Here is a DRAFT version of what is almost surely *NOT* the final jury instructions, but ought to be close enough to be helpful. It is a mere 127 page .pdf (but just a bit over 2 megs).
On behalf of the JOM crowd I thank our semi-secret source.
Here is a DRAFT version of what is almost surely *NOT* the final jury instructions, but ought to be close enough to be helpful. It is a mere 127 page .pdf (but just a bit over 2 megs).
On behalf of the JOM crowd I thank our semi-secret source.
Let's have a new Note thread, following this one.
Here is Byron York's take:
...Everyone seems to concede that Count 3, the one in question involving Libby's conversations with Time magazine's Matt Cooper, is one of the weakest of the counts against Libby. But what does the fact that the jury had a question about Count 3 mean? The anti-Libby types hope that it means that jurors have already settled the bigger counts — against Libby, of course. Those less inclined to wishful thinking don't have a clue. I have tried to think how I would go through the charges, were I on the jury. Counts 2 and 4 are Russert Counts, while Counts 3 and 5 are Cooper Counts, and Count 1 is the omnibus obstruction of justice count. So it would make sense to consider the counts from 2 to 4 to 3 to 5 to 1. It would make sense, of course, if one has read the indictment, which the jury hasn't, thanks to Judge Walton's decision that they wouldn't be allowed to see it. So what is going on? You got me.
Just so. In my world, I would have disposed of the "easy" charges first, but maybe numerical order makes as much sense.
MORE: Jeralyn Merritt offers her thoughts:
Here's what makes sense to me -- After a perusal of count 1, they move on to Counts 4 and 5, back to count 1, then on to counts 2 and 3. My reasoning...
Hey, follow the link! A bit more:
Of course, they also could have just deferred considering Count 1 to first go through 2,3, 4 and 5 in order. In which case, they are probably not near completion.
As Byron says, we really don't have a clue.
I agree. But this is much too bold for me:
I still think the jury could come back with a complete acquittal, a conviction on all counts, or anything in between, i.e., guilty on some counts but not others.
Evidently Ms. Merritt is comfortable ruling out the notion that the jury will return with a handwritten indictment of Dick Cheney (or Patrick Fitzgerald, or Tim Russert!) - I am not.
OK, seriously - I think counts 3 and 5 (the pure Cooper counts) are easy acquitals - they are "he said / he mighta' said" with plenty of reasonable doubt.
As to the rest, the jury could (and IMHO, ought to) have reasonable doubt as to whether Libby sincerely believes (or actually) did hear about Ms. Plame from Tim Russert. However, they might not also believe that the Plame news surprised him - in other words, they might reject the "I Forgot" part of Libby's story. That would result in convictions on counts 1, 2, and 4, depending on how the jury interprets any "materiality" qualifications in the jury instructions.
GRAB SOME LARGE GRAINS OF SALT: FWIW, and I don't think it means much, the betting public has taken the odds of a Libby conviction on at least one count down from 75-80 to 70%. That may reflect both a specific reaction to this note and a more general sense that each day that passes brings us closer to a hung jury (which sends the contract to 0.)
Let's have a new Note thread - the latest from Ms. Wheeler is that the judge is sending a note back to the jury requesting a clarification.
The jury sent a note in response, indicating that after further discussion, "we are clear on what we need to do." They no longer need clarification.
Um. So much for the question.
OUR EYES ARE EVERYWHERE: The joint JOM-NSA double secret surveillance program pays off again - we can now reveal the full exchange between the jurors and Judge Walton:
There's no "I" in "Cheney", but we can find one in "Dick":
WASHINGTON, Feb. 27 — Vice President Dick Cheney, thinly veiled as a “senior administration official,” told reporters on his plane on Tuesday that it was not correct that he “went in to beat up on” the Pakistani president, Gen. Pervez Musharraf, for failing to confront Al Qaeda and the Taliban.
“That’s not the way I work,” said Mr. Cheney, violating the first rule of conducting a background interview: never refer to yourself in the first person, when it makes it obvious who is talking. “The idea that I’d go in and threaten someone is an invalid misreading of the way I do business.”
I had no idea media-savvy athletes routinely refer to themselves in the third person to avoid these backgrounder problems.
The AP had fun with the transcript here.
From the Times, we learn that the vicious profiteers at Big Pharma have developed two new drugs to exploit the suffering and anguish of AIDS patients:
LOS ANGELES, Feb. 27 — Two new AIDS drugs, each of which works in a novel way, have proved safe and highly successful in large studies, a development that doctors said here on Tuesday would significantly expand treatment options for patients.
The two drugs, which could be approved for marketing later this year, would add two new classes of drugs to the four that are available to battle H.I.V., the AIDS virus. That would be especially important to tens of thousands of patients in the United States whose treatment is failing because their virus has become resistant to drugs already in use.
“This is really a remarkable development in the field,” Dr. John W. Mellors of the University of Pittsburgh said at a news conference here at the 14th Annual Conference on Retroviruses and Opportunistic Infections.
One drug, maraviroc, was developed by Pfizer, which has already applied for approval to sell it. The Food and Drug Administration has scheduled an advisory committee meeting on April 24 to discuss the application.
The other drug, raltegravir, was developed by Merck, which has said it will apply in the second quarter for approval.
Merck and Pfizer? I have every confidence that altruistic, non-profit oriented European pharmaceutical companies are working hard and well on this. Any day now!
What an interesting theory about Britney Spears:
However, the theory sort of crashes onto the rocks of reality in the last paragraph:
Britney's newly shaved head won't necessarily get her off the hook. Federline could still get his hands on the trimmed tresses, which the salon has put up for auction. To use them in court, he'd just have to show a secure "chain of custody" or otherwise prove that the hair being tested did in fact belong to Britney.
Gee, how could he prove it was her hair? DNA testing, maybe? To be fair, that would not establish a date (maybe it is from five years ago), but in combination with testimony from the salon, I suppose it would work. If her goal was to destroy evidence, she should have destroyed it. That said, if she were a careful planner, we wouldn't be having this chat. Or, if the darn Libby trial would get going, we wouldn't be having this chat...
This thread will cover "The Note", the unveiling of which has been put off until 9:45 - from Marcy Wheeler at the courthouse:
Good morning. The discussion of the question has been postponed to 9:45. Just heard Jeffress tell some folks that it's not an exciting question. But we'll liveblog it from here in any case.
Not exciting?!? I'll decide what I find to be exciting, thank you.
UPDATE: A new thread from Ms. Wheeler, but no news.
From Byron York at The Corner:
A message from the prosecution press office released at 5:30 this afternoon:
The Court received a note containing a question from the jury at the end of the day today. Judge Walton will address the note with the parties in court at approximately 9:30 a.m. Wednesday morning…The contents of the note will not be disclosed until the note is addressed in court and docketed sometime tomorrow morning.
Your guess is as good as mine.
Well, nothing ventured: "What happened to the juror we sent out for coffee yesterday?"
KC Johnson shows again that no matter how weak the prosecution case appeared, it can still get weaker. Per a new defense motion, even more DNA evidence was withheld than previously realized:
DNA Security discovered the DNA of at least two males in the accuser’s rectum that did not match the Defendants, their lacrosse teammates, or anyone else who provided a reference DNA sample.
As I recall, the "victim" had told police that she had not had sex with anyone in the previous week. So why did Nifong overlook and withhold this seemingly exculpatory and clearly relevant evidence? I expect he will take the Fifth if asked.
From the AP:
Democrats back away from Iraq plan
WASHINGTON - Democratic leaders backed away from aggressive plans to limit President Bush's war authority, the latest sign of divisions within their ranks over how to proceed.
Senate Majority Leader Harry Reid, D-Nev., said Monday he wanted to delay votes on a measure that would repeal the 2002 war authorization and narrow the mission in Iraq.
Senior Democrats who drafted the proposal, including Sens. Joseph Biden of Delaware and Carl Levin of Michigan, had sought swift action on it as early as this week, when the Senate takes up a measure to enact the recommendations of the bipartisan Sept. 11 commission.
EJ Dionne is stuck with the reliable talking points of Joe Wilson's defenders:
Libby-Cheney apologists have argued over and over that Cheney had a right to be angry because Wilson said that Cheney had sent him to Niger. But Wilson said no such thing. In his New York Times piece, Wilson wrote only that he had been "informed by officials at the Central Intelligence Agency that Vice President Dick Cheney's office had questions about a particular intelligence report.'' That was true.
Please. If Wilson's only relevant statement was the July 6 op-ed, why were the White House and State Dept responding to his charges in June - eerie prescience?
