Libby's Filing - Did The WaPo Miss The Point?

Carol Leonnig of the WaPo covers the new Libby filing which argued that the nature of Special Counsel Fitzgerald's appointment was unconstitutional.

A longer post is below, but I wanted to carve this question out for a separate discussion - did the expert quoted by the WaPo even read the filing?

Here is Ms. Leonnig:

Several legal experts said yesterday that the Libby defense team was making a valiant and appropriate effort to defend its client, but said they doubted that the central argument for dismissing the charges would gain traction with the court.

"I think it's a nice try, but I don't give it much chance of success," said Scott Fredericksen, an associate independent counsel during the Reagan administration who helped investigate scandals at the Department of Housing and Urban Development.

Experts said the Libby defense claim is similar to a challenge the Supreme Court rejected by a vote of 7-1 in 1988. In that case, Morrison v. Olson , the Justice Department sought to quash subpoenas of its officials by an independent counsel. They argued that the law that allowed the appointment of independent counsels violated the president's authority under the Constitution and gave such independent investigators inappropriately broad powers.

The regulations written by the Justice Department to allow for the appointment of a special counsel such as Fitzgerald were adopted after the 1992 expiration of a separate law that authorized a judicial panel to appoint independent counsels. The agency decided the regulations were necessary because it was likely there would be times when the federal government's chief law enforcement agency faced conflicts while investigating some matters.

Though the independent counsel worked outside the executive branch, the special counsel regulations were written to work within the executive branch, legal experts said, and the attorney general has authority to deputize someone to prosecute the nation's laws.

"The regulations that created the special counsel are safe from attack," Fredericksen said.

Emphasis added, and let us say this - we have no reason to doubt it.  However, per the filings (summarized and excerpted by Byron York), the appointment of Fitzgerald was not done under the regulations carefully thought through after 1992 or 1999; instead, this looks like an improv act (or at least the defense alleges just that).  From Mr. York:

After Lewinsky, of course, Clinton and his party had a different view on the IC law, so in 1999, they finally agreed with Republicans to let it lapse. But what to do after that? There would clearly be accusations of public wrongdoing in the future, and how should they be handled? Congress held hearings to explore the question, and the administration came up with a structure for what is sometimes called a regulatory independent counsel, which would be subject to greater executive branch supervision than the old independent counsels in future investigations. It was a reasonable solution to a perennially difficult problem.

So what happened in the CIA leak case? The Bush Justice Department could have followed that structure. But it chose not to. Instead, John Ashcroft threw the political hot potato to James Comey, who in turn threw it to his friend Patrick Fitzgerald, giving him virtually absolute power to determine his own course: "I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department." Was that extraordinary, and new? Ask David Barrett if he would have liked to have had that authority. But he did not, because the independent counsel law placed limits on investigations that Fitzgerald does not face.

In sum, in the Clinton investigations, Republicans didn't like the independent counsel law, but it was the law. In the Fitzgerald case, it's just improvisation.

Page 9 of the .pdf contains a similar assertion, but my cut and paste is not working just now.

Look, Ms. Leonnig's expert may be right but he ought to at least address this very obvious contention from the defense - were the planned, vetted regs designed to establish a Special Counsel followed, or not?

MORE:  The GAO addressed some of this in this 2004 discussion of Fitzgerald's finances.  Arguably in Fitzgerald's favor is this caveat about the DoJ rules meant to empower independent counsels:

Acting Attorney General Comey appointed Special Counsel Fitzgerald under 28 U.S.C.  509, 510 and 515. [16] The Department has relied upon such authority in the past to appoint regulatory independent counsel from outside the government..

The remaining issue is whether Part 600 can be waived by the Attorney General or acting Attorney General. We examined Part 600 and found it was issued in 1999 to replace the procedures of the expired Independent Counsel Reauthorization Act of 1994. In our view, Part 600 is not a substantive (legal) limitation on the authority of the Acting Attorney General to delegate departmental functions to Special Counsel Fitzgerald. First, 28 C.F.R. 600.10 states that the regulations are "not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law or equity, by any person or entity, in any matter, civil, criminal, or administrative." Further, in the supplemental information accompanying the issuance of Part 600, the Department explained that the effective date of the rule did not have to be delayed 30 days after publication because it was not a substantive rule, citing 5 U.S.C. 553(d), 552(a)(1)(D). 64 Fed. Reg. 37038, at 37041 (July 9, 1999).

