Fitzmas Never Comes

The Libby trial will be after the 2006 election and about as far from the 2008 election as the calendar allows.  Hard luck.  Now Libby just has to hope he is convicted (or acquited!?!) before Bush leaves office.

UPDATE:  Fortunately its a Saturday, but this is not a good news day for Special Counsel Fitzgerald.

First, filed under "The Times wouldn't print it if it weren't true":

By that point, the newly disclosed pages showed, Mr. Fitzgerald had centered his inquiry on possible perjury charges against Mr. Libby, although that was not publicly known at the time. Mr. Fitzgerald had abandoned a prosecution based on a federal law that makes it a crime to disclose the identity of a covert officer at the C.I.A. Such charges, Judge Tatel wrote, were "currently off the table for lack of evidence."

Oh, that will irk my friends on the left, who will note (with good reason) that Fitzgerald specifically kept alive the possibility that the testimony of Miller and Cooper might provide the critical evidence for an Intelligence Identities Protection Act prosecution.

But let's cut to the second paragraph of the WaPo:

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.

There may well be a materiality issue in play here - at some point (as I understand it), the perjury needs to be associated with the possibility of a crime.  But Fitzgerald has apparently offered little evidence of actual harm done by the leak.

In the longish post below, I noted this from Judge Tatel's opinion:

While another case might require more specific evidence that a leak harmed national security, this showing suffices here, given the information's extremely slight news value and the lack of any serious dispute regarding Plame's employment.

"Extremely slight news value"?  The same opinion cites Tim Russert's deposition saying this:

In his deposition, describing Plame's employment as a fact that would have been "[v]ery" significant to him --one he would have discussed with NBC management and potentially sought to broadcast...

Well.  If the judges had opened the possibility that Tim Russert has a better nose for news than Judge Tatel, the burden upon Special Counsel Fitzgerald to demonstrate some actual harm would have become higher.  And, per the recent correspondence and filings, Fitzgerald is being sticky about sharing with the defense information about her employment status and any CIA damage assessment.

This will all be hashed out by the high priced legal talent.  The defense said that a motion to dismiss all charges would be filed within a few weeks.  I infer from my careful viewing of "Law and Order", that these filings are made in roughly 99% of criminal cases, but perhaps lightning will strike.

Comments

[narexbyrnesphdetc]

TM, so bitter. Deep breaths, baby. You will ride out this out, ya know. Pendulum swings back and forth. Best thing about America. Keeps things balanced.

[kim]

What'd you get from Santa? I gotta rock.
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[Lew Clark]

I, for one, hope it never ends. I'm too old to find a new hobby.

[JM Hanes]

I just hope it actually goes to trial. I've been particularly looking forward to testimony from the 4th estate! Lord knows what I'm going to do with all this popcorn in the event of a dismissal.

[Jeff]

TM - I see the defensiveness in response to the disappointment with Tatel's opinion continues. Though not on the part of Lew Clark. That is funny.

[MJW]

Jeff, you keep harping on this theme that we on the "pro-Libby" side are running scared because the Tatel opinion, and I don't get it. What's supposed to be so bad in it for us? Are we shocked to find out Fitz convinced Tatel that Plame was a super-secret agent, and the exposure of her identity endangered America's existance. Anyone who read the un-redacted opinion already knew that. I recall back when you guys were certain the redacted portion contained the (more-or-less literal) smoking gun. Things like details of the dozens of CIA agents murdered because their association with Plame was revealed. Instead we get a rehash of the indictment with a few interesting details added. So, don't tell us how bad off we are, show us.

[MJW]

Sorry, I meant anyone who read the redacted opinion kenw that.

[Dwilkers]

With Libby pursuing reporters and I'd guess at least a year of hearings and rulings and appeals on those issues I doubt the trial will come in early 2007 as scheduled. Maybe late 2007 or early 2008.

[TM]

Jeff - I'm with MJW - as noted in the Update, both the Times and the WaPo are beating my drum on the "no there, there" news. Tell me again why I am so put out by this new release?