I'm told by a person involved in the Niger caper that more than a year ago the vice president's office asked for an investigation of the uranium deal, so a former U.S. ambassador to Africa was dispatched to Niger.
And June 13:
Condoleezza Rice was asked on "Meet the Press" on Sunday about a column of mine from May 6 regarding President Bush's reliance on forged documents to claim that Iraq had sought uranium in Africa. That was not just a case of hyping intelligence, but of asserting something that had already been flatly discredited by an envoy investigating at the behest of the office of Vice President Dick Cheney.
And for laughs, here is Chris Matthews insisting, *after* the Wilson column came out, that Wilson was sent "at the behest" of the Vice President.
Public perceptions can be hard to change, as Mr. Dionne demonstrates.
MORE: IIRC, somewhere in Grossman's testimony he says that, in talking to Wilson in June, it seemed that Wilson believed he had been sent by the VP. And folks paying attention during the trial noticed that Valerie Wilson wrote the memo recommending/endorsing her husband for his Niger trip on Feb 12; Cheney asked his questions on Feb 13.
WHERE IS THE EVIDENCE: From Dionne, emphasis added:
Whatever the jury decides, Fitzgerald has amply demonstrated that Cheney directed Libby to destroy Wilson's credibility, partly by leaking that his wife, Valerie Plame Wilson, was a CIA operative who had suggested Wilson was well qualified to investigate the claims in Niger.
Is "amply demonstrated" a new threshold of proof? How does it compare to "reasonable doubt"?
Maybe he is not a numbers guy - from Patrick Fitzgerald's summation in the Libby trial:
Is this world’s greatest coincidence that nine conversations with eight people, all misremembering the same way, that the defendant is talking about Joseph Wilson’s wife?
...When you look at the evidence, you have all the evidence taken together and you realize that nine witnesses can’t all misremember wrong the same way
...You can’t explain how nine people misremember the same way.
...You have nine conversations with eight reporters about Wilson’s wife and you can’t remember any of them.
...He had ten conversations with nine people about the wife.
...I submit you can't believe that nine witnesses remembered ten conversations exactly the same wrong way to put it in there?
Mr. Steel Trap presumably had in mind, as the nine witnesses, Martin, Grenier, Grossman, Schmall, Fleischer, and Addington of the Administration and reporters Cooper, Miller, and Russert.
However, Russert quite specifically ruled out any discussion of the wife with Libby, so his memory was quite different from the other eight - "Nine conversations with eight people" was right the first time (Judy Miller was the double). His other variations are harder to interpret.
Fortunately he was not under oath.
MORE: This whole summation begs to be Fisked - this, for example, is a classic:
I’ll tell you that Tim Russert alone could be proved beyond a reasonable doubt. But let me make a different point.
On, no , let me make a different point - instead of telling us that Russert could be proved, why not prove it? Call Andrea Mitchell and David Gregory and let them deny under oath that they had received a Plame leak. Produce phone records nailing down the time of the Libby call, so we know it was not after the Novak column hit the news service wire on Friday. Call some producers at NBC, find out who watches the wires, and see whether anyone flagged the Novak column while looking for ideas for the Sunday shows.
It was Fitzgerald's job to prove this, not talk about how he could have proved it.
And in the Buried Lede department - Fitzgerald keeps going on about how all these people told Libby that Ms. Plame was the answer to the question "Who sent Joe Wilson?", but that is not the case across the board by any means.
Grenier seemed to link her role with Wilson's trip, although he only remembered mentioning her to Libby in 2005.
Grossman claimed to have noted to Libby that the wife was with the CIA, but did not seem to link her to Joe Wilson's trip.
Fleischer and Addington described what Libby allegedly told them.
DID FITZGERALD SAY THIS? From the transcript:
The defendant said I don’t remember these conversations. He testifies in the Grand Jury that he learned the name Joe Wilson at the time of the op-ed, July 6th.
From Libby's first session, this seems to be what Fitzgerald had in mind (p 79-80):
Q. And can you tell us about the first time you discussed the article with Vice President Cheney?
A. You know, I don't remember it in any detail. It was the same claim that we had had around since May. It's just now it had a name of it. Now we knew it was Ambassador Wilson. And there was this, you know, accusation of twisting the facts directly by somebody by name. So it was a concern.
So Fitzgerald wants to pretend that "we" meant only Libby and Cheney and not the broader public; that Libby wasn't simply noting that now the world knew what Washington insiders had long since learned. Yet Fitzgerald did not even follow-up on this shocker during the actual questioning.
Whatever. Maybe someone can find a better cite, but this looks like Fitzgerald is desperate.
I'm never sure what I will say or write after two cups of coffee, but do check out my Raw Story interview - I know I had fun (we were exchanging emails, but I was aiming for a "stream of unconsciousness" style), and I am sure something I wrote came off as cogent. Well, here's hoping...
A number of commenters here have praised the reporting of Matt Apuzzo of the Associated Press for his effort on the Libby story. Let me just add a "Well done", and ask someone to drop the contact info for his editor in the comments (I thought I saw it last week some time).
I know my fellow righties and I find plenty to criticize in the mainstream media, and the AP has certainly drawn our ire on occasion, but I am happy to give credit where due. This Libby case has been a long and complicated story and Mr. Apuzzo has done an excellent job keeping his facts in a line.
Libby will be tried by eleven good men and true after one juror gets voted off the island:
WASHINGTON -- A federal judge avoided a potential mistrial in the CIA leak case Monday by dismissing a juror and sending the other 11 back to continue deliberating the fate of former White House aide I. Lewis "Scooter" Libby.
U.S. District Judge Reggie B. Walton said the juror had seen or read something over the weekend about Libby's trial.
This was the independent minded juror from Valentine's Day:
The woman who was dismissed from the jury is an art history expert and scholar who formerly served as a curator of prints at the Metropolitan Museum of Art. She was also the only juror who did not wear a red T-shirt as part of the jury's Valentine's Day greeting to the court.
However, the defense had urged the jury to continue without adding an alternate, as we careen towards a mistrial, or hung jury, or whatever.
What does it mean? The betting public has taken the odds of a Libby conviction on at least one count down from about 70% to about 50%. Well, OK - I would say the odds of a hung jury may have diminished somewhat, but as to this juror's likely perspective, let's guess that there aren't many Bush-loving art curators at our nation's top museums. [FOLLOW-UP: Some trades went through under 50, but now the market is back to 75/80.]
UNRELATED, YET... Let's hop in the time machine and travel back to the fall of 2003. In fact, let go to the seventh inning of the once-classic game between the Yankees and Red Sox, where Pedro is left in to blow a 5-2 lead in the eighth, Mariano closes the door for three innings, and a home run by the Yankees third baseman to be named later wins it in the eleventh (Does a picture jog any memories?).
Anyway - my daughter was watching, and in the seventh inning things were bleak for the Bronx Bombers. And this meant things were bleak for her because, as she explained, the next day at school she would have to endure the taunts and posturings of the many Red Sox fans at her school.
But a light gleamed in the seventh - the Yankees had men on base and the fans were making some noise. So I said to her, at this moment your classmates are feeling the fear that only Red Sox fans can know. They know this game is not over, they know they ought to win, but the Yanks have men on base and their stomachs are in knots. This may be (I went on to say) as close as we come to winning this game (What did I know?). But for this one moment, Red Sox fans are feeling fear, and whatever they say tomorrow, you know and they know what they were feeling.
Well - destiny was still shining on Derek Jeter that night, althought the light subsequently dimmed.
TROUBLING: Why am I having a Libby moment on the pre-A Rod third baseman? Brother in the bigs, snapped his ankle in the off-season, what is my problem, and why do I keep thinking of Albert Brooks?
D'OH! Aaron Boone! OK, then, the Albert Brooks connection is as simple as A, B, ... well, as simple as "AB". Odd that I didn't remember this as the Red Sox Waterloo - that would have been quite a platoon at third.
How does Tim Russert invite Byron York on his show and avoid a discussion of the Libby trial? Easy - he surrounds himself with guests talking about Presidential politics.
When Tim starts appearing with children and puppies, we'll know he has run out of hostages.
Here is a stray thought I can't seem to turn into anything of GREAT IMPORT - from reading the transcript of the chat between Armitage and Woodward where Armitage mentioned Valerie Plame, it seems virtually certain that Armitage actually showed the INR memo to Woodward. Since the memo was marked as Top Secret, one wonders about the propriety here. [I am advised that Woodward has denied this via email. See UPDATE.]
