Rashofitz – Where We Are In The Scooter Libby Trial

“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.

As the Vice President’s Chief of Staff, I. Lewis Libby was one of many Administration officials who attempted to respond to this criticism. In the course of presenting the Administration perspective, Libby and others mentioned to reporters that Valerie Plame, not the Vice President, had played a role in initiating Wilson’s trip. Bob Novak published this in a column on July 14, which eventually triggered an investigation – apparently, Valerie Plame’s status as a CIA officer was classified information.

When asked about his role the story Libby told to investigators struck them as deeply improbable: Libby presented investigators with a diary note from approximately June 12, 2003 and said that, as best he could then recall, he had been told by Dick Cheney that Valerie Wilson was at the Counter Proliferation Division of the CIA. However, Libby went on, this information must have gone in one ear and out the other, because he had no recollection of this phone call, or meeting, or whatever, and had not retained the information.

 What Libby did retain is a dramatic phone call with Tim Russert of Meet The Press on July 10 or 11 in which Tim Russert told Libby that “all the reporters knew” that Valerie Wilson was with the CIA and had played a role in arranging her husband’s trip. Armed with what he then saw as this “new” information, Libby then leaked this tidbit to Judy Miller of the NY Times and confirmed it to Matt Cooper of TIME on July 12, in each case describing it as reporter gossip

Investigators were skeptical. Libby had been deeply involved in defending the Administration to reporters – surely he would not have forgotten this interesting bit of gossip about Joe Wilson while focusing so intently on rebutting his charges to the press. (Snide aside - rather than “rebut”, Libby’s critics prefer the word “discredit”). 

And that is the basis for the “Rashofitz” trial. The prosecution put on a parade of Administration witnesses with the objective of demonstrating that Libby had been repeatedly informed about Ms. Wilson but the presentation arguably fell a bit short of the mark – the real message seemed to be that Ms. Wilson was a minor, forgettable detail of a much larger story:

Catherine Martin, who did press relations for Dick Cheney, said that she mentioned Ms. Wilson to Dick Cheney and Lewis Libby on June 11 or 12 (matching the date on Libby’s note) after learning about her from her CIA counterpart, but that she never heard Libby mention her again. Ms. Martin did not describe Libby as reacting to the information.

Robert Grenier of the CIA told the trial jury that he had mentioned Ms. Wilson to Libby on June 11; under cross-examination he admitted that in 2003 he had told the FBI he couldn’t remember mentioning her; he repeated that to the grand jury on 2004 and only “remembered” telling Libby about her in 2005. He did not describe Libby as reacting to the information.

Marc Grossman, Under Secretary of State, told the jury he mentioned Ms. Wilson to Libby outside a meeting with no witnesses. Under cross-examination he admitted that he had told the FBI that he revealed this to Libby over the phone. He did not describe Libby as reacting to the information.

Craig Schmall of the CIA told the jury he mentioned Ms. Wilson to Libby on June 14. Under cross-examination he admitted that he had absolutely no recollection of the conversation, but assumed he had said something about Joe and Valerie Wilson because it was in his notebook. He did not describe Libby as reacting to the information.

At this point the prosecution case could be summarized as “Libby could not have forgotten about Ms. Plame even though most of these people did”. But the parade of the puzzled continued.

Ari Fleischer, formerly the White House press secretary, told the jury of a dramatic lunch with Libby on July 7 during which Libby told Fleischer about Ms. Plame and described the news as “hush hush and on the qt”. Mr. Fleischer was also emphatic that there are protocols for transmitting classified information to the press secretary and “hush hush” is not one of them; consequently, he took this tidbit as a bit of newsworthy gossip, just as Danny DeVito’s character in “LA Confidential” would have done.

Mr. Fleischer admitted that he had subsequently learned of Ms. Plame’s role in the Wilson trip while on a Presidential visit to Africa, and said he leaked it to John Dickerson (then of TIME, now with Slate) and David Gregory of NBC News on the morning of July 11 in Africa. But wait! John Dickerson disputed this version in print and for reasons that remain mysterious, Special Counsel Fitzgerald did not obtain sworn testimony from Messrs. Gregory and Dickerson; David Gregory has not been heard from, demonstrating yet again the power and many uses of duct tape.

On cross-examination Mr. Fleischer denied leaking information about Ms. Plame to Walter Pincus of the Washington Post. Eventually Mr. Pincus was called as a defense witness and testified that Mr. Fleischer had leaked to him about Valerie Plame.

