Defending Lewis Libby

Contrary to my earlier suggestion, Libby will not be going with an insanity defense.  Instead, he will hire Steve Martin as his new counsel and use the closely-related "I Forgot" defense (press release here).

Well, Libby had a lot to forget.  The indictment is here, but Fitzgerald talked through an outline of the Libby case at his press conference, so let's excerpt that:

That brings us to the fall of 2003. When it was clear that Valerie Wilson's cover had been blown, investigation began. And in October 2003, the FBI interviewed Mr. Libby. Mr. Libby is the vice president's chief of staff. He's also an assistant to the president and an assistant to the vice president for national security affairs.

The focus of the interview was what it that he had known about Wilson's wife, Valerie Wilson, what he knew about Ms. Wilson, what he said to people, why he said it, and how he learned it.

And to be frank, Mr. Libby gave the FBI a compelling story.

What he told the FBI is that essentially he was at the end of a long chain of phone calls. He spoke to reporter Tim Russert, and during the conversation Mr. Russert told him that, Hey, do you know that all the reporters know that Mr. Wilson's wife works at the CIA?

And he told the FBI that he learned that information as if it were new, and it struck him. So he took this information from Mr. Russert and later on he passed it on to other reporters, including reporter Matthew Cooper of Time magazine, reporter Judith Miller of the New York Times.

And he told the FBI that when he passed the information on on July 12th, 2003, two days before Mr. Novak's column, that he passed it on understanding that this was information he had gotten from a reporter; that he didn't even know if it was true.

And he told the FBI that when he passed the information on to the reporters he made clear that he did know if this were true. This was something that all the reporters were saying and, in fact, he just didn't know and he wanted to be clear about it.

Later, Mr. Libby went before the grand jury on two occasions in March of 2004. He took and oath and he testified. And he essentially said the same thing.

He said that, in fact, he had learned from the vice president earlier in June 2003 information about Wilson's wife, but he had forgotten it, and that when he learned the information from Mr. Russert during this phone call he learned it as if it were new.

When he passed the information on to reporters Cooper and Miller late in the week, he passed it on thinking it was just information he received from reporters; that he told reporters that, in fact, he didn't even know if it were true. He was just passing gossip from one reporter to another at the long end of a chain of phone calls.

It would be a compelling story that will lead the FBI to go away if only it were true. It is not true, according to the indictment.

In fact, Mr. Libby discussed the information about Valerie Wilson at least half a dozen times before this conversation with Mr. Russert ever took place, not to mention that when he spoke to Mr. Russert, Mr. Russert and he never discussed Valerie Wilson or Wilson's wife.

He didn't learn it from Mr. Russert. But if he had, it would not have been new at the time.

Let me talk you through what the indictment alleges.

The indictment alleges that Mr. Libby learned the information about Valerie Wilson at least three times in June of 2003 from government officials.

Let me make clear there was nothing wrong with government officials discussing Valerie Wilson or Mr. Wilson or his wife and imparting the information to Mr. Libby.

But in early June, Mr. Libby learned about Valerie Wilson and the role she was believed to play in having sent Mr. Wilson on a trip overseas from a senior CIA officer on or around June 11th, from an undersecretary of state on or around June 11th, and from the vice president on or about June 12th.

It's also clear, as set forth in the indictment, that some time prior to July 8th he also learned it from somebody else working in the Vice President's Office.

So at least four people within the government told Mr. Libby about Valerie Wilson, often referred to as Wilson's wife, working at the CIA and believed to be responsible for helping organize a trip that Mr. Wilson took overseas.

In addition to hearing it from government officials, it's also alleged in the indictment that at least three times Mr. Libby discussed this information with other government officials.

It's alleged in the indictment that on June 14th of 2003, a full month before Mr. Novak's column, Mr. Libby discussed it in a conversation with a CIA briefer in which he was complaining to the CIA briefer his belief that the CIA was leaking information about something or making critical comments, and he brought up Joe Wilson and Valerie Wilson.It's also alleged in the indictment that Mr. Libby discussed it with the White House press secretary on July 7th, 2003, over lunch. What's important about that is that Mr. Libby, the indictment alleges, was telling Mr. Fleischer something on Monday that he claims to have learned on Thursday.

In addition to discussing it with the press secretary on July 7th, there was also a discussion on or about July 8th in which counsel for the vice president was asked a question by Mr. Libby as to what paperwork the Central Intelligence Agency would have if an employee had a spouse go on a trip.

So that at least seven discussions involving government officials prior to the day when Mr. Libby claims he learned this information as if it were new from Mr. Russert. And, in fact, when he spoke to Mr. Russert, they never discussed it.

I added emphasis to the fact that Libby modified his story when he spoke to the grand jury, and reflected the fact that he had spoken about Ms. Plame with Dick Cheney in June.  The NY Times had front-paged that Cheney revelation on Oct. 25, and I had argued that this was almost surely old news to the prosecutior, and was based on Libby's notes.  It looks as if I had that right.  Where I went astray, however, was in suggesting that the leaks about Libby's "Blame the media" strategy were a misdirection play - evidently, he meant it.

However - one wonders whether the other contacts mentioned by Fitzgerald were in Libby's "copious" notes.  If so, Libby needs to sue his attorneys for malpractice, since they should have reviewed that material before submitting it to Fitzgerald and allowing Libby to testify.  Of course, attorney ineptitude notwthstanding, if his notes included these contacts then it is easier for Libby to argue that he had no real intention of obstructing the investigation.  On the other hand, if they were not in his notes, why not?

On a related note, the queston of just what prompted Libby to call Russert continues to intrigue me.  Here is what the indictment says about it:

On or about July 10, 2003, LIBBY spoke to NBC Washington Bureau Chief Tim Russert to complain about press coverage of LIBBY by an MSNBC reporter. LIBBY did not discuss Wilson’s wife with Russert.

But did they discuss Joe Wilson?  If they did, Libby's story looks more like bad memory and less like a total invention.

How might we guess what they discussed?  Well, one idea would be to check the MSNBC archives for July 9, 2003 (or July 8, or July 7), and see what mention of Libby (or Cheney, or Niger) might have prompted an outraged call from Libby to Russert.

So far, I am finding that to be easier said than done, but perhaps someone else will have better luck. 

[UPDATE:  Michael Crowley of The Plank at TNR strides ahead of me as if wearing seven-league boots, and nominates a July 8 Chris Matthews rant about Libby and Niger and Wilson.  Hmm - so Libby and Russert may very well have been discussing Wilson and his trip?  How about that - a whiff of oxygen for Libby.]

As to the media tone at the time, the ABC Note for July 11, 2003 is quite interesting:

The Niger story has been around (for what seems like) forever, but started to build to a hotter political boil after the Joseph Wilson op-ed over the weekend.

...this cycle's press coverage is by any objective standard tilted completely towards the Democrat(ic) point of view.

From the Howard Dean two-way on Good Morning America to John Kerry with a major role in the Andrea Mitchell spot on Nightly News last night, to John DiStaso giving Dean plenty of room to make his case in the Union Leader. LINK — the press is obviously right at this moment on the same, shall we say, wavelength with the Democratic Party on all aspects of the Iraq story.

So Libby might have had plenty to be irritated about.

Comments

[Mackenzie]

Thank you Tom Maguire for the attention that you have paid to this issue over the past 27 months, and for giving providing a forum for the exchange of facts, theories and opinions.

From reading the comments to your previous post, there seem to be many whose opinions are fixed and who do not accept the facts as outlined in the indictments. Perhaps some of them will come to understand the seriousness of these charges.

[!]

Isn't an "I Forgot" defense not to different from a Twinkie Defense?

Not the greatest thing in the world to hear from the VP's Nat'l Security pointman either. "There was just so much infomation that I couldn't keep it straight. Hence my frequent forgetfulness that I had this converstation before."