From the transcript with emphasis added:
3:2 ARMITAGE: Because his wife's a [ ] analyst at
3:3 the agency.
3:4 WOODWARD: It's still weird.
3:5 ARMITAGE: It---It's perfect. This is what she
3:6 does she is a WMD analyst out there.
3:7 WOODWARD: Oh she is.
3:8 ARMITAGE: Yeah.
3:9 WOODWARD: Oh, I see.
3:10 ARMITAGE: [ ] look at it.
3:11 WOODWARD: Oh I see. I didn't [ ].
3:12 ARMITAGE: Yeah. See?
3:13 WOODWARD: Oh, she's the chief WMD?
3:14 ARMITAGE: No she isn't the chief, no.
3:15 WOODWARD: But high enough up that she can say, "Oh
3:16 yeah, hubby will go."
3:17 ARMITAGE: Yeah, he knows Africa.
Here is a link to the redacted July 7 version of the INR memo.
HELP WANTED: I am mentally composing a rip-roaring post titled "Fitzi's Dishonor: (Cleverly going for the movie tie-in this weekend).
The obvious outrages of this "investigation" seem to me to be:
(1) The decision to not call John Dickerson or David Gregory to test Ari Fleischer's credibility. The idea that this was out of deference to the lofty profession of journalism does not pass the laugh test, since Fitzgerald subpoenaed Pincus, Kessler, Russert, Cooper (twice) and let Judy Miller sit in jail for 85 days.
My guess - as of the summer of 2004, Ari was the *only* witness with an unambiguous
story that Libby spoke about Ms. Plame prior to his Russert reminder (eventually, Judy made two). Ari had denied leaking to Pincus and Pincus had contradicted that; one or two more contradictions and Fitzgerald may have had an ethical problem presenting Ari as a witness (he would not, however, have a problem presenting Ari as part of a SNL skit).
So, better to keep those two at bay and allow some reasonable doubt then to call them and torpedo the "case" against Libby. In addition, when jockeying with Libby in pre- or post-indictment negotiations, Libby might not know how weak the case was - it was only into the discovery process that the problems with Fleischer emerged.
(2) The Judy Miller affidavit - this was the affidavit explaining the importance of compelling her testimony. The judges ruled in his favor, but their opinion (link?) clearly suggested a balancing act between a free press and a serious national security investigation. Had the judges been told the truth - Fitzgerald was targeting Libby for perjury - perhaps the ruling would have been different.
Dow Jones and the AP (?) are suing to have this affidavit released, so we may find out soon enough.
(3) The Russert shenanigans: Russert clearly filed a highly misleading affidavit resisting his subpoena, telling the judge that his cooperation would be chilling without mentioning the awkward fact that he had already talked to the FBI. And Fitzgerald played along. Odd. Of course, Fitzgerald also declined to call David Gregory, which might have undercut Russert's story about learning about Ms. Plame from Novak's columns. Yes, Mr. Gregory is in an odd spot - whatever his story, he will either discredit Russert or Fleischer (OK, let's look for Gregory to say "I was hopped up on cold medicine and sleeping pills, I don't have any useful memory of that conversation either way." Could work!)
(4) The outrageous press conference suggesting that getting Libby for perjury was adequate, since it was hard to get him on the underlying leak. Please - none of the other leakers were charged, so let's not pretend leaking was a crime.
(5) The outrageous close which stepped over the "don't speculate about her status" line in exactly the way Ted Wells had predicted he would months earlier at some hearing for which I lack a link.
I welcome other suggestions. And I had a lovely stray thought about Judy Miller, but I should have written it down...
UPDATE: Centralcal emails Bob Woodward and gets this back:
From Bob Woodward: that's a good question, but there was no document or note or anything on paper that he was referring to. I so testified under oath to Fitzgerald. Because some of the colorful words were deleted, there may also be a garble in the transcript you have.
thanks, Bob Woodward"
MORE: In the comments I am chided for not mentioning the non-investiagtion of State. Good point - after Armitage had confessed to leaking to Novak in July, a serious investigator might have askewd for his calendar for June (as Fitzgerald did with Libby).
Had that step been taken, the Woodward-Armitage appointment on June 13 might have been discovered, Armitage might have recalled that leak, it may have dawned on Fitzgerald that as State in June, the spousal link was not considered to be a secret and it was considered to be an answer to the question of who sent Joe Wilson.
In such an environment, a different investigator might have opened his mind to the possibility that State leaked like a sieve about Wilson's wife, and tried to pin that down.
Or, why bother - the leaks weren't a crime, and Joe had not accused State of smearing a heroic whistleblower, so why bother? In Fitz-world, the White House was Hell's Gate.
Here is a creative sentencing suggestion for the Libby case:
If [Sandy] Berger doesn't do time for his acts, then certainly, if Libby is convicted, his punishment should maybe be getting to kick Berger in the ass for 100 hours, or something to that effect.
Let's call that "community service".
HOUSEKEEPING: As of 2 PM, the Libby jury is still out...
I am headed to the land of the uncertain ISP, so I am going dark for at least a few hours and perhaps until Sunday night. However, there will be open threads over the weekend.
Tour de France winner Greg Landis [known to the rest of the world as "Floyd"] has some good news:
Floyd Landis may retain his Tour de France title after all.
The French laboratory that produced incriminating doping results against Landis may have had several errors along the way, including allowing improper access to the cyclist's urine samples, the Los Angeles Times reported.
The same lab committed a similar error in 2005, which resulted in the dismissal of doping charges against against Spanish cyclist Inigo Landaluze.
Quel clown show.
Let's crack open the archives - when last we checked in on Mr. Landis, I was officially in denial pending the exhaustion of his appeals. Lucky guess! And FWIW, I swooned for his heroics, although it wasn't just me.
UPDATE: Ooops! Tom Landry, Greg Lemond and I had a long chat - evidently my memory for names is not in the pink.
I love the second one, which is a request for photos of the different witnesses - the jury which has been asked to convict Libby for not keeping his story straight can't keep it straight themselves.
Welcome to the club, whose membership includes Bob Grenier, Marc Grossman, Craig Schmall, Ari Fleischer, Judy Miller, Matt Cooper, and Tim Russert.
Well, Friday is way to quick for a hung jury, and I expect they will hang themselves on a few counts before they hang Libby, so I am planning for a result next week.
I will offer this Bold Prediction - win, lose, or draw, Libby never spends a day in prison. He will remain free pending appeals; if the case is remanded, it will be dropped; otherwise, he will be pardoned.
And more Bold Predictions - this "investigation" (which did not make a serious attempt to establish Ari Fleischer's or Tim Russert's credibility by calling John Dickerson and David Gregory as well as Andrea Mitchell) is over, and Fitzgerald will not be in charge of the appeals. Why not? Well, partly because his own conduct, including but not limited to his outrageous close, will be one basis for the appeal.
From the WaPo:
Chimpanzees living in the West African savannah have been observed fashioning deadly spears from sticks... -- the first routine production of deadly weapons ever observed in animals other than humans.
I blame Bush's militance. And how long until Cheney discovers them with a WMD program?
If the NY Times is gracious enough to serve me crow, I should be gracious enough take a healthy helping - contra my complaint of a few days back, the Times has revised their "Diary of a Leak" coverage of John Hannah's testimony.
Here is their original text describing Special Counsel Fitzgerald's cross examination of John Hannah:
Mr. Hannah conceded that if Mr. Libby took two hours out of his busy day - as he did to meet with Ms. Miller - it meant Mr. Libby considered Ms. Wilson a key issue.
My point - Mr. Fitzgerald had asked a more or less rhetorical question noting that if Libby spent two hours with Judy Miler it must have been important to him; however, he had not mentioned "the wife" in his question, and most of the meeting had been devoted to Libby's presentation of the secretly declassified National Intelligence Estimate.
The revised Times:
Prosecutor Patrick suggested that Mr. Libby would have devoted time only to matters of great concern to him in the week of July 6, 2003. He asked Mr. Hannah that if Mr. Libby spent "an hour or two" on something during that week, whether that could be construed as something important to Mr. Libby. "Well, with regard to me, yes," Mr. Hannah replied. Left unsaid in the exchange was undisputed testimony that Mr. Libby spent nearly two hours on July 8, with Ms. Miller.
Hard to fault that as it stands alone. My one quibble is really more a comment on the inherent problem of doing a summary of this case - most of the details other than the discussions of Ms. Plame have been summarily dismissed.
For example, here is the Judy Miller summary:
PROSECUTION: Mr. Libby first told her about Ms. Wilson's identity on June 23, 2003, saying that she worked for the "bureau," a reference she first thought was to the F.B.I. but which she soon realized meant a division of the C.I.A. He discussed the agent with her again on July 8.
