emotion as well as holding an implied ad hominem attack on the subject being compared, both of which are fallacious in irrelevant contexts. Hitler, on a semiotic level, has far too many negative connotations associated with him to be used as a valid comparison to anything but other despotic dictators. Thus, Godwin's Law holds even when making comparisons to normal leaders that, on the surface, would seem to be reasonable comparisons. Godwin's standard answer to this objection is to note that Godwin's Law does not dispute whether, in a particular instance, a reference or comparison to Hitler or the Nazis might be apt. It is precisely because such a reference or comparison may sometimes be appropriate, Godwin has argued, that hyperbolic overuse of the Hitler/Nazi comparison should be avoided. Avoiding such hyperbole, he argues, is a way of ensuring that when valid comparisons to Hitler or Nazis are made, such comparisons have the appropriate impact. [edit] Additional discussion From a philosophical standpoint, Godwin's Law could be said to exclude normative (emotional) considerations from a positivist (rational) discussion. Frequently, a reference to Hitler is used as an evocation of evil. Thus a discussion proceeding on a positivist examination of facts is considered terminated when this objective consideration is transformed into a normative discussion of subjective right and wrong. It is exacerbated by the frequent fallacy of "Hitler did A, therefore A is evil" (Reductio ad Hitlerum). However, as noted, the exceptions to Godwin's Law include the invocation of the Hitler comparison in a positivist manner that does not have a normative dimension. Many people incorrectly say Godwin's Law has been "violated" rather than "invoked." [1][2] Godwin's Law can only be violated by an infinitely long thread that never mentions Hitler or the Nazis.

clarice

cboldt, I believe the record testimony will establish that though before the second interview Libby had reviewed his notes and that he did recall from the beginning his initial conversation with Cheney:
(a) He had only reviewed stuff in the belief that the inquiry was about the Novak/Newsday leaks and on the 2d interview had not reviewed anything else.(Addington letter and opening remarks of initial interview by Bond);
(b) At interview 1, he hadn't his notes and therefore had not had an opportunity to discuss them with others in the WH to further refresh his recollection;
(c) the odd subjunctive testimony we get at the gj is his effort to explain what he knew at that late date (after his recollection was refreshed by both his notes and his conversations) as compared to what he knew in the earlier interviews.

*********

I also think he only knew in those interviews, what his notes showed--that Cheney said only that Wilson's wife worked in "counter proliferation"(not the CIA) and that makes sense of his "as for the very first time":He had not made in his mind any connection between the wife , her employment, and this trip.
************

Another rule should you have the misfortune of being trapped in such a mess, refuse the impulse to assist by agreeing to an interview unless you have had the full opportunity to review everything and have a note from the investigators about the full scope of their inquiry.

cboldt

-- keep out the caveats unless she was put on the spot --


The caveats have no real value to the defense in this case. "I wasn't sure if my testimony in the first interview was truthful, and I told the investigator that I needed to review my notes to be sure. I reviewed my notes, and in a later interview, confirmed that my testimony in the first interview was truthful." I just don't see adding, "The investigator is lying about my testimony by omitting telling about the uncertainty I expressed initially."


I can imagine a case where the caveats would have value - but I don't see it in this one, given that Libby never changed his testimony.

Dan S

azaghal,

hehe, that's why I said that. "We were just following orders" is the Nurnburg defense.

PaulL

I guess the upside to all of Walton's bad rulings is that they are a rich source for appeal, should the jury do the wrong thing.

clarice

Has the judge ruled on the news articles?

Pofarmer

Putting the situation a different way...

If from day one of the questioning of Libby the fibbies had included the caveats of both Libby and his lawyer, could Fitz have successfully convinced a grand jury and the judges along the way that he had a case?

Kind of makes you wonder what the FBI testimony to the GJ looked like, doesn't it?

cboldt

-- At interview 1, he hadn't his notes --


I think he had some of them at the first interview, and the Cheney note in particular. Analysis of paraphrase transcript posted earlier today.