If I am following this, it means that the rules Comey elected to ignore were non-binding DoJ regs - "suggestions", as it were, not law.

That may help Fitzgerald, but the defense would just go back to first principles - presumably, those "suggestions" were meant to resolve and avoid certain Constitutional problems, yes?  So even if Comey was not obliged to follow them, he may have strayed from the path with his own improvisation.

Well - Constitutional scholars should feast today.

MORE:  The American Thinker excerpts a good NY Sun editorial explaining this.

BOLD AND BELATED:  My Bold Prediction - dismissing this high profile case is above Judge Walton's pay grade, even if the weight of the argument favors Libby (and it may not).  On the other hand, the judge is looking at almost a year of pre-trial wrangling, including what will probably be brutal subpoena battles with various reporters (Andrea Mitchell and the NBC Washington Bureau, for example) and tussles over classified info.

So - *if* it can be engineered, the judge will reject this motion to dismiss in a way that expedites the appeal, so that the Appeal Court and the Supreme Court have an opportunity to resolve this before the scheduled trial start in Jan 2007.

Comments

[clarice]

I agree with your view on the "expert" opinion cited in this article.PHEH. It is obvious they never read the motion. Are people so desperate for publicity that they don't care if they make fools of themselves?

[clarice]

The NY Sun (cited here) has a better description of the Motion than the WaPo article.

http://americanthinker.com/comments.php?comments_id=4527

[topsecretk9]

I read
Several legal expertS said nly read "Fredericksen said."twice

So I was pleased TM noted rather subtly...
--Look, Ms. Leonnig's "experT" may be right but---

[Neo]

Take ... "I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department." ... now add in ... the attorney general has authority to deputize someone to prosecute the nation's laws.

Since when do deputs work without supervision ?

I expect the judge to ask the DOJ for a long and clear brief.

[topsecretk9]

Several legal experts said yesterday that the Libby defense team was making a valiant and appropriate effort to defend its client,

Incidentally, didn't Leonnig have some other legal "doubters" concerning Luskin's last minute "attempt" to derail of a Rove indictment? They were wrong if she did.

But, she and her expert should be commended for not being vexed that Libby's lawyers are doing what they were hired to do, which is to mount a DEFENSE.

[Other Tom]

As I understand the defense argument, it is, first, that Fitz is not a "superior" officer (confirmed by the Senate), and the Congress has not authorized the Attorney General (in this case, Acting Attorney General) to appoint him as an "inferior" officer. Am I getting it right? If so, the regulations would be entirely irrelevant. So would the fact that either the President or AG can fire him. But even if this is correct, don't look for a District Court judge to rule accordingly. The D.C. Circuit might be another matter.

[clarice]

The key case in their argument is the Edmond case (520 US__) cited early in the brief.

[Rick Ballard]

If Fitz argues that he is an inferior officer, doesn't he open the door to the fact that he is not operating under DoJ prosecutorial guidelines? (I know you mentioned that, Clarice.)

I wonder if the genesis of the motion was a comment between attorneys along the lines of "Hey, what rulebook is this joker using?".

[epphan]

...rules Comey elected to ignore were non-binding DoJ regs... So says Comey. What else is he supposed to say? Ask a judge. In fact, ask two judges and see if you get the same answers.

[Other Tom]

If he argues that he is an inferior officer, how does he get past the provision in Aricle II that "the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." I don't believe that the Congress has vested the power of appointment of Fitzgerald in the president, the courts, or anyone else. Am I wrong? My understanding is that since the expiration of the Independent Counsel law, the Congress has been silent on the matter.

[Gary Maxwell]

...the Congress has been silent on the matter

Why does it seem so wrong to me to use Congress and silent in the same paragraph?

[topsecretk9]

If he argues that he is an inferior officer,

HAH, is this the mother lode of catch 22's for Fitz, he either argues he in an "inferior" for which he does have to be " "directed and supervised" and shouldn't have unchecked power - HEH

OR

He is a principle, which illustrates that Comey has OVER-stepped his powers, appointed himself president, and thereby has violated the Appointments Clause and has basically violated it's very purpose ---which is to eliminate the formation of something akin to a "secret police"

And this is the man that questioned the Presidents duly delegated executive power!