DEFENSE: The defense brought up several occasions in which Ms. Miller acknowledged a weak memory and seemed not entirely certain of the notes she made after meeting with Mr. Libby. Ms. Miller admitted that she heard about Ms. Wilson from sources other than Mr. Libby but she could not remember who those people were.
One might be left thinking that Judy Miller and Libby discussed nothing other than Ms. Plame, which is not accurate. But this is a summary.
THIS GRAND JURY CHARGES THE CIA for making a boilerplate criminal referral to cover its derrierre.The CIA is well aware of the requirements of the law protecting the identity of covert officers and agents. I know, because in 1982, as chief counsel to the Senate intelligence committee, I negotiated the terms of that legislation between the media and the intelligence community. Even if Plame's status were "classified"--Fitzgerald never introduced one piece of evidence to support such status -- no law would be violated.There is no better evidence that the CIA was only covering its rear by requesting a Justice Department criminal investigation than the fact that it sent a boiler-plate referral regarding a classified leak and not one addressing the elements of a covert officer's disclosure.
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." (From an article by Byron York, NR, 02/05/2007)
But in a letter to the Libby team last Tuesday, Fitzgerald's deputy, Kathleen Kedian, said the special prosecutor will not give up the referral — and that Libby simply did not need to know what was in it. "After consultation with the CIA, we advise that we view any such documents in our possession as not discoverable," Kedian wrote. "The documents remain classified and contain information compiled for law enforcement purposes that is neither material to the preparation of the defense, nor exculpatory as to Mr. Libby." (From an article by Byron York, NR, 02/27/2007)
I hereby delegate to you all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity ...
The NY Times reports that stepped up enforcement seems to be reducing the flow of illegal immigrants into the US.
No worries - Dems will still tell us (and the Times will agree) that the fence should be defunded, because it can't work, or because it might.
I have been advised that I will enjoy the Raw Story interview with Marcy Wheeler, now famous as one of the livebloggers covering the Libby trial at firedoglake, and whom I have praised many times in the past. I certainly liked the opening:
BB: I didn’t realize how serious the loophole in Fitzgerald’s strategy was and how profoundly it affected the course of the investigation. But at the same time he probably couldn’t have moved forward without promising to limit the investigation to only known leakers. Talk about that, if you can.
MW: Armitage is the perfect example because people on the right always say how dare Patrick Fitzgerald didn’t find the Bob Woodward/Armitage’s connection. But had he done what he needed to do to find that, he would have needed to subpoena every single journalist who spoke to Libby, Rove, Armitage, Fleischer, Bartlett, Hadley, Condi. And you’re beginning to get into the range of things. They were all potential leakers and probably to some degree were involved. There’s no way you would’ve been able to subpoena all of that.
Oh, good point (where is my darned "eyeroll" key?). But I have a different idea - since Armitage had confessed to leaking to Novak, and since the original INR memo which mentioned Valerie Wilson's connection to her husband's trip had been circulated at the senior levels of the State Dept in early June, why not ask to see Armitage's phone records and appointment calendar for June?
Larry Johnson discredits himself - he ought to keep a civil tongue when speaking of his betters. He also ought to end his campaign to confuse the media:
Congratulations to Victoria Toensing, former Reagan Administration Justice Department official, for plumbing new depths of delusion and crazed fantasies in her latest Washington Post op-ed. Ms. Toensing's piece--Trial in Error--should have been titled, "I Am Ignorant of Basic Facts". She offers up two special gems:
- Valerie Plame was not covert.
- Ambassador Joseph Wilson (Valerie's husband) misled the public about how he was sent to Niger, about the thrust of his March 2003 oral report of that trip, and about his wife's CIA status
Mr. Johnson engages in histrionics but never addresses the substance of Ms. Toensing's point about whether Ms. Plame was "covert" as defined by the Intelligence Identities Protection Act. Her point is simple - the IIPA has several requirements a CIA agent must meet to be covered under the statute, i.e., "covert":
(4) The term "covert agent" means—
(A) a present or retired officer or employee of an intelligence agency or a present or retired member of the Armed Forces assigned to duty with an intelligence agency—
(i) whose identity as such an officer, employee, or member is classified information, and
(ii) who is serving outside the United States or has within the last five years served outside the United States; or...
This is not complicated - a CIA officer could have classified status without being "covert" under the statute, simply by having failed to meet the service abroad requirement. As to whether Ms. Plame met that requirement (and just what that requirement might be), no evidence has been introduced at this trial to resolve it. However, the gist of the dispute is simple - Joe Wilson's proponents, such as Larry Johnson, insist that "service abroad" can be as simple as flying overseas on official CIA business; Ms. Toensing argues that "service abroad" requires a specific overseas posting. This post notes that other laws make such a distinction, and I was a bit wistful here:
First, if Ms. Plame had been a covert geologist, this issue would be settled - from the US Geological Survey manual:
D. Service abroad means service on or after September 6, 1960, by an employee at a post of duty outside the United States and outside the employee's place of residence if that place of residence is a territory or possession of the United States.
Of course, that is merely suggestive. I do have a specific proposal on the Plame situation, however - per this law, CIA officers get an upward adjustment in their pension for service abroad. Although I assume that specific time and place details of Ms. Plame's service record may be classified, it *may* be possible for her pension record to be reviewed by someone with credibility on both sides of the aisle (I nominate Jeralyn Merritt) to see whether she received credit for service abroad in the five years preceding June 2003.
In addition to his inability or unwillingness to comprehend and address Ms. Toensing's basic point about the distinction between "covert" and "classified", Larry Johnson reveals a failure to follow along at the Libby trial. For Mr. Johnson's edification, a high-speed introduction to February 2007 - let's hope he updates his talking points.
On the subject of Mr. Libby, Johnson wrote this:
She also is ignoring the facts introduced at the Libby trial. We have learned that Scooter Libby, Karl Rove, Ari Fleischer, and Richard Armitage told various members of the press that Valerie worked for the CIA. In fact Scooter Libby was the one who told Bush press flack, Ari Fleischer, about Valerie's covert status.
Libby told Ari Fleischer, and that is a "basic fact"? That "basic fact" is very much in dispute - Ari Fleischer also said he leaked to John Dickerson but not to Walter Pincus; both men disagree with Ari's recollection, as does Libby with respect to what he told Ari at their lunch on July 7.
And Mr. Johnson is behind the times here:
Let's take up a collection and get Victoria some help with her obvious reading disability. The whole sordid affair got started in early February 2002. Vice President Cheney asked his briefer about the claim on 12 February 2002 and the CIA convened an interagency meeting with Ambassador Joseph Wilson one week later, February 19, 2002.
I'm pretty sure that Mr. Johnson does not need to use the phrase "reading disability" until he chooses to write an autobiography - here is a defense exhibit introduced at the trial, as flagged by Byron York. The gist - the DIA circulated a report on Feb 12 arguing that Iraq was seeking uranium in Niger; in response to inquiries from the INR and the DoD (and perhaps on instruction from her superiors), Ms. Plame wrote a memo on Feb 12 endorsing/suggesting the notion that her husband go to Niger so that the CIA could have an official response.
And (per the new defense exhibit) Cheney met with his CIA briefer and had questions about the DIA report on Feb 13. There is a certain logic to this, since Cheney's CIA briefing is normally first thing in the morning, and Cheney (or his staff) would not have gotten to the DIA report until later on the 12th.
My guess - if they are like any other bureaucrats in the world, the CIA did a bit of name-dropping and told folks that the Vice President was interested in this trip. This was arguably true, based on his questions of Feb 13, even though it is clear from the new timeline that his questions did not *initiate* the trip.
If Mr. Johnson could update his talking points, that would be lovely.
MORE: My goodness, does Larry Johnson even read his own posts? Evidently, reporters are slowly catching on to the distinction between "covert" and classified"; Johnson puts on his bright red nose and floppy shoes and tries to confuse the issue in a new post, but he only manages to embarrass himself and annoy me:
Sorry to again beat what some of you may believe is a dead horse, but a reporter from a major news organization told me today that they are still arguing in his/her newsroom about whether Valerie Plame was covert. The journalist who told me this is a talented, smart person but is still confused about the terms "covert", "cover", and "non-official cover". So here's my gift to confused journalists.