-- He had only reviewed stuff in the belief that the inquiry was about the Novak/Newsday leaks --


His consistent testimony is that he was not the source of any leak - not to Novak, not to Newsday, not to Miller, not to Cooper, and not to Russert.

Dan S

Cboldt,

I think having those caveats on the record and in front of the early "filters" in the process COULD have had great value to the defense.

Any discrepancy in Libby's testimony would first be assumed to be due to that. The argument he's dealing with faulty memories is much stronger if he's said so on the record and it shows up in fibbie notes from day one. An after the fact argument of that is MUCH weaker.

That said, I don't know what went on with the GJ. Maybe the topic was put before them. If so, your argument wins.

I really don't understand the difference in the fora, GJ versus actual trial, in getting out that sort of testimony. Maybe the defense slipped, or maybe they decided it would be better brought out in trial (though that seems unlikely to me).

It just fits rather neatly with the apparent limits places on Libby with regarding to access to his documents before testifying before the GJ.

It starts to look like a pattern.


clarice

No,cboldt. We went thru this in some detail the last night. At the first interview (Oct 14)he said he belived he'd first heard about Wilson and his wife on June 12 when Cheney told him.
On Oct 21 he showed the note to Bond as part of a document request.
He hadn't had a chance to review his notes and discuss them with others under his 2d interview in Nov (FDL Bond testimony, 3,4,5 from which I extracted the relevant summary of the trial and posted the entire extract on another thread).

hit and run

clarice, If I am caguht up it looks like articles are in - wrangling over what if anything to be redacted.

This guy live blogging for MBA.

This sentence is poorly worded

In particular, the articles show that, if Libby indeed read them, he would have known that Wilson’s wife was covert and that revealing this information would be a crime.

Poor poor poor. Maybe it's the speed of liveblogging that caused it to be thus. But reading an article would do no such thing. Especially in contrast to getting IIPA from Addington.

Pete

The FBI isn't required to turn over exculpatory evidence?

Which evidence did the FBI not turn in and make unavailable to the defense?

If it's so widely known that Libby and Rove concocted cover stories, where's the evidence and the charges?

You are looking at Libby's trial.

clarice

Odd, so many posters used to say why didn't he preface his testimony with "to the best of my recollection", he did quite clearly at the first interview and it seems that the gj never was told that because it was left out of the summary report (302) presented to the gj. If you think that is without effect, I have to strongly disagree.

hit and run

From the Maine dude on Bond cross:

Defense focusing on the ‘Libby does not recall’ notes. Wells asks Bond if agent typed different information than what was contained in the notes. Bond says probably discrepencies between notes and typed version.

What's a few discrepancies between friends?

clarice

h and r in the same blog it appears that Fitz believed and still believes 1x2x6..Unbelievable!

Dan S

Pete,

The fibbies took notes of their interview of Libby. Those notes are evidence, no? They left out from the notes what are clearly exculpatory evidence, that both he and his lawyer stated he was working on poor memory without proper time to review his documents.

But Bond remembers both he and his lawyer making statements to that effect. Odd, no?

cathyf
"What lie or lies did the FBI tell Libby?"

The first one that springs to the top of MY head is when Bond told Libby and his attorney that she was including a note that Libby hadn't had access to his notes in her 302. This promise only came out when she was pressed on cross.

I have to say that this didn't even occur to me. When cboldt asked about "lies" I immediately thought about FBI agents play-acting with a witness or defendent like on TV. Libby walking into the grand jury room and basing his testimony upon the false assumption that the FBI agents had reported hs testimony correctly is entirely different.

And of course that is only secondarily a lie by the FBI to Libby. It is primarily a lie by the FBI to the grand jury. Which I thought was still not allowed? I must say that after the trifecta of Earle, Nifong and Fitzgerald, I'm seriously wondering just how common it is for prosecutors and investigators to lie to everybody, not just defendents and witnesses. Grand juries, trial juries, journalists, judges, the supreme court -- is lying really all that habit-forming?