Do I have this right?

[JM Hanes]

"Experts said the Libby defense claim is similar to a challenge the Supreme Court rejected by a vote of 7-1 in 1988."

Well, there's the answer to the question you carved out, TM.

Morrison v. Olson (1988) is addressed at exhaustive length in Libby's motion, which notes substantive dissimilarites and argues that it is superceded by SCOTUS's subsequent (1997) ruling in Edmond v. US anyway.

On Rule 600, the Motion does not assert that suspending Rule 600 itself is an illegal act, but uses its suspension by Comey as further evidence that he explicitly abandonned the supervisory role mandated, or rather required, by both Constitution & statute.

[clarice]

It's a much more solid argument that Andy McCarthy of the WaPo would have you believe and one the old Fitzcape Swoosh can't dispose of.

TS--isn't that ironic though..Comey is more powerful than the President in his eyes. What a cockup when first they tried to deceive..

[pollyusa]

wanted to respond to a couple of things from an earlier thread..

Jeff and TM,

Thanks Jeff for the link to the Miller interview. I think people on all sides of the Libby case agree that Miller was told about Plame from someone after Libby, Miller says it herself in the ABC interview.

After complaining that the NYT didn't let her write a story even though she states earlier in the interview that she didn't think the information she had received about Plame from Libby was very important, she says..

Miller: ... I remember hearing that information the second time and thinking, there's a story here.

She knows who told her.

TM asks "but how would Waas know whether her specific Plame sources were from the Admin?" in response to the Waas quote that Miller talked with "other Bush administration officials" about Plame.(note Waas uses the plural here)

I suspect one of Waas's sources told him. Waas's source seems to know the details of the FBI statements and GJ testimony.

TM: it seems pretty obvious that Fitzgerald does *not* have testimony from other Admin officials saying "I discussed Plame with Miller". Otherwise, wouldn't he have matched them up with her testimony as with Pincus, Cooper, and presumably Woodward?

I think it's possible that Fitz does have testimony from another Bush official regarding Miller. Miller was not admitting to anything that wasn't in her notes, "matching up" with Miller was clearly not going to happen.

Pincus never stated who his source was in his deposition, so he isn't really matched-up either.

But he did not ask me to confirm my source’s identity, which was my condition for being deposed.
Neiman Watchdog

topsecretk9

Ready for the Jeff, Polly Pluk show, it should be starting soon no?

Very nice.

[JM Hanes]

The Motion (pp14-15), specifically addressing the GAO & Rule 600, concludes:

Whether it is wise to give one person the power to investgate and prosecute a single matter, subject to no direction or supervision by any superior officer, is subject to serious doubt. Whether a person vested with that power qualifies as a principal officer under the controlling test set forth in Edmond is not.

[topsecretk9]

Ready for the Jeff, Polly Pluk show, it should be starting soon no?

Very nice.

Well, it wan't mean.

[topsecretk9]

Clarice
TS--isn't that ironic though.

I'll say

[pollyusa]

Well, it wan't mean.

OK

[noah]

I predict that Fitz will point to the letter he wrote asking for permission to prosecute lesser crimes as a fig leaf er, proof for his independent status and let it go at that.

[JM Hanes]

Sorry for the piecework here on Rule 600, but the Motion also points out that even former Independent Counsels, who required Presidential appointment, were "constrained by a statutorily imposed obligation to comply 'exept where not possible' with the policies of the Department."

I.E., given the express authority to depart from DOJ policies at will, and to operate without supervision or review, this Special Prosecutor has been vested with substantially more authority than that granted to former Independent Prosecutors. The Motion argues that IP provisions were eliminated by Congress for the express purpose of preventing that very possibility -- thus adding clear contravention of Congressional intent to the roster of Constitutional and statutorial deficiencies.

[JM Hanes]

noah

But if he proves his independent status, he confirms the Defense Motion. Think rock & hard place, not fig leaf here. Do not, under any circumstances, however, think of them simultaneously.

[clarice]

Yes, and I love they way they tie that into his presser statements which DoJ regs would have forbidden,JMH.

DoJ regs are quite complete. I seem to recall that they even compel prosecutors who are dealing with officials who for political reasons cannot easily invoke the 5th Am privilege to refuse to testify to be LESS aggressive in questioning them.