A noble undertaking. Johnson cites the same bit of the IIPA we have excerpted above, and then fails to read it! Here we go:
There are two types of people who work at CIA. First are the "overt" employees. These are folks who can declare on their resume or any credit application that they are a CIA employee. Their status is not classified and their relationship with the CIA is openly acknowledged. Valerie Plame was never an "overt" employee. At no time during her entire time at the CIA did she identify herself as a CIA employee. Although she appeared in Who's Who as the wife of Ambassador Wilson there is no reference whatsoever to her having a job at the CIA. Zippo!
The remaining category of employee is covert. Covert employees include people who work under "official cover" and people who work under "non-official cover".
"[T]wo types of people who work at CIA"? Fine, but the two types would have to reflect "classified status" and "non-classified status". As Johnson would note if he read the statute he excerpted, an officer with classified status who has not served abroad in the previous five years is not "covert" under the statute, regardless of whether they are a "NOC", and regardless of whether they have classified status.
I propose my own dichotomy - there are two types of people in the world: those who think Larry Johnson is a partisan hack, and those who think he is a hack.
MORE ON THE IIPA: Folks with access to the Times archives should check the legislative history of the Act for a real laugh. More after the break.
The NY Times has a very helpful feature titled "Diary of the Leak Trial", with timelines and summaries of the key witness testimony.
However... I pointed out some problems with it last week, but I am continuing to take special umbrage at this description of John Hannah's cross-examination by Special Counsel Fitzgerald:
Mr. Hannah conceded that if Mr. Libby took two hours out of his busy day - as he did to meet with Ms. Miller - it meant Mr. Libby considered Ms. Wilson a key issue.
"Ms. Wilson" was a "key issue"? The incident in question is Libby's breakfast meeting with Judy Miller on July 8. Jim Rutenberg of the Times gives us seven paragraphs (after the break) on the background to that meeting - secretly and over the objections of George Tenet, Dick Cheney had arranged a secret declassification of the NIE by George Bush. This was so beyond Libby's normal experience that he actually double-checked the legality of this with OVP Counsel David Addington. But nowhere does Mr. Rutenberg mention "the wife". One possible interpretation - leaking the secretly declassified NIE to Judy Miller was what made the meeting important. Just a thought.
Or, if the Times does not believe their own Jim Rutenberg, perhaps they will believe Neil Lewis and Scott Shane - here is their account of that exchange:
Although Mr. Hannah testified for the defense for nearly two hours, the prosecutor, Mr. Fitzgerald, seemed to cut down much of the significance of his testimony in five minutes of cross-examination. Noting that Mr. Hannah had testified that he could usually have a few minutes alone with Mr. Libby only in the evening after the crush of business, Mr. Fitzgerald suggested that Mr. Libby would have devoted time only to matters of great concern to him in the week of July 6, 2003.
''If he gave something an hour or two that week, it would be something Mr. Libby thought was important, right?'' asked Mr. Fitzgerald.
''Well, with regard to me, yes,'' Mr. Hannah replied.
Left unsaid in the exchange was undisputed testimony that Mr. Libby spent nearly two hours on Tuesday, July 8, with Ms. Miller, then a Times reporter.
"Left unsaid"? You mean, neither Fitzgerald nor Hannah mentioned the wife? Then my goodness, how do the psychic diarists at the Times justify their summary of his cross-examination?
There is no chance of a correction or amendment - The moving finger writes, and having writ moves on - but go waste his time anyway: Public@nytimes.com
Or, try the news desk directly: firstname.lastname@example.org.
It is a minor point, but we are trying to coax them into baby steps here.
Jeralyn Merritt on the Libby trial:
In the end, this trial must be ruled by the presumption of innocence and reasonable doubt. The charges the Government brought against Libby are narrow and specific as to the exact statements about which he allegedly lied. In the end, no smoking gun was introduced to establish Libby lied as opposed to being mistaken. That lack of evidence presented must be held to work against the Government.
The smartest thing the defense did at trial was not to put Libby on the stand and subject him to what surely have been a withering cross-examination by Fitzgerald. The dumbest thing the Government did was charge too narrow a case and not indict Cheney along with Libby.
In other words, Fitzgerald missed the forest for the trees. Maybe he thought the case wasn't there. But in charging such a stripped down version solely against Libby, I have to believe at least one juror, like me, will have a reasonable doubt and refuse to convict.
Hung jury or outright acquittal, then. A bit more:
Will I be disappointed if there's an acquittal? Yes, but in Fitzgerald, not the system. And if there's a conviction? Then I'll be disappointed in the Judge, for refusing to allow a memory expert to testify at trial. As much as I might prefer it otherwise, this case was about memory and reasonable doubt, not about the conspiracy that was proven to exist at the Administration's highest levels of power.
Hmm - "Merritt" does not sound Irish - why do gloomy? Well, I am gloomily expecting convictions on the "I forgot" charges; I think reasonable doubt washes away Russert and Cooper, but this charge (as an example) sticks:
2. During a conversation with Tim Russert of NBC News on July 10 or 11, 2003, Mr. Libby was surprised by Mr. Russert’s statement that Mr. Wilson’s wife worked for the CIA because, while speaking with Mr. Russert, Mr.Libby did not recall that he previously had learned about Wilson’s wife’s employment from the Vice President.
Even if Libby actually had that conversation with Russert, or even if the jury accepts that he is sincerely confused and actually had that conversation with Bob Novak (a seemingly innocent substitution), I think they will still choke on the notion that he did not even remember hearing and forgetting the Plame info earlier.
At some level of doubt it may be possible to accept Libby's story (and maybe the jurors will!), but I am guessing they won't.
Well. He will appeal, and never spend a day in jail - if the case is remanded, charges will be dropped and this fiasco will be ended. Otherwise, pardons.
My guess is that NBC News is deeply divided on the Scooter Libby trial. Keith Olbermann, Chris Matthews and David Shuster are undoubtedly rooting for convictions on all five formal charges and maybe a few more - David Shuster is probably right now working on a report describing how the jurors convicted Libby, exchanged high fives, then dropped their own unpaid parking tickets on the defense table as they walked out.
However, the cooler heads at NBC (i.e., everyone else) are probably crossing their fingers and hoping for acquittals all around, most especially on the counts involving Tim Russert. Otherwise, the defense will appeal, Judge Walton's decision to keep Andrea Mitchell out of the trial will be a basis for the appeal, and NBC News will have to "report" on the Tim Russert situation for months to come. This will be especially difficult for David Gregory, erstwhile "newsman", who has been duct-taped by the NBC lawyers and not allowed to comment on whether Ari Fleischer, a key witness against Libby, lacks credibility.
I'm back, barely. Some stray thoughts to which I hope to cling:
1. Did the puzzlement about Andrea Mitchell's cooperation with the investigation get kicked around in court? She said at one point she had never been approached by the investigation (or was it Fitzgerald?), but at another time she said she spoke with the FBI.
Surely Fitzgerald and the FBI know the truth of this, and it might provide a clue as to the reliability of her other public comments.
2. Like a Quick Pick lottery ticket where you win (or more often, lose) instantly, I have a Bold Prediction about the defense close - they will hammer the point that Russert may have seen the Novak column on the July 11 when it went out on the AP wires. After all, nothing in Russert's story actually dates his discovery of the Plame info - he says he could not have told Libby about Plame on the 10th or 11th because he read it in the Novak column, but when did he read it? Couldn't some NBC news hawk staffer have faxed/emailed/delivered it to him on the 11th?
Yes, the timing is tricky - Libby says he talked to Rove after talking to Russert; Rove left for vacation late in the morning on the 11th sometime after talking to Matt Cooper.
But it is possible (and where are the phone records and vaunted White House phone logs?)
3. I have long argued that Condi Rice's appearance on the Sunday, June 8 talk shows, where she was embarrassed by her ignorance of the Wilson trip (and offered her "bowels of the agency" reply), may have sparked inquiries over to State about the Niger story. Colin Powell was also on some shows that weekend and may have been similarly ignorant.
The story on offer from Marc Grossman is that Libby's inquiries, made in preparation for the Pincus article and in response to the Kristof May 6 article, inspired the INR memo about the Wilson trip.
But why couldn't there have also been inquiries from Condi Rice and Colin Powell, either of whom had more clout than Libby (but maybe less than Dick)? Did Fitzgerald explore that, and could it possibly be relevant at this late date?
And I Picked Six! Or a winner, anyway - from her defense summary:
Novak's statement came out on the AP wire on July 11. Russert could have seen it. If you lived in the media world of Tim Russert, they could read it and talk about it.
OK, it was an obvious point, but I am grateful for small victories here.