David Addington told the jury that sometime between July 7 and 12 Libby asked him about the paperwork that would be associated by a trip originated by the CIA involving a relative. The implication was that Libby was looking for proof that Joe Wilson had been sent by his wife. However, in his original statement to the FBI, Addington did not mention anything about a relative; in that case, the implication would be that Libby was looking for proof that it was the CIA, not the Vice President, that sent Joe Wilson.

That exhausted the Special Counsel’s display of Administration witnesses with any evidence that Libby had taken an interest in Valerie Plame. However, he then introduced some reporters.

Matt Cooper of TIME testified that he first learned of Ms. Plame from Karl Rove on July 11. He then asked Libby about her on July 12 as part of a much broader discussion about Wilson’s trip and pre-war intelligence, and Libby confirmed his information by saying something like “I heard that too”. Cooper’s notes were a cryptic jumble and he did not email anything about Libby’s “confirmation” to his editors as he had with Rove.

Judy Miller testified that Libby first told her about Ms. Plame at a meeting on June 23. However, her memory of this conversation was sparked by her notes – she originally told the grand jury that she had no memory whatsoever of meeting Libby on June 23, and believed she may have spoken with his assistant. (And how did Fitzgerald learn of this meeting? Contra the fantasies of the Fitzgerald fan club, Libby had testified that he believed he had met with her in May or June, and suggested that Fitzgerald check his calendar).

Ms. Miller also said that she met with Libby on July 8; the primary focus was Libby’s leak of the National Intelligence Estimate, but he also mentioned Ms. Plame. Oddly, her notes showed that Libby told her that Plame worked in the WINPAC area of the CIA. There is no evidence that Libby had been told that, nor is it accurate – just as his June 12 note said, she was with the Counter Proliferation Division.

Finally, Libby and Miller spoke on July 12, and, she says, Plame was discussed a third time. Libby’s version is that this was the only time he discussed Plame with Miller.

On cross examination, Ms. Miller’s memory became a bit of a challenge. “Valery Flame” was in her notebook – she didn’t think it was from Libby, but had no idea where it came from. Joe Wilson’s phone number was in her book but she had no idea where she got it and wasn’t sure whether she had spoken with Wilson or not (let’s add that in January 2004 the Wilson’s implied to Vanity Fair that Ms. Plame was with WINPAC).  She believed she had spoken with other people about Valerie Plame but could not remember any names. She believed she first heard of Ms. Plame from Libby on June 23 but could not rule out earlier sources.

And the prosecution finally got to Tim Russert of Meet The Press. Russert’s story was simple – Libby called him on July 10 or 11 to complain about coverage on the Chris Matthews Show of the Niger trip and the Vice President’s role. Russert denied any possibility that he had known about Valerie Plame prior to reading it in the July 14 Novak column but also said that reporters in his newsroom shared information.

Well. An obvious problem is that David Gregory allegedly received a leak from Ari Fleischer on the morning of the 11^th. A second problem – the Robert Novak column had been put on the wire services late in the morning on July 11^th. (Bold Prediction – when Russert climbs down, he will say, gee, I must have read the Novak column off the wire a bit early – I remember the column but not the date.)

A third problem – Andrea Mitchell of NBS News, who had been covering the Wilson/Niger/uranium story closely in June and July, said on October 3 2003 that it was “widely known” among reporters following the story that Wilson’s wife was with the CIA, although she has since denied it and explained that she mis-spoke. After much learned argument, the judge refused to let the defense introduce this fact – apparently, it might prompt them to engage in unnecessary speculation about Mitchell and Russert’s credibility.

A fourth problem – Russert had been approached by the FBI and chatted with them freely in November 2003, since in his view Libby had called as a complaining viewer rather than a source. However, in June 2004 Russert put on a show of resisting a grand jury subpoena, during which he filed a misleading affidavit with the judge – he insisted that cooperating with the grand jury would diminish the confidence other sources would have in NBC News, but failed to disclose the seemingly-material fact of his prior cooperation with the FBI.  Interestingly, Fitzgerald played along with this deception; in conjunction with the decision not to subpoena Mitchell or Gregory, one might think he was a bit cozy with his star witness at NBC.

And a fifth problem – the original notes of Russert’s FBI interviews have, well, been lost by the prosecution. However, the testimony of Agent Eckenrode was introduced as a stipulation – in November 2003, Russert said he did not remember mentioning Plame to Libby but could not rule it out. Apparently, it only became impossible later.

This week a jury will be asked to sort this out. Was Libby told about Ms. Plame so often and emphatically in early June that beyond a reasonable doubt he could not have forgotten her?

Was the evidence offered by Fleischer, Miller, and Addington proof beyond a reasonable doubt that Libby had in fact retained the Plame information prior to his July 10 chat with Russert?