[kim]

The 'no there there' may be a land of bitter oaks for Fitz. Plame's casual role at the CIA will be a bitter kernel to masticate. Maybe it was so casual as to become that old mischief maker's playground.
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[noah]

TM: aren't the NYT and WaPo simply spinning towards dismissal? Certainly they don't want to this thing to go to trial. At this point, assuming that there will be no more indictments, a trial does not serve to damage the administration further which the left partisans here might be willing to admit was their goal all along.

[kim]

Right now I'm trying to figure out what will get Fitz mad enough to investigate this properly, and dismissal doesn't get it. I want his case to fall apart because of the obstruction of some of the prosecution witnesses, obstruction so flagrant he can't help but react.
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[Jeff]

TM - Short version of a lost post. Aside from the fact that you know something's wrong when you cite Tim Russert as an authority on news value, the pro-Libby team's expectation from Tatel's unredaction was that we would learn Fitzgerald had long ago given up on charges for underlying crimes. That was far from being the case. I don't believe the WaPo and NYT articles -- the latter more misleading than the former, if you actually read past the opening couple of paragraphs -- were out when the defensiveness was expressed. An example. For months, no years, righties have been emphasizing what a high bar has to be passed for IIPA charges, and there's no way Plame met that bar etc. Well, it turns out Fitzgerald thought differently, and it appears that all the requirements were met at the time of his filing except for evidence which might or might not be forthcoming from Miller and/or Cooper that Libby had told them she was covert. Appears to have turned out that didn't happen.

It's true it's a good news day for the pro-Libby crowd (I don't think Fitzgerald has good or bad news days, unlike, say, Ken Starr). The WaPo and especially the NYT don't do a very good job of characterizing what's actually in Tatel's opinion. Oh well.

[kim]

Fitz thought it would suffice, Tatel thought it would suffice. Thank God a defense is allowed to insuffice a jury.
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[TM]

the pro-Libby team's expectation from Tatel's unredaction was that we would learn Fitzgerald had long ago given up on charges for underlying crimes.

Well, we also thought Fitzgerald must have had something in there to keep the judges from laughing out loud.

Turns out he didn't have much beyond his own affidavit.

Now, I trust Fitzgerald, but did he make a mistake in trusting the CIA?

And as to judging news value, Russert is clearly better qualified than Tatel.

Meanwhile, I can't find that Fitzgerald affidavit anywhere. As a bonus, I can't find any of the other Judith Miller case documents, so the good news is, I may just be searching the totally wrong way.

Where is Clarice??? I may be bald by the time she gets back (hmm, fifteen minutes...)

[David Walser]

What I'm unclear about (among many things) is the timing of Libby's alleged lies and Fitz' determination that no underlying crime had been committed. It's one thing for Fitz to question Libby under the implied threat that he was in real danger of being charged with the very serious crime of outing a covert agent when Fitz still believes such a crime may have been committed; it seems entirely different to question Libby under the threat of such a prosecution when the only objective is to get Libby to commit perjury.

[Other Tom]

Remember, Fitz would not just have to show that Plame was covert. He would have to show that Libby knew that she was covert, and knew that the United States was taking affirmative measures to conceal her covert status. The last point would be the most fun to deal with on cross-examination, inasmuch as the Agency sent the lady's husband on a mission without requiring him to sign a non-disclosure agreement. That comes awfully close to being an affirmative measure to ensure that her status would become known.

[Sue]

A couple of points. 1) In the VF article, an unnamed friend, of Valerie and her first husband, says that both were accepted to the CIA at the same time. First hubby didn't like the job, and left the CIA. In another article it says only her mother, father and brother knew she worked at the CIA. Not true. Ex-hubby knew and the unnamed friend. Minor point that has nothing to do with the Libby defense (on the surface anyway) but interesting to me. 2) In the VF article, Joe describes the reveal moment during a 'heavy make out session'. A covert operative jumps into the sack with a married man, instantly becoming the 'other' woman, whether he and his current wife were living together as man and wife or not, reveals her status to him and worries about the money and time spent by the CIA to get her to the point she was at the time. That could be the point that caused the administrative leave to happen. Which again, does nothing (on the surface) to help the Libby defense but makes for an interesting trial, if we get there.