STILL MORE: File under "I suppose they had to say something" - this, from the prosecution side, is priceless:
Addresses possible defense argument that Libby confused Novak and Russert. He shows them both photos and says, "no way."
Photos? We are talking about two phone calls.
And more "Desperate Moments" for the prosecution:
Number 7 is Ari Fleischer. Ari has a farewell lunch with Libby. Libby tells him about Wilson's wife. He took this as gossip and said it was unusual because Libby was a tight-lipped individual. Ask yourselvers, Why did Libby choose to share this information with Fleischer? Ask yourselves if he did it deliberately, hoping that Ari would talk about it with reporters. And, that's just what happened. He told it to John Dickerson and David Gregory on the trip to Africa.
10:10 Immunity agreement protects Ari only if he tells the truth. He told the Government about
He said he has no recollection about Pincus conversation. The Government doesn't dispute Pincus. The fact that he doesn't remember it doesn't mean he made the conversation with Libby up. Why would he lie? How else would he have learned about Wilson's wife? Ari has no ill will, they are former colleagues, why would he lie.
How else would Ari have learned about the wife? Gee, from his own lips he told the jury that he heard about her from Dan Bartlett on Air Force One. Was the prosecution dozing, or do they hope the jury was?
And why is the only choice for Ari's conversation with Libby that either he or Libby is lying? Is Ari lying about Pincus? Why would he lie? Or is Pincus lying? Gee, I have an idea - Ari is honestly confused!
There is a tremendous amount of information being presented to the jury, so maybe insulting their intelligence will be a winning strategy.
LOSING IT: From the Times:
“Don’t you think the American people are entitled to a straight answer?” Mr. Fitzgerald asked of the jury. He said that “a critic points fingers at the White House and as a result his wife gets dragged into the newspapers.”
OK, then, when will we see indictments of Richard Armitage and Karl Rove? And that is setting aside the point that the CIA kept telling folks the wife was a legitimate part of the story.
But to be fair, Fitzgerald did not attempt to link Libby to Hurricane Katrina.
TM is still apparently locked out. JOM has been transfixed by what appears to have been a Fitzbreakdown during closing argument. "Who stole the strawberries?" the crowd cries out.(We are a literary crew.)
This morning the defense signalled a belief that the prosecution would attempt to exceed the boundaries of appropriate rebuttal, and from the often garbled summaries we are reading he appears to. Will the defense be able to use these missteps to get further jury instructions and perhaps even a sur-rebuttal? Maybe.
Per fdl this is how the day ended:
Walton: Sometimes during course of argument. Lawyers say things they don't mean to say. I want to say a couple of things to make sure. Reference to AG guidelines, those were admitted for a limited purpose, so you could assess whether Fitz' interaction was consistent with those guidelines. Argument that Libby would have been aware of those guidelines. There is no evidence before you [snipping FDL profanity].Walton THe truth of whether someone could be harmed based on disclosure of covert identity should not be dismiseed. What is relevant here is what, if any impact, things had on his state of mind.
Walton Considering the hour, we'll recess at this time. Same time tomorrow. I hope my voice will hold out. I've been fighting a cold, my throat is being challenged. Based upon my calculation, it'll take 1.5 hour, I'll give you half, then give you the other half. With that I would hope that sometime before 11 the case will be submitted to your for your proceedings. Continue to avoid havign contact with anyone associated with, also with media coverage of this case. I trust you will continue, and have not had any contact with media coverage. I assume it hasn't happened. I implore you to continue to avoid media coverage."
“Rashomon” is the cinematic classic in which a story of rape and murder is told from the perspective of four of the people involved. But what is “the truth”, and in what ways are the four people shading their versions of events? The viewer is left to wonder.
Now, in a courtroom in Washington DC, Special Counsel Fitzgerald has updated this classic with his own unique twist – rather than focus on an underlying incident fraught with drama he has asked a number of witnesses to present their version of events which seemed inconsequential at the time and only became significant in hindsight. Next week the jury will be left to puzzle out who is telling the truth, who (if anyone) is deliberately lying, and who is simply confused.
In this production of “Rashofitz” Dick Cheney’s former Chief of Staff “Scooter” Libby is on trial for obstructing an investigation into the circumstances in which Valerie Plame’s CIA affiliation was leaked to reporters. Valerie Plame is the wife of former Ambassador Joe Wilson, who had been asked by the CIA travel to Niger in 2002 to investigate a report that Saddam Hussein was attempting to acquire uranium there. In the spring and summer of 2003, as the US military occupied Iraq and failed to find significant evidence of Saddam’s weapons of mass destruction, Joe Wilson became an anonymous and then public critic of the Administration’s handling of pre-war intelligence. His claim, as reported by Nick Kristof in May 2003 – he had traveled to Niger at the request of the Vice President, had come back with information that did not help make the case for war, and was consequently ignored.
John Podhoretz goes after Tim Russert in a clash of media titans! Would you believe, near titan v. titan? How about... oh, forget it.
He delivers a fine summary of Russert's puzzling performance both in the trial and its prelude, but...
Let me add a wrinkle. Special Counsel was oddly solicitous of Tim Russert and NBC. For example, Russert filed a clearly misleading affidavit resisting his grand jury subpoena (in it Russert explained that it would chill sources if he testified to a grand jury but failed to disclose that he had already talked to the FBI).
For his part, Fitzgerald made no mention of Russert's prior cooperation in his public filing, but did cite other instances in which Russert had been flexible about discussing sources.
Well, here is another oddity - in response to a defense discovery request, Fitzgerald named the reporters believed to have received a leak about Ms. Plame. He then added, "in an abundance of caution", that John Dickerson of TIME may have received a leak (or something close to that - I can't open the letter at Exhibit C). Presumably, the source for this was Ari Fleischer.
But Ari Fleischer also said he leaked to David Gregory of NBC. Why was that name omitted in Fitzgerald's letter?
Bonus Bafflement - Fitzgerald never interviewed either Dickerson or Gregory to check the accuracy of Fleischer's testimony. Why not? One guess - Fitzgerald did check Fleischer's story that he had not leaked to Walter Pincus with Pincus himself and heard the opposite; maybe Fitzgerald did not want to continue to discredit his own witness against Libby.
At this point the jury has heard Pincus contradict Fleischer; a stipulation has been entered that Dickerson has disputed him in print; and David Gregory is still struggling with the duct tape with which NBC lawyers have bound him.
MORE: The fdl summary of the stipulation of Agenet Eckenrode's evidence on his original interview notes:
Former Inspector John Eckenrode,
1) Eckenrode was Special Agent in FBI in charge of the investigation concerning possible unauthorized disclosure of Plame's affiliation with CIA
2) On November 14 and 24, Eckenrode spoke by telephone with Russert
3) Eckenrode prepared an FD 302 report, November 24 report that recorded info that Russert provided. Eckenrode intended it to be accurate report.
4) November 24 report states that Russert was requested to refrain from reporting on FBI's questions and he agreed to request
5) Report describes Russert's account of Libby conversation. Russert advised he recalled at least one, possibly two conversations with Libby
6) Report states in part, "Russert does not recall stating to Libby anything about the wife of former ambassador Joe Wilson. Although he could not rule out the possibility that he had such an exchange. Russert was at a loss to remember it. He believes that this would have been something he would remember.
While the ISP demons rest, let me open this thread.
And what about Valerie Plame working at WINPAC, as Judy Miller says she gleaned from Libby in their July 8 meeting? Apparently Ms. Plame did not, and the defense has entered a stipulation that she was at CPD.
However, as a reminder that everything new is old again, this topic was kicked around just after Judy's story about her testimony and before Libby's indictment in October 2005. For old times sake, here are Marcy Wheeler and Jeralyn Merritt explaining that maybe Valerie did too work for WINPAC.
Those posts are mainly interesting for the company they keep - herre is Ms. Merritt:
Most of the former CIA employees who have been talking on this case, Larry Johnson and Vince Cannistrano to name just a few, have been critical of Cheney and Libby and supportive of the CIA. Who but a Pentagon source, rather than a CIA source, would now be spinning pro-Libby stories?
She also mentions the famous Vanity Fair article with the Wilsons as an obvious source.
So let's see - might Judy have been talking to any of these chatty Bush-bashers and gotten the wrong scoop on Ms. Plame before talking to Libby? No point in asking her, of course, since she can't remember a thing.
Or, Libby may have presciently lied to Ms. Miller to cover his tracks. Too bad this foresight didn't lead him to have a useful alibi convesration for real, rather than an invented one with Tim Russert. Or maybe the Russert one is not invented? (FWIW, I think Libby is sincere in believing he had a conversation that could have been construed as a memory jogger; I also suspect he is sincere in believing it was with Russert, and I suspect it may well have been Russert, but maybe it was Bob Novak or someone else.)