Maybe Libby should have tattooed himself a la "Memento."

In all seriousness, I can't see that defense, which worked for then sitting President Reagan, being effective for Libby, a high level staffer but not a president or in a posistion of having presidential stature.

[SteveMG]

Yes, thanks Tom for your intrepid attention to this issue (intrepid or incontinent, one of the two - starts with an "in").

I think of the time I've spent here reading your posts and links and consider the other wasted endeavors I could have accomplished instead.

Like perhaps learning a second language (Italian would be nice), starting a home-based business, having another kid or completing Mortimer Adler's Great Book series.

But nope, you've been too good staying on top of this opera bouffe.

And it certainly has been bouffe.

Thanks.

SMG

[Jeff]

Someone -- I can't remember who and I'm not going to do the work right now -- today observed that two or three days before Libby's call to Russert none other than Chris Matthews had been rather harsh on Libby himself and/or the VP's office for their alleged role or responsibility for the 16 words, which presumably is what Libby was calling to complain about. Whether the conversation touched on Joe Wilson remains unclear. But Libby seems screwed regardless.

It appears to my wishful eyes that Libby came within a hair's breadth of being charged with either IIPA or Espionage Act violations, and Cheney came nearly as close to being charged with conspiracy to commit same. In fact, I suspect there are parts of the indictment left over from that previously prospective possibility, since they serve no obvious function in the context of indicting for the actual alleged crime. That said, my suspicion is that Fitzgerald is done, contra the wishful thinking of many lefties.

As for SMG, all I have to say is, wow, that's dedication.

[owl]

Mackenzie..I am one of those that has not changed my opinion because I watched Wilson and recognized him as another of the Democratic campaigns in July. If you have seen one of the CIA/Democratic Party Media campaigns, you have seen them all. Futhermore, you can catch it every single day on MSNBC if you can stand to watch and catch the New Campaign. Ya just gotta know what to watch for....clues...Matthews joins at the hip and up, up and away....But first, it hits the NYT as news/editorial. Then WaPo or both on same day. Same-o same-o.

Not saying Libby didn't have his little memory problem. After all, what's a fellow to do when they are all waging a war behind shields? Protected right down to the witnesses.

Can someone tell me if Fritz can have a sealed indictment stored away on Official A? He sure sounded like a blackmailer.. Guess it doesn't matter since that Coup worked. Winning is keeping the WH quiet for 2 years and now being given a legit excuse for running this as a headline, everyday until 2008.

[Tom Veal]

Not to nitpick, but Mr. Fitzgerald seems to have misspoken on one point. It is clear from the indictment's summary of Mr. Libby's statement to the FBI that he said back then that he first learned about Valerie Wilson from the Vice President.

"During a conversation with Tim Russert of NBC News on July 10 or 11, 2003, Russert asked LIBBY if LIBBY was aware that Wilson’s wife worked for the CIA. LIBBY responded to Russert that he did not know that, and Russert replied that all the reporters knew it. LIBBY was surprised by this statement, because, while speaking with Russert, LIBBY did not recall that he previously had learned about Wilson’s wife’s employment from the Vice President." [Indictment, Count Two, ¶3]

My initial impression was the Mr. Libby had been caught well and truly in a stupid set of lies. I haven't completely abandoned that view but am now much less sure that he will be convicted, for reasons set out at too great length at http://stromata.typepad.com/stromata_blog/2005/10/what_the_libby_.html

[TM]

Maybe Libby should have tattooed himself a la "Memento."

North Korea, Iran... darn, *someone* is developing nukes...

[Syl]

I don't think it's a stupid set of lies. It's one lie, that may or may not be a lie.

Libby may very well have learned that the official information that Mrs. Wilson was CIA, was going around press circles unofficially.

His memory lapse may only involve timing and identity of who he 'learned' it from first and what his mental thinking was at the time.

If Libby uses an 'I forgot' defense and claims he forgot everything, I'm not sure that will work because each 'lie' will be considered a separate piece and all of them may/may not be discounted. And that's a high bar. One lie vs several.

But if the central lie/not lie concerns the unofficial rumor of mrs. wilson's cia affiliation, it would put Libby's testimony into a context and that context is what would be accepted/rejected.

And if Libby's defense does not include that context, there will be no investigation of what Kristoff and Pincus knew and who did they tell.

The press will get a pass.

[Syl]

In some earlier thread I had said you can't investigate what's not there.

someone: look over there
fitz: I'm looking here. There's no over there.

As Cathy pointed out the other night, Fitz was/is constrained by "the DoJ rules about limiting fishing expeditions when taking
testimony from journaliststs" but defense lawyers do not have those same constraints.

Fitz couldn't inquire of the journalists anything beyond what was said in their specific conversations with specific individuals. There was no there there to even doubt the testimony of any journalist.

A defense lawyer could get to the bottom of this, but not by using a simple 'I forgot' defense.

If Libby doesn't explain this backchatter of journalists to his lawyers, then he truly forgot or it truly wasn't there.

[MJW]

In his press conference, Fitzgerald stressed that he couldn't go outside the "four corners" of the indictment. He then, however, strongly implied Libby was guilty of violating the agent disclosure law and the Espionage Act, and the perjury and obstruction charges were just an alternate way of seeking justice. Not only does this go well outside the four corners, it also leaves unanswered what Fitzgerald is doing to punish the agent-outer who first leaked the information to Novak.

[JayDee]

As grand marshall of the go-to site for Plame-aholics, I'm sure TM is glad this story has now been given the oxygen to stay in the headlines at least another year.

Although there's a lot of sad pubbies who want to continue to whine about Joe Wilson, the case has moved on past him now, and it might be time to start getting over it. Here's where we stand: Pat Fitzgerald has Libby nailed dead to rights. The question is does the little frou frou elitist take a dive for his boss? Is he willing to spend even a year in Club Fed? Somehow the guy doesn't strike me as having Martha Stewart's backbone. Clearly, he can't go to trial because a. he'll lose and b. the big boys would have to come out from behind their shields and be truthful with the American people (no way!).... For the moment, the suspense is Libby's next move. Does he decide to save his frail little rich baby butt or does he bite the bullet for all the creeps who are getting off scott free...I wonder how he felt watching his "friend" Karl giggling and gloating like a greasy pig on Friday afternoon.

And in the meantime the American people get to absorb this fact, amidst the clatter of rightwing bitching and moaning that they've been forced to obey the silly, foolish laws of the government they once swore to defend. If Karl can keep the charade of Republican Victimization (by the socialist commie power craving dems and the activist judiciary and the eeeeeeeeevil librul MSM, lol) going after this debacle, then either he truly is Machiavelli reincarnated or the American people are officially dumber than 300,000,000 boxes of rocks.

[TM]

He then, however, strongly implied Libby was guilty of violating the agent disclosure law and the Espionage Act, and the perjury and obstruction charges were just an alternate way of seeking justice. Not only does this go well outside the four corners, it also leaves unanswered what Fitzgerald is doing to punish the agent-outer who first leaked the information to Novak.

Well, Fitzgerald silence, and lack of indictments, was eloquent on that point.

He knows who the sources were for Novak and Pincus, and Libby's misdirection was penetrated by the November FBI interview at the latest - October is ambiguous, perhaps deliberately so), where Cheney's talk with Libby was mentioned.

So the idea that Fitzgerald had a case is pretty well answered by the fact that he didn't bring one.

[Cecil Turner]

From reading the comments to your previous post, there seem to be many whose opinions are fixed and who do not accept the facts as outlined in the indictments.

It seems to me more of a case of people not reading the indictment carefully. As Tom points out above, Libby does not say he first learned of Plame's identity through the press (which would, as several folks pointed out in the previous thread, be a slam-dunk based on other White House testimony). He did, however, claim that during a particular phone call with a reporter he forgot about Plame's employment. That's not nearly as far-fetched, especially if he was, as he apparently claims, blind-sided.