Other Tom

"It is the responsibility of the defense to make their case, not the responsibility of the FBI to make the case of the defense."

It is not the responsibility of the FBI to make the case either of the defense or the prosecution. Its responsibility, and that of the prosecutor, is to find all the facts, whether favorable or unfavorable to any claim or defense, and to ensure that all the facts they have found are made available to the defense. I think we can all decide for ourselves whether Fitzgerald and agent Bond, and others, where properly discharging their responsibilities here.

I agree with Cboldt's take on the apparent harmlessness of Bond's omission in this distance--because (I think)the testimony remained unchanged in any event--but Bond's performance brings her no credit here. And if in fact the testimony had changed, her omission would be extremely serious. That seriousness would not be diminished by the fact that she told the whole truth when pressed on cross-examination; a less skilled defense attorney might have left her deceit undetected.

azaghal
It has been known for a long time that the FBI initially concluded that Rove and Libby had concoted cover stories. These FBI agents are seasoned professionals who deal with white collar crime on a daily basis.

Posted by: Pete | February 05, 2007 at 08:13 AM


But this is the whole puzzle. Why should "seasoned professionals" come to such a conclusion when:

1) They knew that the Novak article that began the whole brouhaha was sourced by Armitage;

2) They knew that they had not adequately explored Armitage's other contacts with the press (and he had a reputation as a prodigious gossip and leaker); and

3) They knew that Plame was not in a covert status--if her status were truely covert the referral letter or some redaction thereof would have been released long ago.

Of course, persons who deal with White Collar Crime on a daily basis may easily be ready dupes for political operators like Armitage, Powell and DoJ attorneys. They are unlikely to have any acquaintance or background whatsoever with issues involving national security and intelligence matters. Eckenrode's entire background, beginning with the nine years he spent as a budget analyst (Google is amazing) before becoming an agent, was in White Collar Crime. Any experience with intelligence matters would have been peripheral for him.

Chris

At FDL the transcription on difference in notes and testimony of "adamantly denied":

Wells belabors the point that the notes say "Libby does not recall" discussing Wilson's wife. He says that in writing up a report of the interview, the FBI agent said Libby "adamantly denied" discussing Wilson's wife.

Bond says that they asked the FBI agent and verified the report. Wells says, but that's not what's in the notes, right? Bond admits this is true.

cboldt

-- No,cboldt. We went thru this in some detail the last night. --


See February 05, 2007 at 03:22 AM on this very thread. You think what you want, I think the evidence so far is equivocal, but favors my interpretation over yours.


As you know, I really don't care if you are wrong, and I don't make a point of correcting you when I know for a fact you are wrong. I figure readers here are adults who can read the evidence for themselves, and come to their own, independent conclusions. That's why I make an effort to present links to source documents.

Dan S

This is (though not as egregious) similar to that fiasco with the DNA evidence in the Nifong case.

Oh, well, we were protecting the privacy of the DNA "donors." Translation: we really didn't want to blow our case by showing the evidence was overwhelmingly against us.

hit and run

More. I blame all of you for sucking me in this deep.



Wells is spending time making Bond’s notetaking look sloppy. Bond doesn’t really seem shaken, but Wells seems to be effectively casting doubt on the veracity of Bond, her notes, and the report that was filed.

Emphasis mine.....but is she stirred?

Who was guessing that Fitz would give some coaching advise on demeanor?

Ranger

11:26
Bond says notes were not hers, says other agent produced typed version. Bond says she reviewed the notes. Bond says notes were ‘fair and accurate’ to the best of her knowledge. Says ‘not everything that was said’ is in notes, that it is impossible to take verbatim notes, but that they are accurate.
Bond standing by notes that say Libby denied knowing about Wilsons wife or discussing it with Fleisher. Wells asks to publish notes, judge calls another Fuzz Conference.