As to whether that chat really did jog his memory, well - Special Counsel Fitzgerald has to prove beyond a reasonable doubt that it did not; neither Libby nor I have to prove that his story must be the truth.
MORE: I can't find a permalink, but this should let you find a Feb 16 radio interview with Clarice Feldman of JOM and AT, Marcy Wheeler of fdl, TNH, and DK, and Bob Cox of MBA. OK?
We are tackling the big issues this Friday afternoon - who coined "Shooter and Scooter" to describe Dick Cheney and Scooter Libby?
In his Valentine's note to the firedogs Scott Shane of the Times wrote this:
“After all that, Shooter lets me down,” wrote Jane Hamsher, creator of Firedoglake and organizer of its trial team. Mr. Cheney is nicknamed on the blog for his infamous hunting accident, which handily rhymes with the nickname for his former aide, Scooter.
Tricky - Ms. Hamsher certainly did not claim credit and Mr.Shane did not quite give it to her.
Well then - I fault Mr. Shane for failing to acknowledge what may be her only contribution to political discourse in 2006 - Maureen Dowd wrote about Shooter and Scooter on Feb 19, 2006, just a few days after the duck hunting incident:
In return for this selfless effort to tell the world that Valerie Plame was a C.I.A. officer -- and punish her husband, a critic of the phony case for war, and therefore a terrorist symp -- Shooter was rewarded with an independent prosecutor and Scooter with an indictment.
Although the memory mercifully eluded me for a day, I actually noted her coinage and whacked her "analysis" back in the day.
And now she is the columnist that the Times forgot. I
blame thank Times Select.
Since there won't be any courtroom activity today, this really shouldn't be a "pre-game" thread, but since there is bound to be a "post-game" thread this afternoon, here we go.
Here, cboldt links to Libby's revised theory of defense - honest confusion, no motive to lie, government did not prove motive or intent.
And the NY Times offers a banquet - their Diary of the Libby trial summarizes key witnesses and dates. They have a few key omissions (and one erroneous inclusion!) and save the best laugh line for last.
At a glance, in "defense witnesses" they omit Robert Novak calling Libby on July 9th. Novak testified that he may well have asked Libby about Plame but got no helpful response. This matches Libby's description of his chat with Russert one day later, so maybe Libby has simply confused his reporters.
Oh, let's keep quibbling:
Cathie Martin - the Times omits that the defense introduced phone records more or less pinning down the date of her receipt of Plame information from CIA spokesperson Bill Harlow as June 11; she told Libby and Cheney that day or the next. (Note: I happen to think that Libby's note about Plame from about June 12 refers to this info from Ms. Martin; Libby told the grand jury that he believed he heard this from Dick Cheney over the phone, but he also said he didn't remember with any confidence at all, and Fitzgerald never called Cheney. Bet Cheney also forgot? Or did Cheney tell Fitzgerald that he mentioned Plame to Libby and emphasized both her importance and her classified status, but Fitzgerald forgot to call that witness?)
During a lunch on July 7, 2003, Mr. Libby told him that Mr. Wilson's wife was sent by his wife to Niger and that she worked for a bureau of the C.I.A. that dealt with efforts to curtail the proliferation of weapons.
Mr. Fleischer admitted that he could not be absolutely certain whether Mr. Libby called Ms. Wilson by name. His testimony was secured with a grant of immunity from prosecution, since he had shared Ms. Wilson's identity with John Dickerson, then working for Time magazine, and NBC's David Gregory around July 11, 2003.
John Dickerson has denied that in print but does the jury know that? Probably not. However, the Times omits (for now) Walter Pincus, who told the defense that he received a Plame leak from Fleischer on July 12; Fleischer specifically told the defense he had not leaked to Pincus. (But wait! The Times has chosen to present the witnesses as they prosecution and defense called them, so the diligent reader who makes it down to the defense witnesses and "Walter Pincus" sees the Ari rebuttal. Logical, but it means that the entire piece must be read, not just picked at. That will create confusion in some quarters, starting here.)
Matt Cooper gets off easy - the Times notes that the defense introduced the idea that Dickerson told him, but omits Cooper's confusion about his notes, his bias ("War on Wilson?") and the absence of any contemporaneous emails supporting his Libby "memory" despite its alleged importance. (I welcome a helpful link on this subject).
Tim Russert: The Times actually smites Russert (Print vs. Television - The Final Showdown!) but omits key evidence and has problems with their summary:
Mr. Russert could not remember the exact details of his telephone exchange with Mr. Libby, like the time of day. A defense lawyer read an F.B.I. report where Mr. Russert said that he could not rule out discussing Ms. Wilson with Mr. Libby, but had no recollection of it. Mr. Russert said he did not believe he said that.
Andrea Mitchell of NBC said on Oct. 2003 that the identity of Ms. Wilson was "widely known among those of us who cover the intelligence community." She later said that she had been wrong to say that. The defense suggested that if Ms. Mitchell had long known of Ms. Wilson, then Mr. Russert, then her boss, must have long known it too.
The defense certainly said that about Ms. Mitchell and I am delighted that the Times chose to publicize it (Finally!), but the jury was not allowed to hear it - Ms. Mitchell has subsequently denied that (never under oath...) and the judge felt like the jury might be asked to speculate as to her credibility. Ya think?
The Times omits Russert's misleading affidavit to the judge when he opposed his grand jury subpoena; it also omits his apparent collusion with Fitzgerald to keep his earlier cooperation with the FBI out of the public record. (Sorry for the no-links, but I am racing through this while my ISP is still smiling on me. However, I have not lacked for Russert and Mitchell coverage in the last few weeks, so feel free to look around).
Robert Novak - again the Times fails to note his phone call to Libby on July 9. The defense may introduce the "honest error, wrong reporter" defense to explain Russert, so Times readers will be at sea.
John Hannah - a howler from the Times:
Mr. Hannah conceded that if Mr. Libby took two hours out of his busy day - as he did to meet with Ms. Miller - it meant Mr. Libby considered Ms. Wilson a key issue.
Oh, please - Hannah conceded that Libby considered his meeting with Judy Miller to be important; since Libby had obtained the Double Secret National Intelligence Estimate Declassification from Bush and Cheney (and checked the legitimacy of this with OVP Counsel Addington), you can darn well bet he considered this meeting to be important.
But the wife? Let's check the not-a-transcript ("TYOI" is John Hannah; the fdl liveblogger had a special and unrestrained need to editorialize freely that day, sorry):
F Best time to see Libby was evening, particularly if you focus July 6. Fair to say during that week, if you said tomorrow morning take an hour or two to go out for coffee, he wouldn't take that time.
TYOI It would be harder.
F If he gave someone an hour or two, it was something Libby thought important.
TYOI WRT me, yes.
[You think Fitz woke up the jury?]
I don't know if he woke up the jury but he didn't wake up the Times - in their reverie, every discussion of the Wilson trip, Niger, or uranium comes back to the wife. However, the wife was not mentioned in the question or answer and the NIE leak was obviously important to Libby - sorry, Times.
HELP: And my quick search of the Times archives on "Mitchell Russert" certainly suggests that they did not note the Mitchell issue during their trial coverage. Is that accurate? If someone could check their story for the day Russert testified and the follow-up, that would be great.
IF, I say IF, Libby is acquitted, Special Counsel Fitzgerald will be re-titled Special Clownshow Fitzgerald.
Although Sunday afternoon seems a bit early for speculating on *why* Fitzgerald blew his case, (only partly because it is really Thursday, and mainly because the verdict is not in yet), let me offer this as Fitzgerald's Biggest Blunder: Playing eight hours of Libby tapes from his grand jury testimony.
Why? Assuming the jurors are human, after eight hours they were probably reeling, and may be quite sympathetic to the notion that Libby was reeling too.
Too bad Fitzgerald didn't have video of Libby being waterboarded - that would have iced it.
Honorable Mention: Ari Fleischer was a one man wrecking crew. By his testimony, David Gregory knew about Valerie Plame, and Russert insisted that if Gregory or anyone on the NBC team had known, they would have told him. Was that helpful to Russert's credibility?
And Ari testified that he did not leak to Walter Pincus. Too bad Walter Pincus contradicted him. And too bad Fitzgerald let the defense make those points - gee, was Fitzgerald trying to pull a fast one, hiding some little memory problems with his witness?
I don't fault Ari - he was wrapping up the last week of his job, he was on a multi-day, multi-country Presidential tour of Africa, and the press was gnawing on him non-stop about the Sixteen Words. No wonder his brain was fried. But what was Fitzgerald thinking in putting him on?
SECOND HONORABLE MENTION: The Three Stooges. Let me summarize the testimony of Grenier, Grossman, and Schmall - Hello, we can't remember discussing Plame with Libby, but he ought to.
And that was from the prosecution? That did not exactly get Fitzgerald off to a strong start.
A THEORY YOU WON'T HEAR ANYWHERE ELSE (Until some lefty thinks of it...)
Here we go - Ari was a Bush/Cheney plant! Work with me - Ari included the detail about a July 7 Lunch with Libby to bait Fitzgerald into using him as a witness. Then Ari made up this other crazy stuff to discredit his own testimony and Fitzgerald's hard work! It was a set-up!
Too bad Fitzgerald fell for it. But I urge him to investigate this theory carefully.
GOOD POINT: Yes, the premature gloating will look even more foolish if Libby gets convicted on a couple of counts, which is certainly possible. But I am just having a little fun while toiling on my Magnum Opus explaining the case. I love the title - "Rashofitz". It's just the actual article that is an obstacle just now.
I apologize for the blackout - I have been having a mix of Typepad and ISP problems.
However, here is a new thread. Finally.
The NY Times had a front-pager on the firedoglake site. so congrats to them. Clarice Feldman of The American Thinker was also mentioned, so we are nearly famous.
Arianna Huffington and Jeralyn Merritt were not mentioned, so I was in excellent company. And it is remotely possible that I am not on the Times's Christmas card list because of my Wake Up Calls to Neil Lewis, which has become a regular feature.
Or perhaps my post-trial lapse back into well-deserved obscurity has begaun a few days early.
Seth Stevenson of Slate presents what I will call the center-left case against Scooter Libby, and I should add that my ability to discern his ideological disposition is based on careful reading of subtle clues such as this:
Apparently, Cheney was scheduled to testify Thursday. But no more. This is a crushing blow... And now I'll never see it. On the other hand, I also won't be forced to restrain myself from shouting, "Go frack yourself, Mr. Cheney!" as he takes the stand.
I deduce "left" from "frack" and "center" from "Mr." A truly hard-core lefty would know that the proper expression is "Go Cheney yourself".
But I digress. Mr. Stevenson is kind enough to link my suggestion that Tim Russert may have dug himself into a deepening hole by misleading investigators three years ago. Back then, per this hypothesis, he gave them misleading testimony to disguise the fact that he (or Andrea Mitchell, or another NBC reporter) had a live source for the Plame leak. Then, Russert was protecting sources; now, he is protecting his source and his own job.
Mr. Stevenson presents this as follows:
I can't buy that Russert is lying under oath—and possibly sending Scooter Libby to jail—when Russert has no obvious motive to do so. (Others imagine a vast NBC conspiracy, but I find this far-fetched. Anyway, the jury has been given almost zero evidence to support the conspiracy theory.)
Vast? As I proud member of the Vast Right Wing Conspiracy, I know "vast" when I see it, and this ain't it. I would guess Russert, Mitchell, maybe Gregory, and maybe their boss (or ex-boss, since Neal Shapiro has moved on) would know, as well as a few NBC lawyers, maybe. Three people kept the "Deep Throat" secret for thirty-three years - how long can six people sit on this?
And even if your answer is "not long", well, let's see what happens after the trial when the duct tape is removed from Mitchell, Gregory and Russert and they are all free to speak. John Dickerson of Slate, who received a leak along with David Gregory (as Ari Fleischer told it) has been describing his experience freely; NBC lawyers have lowered the Cone of Silence over NBC. Why?
As to "the jury has been given almost zero evidence to support the conspiracy theory", well of course - that's what makes it a conspiracy!
Somewhat more seriously, the defense wanted to talk about Russert's annual income from his NBC gig - why? NBC fought like fury to keep Andrea Mitchell out of court - why?
The defense did introduce Russert's misleading affidavit from June 2004, so they have certainly made it clear that his ethics are, well, flexible when it comes to the courts.
Who knows? I happen to think that neither Gregory nor Mitchell are interested in lying and sending Libby to prison just to save Russert's job. Will they spill the beans after the trial? Are there beans to spill? Who knows?
But one last thought - Ari Fleischer testified that he did leak to David Gregory and John Dickerson but not to Walter Pincus. If he is wrong on all three, does that undermine his "Hush hush, on the qt" story about his lunch with Libby?
Fine, if Ari is a washout on all three of these reporters, then Gregory didn't know and Fitzgerald sent up an awful witness.
Or, if Gregory knew, where are we on my "vast" conspiracy?
Perhaps Mr. Stevenson would care to pick one - I'm OK with either choice.
BONUS CONCESSION: On my To-Do list is a cogent, concise, witty tour-de-trial that will lay out various scenarios for Libby's guilt or innocence. When readers are done and women have dried their eyes, I hope to have demonstrated that there are plausible scenarios in which Libby is innocent but confused, or maybe even testifying accurately on most of his main points.
We continue our unrelenting Libby coverage with a quck memory test. Our banal point is that repeated exposure to useless information does not assure a permanent memory of that information.
So, some easy questions, and no fair peeking:
1. Was the Super Bowl last week, or two weeks ago?
2. Who won, who lost?
3. The winning team was led by whom?
4. The winning team got great efforts from their two running backs - one caught about ten passes, the other rushed for over 100 yards. Care to name them both?
My answers are in the comments. I am OK on (2) and (3), I am guessing on (1), and I can get the last name of one running back (Hint - NOT "Joseph Abboud", the clothier).
If you watched the game and read any next-day coverage, these questions should be easy. Unless you just weren't that into it.
And if it became important in July, that can not create a memory of a conversational snippet in June.
Neil Lewis and Scott Shane of the NY Times continue to cover the Alternate Reality version of the Libby trial. Here is their carefully crafted, deeply researched summary of the current state of play:
Although the jury will not hear Mr. Libby in person, during the trial, prosecutors played eight hours of audiotapes in which Mr. Fitzgerald questioned him before the grand jury. The jury heard Mr. Libby giving his version calmly in the first two-thirds of the tapes and then seeming to become uneasy and less confident as Mr. Fitzgerald bore in.
Prosecutors have said Mr. Libby learned of the identity of Mr. Wilson’s wife, Valerie Wilson, from fellow administration officials in the summer of 2003 and discussed her with reporters. Mr. Libby swore that he had not discussed Ms. Wilson with reporters and believed that he had learned about her in a conversation on July 10 or 11 with Tim Russert of NBC News.
Judith Miller, formerly of The New York Times, and Matthew Cooper, formerly of Time magazine, testified for the prosecution that Mr. Libby had discussed Ms. Wilson with them. Mr. Russert testified that he never discussed Ms. Wilson with Mr. Libby.
Groan. Libby testified to the grand jury (and as re-heard by the trial jury) that he learned about Plame from Russert on July 10 or 11, then leaked it back to Cooper and Miller as reporter gossip.
Ms. Miller's tale that she and Libby discussed Plame on July 8 undercuts this; Cooper's contribution is to deny that Libby sourced this as reporter gossip.
This is very basic stuff here.
Jeralyn Merritt explains reasonable doubt in a criminal case:
Scooter Libby is not required to prove he didn't lie or obstruct justice. All he has to do is raise a reasonable doubt in the mind of the jurors that he did.
The test for reasonable doubt is not a simple weighing of the evidence, after which the jury decides which side to believe more. That's the test in a civil case where the standard of proof is a mere "preponderance of the evidence."
In layman's terms, in a criminal case, if both sides' theories and arguments sound plausible, that alone is a reasonable doubt and the jury should acquit.
And keep in mind - if the jury thinks it is possible that Libby's testimony, even though mistaken, was offered in good faith, then he did not "lie".
Since Ms. Merritt is a progressive defense attorney, she has a natural affinity for both sides in this case. Her close:
To me, that's the mojo Ted Wells and Bill Jeffress need to work in Libby's closing. If they can get past that statement and drop their unproven claim of "I was left out to dry to save Karl Rove" from their closing argument and rise above trying to cast Libby as a victim, they have a chance.
No one on this jury is going to buy Libby as victim, although they may conclude he was no more mistaken than any other witness. Once the jurors try to figure out motive, even though it's not a necessary element of the charged crimes, I call a draw. Fitz just didn't establish motive beyond a reasonable doubt.
For symmetry's sake, I think Fitzgerald has a chance, too.