As to the charges, they all appear to me to be allegations of lying, and in every case it's a two-sided conversation with a reporter. (I'd further note two particular conversations--with Tim Russert and Matt Cooper--account for practically every disputed fact.) That appears to me to be a very weak case.

Further, the notable part of the indictment is what it doesn't say. Fitz talks about outing Plame in the press conference, and he'll essentially have to prove Libby leaked Plame's identity and then lied about it to prove the perjury charge. It'd surely be easier simply to prove he leaked her identity--which is also the crime Fitz was assigned to investigate--and yet that's not charged. Why not? Fitz obviously knows it's an issue:

Well, why is this a leak investigation that doesn't result in a charge? I've been trying to think about how to explain this, so let me try . . .

Baseball blather (sorry TM) follows.

[kim]

Since Fitz is there because of the conflict inherent in DOJ investigating the White House, and since no such conflict exists with DOJ investigating the CIA, Fitz will hand off now to DOJ investigation and prosecution.

Football blather follows. After this commercial interruption so exquisitely timed for the injury time-out for Libby's fractured patella. I wanna see clips of the ambulance run.
===================================================

[stevesturm]

(since trackback doesn't work for me)

I see a couple of problems with what Fitzgerald alleged. First, Libby lying to the investigators would not make them go away, it would only lead them right to the people who would incriminate Libby. Is he that stupid?

And, if Libby's story were true, the reporters would have a tremendous reason to lie... in order to protect their sources who gave them the information they in turn fed to Libby.

And, as far as Libby's attorney, he not only (presumably) looked at the documents, he sat in on the interviews with the FBI. Was he really that incompetent and/or in the dark to let Libby lie?

[kim]

I agree, steve. I half think this may be a deliberate tactic of Fitz's, to see if those reporters refuse to testify or perjure themselves. Novel prosecuting style, and probably just my imagination run amok, but this is a weak case on intent, and other aspects(specifically, Fitz has not explored avenues defense will).

I expect a plea with community service if the White House is still vulnerable. I expect a losing battle, on this indictment, for Fitz if the CIA, or Joe, or MSM are vulnerable.
===========================================

[TP]

I'm new here and am very grateful for the discussion. I have one kind of dumb question. What happens if Libby subpoenas all of the various reporter notes during discovery, including those of Kristof and Pincus and is refused? Is this not a violation of his right to a fair trial and wouldn't there be a motion to call a mistrial?

[Gary Farber]

A certain take as a form of commentary.

[SteveMG]

Jeff:
"As for SMG, all I have to say is, wow, that's dedication."

It's also malarkey. Was tongue in cheek shot at TM's (near) obsession with this issue.

Guess my humor is too sophisticated sometimes (sure).

My thanks to Tom, however, were sincere.

SMG

[Syl]

Worry

"it also leaves unanswered what Fitzgerald is doing to punish the agent-outer who first leaked the information to Novak."

Did Novak ever say it wasn't Libby? May not matter because something just occurred to me.

If Libby was getting and passing on what he heard unofficially from journalists, even if he officially knew (ie, he could unofficially have learned the name 'valery plame') he could be the one who spoke to Novak OR could be the one who gave information to the one who spoke to Novak.

So Libby's trial would have to establish this journalist as source business. If Libby got no information from journalists then BAM Fitz slaps him with the other charges.

That may be the reason Fitz has to wait.

[kim]

Did you notice, GF, that Libby has a defense attorney who will not forget to defend?
============================================

[kim]

That may be particularly so, Syl, if there was general WH awareness of the 'trap' that Rove mentioned re: Cooper. It may be that because of DOJ sensitivity about journalists, that this may be the best way for Fitz to see that justice is done. It is not unusual for the defense to unveil the just path, but it usually surprises the prosecution. Maybe not, in this, special, case.
======================================

[clarice]

TP, there is no right to refuse to testify on the part of a witness to a crime. And the defendant has a constitutional right to confront his accusers. Therefore, the reporters would have to comply.

But there is an interesting underlying question here. If the SP represented to the Court originally that Plame was a covert agent whose "outing" damaged US interests, and in fact she was not, (Tatel's opinion in the UD Ct of Appeals seems to suggest that was the represenation), wasn't the forced testimony of the reporters based on a false premise? And what is the remedy for that?

I suppose the fact that someone works for the CIA in any capacity might be deemed classified information but surely except for covert operators, that sort of thing is an every day occurrence and I am not sure the Ct would have taken this step except for a representation that she was more than that and for the further representation that her "outing" damaged national security and required such unusual steps.

[clarice]

Syl, Novak has repeatedly said that his source was not in the WH and not a "partisan gun slinger"--Not buying that theory that Libby was the ultimate source.

[kim]

C, it does seem, and odd it does, that Fitz only caught on late that maybe V was not covert.
==========================================

[Syl]

Clarice

Libby could have told someone else who told Novak. That's what I was thinking.

But it does seem weird that Fitz knows who told Novak and Novak was the one who went to print...yet nothing.

Maybe it was CIA afterall who told Novak.

[Syl]

clarice

remember the referral to justice? It might not have gone anywhere except that somebody leaked it to Andrea Mitchell. The NYTimes went ballistic and screamed for an investigation.

[Syl]

This is spooky. Just too many coinkydinks had to occur for Valery to be 'outed'.

[clarice]

Don't you think there is a problem with the SP not having made this initial determination --was she a NOC--first? Was he misled? Did he unknowingly misrepresent her status to the Ct when he sought reporters' testimony?

If the prosecutor obtains testimony by means of a false representation--whether or not deliberately--isn't there some reason to preclude its use?

[Rick Ballard]

Clarice,

Doesn't that return us to Andrea's reporting on the CIA referral to DoJ?

I must say that I hope Libby fights this through trial. I'm sure that a good defense lawyer can artfully take TattleTim and 'No Scoop' Cooper through their ties to the Democratic Party. The current secondary investigation into the counterintel breaches concerning the Niger docs may disclose the reporter's moles in the CIA.

If TattlerTim and No Scoop first knew of Val's status from CIA moles, they're going to be in a bind when asked "From whom did you first hear of Mrs. Wilson's involvement? Tell the truth and out the moles? Depend on the moles not having been truthful to the investigators in the counterintel probe?

There is not much space bettween the rock and that particular hard place.

[clarice]

Tatel's comment (p. 29 of the Ct of Appeals opinion) surely suggests that the SP represented that Plame was covert.|"Compared to the damage of undermining covert intelligence gatherins, however, this slight news value [explaining her husband's selection for the Mission] cannot, in my view, justify privileging the leaker's identity."

But what is the news was not of slight value. I don't think discrediting a liar who is undermining the Administration's reason for going to war in the middle of it is slight. And what if the agent was not covert.

It seems to me the calculus has dramatically shifted in favor of not rewuiring disclosure.

[clarice]

Corrected for errors:

Tatel's comment (p. 29 of the Ct of Appeals opinion) surely suggests that the SP represented that Plame was covert."Compared to the damage of undermining covert intelligence gathering, however, this slight news value [explaining her husband's selection for the Mission] cannot, in my view, justify privileging the leaker's identity."

But what if the news was not of slight value. I don't think discrediting a liar who is undermining the Administration's reason for going to war in the middle of it is slight. And what if the agent was not covert.

It seems to me the calculus has dramatically shifted in favor of not requiring disclosure

[kim]

I wonder if the last minute 'unexpected turn' was the dime being dropped on Joe.

And maybe on al.
=================================================

[clarice]

OTOH, Tatel's opinion was not the opinion of the Court and Senetelle rejected making such a weighing at all.

The real question it seems to me was had the prosecutor known at the outset that Plame was not a NOC would he as a matter of policy or under DoJ guidelines have undertaken such steps to secure the reporters' testimony?

[clarice]

BTW Tom Veal's analysis at his website is the best discussion of the indictment I've seen.

[TP]

If Jill Abramson (sp?) was the editor at the NYT who was working with both Miller and Kristoff, does she not get called in by the defense? It would seem that any defense that Libby would make about hearing information from reporters would be to establish that reporters were talking about it among themselves before they talked to him. Doesn't the Kristof article and any chatter about it come in to play in a trial?

How likely is it that they will agree to turn over all of their notes? Will they be willing to go to jail a la Judy Miller?

I really don't understand why the lawyers for the reporters allow them to continue to talk about this case in public when they may be called as witnesses for either the prosecution or the defense.

[Rick Ballard]

Tom Veal's analysis

[clarice]

Cooper reports today that he can't figure out what Libby said in his conversation that was wrong:

The Wilson part that really interested Fitzgerald was tiny, as I told TIME readers. Basically, I asked Libby if he had heard anything about Wilson's wife having been involved in sending him to Niger. Libby responded with words to the effect of, "Yeah, I've heard that too."

The contempt citation was lifted against me that day, and I breathed easy. As it turned out, a week later, Fitzgerald came back and insisted he wanted to know what another source had told me, and the struggle began all over again, with my refusing to name the source and TIME Inc. fighting the case all the way to the Supreme Court—which in June upheld the lower court's demand that the company turn over my notes and that I testify. Until now, that is the part of my involvement in the Plame affair that has drawn the biggest headlines: TIME Inc. did turn over my notes, over my objections, and my other source—Rove—did grant me a waiver to testify (see "What I Told the Grand Jury," July 25, 2005).

I was surprised last week that the Libby indictment even mentioned me. But apparently his recollection of the conversation differed from mine in a way that led the prosecutor to think he was lying. As for me, I still have no idea if Libby or anyone else has committed a crime. I only know that if there is a Libby trial, I'll testify truthfully and completely, as I did before the grand jury.

From the Nov. 07, 2005 issue of TIME magazine http://www.time.com/time/magazine/article/0,9171,1124234,00.html

[Rick Ballard]

Gee, I wonder why Cooper would want to avoid testifying?

Fitzgerald just lost half his case - I hope someone has told him about the quantity discounts for Maalox.

[clarice]

So--since JM doesn't appear to be the sort of witness that will help the prosecutor--remember her report of her testimony, for example..the case is Russert's memory v. Libby's? Am I missing something?

[Rick Ballard]

In less than 48 hours the indictment has become the legal equivalent of Gertrude Stein's Oakland.

Good luck with TattlerTim, Fitz. He's no one I'd hang my hat on but if it's the best you can do...

[clarice]

And as Tom Veal notes--what would Libby's motive be to intentionally lie about the Russert conversation? (He wanted to hide the fact that he'd learned about Plame perfectly legally from someone else under circumstances that were perfectly understandable?)

[TM]

Goodness gracious - here we were, pointing out that Cooper's memory of his conversation with Rove was prettysuspect, and now Cooper himself admits that he will be hazy on Libby.

And Judy Miller's account in the Times practically has bits where she may as well invoke space aliens as her source - someone told her Valerie Flame, but she doesn't know who; she wrote "Victorial Wilson", but maybe she heard if from soneone else, or maybe she was trying to trick Libby - yeah, she will be a great witness.

That said, I do have a mini dot-connector which explains the lack of an indictment on the Novak leak, as well as Fitzgerald's desire to Get Libby.

(Sidebar) - the NY Times identifies the former WH Press Person as Catherine Martin, who worked for Cheney, if I am reading it correctly, so it is not Ari Fleischer. That may not matter.

The scheme is this - Libby basically lies to Martin on July 7, telling her he has heard from reporters about Wilson and wife, and asking her to check it out (wink, nudge) with folks who might know, like Novak.

Martin talks to Novak, who checks with Rove, and publishes.

The DoJ and Fitzgerald try to investigate; Libby goes with the story that he heard about Wilson's wife from reporters as well as Cheney, and passed only the reporter contacts to Martin (which, one might argue, was legal, especially if Martin was kept in the dark about the inside stuff Libby had heard).

Eventually, Fitzgerald sorts out the dates and stories, and concludes that Libby engineered the leak to Novak in a way that precludes an indictment of Martin or Rove.

But he wants Libby, so he settles for this indictment, which essentially relies on Tim Russert.

Now, I can't anwer the question of what Libby told the FBI with his lawyer there, and I would love to know if his other contacts were detailed in his notes - that seesm pretty exculpatory, as far as evidence of cooperation and arguing that this is all a misunderstanding.

How, Libby will ask, could anyone at the FBI or the grand jury have thought I was saying I first heard it from Russert when they had my own darn notes saying I heard it many times earlier?

Clearly, he will go on, I was simply saying that I wanted Novak, Russert, and others to think I was hearing it from reporters.

Yes, it is still shaky, since the Novak leak preceded the Russert cover story. Well, it is probably shaky for a lot of reasons.

But that theory is on the drawing boards.

As to setting Libby free - Fitzgerald is down to one good witness, Russert, who has diligently concealed that Libby probably called to talk about Chris Matthews' coverage of Libby, Wilson, and the Niger trip. A good defesne attorney might be able to create some daylight there in the darkness.

[clarice]

Dinocrat is theorizing that Fitz thinks Libby lied to tie up the whole thing until after the election.

I think the presupposes a lot--like Fitz actually trying to get the reporters to talk. And don't you think, TM, that it is obvious from Tatel's opinion, that the SP represented to the Court that Plame was undercover? And I agree with your assessment she wasn't.Just as I agree that with DeGenova that if Fitz tries to throw in anything about Plame's status being "classified information", he opens up a huge can of worms for Wilson/Plame and the entire CIA meshpucha.

I still think Novak's source was higher up..and not at the WH..

[clarice]

More from Time--two conflicting stories:

The Drudge Report has links to 2 TIME stories today.
Quoting from Michael Duffy's article we read:

"Although Libby maintained under oath that he first heard about Plame's identity from reporters and passed it on to others as mere gossip, Fitzgerald's indictment offers considerable evidence that it was the other way around—that Libby told two reporters, including TIME's Matthew Cooper, about Plame's work for the CIA, and that he lied to investigators about one of those conversations and confected a third out of whole cloth One is written by Matt Cooper himself, in which he details his conversations with "Scooter" Libby."

Matt Cooper :

"The Wilson part that really interested Fitzgerald was tiny, as I told TIME readers. Basically, I asked Libby if he had heard anything about Wilson's wife having been involved in sending him to Niger. Libby responded with words to the effect of, 'Yeah, I've heard that too.'"
************************
Indict them all for perjury!!LOL

[arrowhead]

"I asked Libby if he had heard anything about Wilson's wife having been involved in sending him to Niger. Libby responded with words to the effect of, 'Yeah, I've heard that too.'"

Isn't that what Novak's notes say Rove responded when asked about the matter? Sounds like that may have been the standard reply that Fitzgerald alludes to in the indictment (see para. 22 of indictment re: "...discussion with other officials aboard Air Force 2 regarding what Libby should say in response to pending media inquiries).

[Patrick R. Sullivan]

I think Libby's defense will have a good chance of getting a trial judge to throw out most, if not all, of the charges as immaterial. If they go to trial, however, I think he'll be convicted for much the same reasons Martha Stewart was (though the trial judge in Stewart's case made egregiously unfair rulings that made it impossible for her to defend herself).

Fitzgerald should have been able to conclude early on that there was no IIPA violation, and that Wilson's reckless behavior in publicly talking falsely about his CIA assignment inevitably led to the fact that his wife played a role in his trip. At that point (and I was making it before Fitzgerald even was named SP, so what's his excuse for not knowing what I did) it's all over. Calling numerous Admin insiders before the GJ then appears to be a perjury trap.

[pollyusa]

How, Libby will ask, could anyone at the FBI or the grand jury have thought I was saying I first heard it from Russert when they had my own darn notes saying I heard it many times earlier?
TM

Maybe because that is exactly what Libby told them.

"I didn't want him to take anything I was saying as in any way confirming what he said, because at that point in time I did not recall that I had ever known, and I thought this is something that he was telling me that I was first learning".
Libby's Testimony to the GJ/Russert

"That was one of the things I said to Mr. Cooper. I don't know if he's married. And so I wanted to be very clear about all this stuff that I didn't, I didn't know about him. And the only thing I had, I thought at the time, was what reporters are telling us."
Libby Testmony to the GJ/Cooper

[clarice]

If Plame was not undercover and it seems clear she wasn't in the critical time frame,when did Fitz learn that? What was his obligation to the court since it is apparent he had claimed that she was when he sought the reporters' testimony..(Tatel p. 29).

Wasn't it the sp's obligation to ascertain that before making that allegation or did he simply pass on some diddle shit from the CIA to that affect? If he did. who gave him that?

Why do I call it "diddle shit", because it it were true that she had been "undercover" I can't understand his presser tapdance..Can anyone?

[pollyusa]

Cooper himself admits that he will be hazy on Libby.
TM

Where did you see this about Cooper?

[pollyusa]

Libby does not say he first learned of Plame's identity through the press
Cecil Turner

That's not the way I read Libby's testimony

Libby: I was very clear to say reporters are telling us that because in my mind I still didn't know it as a fact. I thought I was -- all I had was this information that was coming in from the reporters.
Libby's testimony to the GJ

[clarice]

His story in today's TIme posted here..He says he doesn't understand what Libby did wrong--that he said he'd heard that Wilson's wife had sent him and Libby said "I heard that, too."

Cooper's story BTW is at substantial variance with a second report in the same mag on the samme day..But Cooper is the witness, and he's saying the same thing Libby is.

Therefore we now have, Miller (doesn't know where she got it and her paper says she's a liar); Cooper remembers it as Libby does, and Russert who forgot the part of the conversation Libby remembered --that Libby had called to claim of his network's coverage of the Wilson story.)

[clarice]

polly, Cecil is saying that Libby is recounting what he had told the reporters--that his only source was other reporters. IOW he did not want to disclose to THEM that he had heard it officially.

[Cecil Turner]

That's not the way I read Libby's testimony

Basically what Clarice said. Throughout the testimony, he's also talking about his state of mind at that time. He was not claiming it as current truth in front of the grand jury. In the example you cite, he's clearly talking about what he was thinking then. It's also very reminiscent of the meaning of "is" (which, to be fair, was one of the few times in his testimony where Clinton was telling unvarnished truth).

[Syl]

And, because he did not want to acknowledge to the reporter he had learned it from an official source, it's an obvious ploy to say something like 'I didn't even know he had a wife'. That would be to Cooper, not to the grand jury.

As it turned out he actually didn't do that with Cooper. Memory. But that's the type of thing he would have done to protect classified information he got from an official source. So that's how he remembered it.

And neither did Libby give Cooper any information, he only confirmed there was gossip going around.

Libby was protecting the classified information, not leaking it!

Damn. There's just no case here at all!

[clarice]

I'd toss Count 5 in a milisecond if I were the judge..McCarthy's right, it's a nonsense count.

Any other counts we want to throw in the waste basket?

[arrowhead]

"Any other counts we want to throw in the waste basket?"

Count 2 re: conversation with Russert

1) What does Fitzgerald have beyond Russert's version of the conversation that he (Russert) did not ask about Wilson's wife working at the CIA?
2) Libby's answer, "No I don't know that because I didn't want to confirm anything for him," seems based on his recollection of his state of mind at the time of the conversation - according to him.
3) The statement in the indictment that Libby was "well aware that Wilson's wife worked at the CIA" at the time of conversation with Russert seems to imply that contrary to what Russert says, Libby and he DID discuss Plame. So far as I can tell, there's no problem with Libby lying to Russert - a lie that if you accept Russert's story never occurred in the first place.

[clarice]

I can't answer that one ,Jim ,without seeing what the FBI agents actually asked him..The count seems to suggest he was asked how he first learned that Plame worked at the CIA, the implication being that he offered up his conversation with Russert as the answer.

[pollyusa]

Clarice

Thanks for responding on the Cooper question. I thought the Time article above was the one Cooper wrote last summer, very similar information.

Here is what I am seeing differently after reading Cooper's article.

I don't see where he said "he doesn't understand what Libby did wrong" or where he said he would be hazy.

Cooper said this, "As for me, I still have no idea if Libby or anyone else has committed a crime. I only know that if there is a Libby trial, I'll testify truthfully and completely, as I did before the grand jury."

I agree Cooper's version in the Time articles and in the deposition are as you say. What I don't see is anywhere that Libby tells the same story as Cooper. (Cooper remembers it as Libby does}

I think Libby's problem is that he did not tell the same story as Cooper, he told a completely different story.

[clarice]

Cooper says IIRC in his article that he told Libby that he'd heard that Wilson's wife worked for the CIA and Libby said he's heard that, too.

The indictment says Libby said essentiallt that but falsely told Cooper that he'd heard that from other reporters and didn't know if that was true.

Since Libby is not charged with leaking classified information to Cooper, who cares about what seems to me the most minor difference in two men's account of a short conversation year's ago? An account which is essentially in agreement, I'd add.

[pollyusa]

Cecil and Clarice

I guess we will have to agree to disagree. I think several places in Libby's testimony he is stating that he himself didn't know about Plame when he talked to reporters.

Libby:I want -- I didn't want to -- I didn't know if it was true and I didn't want people --

Libby:. I -- all I had was that reporters are telling us that,

Libby: I didn't know it was true and I wanted them to understand that..

Libby: in my mind I still didn't know it as a fact. I thought I was -- all I had was this information that was coming in from the reporters.

In the Russert testimony he is more careful to phrase his answers to what he told Russert and not so much about what he himself knew.

[pollyusa]

Clarice

Here is a part of Libby's testimony regarding what he told Cooper that differes considerably from Cooper's version.

LIBBY: That was one of the things I said to Mr. Cooper. I don't know if he's married. And so I wanted to be very clear about all this stuff that I didn't, I didn't know about him

That is nothing at all like "I heard that too"

[clarice]

Yes--and Cecil and I are in the crowd that thinks he's describing his state of mind to the reporters as he was recounting his conversations with them--Add one count of inarticulateness..to make up for Counts 4 and 5..LOL

[clarice]

polly--isn't Cooper's (today ) story that Libby's confirmation was a vague "I heard that,too" rather close to what Libby is describing--an effort not to give details specic enough to suggest that he had personal, official knowledge of that fact? I think one could fairly read it that way.

[coyote]

one would think that valerie wilson's status at the CIA has been definitively been made clear. it is not clear. both "sides" are having this childish "is! is not!" argument. until the CIA comes forward and declares one way or another we cannot say. it may never be made public as the declaration itself might compromise some operation, agents, sources or tactics of the company.

it IS well known that the vice president and his staff have always denigrated the CIA and castigated it's people. is this "any way to run a railroad"?

it is also well known that the bush administration tends to ignore facts, much less opinions, which are contrary to it's point of view or agendas. hence it's unwillingness to change course when a change might be useful, and for the good of the country: iraq. katrina. social security reform. miers, etc.

joe wilson, virtually alone at the time, became a very vocal critic. he has since been slimed, repeatedly. he is OFTEN called a liar. his op-ed piece in the new york times is often misquoted, or said to declare things which are simply not in what he wrote. have you read what he actually said?
if not, you should.

you use chris matthews' show as an example of liberals attacking the bush administration. i can tell you that "hardball" has been used to call joe wilson a liar on numerous occaisions, not only by the likes of victoria toensing but MSNBC's very own media doyenne andrea mitchell.

i won't even go into what was said in the senate investigation report about joe wilson, which was misleading if not actually wrong. yet this report is often cited to continue to go after joe wilson. these tactics are reminiscent of the mccarthy era. the lesson: you will PAY if you dare to challenge what we do.

and now patrick fitzgerald must be dealt with. the critics have already set in, questioning fitzgeralds proceedure and motives. i don't know what will happen next and i suspect neither does anyone who has been posting here. we have a lot of armchair quarterbacks. and it may only be halftime. may the good guys win.

[MJW]

A while ago, I said: "Not only does this go well outside the four corners, it also leaves unanswered what Fitzgerald is doing to punish the agent-outer who first leaked the information to Novak."

Just to be clear, I didn't mean to imply I thought Fitzgerald might go after Novak's source; I was just trying to point out the seeming contradiction between Fitzgerald's implication that he was charging Libby in order to bring him to justice for outing Plame, and his lack of action against the person who started the whole thing.

[pollyusa]

Clarice

I don't think you can square Libby's testimony that he told Cooper "I don't know if he's married" with Cooper's version "I heard that too" which refers to Wilson's wife.

Actually there is nothing in the Libby testimony that I find that says Libby ever said anything like "I heard that too".

[pollyusa]

On Libby's describing his state of mind, Libby seems to go well beyond that in the Cooper testimony. He is stating what he did and didn't know, not what he was trying to tell reporters about what he did or didn't know.

He is more careful in the Russert testimony.

[pollyusa]

TM

The WAPO has the "former WH Press Person" as Fleicher, not Martin. I am not sure which NYT you are refering to.

The next day, Libby lunched with Ari Fleischer, the White House press secretary, according to the indictment. He told Fleischer that Wilson's wife worked for the CIA and noted that the information was not widely known.
WAPO

This compares with the text of the indictment as follows

16. On or about July 7, 2003, LIBBY had lunch with the then White House Press Secretary and advised the Press Secretary that Wilson's wife worked at the CIA and noted that such information was not widely known.
Libby Indictment

Martin doesn't come into play until July 12th on AF2 with Cheney and Libby.

According to his indictment on Friday, Libby "discussed with other officials aboard the plane" how he should respond to "pending media inquiries" about the critic, former ambassador Joseph C. Wilson IV. Apart from Libby, only press aide Catherine Martin is known to have accompanied Cheney on that flight.
WAPO

[Cecil Turner]

I don't think you can square Libby's testimony that he told Cooper "I don't know if he's married" with Cooper's version "I heard that too" which refers to Wilson's wife.

Polly, I think if you look at caveats in the section you're describing, he's basically saying nothing:

I don't know – I think I said, I don't know if he has a wife . . .

The later testimony in that section is much clearer and is what he was apparently trying to say:

We didn't ask for his mission. That I didn't see his report. Basically, we didn't know anything about him until this stuff came out in June. And among the other things, I didn't know he had a wife. [emphasis added]

He's obviously talking about what they knew about Wilson's mission before Wilson started leaking (and the fact that the VP didn't know about him before that . . . which is almost certainly true).

Actually there is nothing in the Libby testimony that I find that says Libby ever said anything like "I heard that too".

The stuff quoted in the indictment is obviously an excerpt, and undoubtedly incomplete.

He is stating what he did and didn't know, not what he was trying to tell reporters about what he did or didn't know.

He is stating what he thought he knew at the time:

I was very clear to say reporters are telling us that because in my mind I still didn't know it as a fact.

Remove "in my mind," and I'd read it the same way you do. As written, though, it doesn't say that.

[TM]

As to Cooper being hazy - I was a bit over-eager based on descriptions of the new story. But no worries - we will settle Mr. Cooper's hash right now:

(a) he and Karl Rove apprently disagreed about whether they discussed welfare reform. In Karl's favor - Karl remembered it, he mentioned it in his Hadley email, Cooper had left a message earleir that week saying he wanted to talk about welfare reform, and the Pres signed some welfare extension around that time period, so the subject was topical.

In Cooper's favor - he dosn't remember discussing it. Pretty strong stuff.

(b) Cooper was new to the Washington desk (like, a few weeks new). Rookie nerves, mistakes. Understandable. Not a bad guy, just a bad witness.

(c) The day of the Libby call was a Saturday, and Cooper had been at a country club pool in the hot July sunshine, pounding down the brewskis (we have no doubt!).

In fact, since he was a John Belushi fan (double secret probation), we have to assume that Cooper tried the Belushi memorial speedball before talking to Libby. Who the heck knows *what* Cooper heard, or remembered?

OK, maybe not. But he was at home on a Saturday afternoon after a day in the sun. His story has one long detailed quote from Libby - I'll guess Cooper was running a voice recorder (with Libby's permission), which he turned off for the off-the record part.

From his first TIME story, Cooper wrote that Libby said (I paraphrase) "I heard that, too", or words to that effect. Cooper also wrote that Libby did not mention reporters, but we are skipping past that.

Fine - what Libby said, in his version, is "I've heard that from other reporters too".

All the rest of the grand jury testimony is just blather trying to recreate the state of mind he was able to project so pithily.

Libby goes to jail because Cooper missed three words? From a guy who was half in the bag (did I mention they were passing around some evil weed?) and had water in his ears? No way.

Now, does anyone doubt that Judy will be a disaster on the stand? She had factual disputes with two editors, her notebook reads like something written by Ken Kesey channeling Hunter Thompson, she doesn't know who told her about Valerie Flame or Victoria Wilson - if she told the court that her source was a burning bush that was not consumed by the flames, jaws would not drop.

Fitzgerald has *one* witness, and there are big problems with Russert. I'm just not sure what they are... yet.

[vnjagvet]

In my experience, a prosecutor who relies on such flimsy evidence on the crucial elements of an indictment has motives other than winning at trial.

I would like to hear from TM what they might be. He is the only person I know that has been following all aspects of this case for the duration.

BTW, where are Geek, Esq, Jukeboxgrad and the other speculators of Rovian doom on this thread, now that we are down to brass tacks?

[TM]

On the notion that Libby was describing his state of mind to the GJ, rather than "reality" - it is clear from the FBI interview that they knew about Cheney telling him about Plame by November at the latest.

What is not clear is whether the FBI knew at that time everyone else Libby talked to.

My theme - if the transcript has us choosing between (a) Libby "lied" about things he had testified about differently earlier in the same session, and (b) Libby communicated poorly and was misunderstood, a reasonable grand jury ought to lean towards (b).

If we had a complete transcript of Libby's testimony, it might be obvious that he had spent time going over his other internal contacts about Plame in May and June.

In which case, Libby's defense would be, what, was I testifying to idiots? We spend ten minutes going over how I learned about Plame in June. Then, when I try to explain the state of mind I am trying to portray to Russert so he does not get confirmation from me, they think I am testifying that I am hearing it for the first time? What did we finish talking about two minutes ago - c'mon, get the wax out!

Well, he would need to be more polite.

But a small straw of support for that comes from this question:

The next set of questions from the Grand Jury are – concern this fact..

If you did not understand the information about Wilson's wife to have been classified and didn't understand it when you heard it from Mr. Russert, why was it that you were so deliberate to make sure that you told other reporters that reporters were saying it and not assert it as something you knew?

That seems as if they understood that Libby had two sources for the info - the inside source(s) (And we know they know about Cheney, at a minimum), and Russert.

So just what were they confused about?

[Rick Ballard]

TM,

I wonder why the "grand jury" didn't add a third compound element to that question. Or maybe it would be a fourth because of the "and".

I don't believe that I will ever testify before a GJ without a doctor's diagnosis of early Alzheimer's in my hand.

[!]

"Fitzgerald has *one* witness, and there are big problems with Russert. I'm just not sure what they are... yet."
...
"That seems as if they understood that Libby had two sources for the info - the inside source(s) (And we know they know about Cheney, at a minimum), and Russert.

"So just what were they confused about?"
Wouldn't potential witnesses include:
Novak's first or second source, Novak himself, other secondary officials who were interviewed (in the VP's office and the Pres' office), others whom are not known and perhaps Rove himself. After all, Rove racked up many frequent testimony miles.

As it goes, to think there is no way to corroborate the allegations against Libby is to guess that somehow this going to trial thing is pointless now and will prove pointless when the endgame is reached. Guilty, pleads Guilty, proven Innocent or Insane. Someday that'll be known.

While this whole case has many loose ends, what I'm curious about is between now and Libby's trial is there still a possibility that the ongoing investigation will try to pin down all of the allegations and perhaps others which may may come up? In other words, during the run-up to trial, if more corroborative or conflicting info is found, does the prosecutor's office sit on it or persue it?

[TP]

Just a stupid thought, but Judy Miller didn't remember who the source of the Valerie "Flame" note in her notebook was. Could it be that Libby knows who it was and it was some person other than Libby or Miller? The thing that is really odd to me is the utter viciousness with which the NYT has turned on Miller. Then again, I haven't followed this very closely and am probably missing something.

[clarice]

If you read their editorial yesterday you would think they subcontracting it out to some DU poster. It is defiantly clinging to a lie.
TM, I worked all day on an article like this--the slant is slightly different but if editing permits, I'll throw in your site.

Frankly I think Jason Blair is peanuts compared to the Times' treatment of the Wilson matter.

[clarice]

As to why Libby didn't go into all the other reports he'd heard thru work. I'm sticking with the view that the rest was "background noise" and the first definitive report he got and relied on as solid was the one he got from Cheney (because it came from Tenet himself) and was more detailed and that is the one he testified to in March before the gj.

[jukeboxgrad]

Cecil: "Libby does not say he first learned of Plame's identity through the press"

Libby said: "all I had was this information that was coming in from the reporters." Did you miss that?

"As Tom points out above ... "

Really? Where?

"He did, however, claim that during a particular phone call with a reporter he forgot about Plame's employment."

In June, Libby heard about Plame from at least three government officials (including Cheney). On 7/7, Libby told Ari Fleischer about Plame. On 7/12, Libby had a conversation with Cooper. Here's something Libby said about that conversation: "I didn't know it was true."

I think you're suggesting that between 7/7 and 7/12, Libby managed to forget about Plame.

"That's not nearly as far-fetched"

Really?

"he's clearly talking about what he was thinking then"

In other words, he's claiming that on 7/12, he was thinking "I never heard of Plame." Trouble is, we know that's a lie, since on 7/7 he was telling the press secretary about Plame.

"As to the charges, they all appear to me to be allegations of lying, and in every case it's a two-sided conversation with a reporter."

When Libby said "all I had was this information that was coming in from the reporters," he was lying to Fitz. Fitz can prove this without getting into any murky territory regarding "a two-sided conversation with a reporter." Because it's not a question of whether or not Libby said those words to a reporter. Libby's problem is that Libby said those words to Fitz.

"It'd surely be easier simply to prove he leaked her identity"

No, it wouldn't necessarily be easier. Fitz might believe the law requires proving some things about Libby's intent. Also, such charges could get into the murky area of Tate dredging up some neighbor who swears that Plame used to walk around the neighborhood wearing her official CIA lapel pin. The perjury charges circumvent such pitfalls. And Fitz decided 30 years was plenty.

[jukeboxgrad]

clarice: "Novak has repeatedly said that his source was not in the WH"

I believe Novak made that statement regarding one of his two sources. I believe Libby works outside the WH.

"I don't think discrediting a liar who is undermining the Administration's reason for going to war in the middle of it is slight."

Please explain why the White House could not find a way to respond to Wilson, in an open, honest and fair way, without outing Plame. The fact is there _were_ lots of other ways. And if there weren't other ways, then the White House was obliged to be silent.

In a democracy, people are always speaking up, even during wartime, and especially during wartime. They may be right or wrong, they may be honest or liars. It goes with the territory. If the case for war is so weak that top government officials have to be involved in a covert effort to discredit critics, that indicates a problem with the case for war. If the case is solid, it should be able to sustain attacks by various critics.

If a government finds that it has to choose between responding to a critic, versus protecting classified information, obviously the priority needs to be placed on protecting classified information. A government that can't make this proper choice is a government that can't be trusted to protect us. It is a government that is only interested in protecting itself.

"the SP represented that Plame was covert"

There's interesting information in the indictment, on this point. Cheney told Libby not just that Plame worked at CIA, but that Plame worked in the Counterproliferation Division. This is part of the Directorate of Operations. This is the clandestine branch of the CIA. This means that Cheney and Libby both knew that Plame's CIA identity was very likely a matter of classified information (and that she was very likely covert, in case someone thinks the word "covert" is more impressive than "classified").

"had the prosecutor known at the outset that Plame was not a NOC"

Please let us know how you figured out that "Plame was not a NOC." Fitz made no such statement.

"He wanted to hide the fact that he'd learned about Plame perfectly legally from someone else under circumstances that were perfectly understandable?"

Yes. He wanted very much to keep Cheney out of it. One reason for this is what I said above about Plame working in CPD. Libby didn't want this to come out, that Cheney had told him this. Better to claim it's just some vague tale he heard from Russert.

"it it were true that she had been 'undercover' I can't understand his presser tapdance"

Fitz is scrupulous about what he says and doesn't say. In particular, he doesn't want to confuse matters by getting into areas that are irrelevant. It was sufficient for him to say that Plame's identity as a CIA officer was classified information. He has no need to get embroiled in some kind of pissing contest over the meaning of words like "NOC" or "covert" or "undercover." The word Fitz cares about (in this regard) is "classified."

The fact that those other words have generated lots of keystrokes on blogs doesn't mean they matter. For the charges Fitz filed, Fitz thinks they don't matter.

"Libby is recounting what he had told the reporters--that his only source was other reporters. IOW he did not want to disclose to THEM that he had heard it officially."

Trouble is, what you are asserting and explaining here on a blog would have been extremely easy for Libby to explain in testimony. If that's what he meant, that's what he should have said. The fact that he didn't looks very suspicious.

"Add one count of inarticulateness"

Yes, of course. The Yale-grad novelist-attorney suddenly became strangely inarticulate, when under oath. And even though random bloggers can explain the whole thing clearly in about a dozen words ("I already knew, but I just didn't want the reporters to know that"), he can't manage to clearly express that simple idea anywhere in his whole stinking pile of testimony.

Good luck finding jurors who will buy that.

"I heard that too"

If that's what Libby said, it was inappropriate. The correct response, when asked questions about CIA officer, is "no comment."

[jukeboxgrad]

Syl: "There's just no case here at all!"

Obviously you're entitled to your opinion.

Aside from that, maybe you'd like to explain why the White House told us they had no idea who was involved, and that it was ridiculous to suggest that Rove or Libby were involved.

MJW: "his lack of action against the person who started the whole thing."

Fitz believes that Libby was the first person to out Plame to a reporter. Whether that reporter is the first person to write about Plame is a separate matter. In other words, your definition of "who started the whole thing" may be inferior to Fitz's definition.

TM: "Fitzgerald has *one* witness"

Perhaps, provided you ignore all the public servants (including the Vice President) who have essentially pegged Libby as a liar.

[Syl]

Jim

"Isn't that what Novak's notes say Rove responded when asked about the matter? [I heard that too] Sounds like that may have been the standard reply that Fitzgerald alludes to in the indictment."

That's a pretty standard reply one uses when one is protecting (not leaking) classified information. Someone looing for confirmation of a piece of intel will ask someone in a position to know if it's true or not. The person protecting the information simply answers 'Oh you heard that too?' which is the equivalent of 'I neither confirm nor deny'.

Nothing nefarious or conspiratorial about that.

(Because reporters seem to consider 'I heard that too' as second source confirmation, like Novak did with Rove, simply shows their stupidity and/or laziness. 'I heard that too' is not a confirmation of anything more than that there is gossip about a certain piece of info.)

[Syl]

Clarice

"Cooper says IIRC in his article that he told Libby that he'd heard that Wilson's wife worked for the CIA and Libby said he's heard that, too.

The indictment says Libby said essentiallt that but falsely told Cooper that he'd heard that from other reporters and didn't know if that was true."

Yeah. And it's STILL the same thing.

'I heard that too' gives no source for the information, unofficial or official, and doesn't indicate at all whether he knew it was true.

[Cecil Turner]

When Libby said "all I had was this information that was coming in from the reporters," he was lying to Fitz.

If only the prosecution could restrict Libby to your microparsed phrases, I'm sure you could get a quick conviction. Unfortunately, you have to look at the rest of it. And it's obvious when taken with the rest of his testimony (e.g., the part alluded to in the press release), that he's talking about his state of mind at the time:

He said that, in fact, he had learned from the vice president earlier in June 2003 information about Wilson's wife, but he had forgotten it, and that when he learned the information from Mr. Russert during this phone call he learned it as if it were new. [emphasis added]

Fitz might believe the law requires proving some things about Libby's intent.

He ought to, because it does. However, so does perjury (and though the context is slightly different, in this case it appears to match pretty closely).

[Cecil Turner]

And even though random bloggers can explain the whole thing clearly in about a dozen words ("I already knew, but I just didn't want the reporters to know that") . . .

As far as I can tell, that only applies to the one bit where he's recounting his conversation with Cooper. For at least part of the rest, he's claiming he'd forgotten. (BTW, I'm not saying I buy Scooter's convenient memory lapses, but neither is it an open-and-shut matter of proving the VP told him about Plame.)

Considering the reporters' versions of the other sides of those conversations (Cooper's memory is no better than Libby's, and Russert apparently claims the subject never came up at all), I'm dubious you're going to find 12 people who'll convict, even if they don't buy Scooter's story.

[kim]

One useful analogy for the defense would be that the administration's understanding of Joe and his wife evolved from none through a number of stages to the understanding we have now(still strangely incomplete). They were under surprise attack, a booby trap, as we will demonstrate for the jury, and there were many other players with evolving understanding. Libby's role is going to look innocent in comparison to those of the MSM, Joe, and maybe his wife and other CIA elements(historical elements, I might add).
==================================================

[steve sturm]

I've got another post up in which I outline why I don't think Libby's 'lies' rise to the level of either perjury or making false statements.

[clarice]

Cooper again--says he doesn't think Libby perjured himself, affirms that he (MC) suggested Plames' role and Libby as he said, confirmed that..and when he did Libby did not say to him he'd heard that from other reporters..http://www.cbsnews.com/stories/2005/10/31/earlyshow/main996280.shtml

[Mike]

Talk about Darth Cheney! All this about, 'Why would Libby, who is so smart and meticulous..?' That seems to me like asking why the Secret Service man, name please, who took a bullet for Ronald Reagan could be so stupid. On p. 8 of the indictment, 'discussion on Air Force One took place over how to handle what Wilson was saying.' Implied by subsequent events is that Cheney says or suggests, 'we need to tell them to consider the source;' Cheney was tempted in this direction by being split off as the guy who had sought the Niger informaion and denied it, which was a mad howler for him. Libby sets up an artifice to cover this conversation not, in the evolution of understanding of the law at issue, knowing that it would be OK to reveal it. Voila, Fitzgerald's indictment. Will Darth get you if suggest this?

[clarice]

Talk about Darth Cheney?

Talk about flying leaps, you mean.Reminds me of the kind of nutters who find a conspiracy in the fact that two pwople were on the same Continent on the same day!!

[clarice]

Syl. I sure do wish I had the entire transcript of the GJ proceeding, don't you? Because the longer I look at this in light of all the circumstances (Libby's cooperation, his copious notes, his second trip to the gj) the more I believe that the idea of perjury or obstruction looks absurd .

[kim]

Is materiality ruled on by the judge or is it determined by the juries interpretation of the testimony and evidence?
=================================

[Mike]

Clarice, I wonder if, 'in spite of the idea of perjury or obstruction of justice (indictments) looking absurd,' there isn't high, if covert, excitement at the CIA about someone there winning their most prestigious award, 'The Benedict Arnold,' which is given for bringing down a government, if it can't be that of Sadaam, preferably your own.

[kim]

I think it's very important to determine whether this was a plot or just Joe's delusionary opportunism. It has been amply demonstrated that the press was credulous and/or complicit, and that the White House was relatively innoscent in intent. What about the CIA, and what about the Yellow Cake Souffle? Inquiring minds are inquiring.
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[jukeboxgrad]

Cecil: "the part alluded to in the press release"

I think that more than once you've indicated that certain text ("he had learned from the vice president earlier in June 2003 information about Wilson's wife") is "in the press release."

I think this is not the first time I'm pointing out to you that it's not in the press release. It's in the transcipt of Fitz's press conference.

More importantly, you're claiming that the text you cite proves that Libby didn't lie when he said "all I had was this information that was coming in from the reporters."

I can't imagine where you get that conclusion, other than from wishful thinking. Yes, Libby apparently contradicted himself. This only indicates that in the four times he testified, he couldn't keep his story straight. This doesn't help Libby. On the contrary.

Here's the bottom line about Libby's "I forgot" defense. In the weeks before he talked with Russert, Libby discussed Plame with roughly half-a-dozen people inside the administration (not just with Cheney). Libby has to convince a jury that all those conversations flew out of his mind the moment he started his conversation with Russert. Good luck.

Anyway, it's pretty amazing that you can look at these snippets of text from a distance and assume you understand the situation better than Fitz, who is quite familiar with all the pieces we've seen, as well as a bunch of pieces we haven't seen.

"neither is it an open-and-shut matter of proving the VP told him about Plame."

I have no idea what you could possibly mean by this. Fitz interviewed Cheney. Fitz claims that Cheney told Libby about Plame. Undoubtedly Fitz bases this claim on his interview with Cheney. It's hard to imagine anything more open-and-shut than that. "Proving the VP told him about Plame" is a simple matter of referring to Cheney's words.

"Cooper's memory is no better than Libby's"

Very interesting. I supposed you have sworn testimony from a dozen witnesses demonstrating that Cooper has major memory problems (because Fitz does indeed have sworn testimony from roughly a dozen witnesses indicating that Libby has major memory problems).

I can't imagine what on earth you're talking about. Are you talking about that welfare reform nonsense? Because if you are, I've clearly explained how that does not prove what you seem to be claiming it proves.

[jukeboxgrad]

clarice: "Cooper again--says he doesn't think Libby perjured himself"

It's really amazing how folks like you are always talking about how clueless MSM is, until they say something clueless that you find politically useful, and then you suddenly forget about how clueless they are.

The article you cited doesn't say that Cooper "doesn't think Libby perjured himself." It says "he's not so sure." And even that statement seems to be based on nothing, since it doesn't correspond with the actual Cooper quotes that appear later in the article.

By the way, all you need to know in order to figure out this article is not very useful is the first sentence: "A federal indictment alleges that Vice President Cheney's now-former chief of staff I. Lewis 'Scooter' Libby committed perjury during, among other things, a conversation he had with Time magazine reporter Matt Cooper."

Uh, the indictment didn't allege that Libby "committed perjury during ... a conversation ... with ... Cooper," because lying to a reporter is not a crime. The problem is not about Libby lying to reporters. The problem is about Libby lying to Fitz.

"Libby's cooperation"

I realize in your RNC dictionary "cooperation" is defined as "lying through your teeth."