"We're Doing Our Honest Best"

Let's tweak Mark Kleiman, who comes out swinging on the little matter of whether a crime has been committed in the Plame leak case.  The Times editors have adopted the position put forth in a WaPo guest piece (and elsewhere), the gist of which is, the elements of a crime under the Intelligence Identities Protection Act are not satisfied.  Lawrence O'Donnell goes through this again at the Huffington site.

Mr. Kleiman has argued against this, and noted that other statutes, such as the Espionage Act, are available (but doubters lurk everywhere!); my official position has mixed skepticism about a successful prosecution with the belief that Fitzgerald will not end his investigation leaving obvious stones unturned.

But today Mr. Kleiman has new evidence, to wit, a WaPo quote from Judge Hogan during yesterday's hearing:

Chief U.S. District Judge Thomas F.] Hogan said Miller was mistaken in her belief that she was defending a free press. He stressed that the government source she "alleges she is protecting" had already waived her promise of confidentiality. He said her source may have been providing information not to shed light on government secrets but to try to discredit an administration critic.

"This is not a case of a whistle-blower" revealing secret information to Miller about "dangers at a nuclear power plant," Hogan said. "It's a case in which the information she was given and her potential use of it was a crime. . . . This is very different than a whistle-blower outing government misconduct."

Very good.  But I will see your Hogan and raise you two Fitzgeralds - the NY Times gives us two angst-filled quotes from the Special Counsel:

Mr. Fitzgerald, who has relied on secret evidence in persuading courts to order Ms. Miller jailed, said the law now requires her to testify.

"The law says the grand jury is entitled to every man's evidence," he said. "We're doing our honest best to get to the bottom of whether a crime has been committed."

And another:

On Friday, saying it was obligated to comply with a final court order in the case, Time turned over Mr. Cooper's notes and other documents to the special prosecutor in the case, Patrick J. Fitzgerald.

At the hearing here Wednesday, Theodore J. Boutrous Jr., a lawyer for Time, said Time's move should obviate the need for Mr. Cooper's testimony.

Mr. Fitzgerald opposed that request. "Mr. Cooper's testimony is essential," he said. "We need to get this right one way or the other, and we need Mr. Cooper to testify."

Emphasis added in each case.  And yes, the first quote is much stronger, and maybe I should have stopped there.

Now, Lawrence O'Donnell argues that the judges were sufficiently impressed by Fitzgerald's presentation to order subpoenas, and so they were.  What this overlooks is Jack Shafer's point that attorney Floyd Abrams picked a terrible tack for the reporters, arguing in terms of a new Constitutional privilege rather than attacking the notion that a crime had been committed.  Consequently, the merits of Fitzgerald's prospective case was not vigorously contested.

MORE:  Yes, post-London this topic seems utterly lame, but momentum is carrying me now.  Let me just stab at the Times editorial on Judith Miller.  First, putting her on a civil disobedience pedestal with Martin Luther King and Rosa Parks seems a bit much.

Second, it is all very well for the Times to excoriate Time magazine for folding up like a cheap suitcase.  However, if they are going to do that, shouldn't they note, somewhere in the course of presenting the background, that the source for Time reporter Matt Cooper had waived his confidentiality agreement?  Such a waiver had already been invoked by media stalwarts Tim Russert and Walter Pincus to justify their cooperation with the Special Counsel, and, for all we know, such a waiver may explain Novak's mysterious situation.

UPDATE:  Interesting job by Atrios in related news - the Times says Rove was Cooper's source; the Post says no.  Well, sort of.  Rove's attorney speaks to the WaPo with a denial that can be parsed a bit:

In an interview yesterday, he said Rove was not the source who called Cooper yesterday morning and personally waived the confidentiality agreement.

Yes, but the Times says it was all done lawyer-to-lawyer, implying that Karl was not on the phone.  Puzzling.  And normally the mighty Atrios sees through these parlor games.

STILL MORE:  If Mickey is with me, who will stand against me?  Mickey says that "Rove's lawyer went all weaselly and Clintonian", so go with the Times and parse the Post denial - Rove it is.

UPDATE II:   Mark Kleiman, in an update and a new post, argues that I have failed to address the flat statement by Judge Hogan that a crime has been committed.  He also explains away the Fitzgerald quotes I noted as Fitzgerald "merely speak[ing] with the caution appropriate to a prosecutor in dealing with a case in which the grand jury has not yet returned an indictment."