[richard mcenroe]

But if you're basing your research on Law & Order, then you must realize that such motions are only filed by Angry White Christian Men working for the federal government, preferably Homeland Security. After all, in Dick Wolf's world, these are the people responsible for all the crime in New York City.

So Libby's motion to dismiss the charges against him OBVIOUSLY proves he's guilty, by L&O rules...

[Cecil Turner]

He would have to show that Libby knew that she was covert . . .

To prove the case, yes. But to prove it was material, as long as Fitz is making a good faith attempt to investigate the leak, I think it works. So as long as Fitz doesn't know she's not covert, he can claim to've been working the case appropriately. However, ISTM the materiality is subject to some review even after the fact . . . if there was never a chance of getting a conviction on an underlying crime, it's hard to see how anything Libby had to say about it was pertinent.

On a much more interesting note, if Clarice is right about the 8/27/04 Affidavit, this thing is toast:

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

And the second he found that out, Fitz knew there's no way they could call her "covert." It'd certainly help explain the coyness about her classified status in the evidentiary dispute. (And if Fitz found out she was leaking, and subsequently switched to a perjury trap, and is now trying to keep that evidence under wraps, well . . . I don't think it's going to work out too well for him.)

[Sue]

What if Plame is the redacted source and she admitted to being employed at the CIA but not a covert operative? Would we then be back to who leaked the 'covert' part?

[Jim E.]

A TV show that follows only the police and the prosecutors in trying to convict murderers is liberally biased?? I blame Fred Thompson.

The paranoia runs deep. I suppose you see conspiracy theories in your alphabet soup, too.

[Other Tom]

I agree with you, Cecil. I was speaking solely about the IIPA case, not the materiality issue. I am fascinated by the artful footnote in Fitz's affidavit; it appears to me that Judge Patel drew an unwarranted inference from it. This thing is beginning to take on a bad odor, but I seriously doubt that Walton will dismiss the charges.

[TM]

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

OK, possibilities for the redacted name seem to be, (a) Ms. Plame, present at breakfast with Kristof and Joe (we think, although Clarice thinks "the wife" might be Ms. Kristof);

(b) a buddy of Joe's from State (or CIA, or anywhere) who vouched for him, has been cited as an anon source, and does not need to be part of the story.

(b) has to be a longshot - why would a retired former Ambassador say, gee, you don't believe me, call this guy?

Here is the ambiguous paragraph from Vanity Fair:

In early May, Wilson and Plame attended a conference sponsored by the Senate Democratic Policy Committee, at which Wilson spoke about Iraq; one of the other panelists was the New York Times journalist Nicholas Kristof. Over breakfast the next morning with Kristof and his wife, Wilson told about his trip to Niger and said Kristof could write about it, but not name him.

Seeing as how Valerie is specifically cited in the preceding sentence, one might think she is "his wife", especially since Wilson is the object of the key sentence.

However, it is definitely ambiguous.

[JM Hanes]

TM

Why not contact the author of the Vanity Fair article and ask?

[Jim E.]

There's also option (c): it was Plame at the breakfast with Kristof, but she was never a source for either Kristof or Pincus.

[topsecretk9]

or (d) she wasn't a source at breakfast, but Victoria Flame (or some variation) was at some later point.

gee, you don't believe me, call this gal at CIA? or I'll have a source at CIA call you!

[kim]

Nonetheless, JimE, were she in attendance, she'd have heard Joe reveal the secrets.

It should be easy to ascertain whether or not Kristof's wife accompanied him often, on that trip, or less easily, at that shatterfast.

Antecedents. Isn't there a style manual somewhere that asks that all antecedents be unambiguous?
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[Jim E.]

"she'd have heard Joe reveal the secrets."

Er, but hearing something doesn't make one a "source."

[kim]

We'll have a lot of fun re-creating that little repast for the replay.
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[Jeff]

the timing of Libby's alleged lies and Fitz' determination that no underlying crime had been committed

Libby's alleged lies were to the FBI in fall 2003 and the perjury version were in March 2004. Fitzgerald needed Miller's testimony to determine whether Libby had committed an underlying crime, and Miller didn't testify until September 2005, right?

He would have to show that Libby knew that she was covert, and knew that the United States was taking affirmative measures to conceal her covert status.

