Libby To Pursue Media (cont.)

It was previously reported that Libby's defense in the Plame investigation would include putting the media on trial. [In this context "the media" includes Matt Cooper of TIME, Judy Miller, formerly of the NY Times, and Tim Russert of NBC News, all of whom were named in the Libby indictment.  In addition, the new court filing indicates that Libby's defense may seek testimony from Andrea Mitchell of NBC News, Bob Woodward and Walter Pincus of the Washington Post, and perhaps others (I nominate Nick Kristof)].

The court filings, as described by Reuters, the AP, and the NY Times shed more light on the defense strategy [here is the WaPo, and links to the court filings are here].

From the AP:

Lawyers for a former top White House aide charged in the CIA leak investigation said Thursday the prosecutor should surrender a wide range of information about news organizations and their reporters, including The Washington Post's Bob Woodward.

Special Counsel Patrick Fitzgerald has failed to disclose information that would enable the vice president's former chief of staff, I. Lewis "Scooter" Libby, to properly defend himself, his attorneys argued in papers filed with U.S. District Judge Reggie Walton.

...

A federal grand jury accused Libby of lying when he said he learned about Ms. Wilson's identity from reporters. The indictment contends Libby found out about her identity from the CIA, the State Department and his boss, Vice President Dick Cheney.

"The government should not be allowed to charge Mr. Libby with lying about statements concerning what reporters knew about Ms. Wilson's identity, and at the same time deny him information that may establish one of these possible defenses," Libby's lawyers argued in a 23-page brief.

"The government has refused to produce information in its possession about what reporters learned from sources other than Mr. Libby about Ms. Wilson's employment status," Libby's legal team argued.

The prosecutor has asserted that "such documents are not relevant to a perjury and obstruction case."

"It is material to the preparation of the defense to determine the identity of all reporters who know that Ms. Wilson worked for the CIA, and to discover when they learned such information, from whom they learned it and whether they disclosed it further after learning it," Libby's legal team said.

Tim Russert is a bit of a focal point in the AP version:

The indictment says Libby lied when he told investigators he learned of Ms. Wilson's identity from NBC correspondent Tim Russert; when he told Time magazine reporter Matt Cooper that reporters were telling the Bush administration that Ms. Wilson worked for the CIA; and when Libby told investigators he did not discuss Wilson's wife with New York Times reporter Judith Miller.

Libby would have the right to produce testimony that tended to show many reporters knew about Ms. Wilson's CIA employment and that Russert did make the statement Libby allegedly attributed to him, but that Russert had forgotten about it, the court filing stated.

In addition, the defense could argue that Libby's statement to investigators that "all reporters knew" about Ms. Wilson's CIA connection is a factually correct statement that was made to Libby and that it shows Libby "is simply confused about whether Mr. Russert is the source of the statement," the papers added.

Ahh, the defense won't be accusing Mr. Russert of lying, but they will suggest that he may have misremembered.  Oh, boy.  We had extensive excerpts from Mr. Russert's problematic statements here, and misremembering is a distinct possibility.  Bonus speculation - all of Russert's oddly evasive answers are designed to let him say that he has never lied, or misremembered, to the American people.  Hmmph - Fitzgerald represents We the People, yes? 

Well, maybe Russert wants to be able to say he never lied directly, or on air, or some such.  No matter - if the defense can make this stick, he is doomed, and he knows it.  Mr. Russert won't mention that little conflict on air, of course, but he knows it.  In any event, fans of Mr. Russert will not want to miss the spanking he receives from Arianna over 'Lukegate'.

Reuters shines a light in a different direction:

The attorneys said the motion concerned their request for documents and information on three important issues: "What did the press know prior to July 14, 2003, about whether Valerie Plame Wilson worked at the CIA, from whom did they learn it and with whom did they discuss it."

They said turning over the information would enable them to decide the necessity and scope of pretrial subpoenas for journalists and news organizations.

The motion made clear that what the reporters knew will be an important part of the defense strategy.

"It is necessary for the defense to determine and investigate which individuals served as sources for journalists who learned about Ms. Wilson's employment status prior to July 14, 2003," they said.

"Once we learn the names of the reporters' sources, we will attempt to interview them, investigate whether they discussed information about Ms. Wilson with anyone else and evaluate whether to subpoena them for testimony at trial," they said.

Libby's lawyers also sought copies of subpoenas issued to reporters and news organizations during the prosecutor's grand jury investigation into the leak, and any agreements to limit the scope of information provided by the reporters.

We are especially intrigued by the defense attempt to learn about "any agreements to limit the scope of information provided by the reporters [to Fitzgerald]".  Gentlemen such as Mr. Pincus of the Post may be asked questions by the defense that Fitzgerald passed over, such as, "Was the leak you received on July 12 your first hint that Ambassador Wilson's wife was at the CIA, or had other sources mentioned this to you earlier?".

David Johnston of the NY Times notes another distinct possibility, although he does not name his colleague Nick Kristof:

The defense request strongly suggested that Mr. Libby's defense could turn on the testimony of reporters, who are expected to be called as witnesses in the trial, including those who testified during the grand jury investigation about their conversations with confidential sources and perhaps others who have not yet been identified.

Emphasis added.  And let's suggest some more names - based on her famous Oct 3, 2003 statement that, among reporters pursuing the Niger story, the fact that Wilson's wife was at the CIA was "widely known", it seems a fair bet that chatting with Andrea Mitchell will be a part of the defense strategy.  To compound the confusion, in Oct 2005 Ms. Mitchell admitted that she had spoken with investigators, but later she decided to tell Don Imus that she had "in no way" cooperated with the Fitzgerald investigation.  Maybe she spoke with investigators before Fitzgerald took over?  She ought to have lots to chat about, so I doubt her conversation with Libby's lawyers will flag.

My Not So Bold Prediction - this trial will mark a watershed in the history of the media in America.