Well.  The gist of my response to Hogan comment matches my thoughts on O'Donnell's argument, but I can repeat it, I suppose - Fitzgerald, in his court filings, is going to advocate for the view that a crime has been committed and that, therefore, the court should order certain things to happen; in the specific case, he wanted the court to compel two reporters to testify.  As an advocate for the view that this is a serious matter, Fitzgerald cannot, of course, lie to the judge.  But he is under no obligation to present his request as though drafted by Hamlet - he is allowed to put the best spin possible on his case.

It is up to counsel for the reporters to challenge Fitzgerald's request on the basis that no crime is likely to be prosecuted, if they so choose.  In fact, they were criticized by Jack Shafer for failing to do so, back when Floyd Abrams chose to walk the road of urging the court to invent a new shield for journalists. 

So, Judge Hogan has seen filings from an aggressive prosecutor explaining that this is a sufficiently serious matter that reporters should be jailed; from the other side, he has heard lofty arguments about the importance of a free and inquiring press.  Unless Judge Hogan is doing independent research, he ought to believe a crime has occurred - that is what he has been told, and no one has contested it.

And that said, how could Judge Hogan possibly know any better than Fitzgerald, prior to indictments, trials,and convictions, that a crime has occurred?  If Fitzgerald's comment is suitably cautious, as befits a prosecutor, can we mock Hogan's comment as ill-fitted to a judge?  Or is Hogan going to dispense with the tedium of investigation, indictment, and trial, and just find someone guilty of something?

OK.  Did saying it twice help?  Things to do - look back through the court ruling with the infamous eight page redaction.  There may be caveats in there as to whether a crime has occurred.

And are Fitzgerald's filings on the web?  That would be a key to this.

A BIT MORE:  DOJ guidelines for subpoenaing a reporter do say this:

(a) “In criminal cases, there should be reasonable grounds to believe, based on information obtained from nonmedia sources, that a crime has occurred...

But of course Fitzgerald will argue (convincingly, in my view) that there are some grounds to believe a crime occurred.  Only when all the evidence is in will the ability or inability to prosecute be obvious.

Scrolling through the opinion, I see signs of judicial restraint on the question of whether a crime occurred - the word "alleged" appears, and later Judge Tatel notes "Leaks similar to the crime suspected here (exposure of a covert agent)". 

Comments

[Crank]

Good work staying on top of this. I wouldn't put too much stock in the tea leaves either way. The judge is not the jury, and the prosecutor won't want to say too much for fear of compromising the jury pool. In other words, we know very little.

As for the Espionage Act, I remain unimpressed.

[Appalled Moderate]

I suggest this merely to work someone's nerves. What if the source Ms. Miller is defending isn't from the White House, but is Nick Kristoff? I believe, from what HE wrote, Mr. Kristoff knew about Ms. Plame's status. He might have mentioned it to his colleague for background purposes. (Wilson is HIS source, after all.) If Ms. Miller did what Cooper is said to done -- mentioned Plame's name to her expected source to get a reaction leading to a story -- then crime would not be by the White House person everyone hopes to nail, but the FIRST person to park a flea in Ms. Miller's ear.

This is just a suggestion, which works based on the available facts, and gives a reason (other than courage, standing on principle, etc) that Ms. Miller might be acting the way she is. Since this is what folks have done through all this Plame controversy, it's fair to put this out there.

Don't think Mr. Kristoff would be in legal danger, but something like this would make, Miller, Kristoff, the NYT, look just awful. And, given the WMD fiasco, probably would put an end to Ms. Miller's career.

This is speculation only. This is probably not true. But it's as likely a guess as some of the other ones that have been put out there.

[Jim E.]

In fairness to Cooper (and Miller), both said that they regarded the waivers as not worth the paper they're printed on. Cooper only relented once he was personally contacted yesterday by his source and was convinced the source wasn't acting under duress. Even Pincus claims he didn't testify on the basis of the mere waiver. Whether Russert acted upon the mere waiver or not, no one knows.

The point is, Time acted against Cooper's wishes and BEFORE his source intervened. Therefore, Time did fold like a cheap suitcase (and I say that as someone who was glad they did).

[Patrick R. Sullivan]

I'd like Fitzgerald to subpoena the 'hot' Valerie to give the names of all the guys she's dated three or four times, so we can see how many of them knew what she really did for a living.

[kbiel]

What this overlooks is Jack Shafer's point that attorney Floyd Abrams picked a terrible tack for the reporters, arguing in terms of a new Constitutional privilege rather than attacking the notion that a crime had been committed. Consequently, the merits of Fitzgerald's prospective case was not vigorously contested.