Did the Russert call actually happen as Libby described it, or will a jury find beyond a reasonable doubt, that Russert’s logic (I didn’t know about Plame until the Novak column so it can’t be true) is honest and accurate?

Was Libby deliberately misleading the grand jury when he described the Russert call or was it an honest mistake? Robert Novak testified that, having learned the Plame information from Richard Armitage of State and Karl Rove (needs no introduction), he called Libby on the July 9 and may have asked him about Plame.

Finally, what was Libby’s motive to lie? As a matter of law, the prosecutor is not obliged to provide one; as a practical matter, juries like to hear them.

And here the haze continues – superficially, it appears that Libby’s story is intended to shield him from a charge of deliberately leaking classified information, since he claims he only passed along reporter gossip. However, Fitzgerald has never found direct evidence that Libby believed Plame’s status was classified prior to the publication of the Novak column. Under the relevant statutes, this ought to leave Libby in the clear, and as a high-priced Washington lawyer with access to counsel, Libby ought to have known that.

Or did something else jog Libby’s memory? Dick Cheney had read Joe Wilson’s July 6 op-ed and marked it up with questions, including one about whether Joe Wilson’s wife had sent him on a junket. Did Libby lie to keep Dick Cheney out of the story? His critics think so, but Fitzgerald probably can not allege that in court – after all, Fitzgerald was welcome to call Cheney as a witness and ask him about the op-ed, and declined  to do so (Fitzgerald has already interviewed Cheney as part of the investigation – whatever his answers were, Fitzgerald did not want a jury to hear them).

It’s a puzzle – faced with the alternative of quitting his government post, earning ten times as much in the private sector, and taking the Fifth when investigators came calling, Libby chose to commit perjury and obstruction, thereby risking his current job, his law license, and his freedom, to cover himself from charges that could not be brought in any case.

Or, he lied because grand jury secrecy is so unreliable that Dick Cheney’s name would get dragged into this even though no charges were likely to be filed (and as if Cheney’s name would not be dragged into it otherwise).

The defense does not need to prove beyond a reasonable doubt that Libby is innocent – he may very well be lying through his teeth for the slimmest of reasons. It is the job of the prosecution to prove that he is lying beyond a reasonable doubt. We eagerly await the jury’s decision.

NOTE:  Incredibly, I am well aware that I have left stuff out (I was hoping for something much shorter...).  Feel free to offer some constructive suggestions as to what should be added or cut.

And sorry for the no-links - my current motto is, post while the ISP demons rest.

Comments

[Syl]

Damned good, Tom.

Clear and FAIR.

Bravo!

[sylvia]

Really, the Libby trial is like infinity. The more you think about it, the crazier it all seems.

[tom maguire]

Well, I'm going crazy...

[sylvia]

You can't go crazy. You are the one keeping us sane on all this.

[Jay Currie]

About twenty years from now a PhD candidate will be writing about Bush Derangement Syndrome and will be looking for an example. This post is that example.

The tragedy lies in the fact that the Bush Administration is partially responsible.It caved to the braying of the 16 words dogs. Had Bush and his people simply ridden out the storm and put their case clearly none of this travesty need have happened.

Which would have been much less entertaining; but our entertainment comes at the expense of a good man. Other good men will take a look at this and decline the offer to serve their country. Which means we all lose.

Let's hope that Scooter wins; not merely because he is innocent but because if he loses we all will.

[Daniel]

Your review of this case says it all, but there is some context that I think deserves some emphasis.

There is something amiss in the use of a special prosecutor to address possible scandals. It is that the public expects to learn the truth about the scandal from the investigation, while the actual goal of the investigation is to find whether a crime has been committed and to prosecute if it suspects that one has.

This case illustrates that mismatch very distinctly. The actual investigation, as far as I can tell was to look at two potential crimes. One was feloniously giving out information about a secret agent (particularly through leaking information to Novak), and the other was engaging in a conspiracy to punish Mr. Wilson for his claims against the administration, thereby violating his civil rights perhaps as a whistle blower.
Accusations of both of these things were spread widely in the press, and Fitzgerald was appointed as a Special Prosecutor in part to find the truth about them.

Very clearly Fitzgerald interpreted his mandate as to pursue the legal aspect of these questions, and not to inform the public of the truth of the matter, which was what the administration really wanted.

Thus he found out immediately that nobody involved had suspected that Plame was a clandestine employee revealing whose status would be a crime, and that the leak to Novak had come from the State Department apparently with motivation of making it clear that the CIA rather than the State Department had sent Wilson to Nigeria.