UPDATE:  The WaPo filed past my bedtime, but they add the news that Andrea Mitchell and Walter Pincus (as well as the obvious choice, Bob Woodward) are mentioned in the papers.

The court papers also mentioned an interest in questioning NBC News reporter Andrea Mitchell, who suggested in an October 2003 news program that it was "common knowledge" among some intelligence reporters that Plame worked at the CIA, and Washington Post reporter Walter Pincus, who allegedly learned about Plame from another unidentified source in 2003.

"Common knowledge"?  Among the people following the Plame story, it is widely known that Ms. Mitchell did not use the phrase in quotes.  Well, no good deed goes unpunished; Carol Leonnig of the WaPo did a good job reporting that Mitchell tidbit, and now we will attempt to pry a correction out of her.  The key Mitchell transcripts are gathered here; suggestions welcome (please keep them within the realm of physically possibility).

The WaPo nearly brought a tear to me eye with this:

The defense effort to delve deeper into Fitzgerald's investigation, if successful, could divulge the identities of some anonymous, high-level government sources whom reporters and news organizations have spent years and millions of dollars in legal fees protecting from public view.

Oh, poor dears.  This next bit echoes David Johnston of the Times:

The defense strategy is expected to pull several high-profile Washington journalists into a legal battle over the First Amendment, many of them for a second time.

Many for a second time, some for the first.  The subpoena, the court fight, the adverse rulings, the deposition, the testimony - these high profile journalists may as well prepare themselves to walk the line.

MORE:  Jeralyn Merritt has excerpts from the court filing.  Now, we have a question for Ms. Merritt, whose ghastly conflict of interest makes her a good person to ask - does the Libby request for this information seem likely to be granted by a judge?

The conflict - as a top-notch defense attorney, Ms. Merritt probably has never been satisified that a prosecutor provided everything she wanted; on the other hand, she is not exactly Libby's biggest booster in the blogosphere.

My two cents - this looks like a lay-up, for at least some of these reporters (Nick Kristof may be a fishing trip).

FINALLY:  In response to overwhelming reader demand, here is some contact info for the Libby defense fund.  I noted my personal caveats here; frankly, I can think of a million more worthy causes than bailing out a millionaire Washington lawyer up for too-cute perjury.  (And this comes from a guy who buys tickets to watch Jeter and A Rod).

However - if you are agonizing between a check for Libby and a check for Hillary 2008, here you go:

Libby Legal Defense Trust
2100 M Street, N.W.
Suite 170-362
Washington, D.C. 20037-1233

ADDENDUM:  The WaPo provides helpful links to the Libby indictment, the press release summary, and the Fitzgerald press conference.

Comments

[topsecretk9]

I haven't seen mention of this too ( then again, maybe I missed it ) from AP, Jan. 23

Although the specifics of Monday's filing remain secret, Libby's defense team hinted in a court document last Friday that they will want to disclose to a jury the nature of Plame's work as a CIA operative.

Libby's lawyers said Plame's now-classified duties are among the "significant disagreements" they have with special prosecutor Patrick Fitzgerald, an issue they believe is "material" to the defense's case.

[Jim E.]

While I enjoy your mocking of Russert, you quote, but fail to dwell on the excerpt of the report which adds that, according to defense counsel, maybe Libby "is simply confused about whether Mr. Russert is the source of the statement." So Russert is a lying, weasely, misremembering dissembler . . . or he's totally telling the truth.

The whole point of the defense trying to go after *other* reporters is so they have an out in case Russert turns out to be a credible witness. The defense would then argue that, oops, maybe it's Libby, not Russert, who has misremembered.

[richard mcenroe]

How in the hell can the prosecution justify even attempting to withhold one word of information about the journalists they interviewed and the questions they asked?

I think the Libby term just started drafting their first appeal...

[clarice]

Right, JimE..Let's suppose for the sake of argument that it turns out 60 reporters knew this stuff from folks at DoS and other (not WH sources) and were blabbing to eachother and calling Libby--Would his statement that Russert told him he was hearing it from other reporters be more likely to have been an honest mistake than a deliberate act of perjury? Take your time, there is no penalty for thinking.

[Thomas]

Of course, even if the great conspiracy could be proved, they would still have to deal with the little fact that Libby having been told by Cheney about Plame before he talked to Russert did not mention this to the grand jury. Which is kindof the basis for the perjury charge, isn't it?

[clarice]

ts--As to this:
Although the specifics of Monday's filing remain secret, Libby's defense team hinted in a court document last Friday that they will want to disclose to a jury the nature of Plame's work as a CIA operative.

Libby's lawyers said Plame's now-classified duties are among the "significant disagreements" they have with special prosecutor Patrick Fitzgerald, an issue they believe is "material" to the defense's case.

This is why Fitz did that craperoo fiddle about her employment being classified. I think, he he knew that she was not overt, he knew he had no basis for a criminal investigation. And I think he knew this no later than the Miller appeal for when Dow Jones got to its suit to see the redacted submission, it turned out there was nothing in there that was classified..and if the claim was that she was undercover, there would have been.

[clarice]

trying to close the italgate.

[Jeff]

And I think he knew this no later than the Miller appeal for when Dow Jones got to its suit to see the redacted submission, it turned out there was nothing in there that was classified..and if the claim was that she was undercover, there would have been.

clarice - I could be wrong about this, but my understanding was that the Dow Jones suit was to see the eight redacted pages of the judge's opinion, not Fitzgerald's sealed filing, and that it's the opinion that contains nothing that, as of Nov. 30 or whenever, was classified. Again, my sense was the clear implication was that there very well may remain classified stuff in Fitzgerald's filing. But I could just be wrong.

[Jeff]

Libby having been told by Cheney about Plame before he talked to Russert did not mention this to the grand jury. Which is kindof the basis for the perjury charge, isn't it?