Floyd Abrams could not argue that a crime had not been committed, that is a fact for the grand jury to decide. Judge Hogan can't just decide that subpeonas can not be issued because he doesn't believe a crime was committed, that would be usurping the grand jury's power. Hogan can only quash the subpeona if the testimony to be given would violate the 5th amendment or some priviledge, such as the client-attorney priviledge, granted by law.

[kim]

Duress? Signed under duress? C'mon, I don't want that bridge you're trying to flog, either.

What a desperate excuse. This is going to be an interesting surprise, and I have a funny feeling even the prosecutor is not clear about the ending.
==============================

[ed]

Hmmm.

I can't help but think perhaps you're over analyzing these statements. Sure if you parse them out carefully you'll find loopholes. Frankly you could do that to practically anything that anyone has ever said. I expect it would be difficult, and cumbersome, to produce a statement that carefully and completely eliminates each and every possible loophole that could be implied by every statement made by every other person who has ties or an interest in a case.

So not only would you have to be extremely explicit to cover every possibility raised by the statement, but you'd also have to cover every possibility raised by any, and every, other statement made by every other person.

Seriously now, how would it start?

"My client, and not his brother, mother, sister, sister-in-law, 2nd cousin on his mother's side, best friend in 4th grade ... "

It becomes a little ridiculous.

[Jon H]

"I'd like Fitzgerald to subpoena the 'hot' Valerie to give the names of all the guys she's dated three or four times, so we can see how many of them knew what she really did for a living."

Ah, so you're saying she was asking for it?

If you'd like, maybe Fitzgerald will ask if she worked in a short skirt, too.

[BR]

Whew, things move fast here, new thread already. TM, Appalled Moderate and Fresh Air - I just left you each a message in the previous thread :)

[Linda]

Re: Signed under duress, from today's WSJ:
"...both referred to "coercive" waivers from the sources which they don't consider to be true waivers. The waivers, they said yesterday, were signed by a number of executive-branch employees as a condition of their employment, and automatically waived their rights to keep their names confidential if they provided information to reports who were later subpoenaed."

[kim]

1. Were the pertinent waivers signed as a condition of employment or do they post-date employment?

2. Funny definition of duress or coercion. Would it be lawful to repudiate that waiver for that excuse?
===============================

[ordi]

WHO LEAKED TO WHOM?
By Michelle Malkin

http://michellemalkin.com/mt/mt-tb.cgi/2352

Washington Post:

Sources close to the investigation say there is evidence in some instances that some reporters may have told government officials -- not the other way around -- that Wilson was married to Plame, a CIA employee. http://www.washingtonpost.com/wp-dyn/content/article/2005/07/05/AR2005070500788.html

[ordi]

opps sorry

http://www.washingtonpost.com/wp-dyn/content/article/2005/07/05/AR2005070500788.html>WaPo Article

[BR]

"Coercive waivers" - Looks to me like just another ploy by Miller (and Cooper if he is still refusing to personally testify beyond just turning in his notes). If their source(s) once worked in the NSC for example, and have since resigned or been fired, then openly went over to the Kerry camp in mid-2003, like Rand Beers, it could explain why revealing name(s) must be avoided at all costs - for the sake of the Dem. Party.

(It's no joking matter, but I just got this picture of a dead canary found in a bed as warning, a la GodFather Part X.)

[kim]

Joe Wilson, Sandy Berger, Rand Beers, and Richard Clarke: The Four Hoarsemen of the Politiscape.
================================

[kim]

Bah! These waivers were obtained by Fitzgerald. Probably not repudiatable as coerced, even if those waiving may have felt a little hot Patrick breath.
============================

[karl rove]

If this turns out to be reporters leaking to other reporters and using each other as sources... hoo hoo.

[TM]

I am not siging in with Typekey - this is a test.

[Appalled Moderate]

Humble prediction, based on nothing but what I read.

The reporters are not protecting Rove. they are protecting the other people who told them (over cocktails, or whereever) that Plame was CIA. And Fitzgerald, in ferocious pursuit of a crime somewhere, anywhere, is trying to get those names.

Cooper's notes reveals a conversation with Rove. They would not likely reveal whether Cooper mentioned Plame's name to him or whether he volunteered it. (It would have no bearing on whatever story he chose to write, so why would he write that down?) This is why the notes would not be enough for Fitzgerald. Now if Cooper says "He gave the name to me" and Rove says "No, Cooper mentioned it first", it becomes a game of he said she said that isn't worth prosecuting. Of course, there would be a question on why Bush's own internal investigation hadn't ferreted this out, and why Rove still has a job...