There was still a possibility that the Vice President's office had made an attempt to punish Wilson through other statements to the press. There had been reports that Libby and perhaps others in his office had contacted six reporters with information about Wilson and or Plame.

Libby insisted that the motivation for this was to refute the false claims that Wilson had made about his trip. These were that the Vice President had sent him (at least implied by some of Wilson's statements in a speech and as quoted in the NY Times,) that he had debunked the famous 16 words of the President's State of the Union Speech. and that the Administration had surely seen his (oral) report on his trip.

Libby, in his long testimony before the Grand Jury, maintained that the sole purpose of his attempts to speak to the press was to refute the false statements (listed above) that he claimed Wilson had made.

Ultimately Fitzgerald came to the conclusion that no case could be made against anyone in the administration for attempting to punish Wilson and in particular in doing so by revealing that his wife was a CIA employee.

In fact he has informed the public of no evidence that favors the claim that the administration was out to get Wilson, and was trying to punish him.

It must have been evident to Fitzgerald rather quickly that
1. the State Department was the source of the Novak leak.
2. the administration claims about its publicity campaign re Wilson was sufficiently plausible that nobody could be accused of violating Wilson's civil rights with any hope of a conviction.

Knowing this he withheld this information from October 2003 for at least three years.

This had the effect of keeping the pseudo scandal going for three years, through the elections of 2004 and 2006.

To the extent that the information he withheld exonerated the administration from the scandal charges, Fitzgerald's silence was a highly political act.

This context also provides the background needed for judging the materiality of the charges against Libby.

I find it hard to understand how Libby's testimony to the FBI and to the Grand Jury in the matters for which he was indicted affected the investigation.

With regard to Miller, he was the one who brought up the June meeting, and only claimed that he didn't remember anything about it. I am not aware that Miller got the impression that Libby was trying to punish Wilson.
The difference in memories between Cooper and Libby concerned whether Libby said he had heard "the same thing" or said he had heard "the same thing from other reporters". How this difference would affect any decision that Fitzgerald or anyone else would make about the case escapes me.
The difference in the Russert conversation is even wierder. Libby claimed to be surprised when Russert brought up Wilson's wife and Russert denies it.
This is the statement for which Libby was indicted.
I find it very difficult to imagine any investigation obstructed by this disagreement.

This makes me wonder: why were these indictments sought?

[Jane]

Tom,

That post should be the basis of Chapter One in the book you Must write about this case.

[lonetown]

Anyone care to comment on whether or not the issue of the appointment of the SP will ever come up again.

It seems an added twist is the apparent lack of standing of the prosecutor, or is it a case where its too late to object if you didn't object in the beginning.

[kate]

The international left uses the courts to criminalize and destroy its enemies because, so far, it's been very effective.

Notice that Special Prosecutors fail to indict Democrats (Hilary) or give them light sentences (Burger) or no prosecution at all (Jefferson).

The international left is now using courts to criminalize friendly fire incident and indict US soldiers (cleared after extensive US investigations) and US agents (now will these be good agents or bad agents?).

Until this game of using SP and courts to go after political enemies backfires, the left will continue to use it.

Scooter Libby was an honest public servant caught up in a manufactured scandal hounded by a SP who was told from the beginning, by a suspect FBI investigator, that Libby and Rove were the culprits.

[Jane]

I think as a result of watching this case so closely I've seen some trends that truly scare me, including the attempts to block the conservative point of view.

The left is much better at controlling the dialogue, and if you doubt that look at the handling of the Foley scandel which I think had more impact on the elections than the war. Of course it is easier for the left, because the media is so anxious to take up their cause.

Same thing with special prosecutors. The deck is stacked. The left knows how to capitalize on a disinterested public to the point where it is almost scary.

[lilollady]

Unlike Rashomon, the Fitzgerald theory of this case is that all four principals (Miller, Cooper, Russert & Libby) recall the facts of their conversations in accurate detail and, of the four, only Libby intentionally lied to conceal these facts. In this context, it’s interesting that the emphasis in the recounted stories is consistent on gossip about the marital link: Wilson’s WIFE, and inconsistent or inaccurate about the organizational link: WMD, CPD, WINPAC ????

[kate]

Jane-the Foley case was interesting. If I recall the Republicans were starting to make some gains when the Foley case broke (Sept) and according to a leading political blog, the e-mails etc were released earlier in the campaign than planned.

In other words, the Iraq War was not enough of an issue to give the Congress to the Democrats.

The media hammered the Foley episode 24/7 for days. However, after the election, the reason for the loss was Iraq, Iraq, Iraq.