Not exactly. In fact, it appears that Libby did mention or was confronted with evidence of his conversation with Cheney. He claimed that he forgot and learned it as new from Russert (or at least that's the prosecution's charge, many people here have disputed that, as it is pretty crucial to the charges and seemingly obviously a lie if Libby did claim that he forgot). So I think the basis for the obstruction charge that Libby was deliberately deceptive about how and when he learned about Plame's CIA connection and how he conveyed it to the media has to do with all the other, ongoing discussions of Plame Libby had, which make it unbelievable -- even to his defenders here -- that he forgot and learned it as new in conversation with Russert.

[Jeff]

more likely to have been an honest mistake than a deliberate act of perjury?

More likely, but not by much, since, remember, Libby's story is very tightly constructed, with no discussion of Plame on July 8 with Miller and then boom July 10 happens and he starts talking about it with reporters. So there's not a lot of wiggle room, it seems, in terms of dates, and there seems to be very good records of Libby's contacts with reporters during that time. But then, of course, the question is, is Libby going to say that Miller is lying or misremembering or misaccounting her notes, or is he going to say that he misremembered that conversation honestly too?

[clarice]

My recollection is that the redacted pages were the basis of special prosecutor Patrick Fitzgerald's claim that Judith Miller should be jailed for contempt and contained information that Judge David Tatel said in a concurring opinion demonstrated Fitzgerald had "met his burden of demonstrating that the information was both critical and unobtainable from any other source.

Now, since the anti-Libby crowd cited ad nauseum the Tatel "balancing test" as proof Plame was a covert agent, one would expect the redacted pages would have contained some evidence to that end. And to my recollection they did not.

Now my recollection may be imperfect..does anyone have any contrary information?

[topsecretk9]

Well what does this mean?

Libby's lawyers said Plame's now-classified duties

[clarice]

Jeff, I'm not wasting time repeating extensive discussions over ages. Libby did disclose his conversations with Cheney, the questions he was asked seem rather baroque if they were simply designed to elicit that, his description of the Russet discussion seems very clearly to describe his state of mind--that is, not wishing to tell Libby he knew about Plame--and not from whom he first heard the relevant information (which in any event under the Agee Act which formed the basis of the investigation seems irrelevant). He may well have believed Fitz was being rational and trying to ascertain if HE told anyone.

[clarice]

TS--Isn't that interesting? I have no idea.

[topsecretk9]

They weren't, but now they are?

[Rick Ballard]

You might have to parse status versus duties on that one.

her now classified duties is not quite the same as her now classified status

[clarice]

We've all been assuming she was overclassified, not that she wasn't classidied at all. Fitz said at the presser that she was classified..was she not when the incidents in question occurred? Or is this just to seek what her present classification is..I think this is more likely..and when was this done?

[Tom Maguire]

My recollection is that the eight redacted pages had no classified info, but were just grand jury testimony.

However someone else pointed out to me that Tatel does note in his opinion that Fitzgerald did submit classified info to the court.

How in the hell can the prosecution justify even attempting to withhold one word of information about the journalists they interviewed and the questions they asked?

Does anyone want to stab at this?

I can imagine a prosecutor arguing that Libby's stroy about hearing the news from Russert as if for the very first time is a lie that is independent of anything Woodward, Mithcell, Russert, et al might have known.

But there are other counts in the indictment, and the state of knowledge in the journalist community seems to be relevant to whether Libby might, for example, have plausibly said to Cooper, "I am hearing this from other reporters."

Or, it might reconcile Miller's disagreement about dates - sloppy notes, other sources, who knows?

And it certainly might nearly impeach Russert directly, if Andrea Mitchell testifies that she told Russert about it (then we are relying on Russert's word/memory that he did not ask Libby about something that was buzzing in his newsroom and about which he was aware).

I'm not a judge, but I don't see this being turned down.

[Jeff]

since the anti-Libby crowd cited ad nauseum the Tatel "balancing test" as proof Plame was a covert agent

I don't remember this nausea, but in any case this is neither here nor there on the redacted pages. (I believe the claim had more to do with the idea that this was a serious case, since Tatel stated that even with a standard that had to be reached to overcome reporters' privilege, this case reached and surpassed it.) And I just looked back at Fitzgerald's filing that there was nothing now classified in Tatel's opinion, and the actual classified material is at even a further remove from Tatel's opinion than I thought. Tatel's opinion contains references to Fitzgerald's sealed filing, but Fitzgerald's sealed filing itself included detailed descriptions of the investigation that included specific references to grand jury testimony and materials identified as "classified," as well as other stuff. Given that much of a remove from the actual classified materials, and where in time we find ourselves, it's not shocking to me that Tatel's opinion itself is fine to release.

[Jeff]

his description of the Russet discussion seems very clearly to describe his state of mind

Oh come on, clarice, you can argue for your interpretation of Libby's story. But to suggest that it is very clear is ridiculous. It's not just Fitzgerald who understands Libby's story differently from you. It's the entire grand jury who heard his testimony themselves. And the FBI agents. And Tom Maguire, evidently.

[clarice]

TM, I think it will be hard to turn down the request to make Fitz turn over what he has on this. I think he has bupkus. He didn't ask, did he? And if he doesn't we go back to what I said a long time ago, Libby has set up a good argument as to why the normal rules of criminal discovery would be inadequate to provide him a fair trial and he will be given more--esp. the right to further question the reporters and subpoena their notes.

No regular prosecution would ever have been run this way--ignoring the distinct possibility of so much evidence absolving Libby and concentrating so narrowly on teeny bits to get the indictment.

[topsecretk9]

Hey, just when you start to think you are crazy for obsessing over every word...click here and you'll feel just a little better!

[Sylvia]

I don't remember the wording of the charges exactly, but wasn't it that Fitz was certain that Libby heard and inquired about Plame officially many times before he heard it from reporters? This based on Fitz's belief that LIBBY was the one who told all the reporters. So Libby committed perjury when he said that he heard about Plame from reporters first, whom he can't remember. If Libby can prove that other reporters knew about Plame at the time, even if he can't prove which reporter told him, he's off the hook, because there is no way to prove that ALL reporters didn't tell him- or NO reporter told him. You can't prove a negative. Really, the charges should be dropped.