[clarice]

White collar crime prof law blogs says this of the motion (and boy do I think the author is cracked):
This new front in the litigation could cause a delay in the trial if U.S. District Judge Reggie Walton agrees with the defense argument because it would trigger an immediate appeal, or perhaps Senate approval of Fitzgerald's appointment and a reindictment. (ph)http://lawprofessors.typepad.com/whitecollarcrime_blog/2006/02/the_libby_websi.html

What's that saying about those who can do and those who can't teach?

[Rick Ballard]

Who is going to nominate Fitz for the job?

And what job would it be? Master of the Dance? Sugar Plum Fairy Tender (1st degree)?

Although confirmation hearings might be great fun.

"Prosecutor Fitzgerald, can you explain the necessary elements of the IIPA statute and your method of assuring that they have been met?"

[Lew Clark]

Well all the lawyers I've talked to say Comy was drunk when he appointed Fitzgerald, and Fitzgerald has not drawn a sober breath since he was appointed. And, yes it was Cheney and his buddy Whittington who were buying the booze. That's what all the lawyers are saying.

[topsecretk9]

Think rock & hard place, not fig leaf here.
i.e. catch 22!

[clarice]

Rickie, mere DETAILS which seem to have escaped the Wayne State law professor.

[Jeff]

polly - Two things. First, the reason this came up was because some of the righties around here were contending that Fitzgerald did not ask Miller about her other sources, and I was just showing them the facts. Second, I'm unclear what your line on the timing of Miller's other source or sources was/were in relation to Libby. Miller has said she can't remember when these other mentions of Plame occurred. But when she says in the ABC interview that information the second time, is that second time referring to hearing it from Libby? Or from another source?

[clarice]

And who'll do the appeal if Walton says the Fitz appointment was unconstitutional? LOL

Oh, to travel the groves of academia (not the hard sciences or math depts)playing chess for money.

[topsecretk9]

First, the reason this came up was because some of the righties around here were contending that Fitzgerald did not ask Miller about her other sources,

thank you!

[Gary Maxwell]

Wayne State? Oh boy. Third rate University that years ago used to be overrun with freaks. That means that some of them hung around long enough to get a high enough degree to allow them to teach there. I guess its fair to disclose my MSU degree and 25 years as a Michigan resident both as bonafides and sources of extreme bias.

[maryrose]

Shuster on Abrams report says Judge will allow Libby his own notes for a 10 month period but no PDB's. Defense lawyer says busy defense" will not be enough for Libby. Defense lawyers challenging Russert's assertion that other reporters did know about Plame and that they could have let Him [Russert} know.

[JM Hanes]

TM,

This Motion makes perfect sense as part of a larger, extremely well designed, carefully timed, comprehensive defense. There's a very logical ordering at work here: Jurisdictional questions always come first, as in "Should we even be here?" Judicial opinions routinely start out by establishing that adjudication of a particular case does, indeed, lie within a specific court's legal purview.

I suspect Team Libby may be way out in front of Team Fitzpatrick already, and I'm consumed with curiousity about whether or not Fitz saw this coming! He's beginning to look more like defendant himself than prosecutor. Considering his loosey-goosey approach to Constitutional questions so far, I wonder if this aggressive defense isn't rapidly pushing him out of the arena of his expertise. Notice that they've lauched this motion on top of their Memorandum on discovery. They are not going to give Fitz any opportunity to catch his breath if they can help it.

So here's a related question that I haven't heard anyone asking yet: Having been set up to operate independently of DOJ, can Fitz now draw on the DOJ pool for the additional expertise required to fend off the kind of Defense motions which are sure to come?

That's part of why I wonder if he anticipated a constitutional challenge to his very existence, even though it seems like an obvious first step ex post facto. His own affadavits & filings (those we've been privileged to see!) don't display the kind of rigorous argument that's now being called for -- whether in the case for discovery or the motion to dismiss. Does he concentrate resources on developing his prosecution or defending his office? Does he have, & if not, how will he secure, the resources (time not least among them) to do both at the level of play Team Libby is so quickly establishing?

[pollyusa]

Jeff,

It's clear in the interview she is saying she heard it first from Libby. You're right, Libby could be the source she is talking about when she says she remembers the second time.