If you want to see Chris Mathhews Head explode have someone say to him:

Well, you know, Chris, this election was not about Iraq, it was about Mark Foley and ethics.

[Jane]

Oh I know. Everytime I hear "this election was a referedum on the war I get sick". I did heard about a poll yesterday that said membership in the republican party was rising, while membership in the democrat party was declining. That gave me a glimpse of hope. But I will say, overall, I'm very concerned about what is going on in this country - particularly with the media.

[kate]

I would argue that the media actually leads the Democrats and left. The media won this election for the Democrats. I live in Northern Virginia and the Washington Post was practically a 527 for Webb.

The media is very powerful and becoming increasingly more crusading and vocal. I don't know what to do about the media. My recommendation is that Bush call them out, but as late as last week he nervously said he won't pick a fight with them. I guess he believes the coverage could get worse.

[hit and run]

OK, people - you MUST be sure to take the poll that is currently on the upper right hand side of the blog. "Who is going to win the Oscar for best actress?"

To support Tom? Yes. Yes of course.

But even more, to support Penelope!

(fair disclosure, I did not see a single one of those movies)

[boris]

My recommendation is that Bush call them out, but as late as last week he nervously said he won't pick a fight with them.

BDS is a form of hysteria. There probably is no way to confront it head on.

[lurker]

Tom's first post reminded me of a rule within Shar'iah law where a Muslim women requires 4 Muslim males to testify that she was raped.

I'm willing to bet that women do not want to live under this rule, who else wants to live under this "Democratic/MSM" game?

After Libby, a honest, hard-working public servant, who would want to work as a public servant for a US President subjected to Derangement Syndrome?

This doesn't bode well for the future unless Congress addresses the issues with the Special Prosecutor. Texas has similar issues with Ronnie Earle v. Tom DeLay.

Incidentally, what's up with that Earle v. DeLay case?

[lurker]

Unfortunately, under Shar'iah law, infidels and Crusaders' words are worth nothing under an Islam judge or Imam.

[lurker]

The media is very powerful and becoming increasingly more crusading and vocal. I don't know what to do about the media. My recommendation is that Bush call them out, but as late as last week he nervously said he won't pick a fight with them. I guess he believes the coverage could get worse.

My recommendation?

Boycott them. Contribute to Conservative media.

OT: Hillary Clinton now wants to pull all of our troops out of Iraq within 3 months. Check Sweetness and Light.

[boris]

Hillary Clinton now wants to pull all of our troops out of Iraq within 3 months

I question her patriotism.

[Pofarmer]

About twenty years from now a PhD candidate will be writing about Bush Derangement Syndrome and will be looking for an example. This post is that example.

The tragedy lies in the fact that the Bush Administration is partially responsible.It caved to the braying of the 16 words dogs. Had Bush and his people simply ridden out the storm and put their case clearly none of this travesty need have happened.

Yes, and from there, we get to the current braying about by Jackasses in our Capital.

Well, you know, Chris, this election was not about Iraq, it was about Mark Foley and ethics.

I talked to several people personally, who said "We need a change." Great, now I got Clair McCaskill.

Incidentally, what's up with that Earle v. DeLay case?

Probably nothing. It will be held over DeLay's head for years.

[Foo Bar]

If you're going to suggest that Fitzgerald is having trouble establishing motive, shouldn't you at least address McClellan's flat denials of Rove/Libby involvement in that press conference a few days before Libby's first FBI interview? Fitzgerald did present videotape of that briefing to the jury, after all.

With that McClellan statement out there, if Libby had testified that he had told and/or confirmed to reporters that Plame was CIA while knowing via official channels that it was true, and if his testimony had then been leaked, it seems to me the administration would have sustained some significant political damage prior to the '04 election.

Even if Libby had been confident that he hadn't done anything illegal (since he didn't know she was classified), and even if there's some Clintonian parsing that makes McClellan's statements consistent with the prosecution's theory of the case, I don't think it matters for the "political damage" motive. At a minimum, it would have appeared (to the "stupid" and "biased" MSM) that either Libby lied to McClellan or McClellan lied to the public about him not being involved at all.

[lurker]

America's War

From Blue Crab. I liked the way he concluded his post. Since the Democrats are playing this "This is Bush's War", perhaps we should help the Victory Caucus by saying that this is our war, "America's War"?

Boris, likewise. I question her patriotism. Too bad that Bush insisted in one of his recent speeches that the Democrats are still patriotic in spite of their position on the war. Bush had no choice. The voters forced him to this position. But the Republicans failed to stand by him in the last two years.

What we need is the majority back in the hands of Conservative Republicans, a very strong majority that can ride over the democrats' obstructionism, and stand by the next Conservative Republican US President.

[lurker]

Democrats Signal a Wider Battle Lasting the Rest of President's Term

But yesterday's vote signaled peril for the Democratic congressional leadership as well. Despite deep Republican discontent with the course of the war, Democrats were unable to persuade more than 17 members of the president's party to register that dissatisfaction with their votes. If Democratic leaders could not build a broader bipartisan coalition for a symbolic vote, it may prove much harder to attract Republican support for proposals to limit Bush's options in Iraq.

and

The White House privately pressed that point with wavering Republicans. Even as Bush resigned himself to certain passage of a resolution with no substantive force and publicly made little effort to oppose it, aides such as national security adviser Stephen J. Hadley lobbied GOP lawmakers to stick with the president to avoid emboldening Democrats down the line. "If Republicans go along with this," an administration official said, "it sends a message to Murtha about what he might be able to do with the supplemental" war-spending measure.

The Democrats still believe that the majority of the Americans are with them so we need to change that picture showing that they are wrong about this.

[Other Tom]

Daniel's post above sets forth most eloquently what I have been thinking from the outset, but haven't had the wherewithal to articulate so well. As JOM'ers will recall (no doubt while stifling multiple yawns), I have been yammering about the materiality issue until hell won't have it. I am still mystified. Although I certainly have to defer to Libby's outstanding defense team, I have wondered every single day of this trial why materiality has never, to my knowledge, been raised. Knowing what little I do know about the trial, I would have expected a Rule 29 motion at the close of Fitz's case, contending that the prosecution had presented no evidence that any of the allegely false/perjurous/obstructive statements was material.

Why that did not occur I cannot understand. Whether it will occur in closing I don't know, but I am certainly doubtful at this point. Perhaps the failure to raise this issue stems from Fitz's assiduously resisting any effort to disclose the original CIA referral--we really don't know to this day what he was asked to investigate. As I understood him in his infamous press conference, he was saying something along the lines of, "we don't have to investigate this or that crime, we just investigate." It's all quite chilling, and Kafkaesque.

[Pofarmer]

if Libby had testified that he had told and/or confirmed to reporters that Plame was CIA while knowing via official channels that it was true,

Which is pretty much exactly what he did, ya nit.

[eric]

Excellent analysis Daniel. Do you think a third crime may have been involved, namely the Espionage Act of 1917? That statute appears to be unconsitutional or superceded by the Spy Act. However, Fitz may have been disengenuously using that statute alone to establish materiality through the use of confidential documents down to last point in the timeline. In his press conference Fitz refused to rule out any use of this
statute and distinguished it from the Govt secrets statute in England.

On the other hand, Criminal Civil Rights Prosecutions are almost entirely limited to denial of life as a civil right,since there is no federal murder statutes. Occasionally, you will see a prosecution for an egregious case of denial of a minority group some public accomodation. Howver, I am unaware of any criminal prosecution for the type of "violation" that Wilson was complaining.

[Pofarmer]

"This is Bush's War"

This was also Carter's war, and Reagan's war, and the elder Bush's war, and Clinton's war. The problem is, none of them were fighting it,(well, Clintoon got in on the wrong side) and that's the model they (the Dims) want to go back to.

[Pofarmer]

"This is Bush's War"

This was also Carter's war, and Reagan's war, and the elder Bush's war, and Clinton's war. The problem is, none of them were fighting it, and that's the model they (the Dims) want to go back to.

[PeterUK]

"The tragedy lies in the fact that the Bush Administration is partially responsible.It caved to the braying of the 16 words dogs. Had Bush and his people simply ridden out the storm and put their case clearly none of this travesty need have happened."

The truth of the matter is that the Bush administration was blindsided Totally unaware the lust for power by the "Loyal Opposition was so great and the Anti-war faction so opposed to the conflict that they would stoop to any depths to bring down the Administration.
As the saying goes, "The quickest way to end a war is to lose it",the Administration could not comprehend that anyone could behave in such a despicable manner when American lives were at stake.
This ploy is of course part of the Democrat plan to smear the Republicans and keep them out of office for a generation.Just as the "Big Lie" branded Nixon with culpability for the Democrats Vietnam war so any disaster,engineered by the Democrats,will be place at the Republican door.
Hillary is playing politics with the lives of your military,it is to be hoped that these gallant men and women remember.

[kate]

One of the leaks close to the indictments, talked about Fitzgerald using creativity to punish the White House Leakers and the Espionage Act was cited as an example. Here's Byron York's speculation on Fitzgerald's attempt to indict on tbat act.