[clarice]

I think it's even more--one of the accounts indicates reporters talked to other offiials who related that to Libby.

By the time discovery is over, it'll seem that everybody in the press was talking to someobody in the Administration and we get back to the absurd proposition that one can pin down with certainty the person who started such a well deseminated rumor.

[clarice]

DISSEMINATED (approaching the Midnight Hour)

[kim]

Maybe he's just a hell of a fine bloodhound, great at tracking down what he has been sent in pursuit of, but utterly unable to tell whether he has tracked a good man or a bad man.
================================================

[Rick Ballard]

Clarice,

They may be fishing for the original referral as well, with an eye towards Fitzgerald's lack of pursuit of the underlying premise. And I know they want the results of the internal CIA investigation which had to include that little phrase from Novak of "the CIA confirmed". There is a mad skunk in both the CIA files and Fitz's files and I sure hope that the judge gets past the "What stink, your honor?" cover fairly quickly.

Fitz's demand for extension of his area of interest is going to look pretty sleazy if it turns out that the original referral was as big a crock as it appears to be.

[Sylvia]

Right, it's like the telephone game. Also, if Libby can prove that other reporters whom he spoke to around the time of the first disclosure also were at least "likely" to know about Plame, it will be hard for the prosecutors to prove who told whom, and who is lying here - Libby or the reporter, even if the reporter denies it.

[Jeff]

Sylvia - Go read the indictment. It's considerably more precise than your characterization in several relevant respects.

[kim]

Yeah, and who told whom what about Plame is not precise at all. Besides, Tenet is the elephant in the living room. He and Fitz really ought to have a little conversation.
=========================================

[clarice]

Rick, wouldn't it be something if it appears that early on Fitz knew Plame was not properly classified as a cover agent within Agee and still continued to pursue the case? And if it was before he had Miller jailed--where did Tatel get that stuff from if not from Fitz?

[clarice]

coverT

[Jeff]

The original referral had no anchor in IIPA, if I remember. It had to do with the unauthorized disclosure of classified information. So clarice that argument won't fly. It was mostly those fine legal minds DiGenova and Toensing how recurrently put all the emphasis on IIPA and the attendant virtual impossibility of violating it.

[clarice]

Rick, it makes me feel more confident that you share my suspicion about the underlying stinkiness of the referral, Early on I raised questions about it..Among other things, my understanding is that in prior similar cases, this stuff was held by the DO for full internal investigation and didn't get out of the agency. Here it literally flew out of there to DoJ and into Andrea Mitchell's field of vision,

[clarice]

There is no way IIPA was ever under serious consideration. It was Agee or nothing. And an honorable prosecutor would have proceeded to establish FIRST whether it applied and if it didn't would have ended it.

[Rick Ballard]

Jeff,

Doesn't the first leak of the referral dispute that contention? Mitchell's pimping of the referral on Sept. 26 made a big deal of Plame's "undercover" status.

Do you have a copy of the original referral that you're referencing or do you just 'know' this?

[topsecretk9]

RB
HEH

[clarice]

In the SP's pleading on the Dow Jones redacted pages he says in November 2005 the agency involved reviewed the redacted pages and determined the material was no longer classified. not classified any more (I can't copy it for some reason ) This statement comes right after a discussion of Tatel's separate opinion which relied on the redacted pages in the opinion. Is the agency the CIA? Is it saying Plame's employment is no longer classified? Wasn't classified at the time of the referral?

[Jeff]

Rick Ballard (snotnose) - Leave aside the fact that I qualified what I was saying, not claiming to "know" (as you put it). Let's see, there's this:

But the CIA's initial "crimes report" to the Justice Department requesting the leak probe never mentioned that law, says a former government official who requested anonymity because of the confidential material involved. Fitzgerald may be looking at other laws barring the disclosure of classified info or the possibility that current or former White House aides made false statements or obstructed justice.

In Comey's initial letter authorizing Fitzgerald, there's no specific mention of IIPA either. You can find that here. There's more, but I hope that's enough.

[Jeff]

clarice - What is Agee if not IIPA? I'm confused.

[kim]

What about that referral? Was it just hiding in a pile of papers Tenet signed? Why else did he let it run by?
===========================

[clarice]

I misspoke (or rather misposted) I meant the Espionage Act. In either event it was --or should have been clear--within days that it was inaplicable as it is in the hundreds of such referrals made by the CIA every year.

[clarice]

kim, that is what has been reported. That is was in a stack of administrative papers awaiting his signature and had not been specifically drawn to his attention.

[anngi]

Clarice thinks the prosecution of the Blind Sheik was a crock too. (Fitzgerald again.) The coming "swift-boating" of Fitz by administration apologists is so sadly predictable. Fitz, being such a bad guy for busting terrorists, crooked politicians, and corrupt companies.

Libby lied and then tried to cover it up. Get over it.

[topsecretk9]

Snotnose?

I like it. I like it better than my "snarkbutt" --sort of a nice ad hom

[clarice]

OT--But some DU poster claims Kerry's office told him that Reid says he's ok with the filibuster and urged them to pester fellow Dems--Byrd, Landrieu, etc. If Kerry ever returns from Davos he better watch his back.)http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364x251957

[topsecretk9]

B R I N G I T ON!!!!!

[clarice]

I think the case is weak, I always did. I think the prosecution of the Blind Sheik is, too. But I'd hardly say anything I or any of those critical of the prosecution have said comes close to a single day of the vituperation Starr endured for years.I realize the fitzmas fizzle was hard to take, so I'm warning you the Libby fizzle will hurt you even more,anngi.

[topsecretk9]

I am frankly tired of people beating up on Clarice, particularly drive by trolls. I am not sure why you so seem to be their favorite target, I have my hunch. Anyways Clarice I admire that you always reply and answer the attack. You don't have to. Regulars here ignore them and I just hope you don't feel you have to.

[Rick Ballard]

"says a former government official who requested anonymity because of the confidential material involved."

GSA janitor? DCI? Fileclerk?

Larry Johnson?

Ahchooo!!! That cleared it up.

[kim]

Hee, hee, anngi, 'Swiftboating' has a different meaning that what you think it does, or rather, it means generally two different things to the two sides of the political divide.

Fitz will only need Swiftboating if he persists in ignoring the truth, and hiding the facts of the case from the curious.
==================================================

[kim]

I think your hunch is wrong. I think it is because her analysis is so acute. The truth hurts, and the response is anger and lashing out.
==============================================

[topsecretk9]

Kim
You are right!

[clarice]

Thanks, ts--I seem to drive the left nuts wherever I post. Must be my perfume or something.%^)

[topsecretk9]

and Rick,
I've always got a tissue when you need one.

[Rick Ballard]

I really believe that the press figured they could bury a negative outcome the way they buried the Waco Massacre. Kerry wins and it's one graf on A-28, Kerry loses and since it was phony from the get go, Fitz is smart enough to fold up his tent and steal away in the night - he didn't even owe anyone a report. Then the press figured that Fitz might go for a trifecta and the hum grew again until the horror of Fitzmas past was revealed. Now Fitz and the press are both boxed and the whole thing plays as low farce rather than high drama.

[JM Hanes]

Jeff
"The original referral had no anchor in IIPA, if I remember."

I believe the original referral was indeed tied to IIPA. It would then be up to Justice, of course, to decide whether to prosecute under that statute, or another, or not at all -- a subject which Fitz touched on in his press conference.

It's also my impression that what info which remains undisclosed from the Fitz filing obtained by the Wall St. Journal mostly consists of (necessarily) secret grand jury testimony rather than classified material. I could be mistaken on that score, however. Do you remember whether or not Tatel characterized what he found so compelling about Fitz's argument? Did he state that it was based on national security -- as opposed to, say, judicial process -- concerns?

"Go read the indictment. It's considerably more precise than your characterization in several relevant respects."

The burden of specificity and materiality is bourne primarily by the Prosecution here. The defense has considerably more latitude in how they go about establishing reasonable doubt in crimminal proceedings, which -- as the OJ trial first famously made clear -- has been known to include going after the prosecution itself. The list of what the Libby folks are going after suggests all sorts of intriguing possibilities.

[clarice]

That's an interesting observation, Rick.I think for the targets of this benighted investigation it must have been like taking an exam without knowing what the subject of the test was. For Libby, it seems to me he thought he was being probed to see if he divulged Plame's identity to anyone, but for Fitz it was anything I want this test to be.

[JM Hanes]

Jeff

I stand corrected on the initial referral & IIPA, per your subsequent comment. Unfortunately, that ultimately serves to make the referral ever more politically suspect.

[clarice]

Only two laws could have covered this-- IIPA and the Espionage Act-- and on the facts neither did, whatever the referral letter or Comey's letter said.Of course, after the prsion and NSA leaks, we may soon have a super secrets act.

[Chants]

IIPA? I think that was a non-starter fairly early on. The most problematic element concerns not the five year limitation, but the government's burden to show that it was taking affirmative measures to conceal the agent's relationship to the governement.

I would like to think that a government with a duty to conceal its relationship with agents most sensitive to national security is wise enough to not have these same agents drive themselves to it's own large, vast and unconcealed spy headquarters. Daily. In broad daylight.

Sure Joe. You can write it. No one will suspect a thing. We have the masterfully crafted Brewster-Jennings cover to protect her. We don't mind.

Applying the IIPA to this case would have turned the case into a complete zoo.

And the Espionage Act? With its ability to jail both the leaker and leakee every leaked to jounalist suddenly got a case of amnesia when that tiger loomed it's ugly head. That may explain A. Mitchell's perplexingly inconsistent statements. And Russert's coy ones. And Kristoff's waxing poetic over AK-47's, saying absolutely nothing.

No. I don't see any indictments based on the actual "leak". Not by a long shot.

[clarice]

See what I mean, Vern. It then became an anything can happen day where no one even knows what the prosecutor is seeking..a long running pop quiz on anything..Very bad.

[Syl]

On the other hand, I suspect Fitz had his narrative all worked out before he even started--it was the same as Wilson's--a conspiracy to wreak revenge upon Wilson by outing his wife.

This is what fitz believed, and this is what fitz looked for. But he couldn't find it. That didn't mean it wasn't there, that only meant, to Fitz, that Libby was obstructing.

So Libby's obstruction became fitz' obsession and he found it in every nook and cranny of Libby's verbal style. And it didn't matter how strong or weak the case was, as long as there were several indictments to be had...

Because, since Libby was, according to fitz, obstructing the investigation, Libby was protecting someone. And this meant that the indictments were the trap leading to a plea deal. And that's where fitz would catch the king.

But, alas and alack, if there had been no conspiracy, there would be no king to catch, and there would be no plea deal.

Guess what?

Now Libby's defense can shred fitz' case to pieces since it was based on an assumption not founded in reality. And with the fact that fitz was constrained by JD rules to tiptoe with journalists, fitz, not the king, will be shown to have no clothes.

[Kate]

Any sense of where this leaves the investigation of Rove. Will Fitz:

1) leave Rove hanging during the Libby trial
2) charge Rove with perjury, false statements; obstruction of justice in advance of Libby's trial;
3) negotiate a plea deal with Rove based on his cooperation in nailing Libby
4) clear Rove prior to Libby's trial

[Kate]

I find the WAPO article very interesting. I note that the media tried hard to protect "high level government sources", not "White House sources". I've learned by reading this blog that the sourcing is very important. Of course, the media might argue that it tried to protect Libby and Rove, but not too hard.

So to go back to a previous TM post, there definitely were good leakers and bad leakers as determined by our wonderful media.

[dorf]

Oh, poor dears in the DC press corpse. (Not a mispell). :)

Pray this never goes to trial you poor little dears. 'Cuz if it does, you ain't never gonna work agin.

[Jim E.]

"I can think of a million more worthy causes"

Then why bother with the million-and-first at all?

[Dwilkers]

I'm sure Mr. Libby will have plenty of money for his defense without my cookie jar.

[Cecil Turner]

So to go back to a previous TM post, there definitely were good leakers and bad leakers as determined by our wonderful media.

Yep. Moreover, they were willing to aid and abet the political opposition as it spun a false tale of "twisted intelligence" . . . either intentionally or because it played to their own biases. At this point, they've made all the accusations they can against the Administration, and Libby's lawyers get their innings. Move over, Mary Mapes.

[TM]

It's not just Fitzgerald who understands Libby's story differently from you. It's the entire grand jury who heard his testimony themselves. And the FBI agents. And Tom Maguire, evidently.

Hmm, dare I end my waffling? As I recall from the last time we kicked this around, the specific conversation about Libby and Russert could (with a bit of squinting) be read either way.

However, it seems to be reasonably clear from other excerpts that Libby stayed with that theme (he had forgotten his June chats with Cheney), and that we are not talking about a one-time verbal lapse.

As to the referral - somewhere I linked to a farirly formal reference to it - a letter to John COnyers, I am almost certain - and it clearly cites a leak of classified info, not disclosure of a covert agent.

What does that mean? Maybe nothing - one might think that covert agents have a status that is classified. But as to the point at hand, the referral did not seem to cite the IIPA.

Any sense of where this leaves the investigation of Rove. Will Fitz:

That is a great question. Next question, please...

Oh, I'm kidding, sort of. I have no idea - in my world, Fitzgerald can't be in a hurry to compound his humiliation by going after Rove. And maybe Fitzgerald wants to see how credible Cooper is with the jury here before betting the ranch on Cooper v Rove.

But in other worlds, Fitz is master of all he surveys and is playing with Rove like a cat plays with a mouse.

If *I* were advsing him, I would tell him to wait and test-drive a Cooper.

[Gary Maxwell]

I keep hearing them referred to as "mini Coopers". What does this descriptive adjective reference in this case?

[clarice]

On a lighter note, NBC and Huff are at war.. http://www.nydailynews.com/front/story/386321p-327783c.html

[p.lukasiak]

the problem for Libby is two-fold.....

Libby claimed that he first heard about "Wilson's wife" from reporters.... and that he told Matt Cooper that he'd heard it only from reporters.

but there is voluminous proof that the first is a flat out lie -- that goes well beyond the Cheney conversation. Cooper's testimony -- and notes -- are enough to gain a conviction on the second point.

Libby's claim that he heard it from Russert means that Russert's prior knowledge is relevant to his defense -- and its safe to assume that FitzG provided Libby's people with all the information they got from Russert.

At this point, Libby has to prove that he heard about Plame from other reporters --- not that other reporters knew about Plame, but that they communicated that information to Libby. What other people knew is irrelevant -- its what Libby knew, and how he knew it, that is at issue here.

[Dwilkers]

The Mini Cooper

I think Rove is pretty much home free at this point.

Well...assuming there really isn't some grand conspiracy and Libby reveals it, which I think is a pretty remote possibility. And I think its fairly clear that even if Rove were still under suspicion the Cooper stuff is too ambiguous to be the basis for a prosecution.

[topsecretk9]

(please keep them within the realm of physically possibility).

As in, no need for a full on ferociously offensive blog comment assault.

[Extraneus]

I always put my jaundiced eye in whenever I see Pete Yost's name on a by-line, but my biasometer was down before I got to this line:

Libby is charged with five counts of obstruction, perjury and lying to the FBI about disclosing the identity of covert CIA officer Valerie Plame, who is married to former U.S. Ambassador Joseph Wilson, a Bush administration critic.

Is this a factual statement?

[Cecil Turner]

but there is voluminous proof that the first is a flat out lie

Or would be, if anyone had actually said it. But it appears that never happened, or the prosecutor was curiously misinformed in his press conference:

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 . . .

[Joe C.]

This whole thing is going to be thrown out eventually: Plame does not qualify as covert under the statute, Fitzgerald is not going to disclose information, and reporters are goping to refuse to testify. All of this is going to be to burdensome to the defense; therefore, the judge will throw it out. The biggest sigh of relief will be from the Media.

[Kyda Sylvester]

Ah, Tom? Are you saying that fortifying the lining of George Steinbrenner's pockets isn't a worthy cause?

[TM]

I prefer to think of it as lining Mariano's pocket, but whatever...

[Neo]

Perhaps Libby's defense team whould call Ms. Flame, herself, to shed light on any contacts she may have had with any reporters.

And, are any of these some anonymous, high-level government sources covert ?

[danking70]

Swiftboating Fitz? Really?

Can anyone name 10 of the 100s of prosecutors who have previously worked with Fitz, who'll come forward to denounce him and his "seared" memory? LOL!

Didn't think so.

[cathyf]

At this point, Libby has to prove that he heard about Plame from other reporters --- not that other reporters knew about Plame, but that they communicated that information to Libby.

No, Libby doesn't have to prove any such thing. Merely has to show that there is enough evidence that the prosecution cannot prove its case beyond a reasonable doubt. If Libby's defense shows that lots of reporters knew and lots of reporters were telling each other, then it is the prosecution who must prove, beyond a reasonable doubt, that it is impossible for one of those reporters to have told Libby what Libby claims he heard. Libby's defense doesn't even need to create reasonable doubt about Russert's truthfulness -- it is sufficient to create a reasonable scenario where Russert said it, and forgot, and he testified truthfully, but he just didn't remember the things he forgot.

Proving a negative is always very difficult, and if Russert did know, then without something like a tape recording it's hard to see how Fitzgerald can prove that he didn't tell Libby.

cathy :-)

[Jeff]

TM - To be fair to the interpretive opposition, the current theory is not that Libby had a verbal lapse but that there has been a gigantic misunderstanding on the part of Fitzgerald, the FBI and the grand jury: Libby never actually said anything about hearing about Plame as though for the first time from Russert. He was describing his state of mind -- except not in the sense that he was descibing an actual state of ignorance and forgetfulness that cannot be believed even by his defenders. Rather, Libby in his testimony is describing his state of mind in the sense that he is describing how he put himself into a state of mind to then express it to Russert persuasively, and that state of mind was a state of feigned ignorance. In other words, he testified that he lied to Russert. Which would be perfectly reasonable, except for the interpretive contortions to get that out of what Libby testified to, as far as we can say, as well as the evident understanding of the grand jury itself to which he spoke, Fitzgerald, and the FBI agents to whome he spoke. And yes, the excerpts from Libby's testimony about his conversation with Cooper appears to jibe perfectly with the mainstream interpretation that Libby was testifying that he believed at the time that he was hearing about PLame for the first time from Russert.

And that claim by Libby that he believed he was hearing about PLame for the first time from Russert, so hard to believe not because of any he said-he said with reporters but rather because of the testimony of numerous other government and administration officials as well as because of documents from the time period, is crucial to the case against Libby at least with regard to the obstruction charge, if you look what the corrupt endeavor Libby is actually charged with, as distinct from the specifics that will back it up. The charge has to do with Libby deliberately deceiving the grand jury about how and when he learned about Plame as well as how he conveyed it to members of the media, roughly speaking.

[clarice]

Kate, I thought that part of the Washington Post article interesting as well.But couldn't the same thing be said of Fitz?From what we can tell, he focused only on the WH and not on people in other agencies who knew and who were sources for the reporters. And that's because he bought the Corn storyline--that there was a deliberate retaliation from there.

The other part of the WaPo article that was interesting was that the targets of Libby's inquiry are Russert,Mitchell and Pincus as to whom the general consensus at JOM is that they knew independently of Libby or Rove of Plame's employment.

[maryrose]

p
lukasiak,
What other people know is irrelevant"
No what other people knew and what they said to each other and to other administration officials matters very much. Why would Libby let a reporter know if he knew about Plame or that Cheney or another official had told him. It's none of the reporters business. Also you could pretend not to know because you don't want to confirm information.
" It became an anything can happen day"
This is the first solid explanation for why this investigation went forward. Once engaged I think like his prosecutions in Chicago Fitz was determined to find something irregardless of the fact that there was no classified identity breached. The fact that he is still lokking at the WHIG group shows you he now knows how weak his case is and is scrambling to make it stronger. I keep going back to his questionning of the neighbors right before the presser. That obviously turned out to be a dead end and his narrative got a big hole in it.

[larwyn]

Anyone noticing that Libby's lawyers waited until
the MR. ANDREA MITCHELL GREENSPAN WH retirement party
was out of the way to file???

Think powers that be wanted to be generous to old man and
get him off stage before SHTF.

Wrote in comments that "weeks early nomination" per LSM
talking heads* - was to give Greenspan early out if things broke
sooner, so as not cause embarassment for the U.S.'s Fed !

*Per LSM at time, Admin/GW did this
to put out some positive to news to
cover whatever the hell was their
scandal du jour - Damn - it was
Plame!

[Jeff]

From what we can tell, he focused only on the WH and not on people in other agencies who knew and who were sources for the reporters. And that's because he bought the Corn storyline

Incorrect. Fitzgerald has by no means focused only on the WH. Fitzgerald has gotten testimony from numerous people at the CIA as well as numerous people at the State Department. We know at least one of the CIA people was a source for a reporter (to say nothing of Novak's first source, how may well be at State or CIA), and we don't know about others, but that is no reason to think Fitzgerald didn't ask, and didn't get testimony on it.

[clarice]

Actually, I think there is no relationship between Greenspan's retirement and the timing of Libby's motion. First they had to go through the clearance process so that Libby's lawyers could get classified material, then they had to get docs from Fitz and study them. Since it'll be a while until this issue is resolved, whenever he filed this motion Greenspan was likely to be out of office.

[clarice]

You may be right, Jeff, but I think most of the DoS testimony was related to the distribution of the INR and the CIA stuff about similar mechanical/administrative stuff. The agreed upon limitation of Miller's testimony (the most visible arrangment) clearly confined her discussion of sources to Libby.We never saw a single instance of reporters being questioned about other sources, did we?

If Mitchell was interviewed by the FBI, did she indicate other sources? Were those people called to testify?

We suspect Woodward told the name of his source, and we think it was Armitage. Any sign of him appearing before the gj?

We know Pincus' deposition ws very narroe and apparently never went into other sources or his independt knowledge of Plame's employment.

There is no sign of Corn being questioned--and many of us think it obvious Plame was a source for his piece along with the VIPs crowd.

I don't recall now--was Kristoff (lunch with Plame and Wilson) even called?

[Rick Ballard]

Clarice,

What type of moves does Fitz have to perform in order to keep Tenet off of the defense witness list? Triple Salchow's followed by double back flips or something more mundane?

Just curious, because it seems to me that Tenet telling the truth on the stand would let the air out of all four tires of Fitz's mini-Cooper of a case pretty quickly. Especially if he had been providing 'background' to various reporters in, oh let's say May or June.

[politicaobscura]

did any of you see this??? interesting stuff.

http://www.ajr.org/Article.asp?id=4038

[politicaobscura]

from the link above:

Freelance writer Vanessa Leggett predicts the defense is "going to be granted latitude to tear into these journalists." Reporters at the trial are "just going to file in there like mechanical ducks at an arcade, and there are going to be some who will fall," she says.