11:39
Prosecution objects to notes being published, Judge Walton overrules.
From handwritten notes:
“July 7 Ari fliesher lunch prior to Africa trip. Libby probaly talked about Wilson matter, but he cannot recall.”
“Libby does not recall discussing with Ari if Wilsons wife worked at CIA. Libby -> it is possible he could have talked about Wilson. They talked about Miami Dolphin football,etc.”
Defense focusing on the ‘Libby does not recall’ notes. Wells asks Bond if agent typed different information than what was contained in the notes. Bond says probably discrepencies between notes and typed version.
Difference here is between ‘adamantly denied’ and the handwritten notes that say ‘did not recall’. Wells asks her if ‘adamantly’ is correct, despite not being reflected in handwritten notes. Wells stands by the word.
Wells is pulling apart notes, showing discepencies in dates,etc. Wells mentions Bonds own notes- “Ambassador Wilson’s wife- may have mentioned indirectly” . Wells is spending time making Bond’s notetaking look sloppy. Bond doesn’t really seem shaken, but Wells seems to be effectively casting doubt on the veracity of Bond, her notes, and the report that was filed.

Cue the Queen music...

Another one bites the dust

Hay Hay

Another one bites the dust

Chris

Maine blogger says prosecution objects to introduction of FBI notes but is overruled. He notes:

Wells mentions Bonds own notes- “Ambassador Wilson’s wife- may have mentioned indirectly”

Pofarmer

In particular, the articles show that, if Libby indeed read them, he would have known that Wilson’s wife was covert and that revealing this information would be a crime.

The thing is, you don't even know if Libby read any particular articles. You sure as hell don't know what his state of mind was. Why not interveiw his secretary, his coworkers, other reporters he talked to? For somebody with such a dastardly state of mind, he sure forgot to let the goods fly to everyone who's testified so far. I can't beleive the judge is going to let those articles in. How far does the Bias in DC go, anyway? Are they going to allow in any articles that are saying otherwise? The whole thing is taking on a circus atmosphere. I hope Wells was prepared to try the "Big Case". I imagine he was, but, who knows. Maybe he thought Fitz was being honest with him. He'd have been wrong.

hit and run

Clarice, yeah I saw that about 1x2x6.

Yikes.

That's 1 prosecutor contends WH officials said "I heard that 2" to deep 6 his career advancing special prosecutorship?

Rick Ballard

H&R,

If you're looking for anything of value by reading the current writer at FDL you're taking on the role of a sparrow pecking through a pile of horse manure in order to find seeds.

The guy at Maine WebReport is doing a decent job.

azaghal

cathyf, I have certainly known people who enjoyed lying and even sought opportunities to lie--I believe this way of manipulating people gave them a perverse sense of power. It involves, too, the thrill of getting away with something. In that sense, yes, lying can be addictive.

Ranger

11:45
Wells brings up Bond’s previous testimony. Wells asks to publish notes, Walton asks if these notes are Bond’s, Bond says no,Walton asks if she stands by them as accurate, she waffles, then puts her hands out as if to say ‘whatever’ and says ‘yes’. This seems to play into exactly the point Wells seems to be making. Now the prosecution objects, another Fuzz Conference.

Well, I think that just about does it for the FBI evidence in the trial. Combine this with the CIA witness who complained the FBI got his interview wrong in the report they filed and that comes pretty close to reasonable doubt I'd say.

Florence Schmieg

I am dismayed that Pete and others on the left side of things are so eager for conviction of Libby that they would throw a defendent's rights under a bus. I doubt they would be saying things like: "It is the responsibility of the defense to make their case, not the responsibility of the FBI to make the case of the defense" under any other circumstances. This could be you guys some day. Innocent until proven guilty is a blessing to all of us. Libby deserves the same blessing.

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