The way Miller says it make me think she's referring to other person, but she never explicitly says that.

First, the reason this came up was because some of the righties around here were contending that Fitzgerald did not ask Miller about her other sources

Yeah, it's pretty clear from Miller's account, as you pointed out.

maryrose, thanks for the information

[clarice]

So many good thinkers.JMH a passle of DoJ personnel--mostly US Attorneys have been seconded to work with him. I wonder if Gonzales will consider the substance of this motion and question whether this should continue while the constitutional issue has been raised.
Even if he does leave them in place, I can't say I find this a particularly impressive lot either.

[topsecretk9]

Does he concentrate resources on developing his prosecution or defending his office?Does he have, & if not, how will he secure, the resources (time not least among them) to do both at the level of play Team Libby is so quickly establishing?

As in, time to put on that "HAT" you have Mr. Fitz.

[maryrose]

Other comments on MSNBC include investigation stll open.. but today I read in the note that though gj still meets Fitz has not been a part of it since Dec 7th 2005.

[Patton]

It appears that at the very least Fitzgerald is going to have to rescind some of his own and Comeys' statements in order to make his argument, whatever it ends up being.

And doesn't the new AG get to re-visit the prior recusal??? Isn't that a personal recusal and not one of position.

If the new AG rescinds the recusal, and therefore Comeys letters of appointment, Fitzgerald will again have to report through the AG.

[clarice]

It would be interesting to see how he explains to anyone how material becomes immaterial and what the F&*( he's been doing?

[larwyn]

Cheney and Libby were "on a rampage for months", so said
Chrissy Matthews re the "I forgot"
defense.

He had Cooper's attorney on to nod
and expand.

[maryrose]

Larwyn;
I saw that too and I don't recall a big deal being made about it at the time. All the VP wanted was clarification of who sent Joe and the statement put out that it wasn't his office that sent him to Niger.They were not rampaging for months about it. How come He only had a lawyer for Cooper and not someone on the other side of this issue? Do we constantly have to listen to paid pundits spout misinformation without the benefit of someone calling them on it?

[maryrose]

On Fox News Judge was advised of Fitz's authority to bring the case did not rule on it. Can't get reporters notes but can subpoena reporters. Judge wants subpoenas to go out pronto to move case along. Will not rule on the Comey /Fitz kerfuffle until sometime in March.

[clarice]

I'm looking for a more detailed article on today's hearing--What reporters can he subpoena? Just Cooper, Miller and Russert or more?

[clarice]

ist piece I can find:

Former White House aide I. Lewis "Scooter" Libby, charged with perjury in the CIA leak case, cannot be told the identity of another government official who is said to have told reporters about a CIA operative's identity, a federal judge ruled Friday.

At the same time, U.S. District Judge Reggie B. Walton said Libby could have copies of notes he took during an 11-month period in 2003 and 2004 while serving as chief of staff to Vice President Dick Cheney.

The judge also set the stage for a showdown in late April over the defense's plans to subpoena reporters and news organizations for notes and other documents in the leak of Valerie Plame's identity.

During a hearing Friday afternoon, Walton said Special Counsel Patrick Fitzgerald can keep secret the other government official's identity because that person has not been charged and has a right to privacy.

The judge deferred ruling on whether Libby can have access to highly classified President's Daily Briefs, summaries of intelligence on threats against the United States. The CIA will prepare a filing on how difficult it would be to find and collect the information.
http://www.breitbart.com/news/2006/02/24/D8FVOP4OC.html

Pretty different than the report just noted on Fox--Was that Napolitano? On these isssues he seems to be wrong about 90% of the time.

[Patton]

"""Special Counsel Patrick Fitzgerald can keep secret the other government official's identity because that person has not been charged and has a right to privacy.""""

Shouldn't Libby be able to ask this official whether he talked to Tim Russert about Plame, before Libby did???

[clarice]

Why? You have some notion that this should be fair? Maybe Libby will be allowed to take Woodward's deposition and find out that way--then he can ask Russert..The reporters thing won't be resolved until April..

Interesting won't it be to see how the CIA responds to the PDB issue.

[maryrose]

They also stated on Fox that the official was not from the White House. I wonder if that claim is valid? In addition the reason for quick subpoenas was so case could still be heard starting in Jan 2007. Was not Napolitano.

[maryrose]

"

The CIA will prepare a filing on how difficult it would be to find and collect the information"
Well isn't that too darn bad. ! They should have thought of that before they started this whole kerfuffle by filing a report about a CIA leak. Sheesh!

[maryrose]

"can keep secret the other government official's identity" Would this official perchance be a whistleblower?
I believe they also stated they had this person on tape. Come on reporters find out who this accomodating anonymous person is!
!

[clarice]

I take it that tape was by Woodward.

[Javani]

"During a hearing Friday afternoon, Walton said Special Counsel Patrick Fitzgerald can keep secret the other government official's identity because that person has not been charged and has a right to privacy."

The person who leaked to Novak is central to the investigation. That person is the very cause of the investigation. How could that person's identity not be relevant?

Libby should drop that "no authority to charge" legalistics and push this one noisily to the Supreme Court. Force the MSM to cover the story about who leaked to Novak, a story which they take great pains to avoid. Perhaps they know who it is and are friendly with him.

[clarice]

No. He shouldn't. He'd have no way to test this ruling before the conclusion of the trial.
Hie arguments in the Motion to Dismiss are very solid..

[Sue]

Clarice,

Why do you say the tape is Woodward's?

[Javani]

Clarice,

OK, he shouldn't shortshrift any of his positions. But he should appeal all, and be noisy about the secrecy about the leaker. Even if he loses his trial will look unfair, people knowing that the real leaker gets off scot-free while Libby is prosecuted on the basis of journalists' year old memories.

I want to know who told Novak.

[TM]

From p[llly:

Pincus never stated who his source was in his deposition, so he isn't really matched-up either.

Well now, wait - Fitzgerald matched up the day and time of the Pincus conversation, as well as the content - I think that Pincus's disnclination to let a name pass his lips was more of a fig leaf than a real "non-match up". As Pincus himself says, Fitzgerald had a waiver from Pincus' source. From Nieman:

It turned out that my source, whom I still cannot identify publicly, had in fact disclosed to the prosecutor that he was my source, and he talked to the prosecutor about our conversation. (In writing this story, I am using the masculine pronoun simply for convenience). My attorney discussed the matter with his attorney, and we confirmed that he had no problem with my testifying about our conversation.

In the case of Miller, it seems pretty clear that Fitzgerald was only waving a waiver from Libby at her.

Based on Miller's own account, it also sems highly likely that Fitzgerald never said to her "Do you confirm/deny/not remember talking to "X" about Plame?". And he would certainly have reasons not to, since he had agreed to limit his questioning to her interactions with Libby.

So I think she was a lot less matched up than Pincus.

And FWIW, I like the Jeff-Polly show. Actually, I was raving about polly to someone, somewhere, as a model for commenters everywhere who are commenting on ideologically awkward turf - a maximum of facts, a minimum of "you guys are all idiots for reasons that have been hashed out for the last ten years".

That is the total opposite of, e.g., JayDee (whose current handle I don't even care to guess), who launches into a psychoanalysis of the entire conservative movement by the third sentence of each comment s/he leaves.

[danking70]

So there was a non-Administration leaker of Plame to the Press before Libby as this judge tells us?

And the Press continues to claim ignorance in this affair?

Why won't the Press tell us who? Bob? What about the public's right to know? Do we have to wait until your source dies before you write the book? Care to expound on your opinion that this case is Mickey Mouse? Are you worried about your legacy?

It's looking more and more like the MSM set up the Administration for answering their political charges.

And I thought they couldn't sink any lower in my opinion of them.

[Rick Ballard]

Well, I like Polly's work. If Jeff would hire an editor, I might read him. But the "why can't you idiots see these ephemeral nano threads that link everything" is too tiring for me.

JDBA is just a Kosling memebot, a scrollby.

I just wish Texas Toast would post more. I enjoy that sense of sad ennui. Same with R Flanagan.

They know the ship is not just over the horizon. TT also knows that Bush is no hard conservative. He just works the possible.

[Sue]

What are they talking about here? I'm confused...

Libby's lawyers and Fitzgerald disagreed over whether the unidentified government official - who does not work at the White House - was referring to Plame or her husband when he said, "Everyone knows," during a taped interview with investigators.

http://www.forbes.com/business/feeds/ap/2006/02/24/ap2552509.html>Source

[Sue]

How simple would it be for the judge to listen to the tape and decide whether there is a question as to which person the 'unidentified government official' is referring to? Can the judge not do that?

[topsecretk9]

And FWIW, I like the Jeff-Polly show. Actually, I was raving about polly to someone, somewhere, as a model for commenters everywhere who are commenting on ideologically awkward turf

Spanked, and duly noted. I was unfair to Polly,OTOH Jeff's overly hostile and rude drive by's directed at Clarice that get me down.

[clarice]

Don't worry about it, ts--At lease here I'm not getting death threats.LOL

Sue,the tape came from Novak or Woodward I should think and as Woodward was working on a book and doing lots of interviews and didn't take this remark to be something he'd do a story on (which he and his source knew), I think he taped the conversation.

[maryrose]

Sue;
your request seems reasonable to me and hopefully it will occur to the judge as well. He has a lot to think about and many decisions to make before April.

[larwyn]

DANIEL HENNINGER writing in the WSJ today is reminded by the antics on display by the political class of
...famous essay by the late Sen. Daniel Patrick Moynihan, "Defining Deviancy Down." One would not have thought it possible, but Washington's political class is defining our politics down.

Isn't that what it Comey/Fits are
also doing?

[Sue]

So, do we know when the tape was made?

[topsecretk9]

Don't worry about it, ts--At lease here I'm not getting death threats.LOL

it's hard not to have your back.

But TM is right, I don't have right to discourage his guests (I promise I was only kidding though -- obviously with their posts it makes everything interesting -- I really didn't it would get picked up)

Polly, dear I sincerely apologize I've been a snark

And even though Jeff can be, to steal a phrase a "snot-nose" to Clarice. I love him (I think I've professed before)

I've been a bad, bad girl.

[sid]

The Forbes article says that the disagreement regarded:

...when he said, "Everyone knows," during a taped interview with investigators.

[Barney Frank]

Ts,

Well I think people by and large tend to be snot noses to the people they have the hardest time refuting.
Its easy to be pleasant to a bonehead, a little harder to someone who makes you work for it.
Maybe that's why everybody loves me.

[JM Hanes]

The Cult adores bad, bad girls.

[Sue]

It did say that. I forgot. So, when was this person interviewed I wonder?

[maryrose]

Now it seems more likely that it is Woodward
on the tape.

[Specter]

I posted this in the other thread, but it looks like people have moved on to this one. Quick Question:

If Fitz prosecution powers are found to be unconstitutional, can Judith Miller sue him for false imprisonment?

[topsecretk9]

Maybe that's why everybody loves me.
You lovable little fuzz ball, Barn

The Cult adores bad, bad girls.
JM, if you only knew...

[Sue]

Is this unidentified government official Novak's source?

[sid]

Interesting cut from the Forbes article:

Walton said he is concerned that Libby's request could "sabotage" the case because President Bush probably will invoke executive privilege and refuse to turn over the classified reports.

"The vice president - his boss - said these are the family jewels," the judge said, referring to Cheney's past description of the daily briefings. "If the executive branch says, 'This is too important to the welfare of the nation and we're not going to comply,' the criminal prosecution goes away."

What is the practical (read legal appeal grounds) difference between Bush invoking exec privilege and the judge invoking it? I would think that the text of this statement, in the absence of granting access to the material, will one on the first line of any appeal memorandum. This judge effectively declared that the trial will not be fair w/o the reports – if the Pres invokes privilege? What does the instrument (privilege vs. judges ruling) that denies access to the briefing matter to the fairness of the trial?

[maryrose]

Specter:
I responded to you on the other post and said I also wondered about her ability to sue for false arrest because the small amount of info that Fitz got from Miller hardly warrants her having to spend over 80 days in jail.

[Sue]

Why would this unidentified government official be referring to Wilson? By the time Libby was allegedly leaking Plame's identity, the Wilson op-ed had already been published in the NYTs. Except for the 1 June conversation with Miller, weren't all of the dates that Libby talked to reporters after the July 6th op-ed? Saying everyone knows (about Wilson) would be a duh moment, wouldn't it?

[clarice]

Walton shitcanned a government translator's case (Siebold?)on the ground that the government could only comply with her discovery request (it was a civil case) by revealing classified secrets..

_
Just realized, it Fitz indicts someone else they have the Motion as a guide to refuse to move for an instant dismissal. If he calls anyone else as a witness they can argue that the gj is not an appropriate tribunal for that reason, too..LOL

[clarice]

All right preview for the rest of the night--

This should read:
Just realized, it Fitz indicts someone else they have the Motion as a guide to move for an instant dismissal. If he calls anyone else as a witness they can argue that the gj is not an appropriate tribunal for that reason, too..LOL

[topsecretk9]

Saying everyone knows (about Wilson) would be a duh moment, wouldn't it?

Good grief, yes!

Just realized, IF Fitz indicts someone else they have the Motion as a guide to move for an instant dismissal. If he calls anyone else as a witness they can argue that the gj is not an appropriate tribunal for that reason, too..LOL

Oh my Buddha Clarice! Yowza

[Rick Ballard]

Clarice,

Is that really true? Fitz jerks a chain and respondent gets to do a Bill the Cat "Phhhtbt!" in response?

That ought to cheer the help up down at God's Own Prosecutors office.

"Sir, the is a supoena deuces tecum concerning all information in your possession regarding the subject matter."

"Phhhtbt!" - talk to Judge Kennedy.

That really made me giggle.

"Stuff it Pat, y'er a mick on the make and ya got no cred."

Lo, how the mighty have fallen.

[TM]

Here is a bit about the tape:

Libby's lawyers and Fitzgerald disagreed over whether the unidentified government official - who does not work at the White House - was referring to Plame or her husband when he said, "Everyone knows," during a taped interview with investigators.

The defense said the official meant that most reporters knew that Plame worked at the CIA, as Libby testified before a federal grand jury. But Fitzgerald said the reference was to Wilson, who was not identified in initial media reports about the trip to Niger.

OK, "a taped interview with investigators" seems clear enough - this may be Woodward, but it isn't Woodward's tape.

FWIW, my understanding is the FBI tapes nothing, and relies on the agent's interview notes (Form 301?). However, Fitzgerald has been videotaping depositions (Russert, IIRC).

But how the heck could this Plame-Wilson thing be ambiguous? Should I accept that it is, or guess that one side is pretending that it is?

Well, if the judge won't let Libby know who the official is, he must lean towards thinking that the official meant "everyone knows" about Wilson; if some non-WH government official really testified that lots of reporters knew about Plame, then how could the judge keep that out?

And how would the offical know how many reporters knew about Wilson *or* Plame? Was he chatty Kathy, or what?

Boy, that is cryptic.

[clarice]

Well, if it were my client, I'd have him do that. A serious question of the constitutionality and legality of the appointment has been raised and until it's resolved, I'd tell the witness to refuse to testify.And if were too late an an indictment were issued, I'd file the motion to dismiss immediately. Why not?

[clarice]

TM, sorry I missed that "investigators" reference...I think Sue had a good point about the timing..But this doesn't make any sense..really..Why would the witness be talking in the present tense if he was saying this in a deposition. Unless, of course, he'd been asked (a Libby seems to have been) some loop de loop triple compund question ..

[Sue]

Unidentified 'government official'. How could that be Woodward? He isn't a government official, is he?

[clarice]

No, I hadn't seen that "investigators" reference and assumed this was a tape of Woodward's interview with an official.

[Rick Ballard]

"who does not work at the White House"

That's not "never" worked at the WH. The woman canned from Cheney's office is the propbable canary. Dunno what tunes Fitz has taught her to sing but she's my pick.

[Sue]

Would she be a government official?

[Sue]

In the same article:

...cannot be told the identity of another government official who is said to have divulged a CIA operative's identity to reporters, a federal judge ruled Friday.

Is it the same government official they are talking about in reference to the taped interview?

[Sue]

This whole thing is weird. There is another government official who has not been charged and his privacy is more important than Libby's defense? Is that other government official not charged Rove? If so, he isn't the one being interviewed on tape. I'm twisting in the wind. I don't know the timeline well enough to figure this cryptic mumbo jumbo out...

[Sue]

Okay. I'm backing away from the other government official whose privacy is so important as being Rove. It has to be Novak's other source. So it could be the person being interviewed.

[Sue]

The defense was told that the White House had recently located and turned over about 250 pages of e-mails from the vice president's office. