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February 03, 2006

Comments

narexbyrnsphdetc

Whew. Ya got me. What can I do against a blog post of circular logic and full of excuses. You hang by your fingernails on whispers of technicalities. Feels good, no? Kinda like the whole oral sex is not REALLY sex, thing. Welcome to our world, TM! Our arguments are all Clintonian now.

Lou Grunt

"We will want to see some circling by the Legal Eagles, but Libby may have a materiality defense at hand - ultimately, the perjury has to be about something of consequence, I believe."

Maybe Libby's attorney has that in mind when he stated today: "Wells said in the next three weeks he expected to file a motion arguing that the indictment should be dismissed. He gave no details."

http://today.reuters.com/news/NewsArticle.aspx?type=domesticNews&storyID=uri:2006-02-03T170831Z_01_N02346374_RTRUKOC_0_US-BUSH-LEAK.xml&pageNumber=1&summit=

I think Fitz is secretly hoping that this case gets dismissed. Especially when he sees those journalists with questionable memories on his witness list.

skinnydog

What is Clintonian or circular about any of TM's comments?

narexbyrnesphdetc

More info here .. WP updated their article ...

http://www.washingtonpost.com/wp-dyn/content/article/2006/02/03/AR2006020302095.html

skinnydog

"What's more, because the charges contemplated here relate to false denials of responsibility for Plame's exposure, prosecuting perjury or false statements would be tantamount to punishing the leak."

So in the Court's logic, if the leak was never illegal and the Special Prosecutor is not alleging it was, then persecuting the perjury is equivalent to punishing Libby for a legal act?

Jeff

I have to admit - this is the most shrilly defensive I've seen TM. Commenters too. And that latter point is really saying something. I guess the de-redaction of parts of Tatel's opinion didn't work out as expected.

kim

It seems to be building to a finish. 'Course that's been the case for awhile. Longest crescendo since Bolero. We'll be sorry when it's over.
==============================================

skinnydog

Come on Jeff, Shrilly? That's all you got? ;)

Lou Grunt

I for one, appreciate our lefty friends strong desire to see the prosecution of leakers. I look forward to reading their future comments supporting the prosecution of the NSA leakers. Especially since the NSA case is one, unlike the Plame case, that did actual damage to national security.

topsecretk9

Did Kristof ever run a correction for having printed this? (from 10-2003 column TM links to)

...The CIA is now conducting a damage assessment, which will determine what networks and operations it will have to close down...

skinnydog

From the Washington Post article:
"The records also show that by August 2004, early in his investigation of the disclosure of Plame's identity, Special Counsel Patrick J. Fitzgerald had concluded that he did not have much of a case against I. Lewis "Scooter" Libby for illegally leaking classified information. Instead, Fitzgerald was focused on charging Cheney's top aide with perjury and making false statements, and knew he needed to question reporters to prove it."

We were all waiting around until December 2005 to find out if someone illegally outed a covert CIA agent and Fitz knew in August 04' he had no such case?

vnjagvet

It looked to me like Fitz has an ally in Tatel in the sense that Tatel clearly bought his argument and his theory of the case.

It was almost as if Fitz channeled the redacted portions of Tatel's opinion in his statement on the day the indictment was issued.

It is also interesting to me that neither of the other two judges joined in the Tatel opinion.

Rick Ballard

"and the lack of any serious dispute regarding Plame's employment."

Who involved in this had standing to dispute Plame's status? Miller? Did her attorney's even raise the issue?

Jeff

skinnydog - It's too bad you don't know how to read a whole article (to say nothing of the actual document it is based on, so you can make an independent judgment for yourself). Here's the part that fleshes out the intro you quoted:

in August 2004, the prosecutor had at least a good circumstantial case on perjury but charging Libby with intentionally leaking classified information was "currently off the table," though it could be "viable" if he gained new evidence.

Tatel wrote that interviewing Miller would be crucial to making that decision, because Libby might have mentioned to her that he knew Plame's status was covert.


Not quite the way you described it, eh?

danking70

Rick,

wasn't Floyd arguing Freedom of the Press to get Miller off? Different path.

JM Hanes

TM
"So, the perjury charge is tantamount to punishing the leak, even though the leak has not been shown to have harmed national security."

Coincidence or ESP? See Point B

Rick Ballard

danking70,

My question is why the judge was writing as if someone had presented a claim of some sort. The judge's careful language concerning reliance on Fitz's affidavit and then his return to the subject are curious to me. Fitz's affidavit was the only "fact" that the judge could use and Miller's attorneys had no reason to question it because, as you note, it was not part of their strategy.

Why did the judge emphasize the veracity of the affidavit by mentioning a "lack of any serious dispute"?

It's just curiosity on my part - no big deal except I don't understand the necessity to bronze plate, if not gold plate an affidavit which appears to presume that IIPA is hanging out there ready to be used as a charge.

It just wasn't. No way. No how.

JM Hanes

skinny

"We were all waiting around until December 2005 to find out if someone illegally outed a covert CIA agent and Fitz knew in August 04' he had no such case?"

August '04? I think we can reasonably back that up to February '04...

JM Hanes

TM

After posting the link above to the DOJ website, I started trying to recall if the Feb. 6 memo (explicitly confirming Fitz authority to pursue perjury etc) was previously part of the public record?

Fitz put up his Plamepage just before delivering the Libby indictment, and it seems to me that the Feb.6 info was "as new," so to speak. If so, it would seem that Fitz was working overtime to maintain the fiction of a larger investigation, while even the judgment in question here seems to make it clear that wasn't the case at all. OTOH, maybe the Feb 6 info was just new to me?

Jim E.

Speaking of oddities... it turns out my man Cliff May disagrees with Russert and TM. May claims he knew all about Ms. Plame, but he didn't write about it in his July 11, 2003 anti-Wilson column because he didn't consider it relevant.

danking70

I hear you Rick. It seems everyone thought that Fitz had checked Plame's status but it wasn't until his verbal gymnastics at the presser announcing charges that eyebrows were raised.

Then, as has been pointed out, we have this reply after Libby's lawyers asked Fitz for his info on Plame's official status.

"We have neither sought, much less obtained "all documents, regardless of when created, relating to whether Valerie Wilson's status as a CIA employee, or any aspect of that status, was classified at any time between May 6, 220, and July 14, 2003."

You didn't even seek?

Rick Ballard

JMH,

The WaPo thought it was news on Oct. 25, 2005 - in the run up to Fizzlemas.

Rick Ballard

Danking70,

Sue maintains (I believe) that Fitz's response is boilerplate lawyerese where he hangs his hat on "all". I don't have the background to argue and I trust her judgement. But I'm still very curious both about the affidavit and abbout the full request from Libby's attorneys.

"never sought" could be the absolute truth - Fitz may have never extended his research beyond what the CIA covered in their memorandum attached to the referral.

Jim E.

JM Hanes,

I found a report dated Sept. 30, 2004 which referenced how in in Feb 2004 Fitz was given clarification for what he was authorized to do (as in pursue perjury, obstruction). So while the Feb 6 letter might have first come to light when it was put on the webpage, the general contents of it had been known for awhile. It was not "new" information. And generally speaking, most legal analysts had long been talking about possible perjury/obstruction stuff long before the actual indictment, so I don't think Fitz was keeping a fiction alive or anything (particularly since I'm not aware of him ever leaking anything one way or the other).

Jeff

It's just astonishing to read misrepresentation after misrepresentation of what Fitzgerald said. As Rick points out, the point is that Fitzgerald did not seek all documents showing that Plame was classified at every moment of her employment at the CIA during the relevant period. That would require seeking every document relating to her employment at the CIA during the relevant period, and there was (and is) just no reason to do that. There is good reason to think her employment status was classified during the relevant period, and no reason to think that it was not at any moment during that relevant period.

It is simply not the case, whatever the idiot writers over at NR or NRO want you to believe, that Fitzgerald has said he sought no evidence to show that Plame's status was classified during the relevant period. It requires no special training in lawyerese to appreciate that fact.

Rick Ballard

Jeff,

Fitz's response comports with his chosen quotation but we really need the request to know whether there was a drafting error. As I mentioned, the ones I've seen refer to "any and all" but I haven't seen very many. Nor do I ever want to see another one.

JM Hanes

Rick

Thanks for the info -- and the link. It's rather interesting to read articles that appeared along the way in light of current developments.

I think it's looking more and more likely that a perjury trap defense might be feasible. Considering just how regularly witnesses & defendents lie, it seems to me that there's also a notable lack of precedent for tagging a suspect with obstruction on top of perjury. Maybe one of our legal eagles can explain to me why perjury wouldn't, almost by definition, always constitute obstruction -- or in Fitzspeak, sand(bagg)ing the ump.

skinnydog

"skinnydog - It's too bad you don't know how to read a whole article (to say nothing of the actual document it is based on, so you can make an independent judgment for yourself). Here's the part that fleshes out the intro you quoted:

in August 2004, the prosecutor had at least a good circumstantial case on perjury but charging Libby with intentionally leaking classified information was "currently off the table," though it could be "viable" if he gained new evidence.
Tatel wrote that interviewing Miller would be crucial to making that decision, because Libby might have mentioned to her that he knew Plame's status was covert.

Not quite the way you described it, eh?"

Nice try Jeffy. My use fo the quote was accurate. Fitz knew he didn't have much of a case on the leak in August 04' that's clear fro the artical and the case which I read. the reporter's testimoy was needed to tie up the perjury charge, oh, and if new unanticipated evidence of an illegal leak turned up well then he'd have a case on the leak! It doesn't change the basic point of that part of the article which you might grasp if your reading comprehension improved a bit: There was no leak case based on the existing investigation in August 2004. Which part of that don't you understand?

And as of today, try to stay with me Jeff, where is the leak case now?

JM Hanes

Jeff

September is still long after the fact, but I'll dig around and see if I can come up with anything earlier. I am assuming that the related info quoted by TM above came from the previously redacted pages, which would mean it was being closely held (for any number of plausible reasons, of course, aside from the possibilities I've been proposing) but I confess, I haven't read the unredacted material myself yet.

Jim E.

One of the goofier defenses of Libby around these parts was that Libby's testimony regarding the Russert phone call was misunderstood by Fitz. Tatel's summary of Libby's account puts that bit of nonsense to rest.

Jim E.

On April 2, 2004, the NY Times reported that Fitz had "expanded" his inquiry to perjury and obstruction.

Rick Ballard

Oh no, around here you've got to wave IIPA to get to goofy. That and demonstrate your deep understanding of the word "permanent". Then you get to claim "goofy".

Btw - how is the "leak" case coming? Heard anything new since, oh, oral arguments in the Miller case?

MayBee

MJW was just asking about this the other day:

Tatel wrote that interviewing Miller would be crucial to making that decision, because Libby might have mentioned to her that he knew Plame's status was covert.

MJW was asking why Fitzgerald seemed to allude to the fact that Libby knew Plame was covert, yet never came out and said it in his press conference. She was obviously very astute. It seems the answer is Fitzgerald was trying to prove it but could not. Sleight of phrase indeed, Mr. Fitzgerald.
Kudos, MJW.

MayBee

AACK! Will I never learn to preview? Quote ends after second paragraph.

clarice

There is sooo much in the Dow Jones forced relase and I'm away without much time to analyze it!

Fitzgerald's affidavit on 8/12/04 in which he says para.4 Wilson (redacted--obviously name of other person) "spoke to reporters including Kristof and Pincus concerning Wilson's trip to Africa..

Five'll get you ten we are talking of the Valerie herself!!

Para 94 Fitz goes into a song and dance about he more genially treated whistlebrlowers who leaked as opposed to those who leaked against whistleblowers, making it clear that he viewed Wilson as a whistleblower..Wilson, whom the SSCI made clear lied about the whole thing from beginning to end..G


On p. 38 of the Miller case opinion it appears that Fitz indicated that he had some basis for the IIPA proseuction--that Plame had been on a covert assignment within the 5 year period.The Court notes these are "representations I trust the special counsel would not make without support."
Well, I'm afraid with all the hooey he's been blowing that trust is misplaced.

ed

Are you kidding? that redacted name could be anyone. What color glasses are you wearing? and to use that as evidence of fitzgerald sliping one by the court? please.

clarice

Perhaps the report was the Kristof first met with Wilson and his wife..And perhaps because of the WaPo article about 4th of July at the Wilson Plame case, I hav always assumed that the unnamed CIA analyst in those pieces they wrote was Plame herself..And I know I'm not alone one that.

clarice

Not alone ON that..

MJW

One thing to consider about Judge Tatel's concurring oinion is that Tatel is a somewhat left-of-center Clinton appointee who doesn't always shy away from using his position on the court to make political statements. For instance, in the case involving Cheney's energy task force, Tatel cited the SCOTUS's ruling in the Paula Jones case to rebut the argument that the lawsuit would take too much of the VP's time. A tactic that would have been more approriate had the VP actually made that argument; instead, the VP's argument was based on separation of powers. In this regard, Tatel's opinion seemed to be more an attempt to rub the Republican's noses in a supreme court opinion he didn't like than valid legal reasoning. (The 2-1 opinion against Cheney led to great merriment on the left, until the supreme court overturned 7-2.)

MJW

From Tatel's opinion:

Russert stated, "I have no recollection of knowing that [Wilson’s wife worked at the CIA], so it was impossible for me to have [told Libby] that." Asked to describe his “reaction” to Novak’s July 14 column, Russert said, "Wow. When I read that -- it was the first time I knew who Joe Wilson’s wife was and that she was a CIA operative. . .. [I]t was news to me."

I see that inserted phrase, "Wilson’s wife worked at the CIA," and wonder what were Russert's exact words. Especially after reading, "it was the first time I knew who Joe Wilson’s wife was and that she was a CIA operative." Why not "that she worked for the CIA"? It was good enough for Tatel, why isn't it good enough for Russert?

MJW

I thought it was quite strange how the Mitchell-Russert dialogue was practically Russert Deposition: The Play. On Letterman, they occasionally do a comedy bit where two stage-hands read transcrpts from Oprah's show. I think maybe Tim and Andrea decided to try the same thing with Russert's deposition.

JM Hanes

JimE

So, you're a Times Selectman? Thanks for the info -- saved me a bunch of googling!

clarice

It's not online. The death knell for the case is the Fitz affidavit in the Miller case most of which was no longer redacted and released..He says he didn't even subpoena reporters about leaks unless they involved leaks about Wilson who he considered a "whistleblower" deserving of protection.

He also says Wilson and (name redacted--certainly Plame)spoke to several reporters and were Kristof and Pincus' sources for their original stories.

Kate

Unfortunately, Fitz bought into the Wilsons as noble whistleblowers early in the investigation.

I suspected that throughout the case based on his few statments.

Fitz is an idiot and Ashcroft was a bigger idiot for selecting such a biased prosecutor.

My main suspicion is that someone in the White House believed that theory too and that person convinced Fitzgerald. Who was that person. Someone hostile to both Rove and Libby who pushed the case from within?

Jeff

Hey clarice - How do you get access to Fitzgerald's affidavit?

TM

Clarice, we're groveling now...

kim

It would be just like Russert to be amused by a Mike and Ike with Andrea. The scum; I'm not amused. Where's my supply of rotten vegetables.
==========================================

kim

Maybe Tatel could use a little reprimand; other than being made a fool of.
=======================================

kim

'This showing suffices here', but where else? Only in the Hell Judge Tatel will soon inhabit re his his, and Fitz's, mutual gullibility. I hope he already regrets that phrase. I would.
===========================================

Sue

Rick,

A guess here, but a judge will 'always' rely on an affidavit as being the gospel truth unless someone disputes it. The affidavit was the only 'testimony' in front of him concerning Valerie's employment. Without contradicting testimony (oral or otherwise)he would take it as a 'fact'.

Fact as defined in law: in a lawsuit or criminal prosecution, an issue of fact in which the truth or falsity (or a mix of the two) must be determined by the "trier of fact" (the jury or the judge in a non-jury trial) in order to reach a decision in the case.

If no one challenged the affidavit, there was really no other decision the judge could arrive at.

kim

OK, Sue, it's off to limbo for Tatel, but purgatory for Fitz.
============================================

emptywheel

TM

Regarding that weirdness about the Cooper or Libby raising the issue of Plame. The most curious remaining redaction in this opinion is the one that relates to the Cooper-Libby conversation, on page 33. That leads me to suspect that there is something more from that conversation that interests Fitz but that doesn't relate to the perjury charge, and that Cooper (probably at Fitz' request) didn't cover in his account of the conversation. I suspect it has to do with the strategy meeting aboard AF2. But if Cheney and Libby decided on some kind of campaign on AF2, it might explain the discrepancy about who raised Plame first.

Rick Ballard

Sue,

That's what I was trying to get to. I read Tatel's comment as arm waving to draw attention to the affidavit - "Look folks, I have no investigative authority and by law must rely on the prosecutors characterization as stated in his affidavit." - that part I understand completely but I don't understand why he came back and plated it with "lack of any serious dispute"?

It had to be 'good enough' for Tatel because he has no investigative authority and there was no one to contradict Fitz's assertion but it doesn't have to be "good enough" for anyone else by a country mile. I also see it as an escape hatch for Fitz. Fitz could walk out today and say "new facts, of which we were not aware, have come to light" and wrap this sucker up.

Sue

Rick,

Yeah, Fitz could. But he won't. At least, IMO, he won't.

Don't you think that Libby, at least by now anyway, knows what Plame's status was at the time in question?

Rick Ballard

Sue,

I lack the credulity necessary to be able to believe that people with clearances as high as that held by Libby do not "know" the statutes pertaining to disclosure of classified information. Whether (and from whom) Libby received assurances as to Plame's "real" status is somehthing that I can't even speculate upon.

I do know that a plot to "get back at" a third rate diplomat for writing a negative editorial by "outing" his wife requires a level of stupidity rarely found outside of institutional settings. Joe's fairytale lacked sufficient weight to cause political damage without the Times throwing itself mindlessly behind it. And the Times is not so mindless that it would give its editorial page to a third rater without vetting his bona fides. If Fitz gave a damn about investigation, he might follow that trail a bit more closely rather than searching for "facts" in which to drape a fantasy.

Sue

Rick,

Either Libby knows her status at the time was not 'covert' or he is gambling (and I perceive him to be a gambler) that classified material will not be released and a court somewhere will dismiss the charges based on an inability to properly defend himself without that evidence.

Anyway, have a nice day. I'm going to get out and enjoy the afternoon.

TM

The most curious remaining redaction in this opinion is the one that relates to the Cooper-Libby conversation, on page 33.

Good point - what about Cooper's presentation needs to be redacted? Although that said, Cooper surely had evidence related to Rove as well.

Let's see - as of Aug 2004, Cooper had been deposed about Libby and managed to surprise Fitzgerald with the news that he had at least one other source (thereby earning a second subpoena and a near-jail experience).

Maybe whatever Cooper said that triggered the second subpoena was cited (as evidence of a need to chat with reporters) but redacted (because it related to Rove.

I suspect it has to do with the strategy meeting aboard AF2. But if Cheney and Libby decided on some kind of campaign on AF2, it might explain the discrepancy about who raised Plame first.

Hey, is this elevator going up or down? In MY world, Fitzgerald's case is hanging by a thread...

JM Hanes

Kate

"Unfortunately, Fitz bought into the Wilsons as noble whistleblowers early in the investigation."

That's my impression too. Someone in the comments awhile back referred to a conversation between Fitz & Wilson. I remember being pretty surprised that Fitz apparently just called Wilson up to check on some aspect of the case. Sorry to be so vague, but it sounded rather like Fitz was consulting with Wilson pretty casually.

Reporters have almost universally commented on how circumspect Fitz's actual interviews have been, which they generally attribute to his desire to impinge as little as possible on press prerogatives -- an impression Fitz has certainly cultivated. OTOH, it's equally easy to argue that there were a lot of things a prosecutor with a very specific target might not want to know (as with nailing down Plame's questionable status).

I've been fascinated by the variability of Fitz's approach to his witness list, and I wonder if anyone here is familiar with grand jury proceedings from a prosecutorial standpoint. We have witnesses who were interviewed before the Special Prosecutor's appointment. We have witnesses who were interviewed in the Prosecutor's offices, and others in their own digs. We have phone calls to Wilson. We have negotiations, establishing quid pro quos as to scope and (artificial?) materiality for journalists' testimony. Indeed, that, in itself, may be a big part of why the defense is going after reporter testimony so aggressively.

And then there are the decisions which intrigue me most: why were some witnesses only called upon to testify by affidavit and/or give testimony to be read (in entirety or selectively?) to the jury while others were actually hauled in to testify in front of the grand jury in person? It's also interesting that while the list of witnesses apparently qualifies for the official cloak of secrecy, one of the judges involved (can't remember who off the top of my head) ordered the Prosecutor's office to quit sneaking them in through the back door. What was that all about, I wonder?

It's only natural, of course, for a prosecutor to assume he's going after the bad guys. In the noble tradition of Eliot Ness felling Capone with tax evasion, I suppose the prosecutor from Chicago may figure that what matters is not the charge but the conviction. Fitz, and consequently Tatel, have explicityly confirmed this, and that's certainly how Bush Administration detractors seemed determined to read this story.

Jim E.

Doesn't the redaction at the bottom of page 32 also fit in with what emptywheel is saying about page 33 redactions? When it restarts with "Libby called several journalists...", it seems like that could be in the middle of a sentence. Like, "At Cheney's behest, Libby called several journalists..."

But I don't get the part right before the redaction which starts "As to the July 12 conversation,..." What July 12 conversation is it referring to? Is that part incomprehensible due to the redactions, or does that refer to something brought up in the previous paragraphs?

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