Shortcut to: http://www.nationalreview.com/york/york200510190902.asp

In restrospect, I wonder if the leak to the Post was an attempt to get Libby to plea.

[Jane]

I would argue that the media actually leads the Democrats and left.

Kate,

I couldn't agree more. I just don't know what to do about it. Maybe ban J-school.

I have wondered every single day of this trial why materiality has never, to my knowledge, been raised.

OT,

I couldn't agree more. I just don't know what to make of it. Maybe ban special prosecutors.

[Jane]

oops!

[clarice]

Yes. We'll just have to deal with official corruption thru the regular criminal process or the ballot box.

[Carol Herman]

FROM CAROL HERMAN

An odd ballgame, this. As we wait to see what the jury does. Duck? Or come to bat? Where they have only one turn to swing this sucker out of the ball park.

We can dream? If the jury hits a home run, then Russert's career gets smacked out of the park.

If not? We've got a long time, ahead, to talk. Because it would mean among the seated 12, there are some who believed Russert. Then, did one better and believed Judith Miller. And, here brains have to turn to mush. They slithered around in the mashed potatoes, and believed cooper, too.

Do I know what happens? Joe DiMaggio is dead.

[Carol Herman]

FROM CAROL HERMAN

Just to step back a moment, before the jurors come to the plate; I am reminded of an Abraham Lincoln story. Worth sharing.

Lincoln knew that party politics meant JOBS. In other words, nobody works for "nothing." (Not even the no-nothings of his time.)

But to win elections you really needed an army of people willing to do the leg work.

In other words? A candidate's words alone, are not enough. (And, here I'm saying Lincoln knew this.)

So, part of the party apparatus that gets a man elected to office, holds JOBS for the people of the WINNING PARTY. (Keep your eye focused on the ball. Because when one party wins, the judges, and other riff-raff that gain political seating; come from one, and not the other party.) In other words? American politics makes for unemployment. Except? For the crap that sits inside civil service jobs. They're stuck in those swivel chairs till they die. And, since, oh, 1960, they've been hard at work keeping American voters AWAY from the machinery. Even when they pick a president they like. And, send him to the White House.

Lincoln knew this, too.

And, hundreds of job seekers used to come through the White House gates, to proffer their job requests directly to Lincoln.

So, here's the story:

One man who asked Lincoln for a top-notch job, was told "no." So, he then asked Lincoln for a mid-level job. And, again, Lincoln said, "no." So, finally he asked Lincoln if he could have an old pair of Mr. Lincoln's pants.

This should teach those who come here from the mainstream, and are not ignoring Libby's tzuris, to contemplate that one reason this partisan fight is so ugly, is that neither party can get beyond the 50/50 caterwalling that comes from the press.

You might not notice, but subscriptions are down. And, viewership of the nutworks, has also tanked, considerable. And, in today's NY Post, the news is even worse. Paul Tharp writes that there's been a terrible erosion of "latest circulation numbers." Made worse because even printed articles, to be read, come to the Internet. And, the ads aren't attached to them. So ad revenue is down.

Yes, the President is a player! Heck, Lincoln was, too, ya know? And, it is going to be up to Mr. Bush, over the next two years (he doesn't leave office till January 2009), to make the case that he can win in Iraq. And, probably, ahead, too, he can TALK.

Maybe, someday? We'll say he talks pretty good? And, that will add another area where he's been so misunderestimated.

I also see that the affirmative action crowd has yet to sway mainstream America, ya know? From where I sit? Most people who come into contact with afirmative action hires, tend to see it as a poor bargain. Where laws "halped" incompetency. And, it hurts our children, too.

Maybe, the jury will sock Fitz's trio (Russert, Miller, and Cooper) out of the park?

[Charlie (Colorado)]

Do I know what happens? Joe DiMaggio is dead.

Cue Rod Serling and the guitar music.

[PaulL]

Other Tom: "Perhaps the failure to raise this issue stems from Fitz's assiduously resisting any effort to disclose the original CIA referral--we really don't know to this day what he was asked to investigate."

It's this kind of thing that is maddening about the case and why I am thoroughly disappointed with Walton. Walton has always treated the case like it had merit and taken Fitzgerald seriously. Remember his comment along the lines that he has never dealt with a more fair prosecutor?

When Cooper's bad typing was shown to easily be interpreted as indicating exactly what Libby says he said, Walton should have dismissed those charges. When Miller unbelievably said she couldn't remember her sources that she went to jail for to protect, Walton should have dismissed those charges. When the falsity of Russert's affidavit was revealed and Fitzgerald's collusion with same, Walton should have thrown those charges out.

Maybe I am expecting too much from the judge?