Right, and the point is that Fitzgerald evidently thought he could show those things as of 8-04, as per Tatel's opinion. The missing piece, of course, was enough evidence that Libby actually told Miller and/or Cooper that she was covert.

I'm with JM Hanes. Who wrote the Vanity Fair article?

[kim]

Hey, Jim E, did you know that my message from Rove occasionally comes in the Alpha Bits in the AM?
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[ats]

The smart money here in DC, among the Intel community, is on the McNulty and Feith investigations proving to be a much bigger deal than the Plame affair.

[kim]

I think it has something to do with the percent fat of the milk I use, or brand. One time I was out of milk and used TANG instead and sure enough Rather was two-stepping through Texas that night jumping in every bullring puddle he could. You be careful how you step in them cowpies, Epaminandan.

But, I've said too much, already.
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[kim]

You see, that's what Valerie served them that morning. The twins love them, and they're learning to read from them.
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[MayBee]

Does the Vanity Fair article mention if Plame was Valerie's maiden name or first married name? Did she ever have a last name other than Plame or Wilson? Would that make a difference?

[kim]

I still wonder how she managed a covert life with her maiden name. Is that standard CIA procedure?
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[kim]

Please, Automated Teller me more mishigas about Feith, and McNulty.
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[Jeff]

Feith I know - he's the stupidest fucking guy on the face of the earth, per Tommy Franks. Remind me: McNulty?

The Feith thing anyway is just an effort by the Pentagon to stall Part 2 of the SSCI.

[topsecretk9]

and there is also some grumble about the Rock

[Jeff]

here is also some grumble about the Rock

Yeah, I hear the intelligence community is willing to do anything in its power to get that idiot out of his spot as the top Democrat on the Intelligence Committee, where he gets rolled by that most effective of Bush adminstration-lackey-monsters, Sen. Roberts. I hear all sensible Democrats are cooperating.

[topsecretk9]

I hear all sensible Democrats are cooperating.

On the otherhand, if they got the goods on Senator Rock or one the many lackey-monster Dem staffers who in turn agree to cooperate, then I am sure those sensible Democrats will wish they had cooperated sooner.

[Rick Ballard]

"I hear all sensible Democrats are cooperating."

Both of them?

[kim]

The balloon of sincerity about the privacy implications of surveillance will sink like a rock once the implications of that bullet foux Rock penned to himself from a pistol pointed posteriorly, hit homie, and burst his bubble.
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[larwyn]

"I'm with JM Hanes. Who wrote the Vanity Fair article?"

Be a hoot if it was MRS. RUSSERT!

[JM Hanes]

...bullet foux... LOL Kim!

[pldew]

As near as I can tell, Vicky Ward wrote the VF piece.
http://www.jimgilliam.com/2004/01/vanity_fairs_profile_on_joseph_wilson_and_valerie_plame.php

[MJW]

As much as I'd like to believe Clarice's theory that redacted in Wilson and [redacted] is Plame -- it would be just too delicious! -- I'm doubtful, since it would seem to make Fitzgerald a bald-faced liar for not mentioning Kristof as an in-the-know reporter his discovery response. And, while I'm not above implying Fitz is a liar, I'm not quite ready to call him bald-faced yet.

[Gary Maxwell]

Rick I laughed good and hard at that one.

[Sue]

I noticed in the VF article Joe says he called "William Mark Bellamy (now the ambassador to Kenya) at the State Department's African bureau" wanting the record set straight. And then there was this ineresting bit..."One of the people who objected most fervently to what he saw as "intimidation," according to one former C.I.A. case officer, was Alan Foley, then the head of the Weapons Intelligence, Non-Proliferation and Arms Control Center. He was Valerie Plame's boss."

So who did Mr. Bellamy talk to after the phone call? And then we have a mysterious unnamed CIA case officer willing to discuss the friction between Foley and Cheney.

And as to the wife at the breakfast, I would think it was Valerie not Kristoff's wife, since Joe was willing to talk but not be named. Would he have trusted a reporter's wife to remain silent? Unless he knew them on a personal level? Okay, I think I've talked myself back into the not sure category.

[Petar D. Hauyst.]

How about a Foley Catharsis?
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