The three appeals judges who heard the Judy Miller appeal will hear Libby's appeal of Judge Walton's decision to deny bail pending a full appeal of the case. Here are the AP and the NY Sun with coverage which omits the Judy Miller connection.
ABC News describes the Libby appeal and actually mentions Andrea Mitchell (but not David Gregory, who gains prominence in this iteration of defense filings).
Christy Hardin Smith of firedoglake has lots of useful links to the previous efforts by these judges on the Plame case, including the opinion sending Judy to jail. Ms. Hardin Smith thinks this panel is a win for Fitzgerald; I am not so sure. The judges may be revisiting the wisdom of jailing Judy Miller and wondering just what happened to the grand national security case her subpoena was ostensibly about, in which case they may also be a bit less sympathetic to Fitzgerald than formerly.
Just for example, one point made in the Libby appeal is that neither Andrea Mitchell nor David Gregory were asked to testify to the grand jury although both may have received Plame leaks. The filing especially notes that Ari Fleischer, a prosecution witness, was never contradicted in his trial testimony in which he claimed to have leaked to Gregory. Might the judges wonder why Ms. Miller's testimony was so urgent yet Mitchell and Gregory got a pass?
Here is a link to a redacted version of the affidavit filed by Fitzgerald when he urged the Miller Court to toss her in the hoosegow if she did not comply with her subpoena. The Russert-Libby interaction features prominently in that affidavit but there is no *apparent* mention of the fact that Ari Fleischer had testified to the grand jury that he had leaked information about Valerie Plame to David Gregory. Instead, Russert's assurance that he did not discuss Plame with other reporters prior to the Novak column is presented seemingly without qualification.
Is that a problem for Fitzgerald, since the judges know now what Fitzgerald knew then? Surely it occurred to Fitzgerald that Russert might be mischaracterizing his conversation with Libby in order to conceal his own sources, possibly including David Gregory, Andrea Mitchell, or others. Why not investigate that? Why not mention it to the judges? Let's see if they have these questions now.
NON-CAVEAT: Ari Fleischer testified at the trial that he leaked to John Dickerson and David Gregory. *IF* his still-unpublicized grand jury had been different, one would have expected the defense to seize on the discrepancy as evidence of Fleischer's faltering memory, as they did with other witnesses. Beyond that, the defense noted in their opening statement that Fleischer leaked to David Gregory; presumably that was based on thier discovery of Fleischer's grand jury testimony.
STILL COVERT AFTER ALL THESE YEARS? Judge Tatel seemed to rely on Fitzgerald's obscure affidavit to infer that Ms. Plame did in fact have covert status as defined by the IIPA (rather than as defined by common CIA parlance, where "classified" and "covert" are interchangeable).
With the passage of time we now know that Fitzgerald did not have an opinion from CIA Counsel as to Ms. Plame's coverage under the IIPA; he did not include any analysis from DoJ as to her IIPA status in his classified employment summary; and he chose not to present the formal CIA personnel record of the last date for which she received credit for service abroad.
I wonder if the judges will smile on this.