[Tom Bowler]

I would argue that the media actually leads the Democrats and left. The media won this election for the Democrats. I live in Northern Virginia and the Washington Post was practically a 527 for Webb.

The media is very powerful and becoming increasingly more crusading and vocal. I don't know what to do about the media.

I agree with Kate on both counts. The media drives the Democratic agenda, and they have been on a non-stop campaign its behalf.

I recently completed a continuing education course entitled "Marketing for Managers" that went into the 4 P's - Product, Place (distribution), Promotion, Price. I was struck by how closely the media/Democratic campaign against George Bush and the Republicans seemed to follow a well coordinated marketing effort as described in the course.

Think of all the stupid TV ads you've ever watched and the products that you've bought simply because you've heard their names over and over and over.

That's exactly what's been happening in every day in the Washington Post and the New York Times. Every day there is something about Republican corruption and/or Bush incompetence, and it's been going on for six years, to the point that they are simply accepted as fact. Bush and the Republicans have been "branded". That negative image has been impressed into the minds of political consumers.

In response we need to make the truth be heard by incessant repetition of it to the broadest possible audience. We need to engage in some push marketing and it will cost money. We need a coordinated marketing plan of our own.

I think it can be done, and I think we need to do it.

[Jane]

Maybe I am expecting too much from the judge?

One would hope not.

[windansea]

The hamsterwheels are scribbling frantically about a new conspiracy involving Rove and lobbyist Hohlt

Newsweek Article

[Charlie (Colorado)]

To the extent that the information he withheld exonerated the administration from the scandal charges, Fitzgerald's silence was a highly political act.

+1

[Jane]

In response we need to make the truth be heard by incessant repetition of it to the broadest possible audience. We need to engage in some push marketing and it will cost money. We need a coordinated marketing plan of our own.

I think it can be done, and I think we need to do it.

Where and how do we start. I'm in.

[PeterUK]

"Walton has always treated the case like it had merit and taken Fitzgerald seriously. Remember his comment along the lines that he has never dealt with a more fair prosecutor?"

You have to remember,nobody is safe from the Witchfinder General,not even a judge.

[windansea]

maybe someone should tell them Novak's article was on the advance wires 3 days before publication

[Charlie (Colorado)]

Maybe I am expecting too much from the judge?

Here's my Theory of Walton: he has nerve problems. Specifically, he doesn't have the nerve to do anything controversial.

[Specter]

Hey Gang,

Just wanted to let you know I have been here desperately trying to keep up with all of the posts.

I will again state that I think the 'sphere has done the best job of following and reporting developments in this trial (I will concede that Apuzzo has had a few moments of clarity). I cannot commend all of you in one post...sorry...LOL

TM - Your post says it all. In a nutshell it has to do with flawed memories on all sides. This has to be one of the biggest tragedies in jurisprudence ever. No crimes, but lots of persecution...uhhh...I mean prosecution.

OT and Daniel - Thanks for the addition to the analysis. I totally agree that no materiality has been demonstrated.

clarice - great job with all of the coverage and analysis. Hope your trip is going/went well.

[Carol Herman]

FM: CAROL HERMAN
TO: PETER UK

What you say is true, sir. Waltoon is pushing this case as if Fitzgerald's ball is his ball.

And, the GOLDEN APPEAL LOG has swelled, along with all his reversable "options."

When WELLS said basically, he was going home to enjoy the weekend; and CLINE will CLOSE for LIBBY. I understood that Wells has zero respect for this judge.

And, his best hope? (He's probably banking on a hung jury. OR, perhaps, if all the charges go thru, into the jury room, than the silly games donks and affirmative action hires play, where they "compromise" on something. And, so one charge will be one where Libby is guilty.) And, that's a BIG PERHAPS, fellas and gals.

Witch hunts in the past really leave stains on the American record. That's why we still talk of SALEM, Massa2shits. While we don't talk of the attempt to impeach the president that inherited Lincoln's presidency. We don't, because one sane man kabboshed the witch hunt. So it fell off the radar screen.

Alfred Hitchcok could have presented this case as a real spine tingler. First, he'd keep the audience in the dark as to the final outcome. Hmm. Which has just about the feel of reality to it, too.

[Charlie (Colorado)]

...maybe someone should tell them Novak's article was on the advance wires 3 days before publication

Noticed that, did you? The whole story about Hohit getting the story to Rove? He sent it to Rove the same day the column hit the wires.

No story here at all ... but craftily avoiding telling the context makes it look like a story.

[windansea]

No story here at all

they will go to their graves believing that their tiny lump of coal is actually a big shiny diamond