In Miller's case, she has said that she does not want to give up her sources, waiver or not, because she does not want to force her "intelligence sources" into admitting they talked to a reporter. (I linked this in a prior thread). I think Fitzgerald wants the same thing from Miller as he wants from Cooper -- the names of everyone (white house and non-white house) feeding her Plame gossip. Frankly, given that Miller has never written a story based on this information, this is a bit much. But, I do have to think, if Miller knew Plame was an operative, it is as natural to think she got the info from a fellow reporter as it is to think she got it from soemone at the White House.

[TM]

My current bet - Rove is not worried about the legal heat, but rather the political heat - the "non-criminal leak" defense may be too subtle and distracting. Does the Admin really want to wallow in the "16 Words" debate that led to this debacle?

[richard mcenroe]

TM — It doesn't matter: "Imminent threat," "Sixteen Words," "Bush Lied," "Downing Street Memo..." these are icons, revered by their left for their very existence, regardless of — or in spite of — their factual content.

[kim]

I still hope he is trying to nail the false whistleblower, especially if there is a connection to the Yellow Cake letters.
===============================

[BR]

Kim, your "Four Hoarsemen" - too funny. Look what I just found:

A recent Joseph Wilson interview on 7/6/05 at a rabidly anti-Bush site:

"[Interviewer]: Mr. Ambassador, when you listened to George W. Bush's speech in January of 2003 and his mention of the 'yellowcake from Niger,' did you think that he was lying or simply that he was misled?' I know you gave a formal response to the New York Times in the July editorial ["What I Didn't Find in Africa "], and in subsequent interviews, but I wonder if the word "liar" crossed your mind at the time, or thereafter.

Ambassador Joseph Wilson: At the time of the State of the Union, I had no idea the President was referring to Niger. Remember, his statement was 'the British government have learned that Saddam Hussein recently attempted to purchase uranium yellowcake from Africa'. There are four countries in Africa that produce yellowcake, so he could have been speaking about one of the other three. It was only in March when it became apparent that Niger was the country in question that I came to understand that the administration had misstated the facts…."

*****
(Why did it become "apparent" in MARCH 2003? Not asked or answered in the interview.) If anyone has an answer, I'd love to know. Richard Clarke left the NSC in Feb 03, and Beers in March 03.

In a non-sequitur answer to a question about the 9/11 investigation in this interview, Wilson states: "I have obviously followed the inquiries into 9/11 and I know Dick Clarke and Rand Beers very well but I am not an expert…."

(But he left out the fourth "hoarseman" – Samuel Berger, and that 9/2/03 theft at the Natl Archives of a 15-page terrorism doc written by Richard Clarke, and goodness knows what else.)

*****
The rest of the interview (by both the interviewer and Wilson) forward the current spin lines to its intended goal – impeachment. There was only one question to which Wilson replied "No comment":

"Do you feel that reporters Matthew Cooper of Time and Judith Miller of The New York Times should have turned over their documents regarding the Plame affair? Do you think Novak is more to blame, since he actually revealed the identity of a covert operative's name? Or are the sources the only ones to blame?"

*****

At the very end of the interview there is a later update on the same day, 7/6/05: "Statement of Joseph Wilson on the sentencing of New York Times reporter Judith Miller" in which he calls her "collateral damage."

[kim]

It seems that V has revealed secrets and J is perjuried.
===============================

[BR]

Hmm, yes, there are also parts to the recent 7/6/05 interview linked above in which Wilson describes things about internal CIA administrative cell structure... as I was reading it, I wondered how could he know that? Amazing how these people can't shut up, almost compulsively wanting to be discovered, just like old Watergate ghost John W. Dean giving legal strategy advice to Plame/Wilson openly on the internet. (See the 2 comments in that thread.)

Further on the subject of what other secret info Wilson had, Commenter "cancon" over at Wizbang says: …" and that's another little area Mr. Wilson got himself in trouble, he claimed to have seen the forged documents before he could have possibly seen them, they didn't get into the hands of the CIA until a few months after he claimed to have seen them, unless-----"

[I presume Cancon is referring to the Italian-later-turned-out-to-be-French-forged docs which spurred the WH into a Niger investigation, which resulted in the CIA sending Wilson to Niger? Phew, I smell an attempted setup of the WH.]

Did Wilson testify to the Fitzgerald grand jury? Or only to a Senate Committee?

[walt]

Sometimes pushing logic to an extreme position can show a useful definition of the point at hand. The police find a corpse on the street with a bullet hole in its head: the judge says a crime has been committed; the prosecutor has 12 suspects and is circumspect about using such terms as "alleged" & "potential" & "material witness" & "suspect" & "person of interest." No matter how you parse, the judge is very likely correct in the factual statement that a crime has been committed.