[Jeff]

That's a terrible set of arguments, clarice, both circular and factually inaccurate. Woodward testified about his source -- whether he personally appears before the grand jury or his testimony is read to them is irrelevant. Pincus most certainly went into sources other than Libby; it now turns out that his other source was in the White House too. (Pincus has also mentioned that he testified about multiple sources, but that may just mean he also testified about Libby not being a source about Plame.) Furthermore, Cooper has told the grand jury what he knows, which apparently includes a confirming source other than Rove and Libby, perhaps someone in the State Department. In fact, Miller was evidently asked about her other sources, acknoweldged that she had other sources, and claimed that she couldn't remember who they were. I think she was lying through her teeth, but that's not FItzgerald's fault. Same goes for Mitchell. In fact, from everything we know, Fitzgerald has been very assiduous in nailing down other sources for reporters.

So we have seen numerous instances of reporters being questioned about other sources. As for Corn and Kristof, I don't know if they've testified or been questioned. But I certainly see no obligation for Fitzgerald to buy into your far-fetched conspiracy theories, whereby somehow the Wilsons magically got Novak to out her.

[clarice]

That's an interesting question. Not that I'd expect anything less from you. I don't think Fitz can prevent him from testifying if Libby calls him. Libby would have to show he has relevant information and we know he does on a number of points--including Plame's classification and the question of national security as well as whether he discussed that with anyone. What is really interesting is this:Will he volunatarily agree to a pre trial deposition and would what he have to say there warrant dismissal of some of these counts?

Will Porter Goss, too, agree to a pretrial deposition. Has he yet ordered a formal damage assessment? If not, why not? Was the referral warranted? What sort of in house investigation normally preceeds such a referral? Was that followed here? Etc. So many witnesses so little time, to paraphrase the song...

[TM]

I think that is a pretty cogent summary by Jeff, and it suggests a "compartmentalized mind" defense:

Libby will try to explain that what he meant to be communicating to the Grand Jury was, he set aside everything he had learned as an insider in June, and tried to pass back to reporters only what he had heard from other reporters in July.

Maybe somewhere in the transcripts the defense can find something to support that; the rest of his defense will be, "I never dawned on me that anyone could have thought I had *really* forgotten - c'mon, what did we talk about for the last two hours in here?"

His biggest problem is, this looks like an patched-together ex-post rationalization. And it would help if any of these reporters could remember his careful sourcing to other reporters.

Maybe he was too cryptic. Or maybe they were intent on hearing The Scoop, and not "Everyone knows this". Maybe.

Well. He can knock down a few of the counts, and leave some fog around the rest.

[clarice]

My comments were addressed to Rick.

As to Jeff's comments;

Pincus most certainly went into sources other than Libby; it now turns out that his other source was in the White House too. (Pincus has also mentioned that he testified about multiple sources, but that may just mean he also testified about Libby not being a source about Plame.)

My recollection is imperfect, but I recall that Pincus provided answers to a very limited set of questions in which he said Libby was not his source, but named no sources, therefore there was no followup with them.
Furthermore, Cooper has told the grand jury what he knows, which apparently includes a confirming source other than Rove and Libby, perhaps someone in the State Department.
I have read his after gj article and have no recollection of his having named sources other than Rove or Libby. Please refresh my recollection as to his NAMING anyone else. If he doesn't name that source, Fitz has no reason to question him.
In fact, Miller was evidently asked about her other sources, acknoweldged that she had other sources, and claimed that she couldn't remember who they were. I think she was lying through her teeth, but that's not FItzgerald's fault.

No. My recollection is quite different than yours. She received a broader subpoena than anyone else. When she agreed to testify, Fitz agreed to limit her tesimony to a discussion with Libby. In the course of that testimony she referenced other notes not previously provided. When she was recalled to go over those notes, she indicated she may have had other sources, but could not recall them...therefore, no follow up with them by Fitz.

Same goes for Mitchell. In fact, from everything we know, Fitzgerald has been very assiduous in nailing down other sources for reporters. This seems utterly fanciful. As you may recall Mitchell's last comments on this--to Imus I think--was that she'd never even been questioned by Fitz.Therefore, how could he be tracking down and questioning those sources?

So we have seen numerous instances of reporters being questioned about other sources. As for Corn and Kristof, I don't know if they've testified or been questioned. But I certainly see no obligation for Fitzgerald to buy into your far-fetched conspiracy theories, whereby somehow the Wilsons magically got Novak to out her.
If he didn't question reporters who broke the story and claimed she was undercover and outed in retaliation, it puts paid to the argument that Fitz "asiduously" tracked down all sources.

His lack of curiousity is not limited to reporters either. As I recall, he hasn't even questioned people like Valelly who said Wilson "outed" Plame to him, or Cliff May and Marty Peretz who publicly said everyone knew.

[clarice]

This part is my response and shouldn't be in italics:

If he didn't question reporters who broke the story and claimed she was undercover and outed in retaliation, it puts paid to the argument that Fitz "asiduously" tracked down all sources.

His lack of curiousity is not limited to reporters either. As I recall, he hasn't even questioned people like Valelly who said Wilson "outed" Plame to him, or Cliff May and Marty Peretz who publicly said everyone knew.

[Jeff]

His biggest problem is, this looks like an patched-together ex-post rationalization. And it would help if any of these reporters could remember his careful sourcing to other reporters.

Likewise, it hurts that at precisely each of the points where Libby needs back-up for his story to sound true rather than like ex-post lie, Libby is contradicted by others. This is part of what makes the case against Libby, even to the extent that it depends on the reporters' testimony, more than he said-he said. There is a clear pattern to Libby's alleged lies.

[clarice]

It would make your argument stronger if we had the question he was responding to--it sure doesn't seem to be "From where did you first learn about Plame's employment?", but rather his recounting of his conversation with Russert, and that being the case, the state of mind defense has weight.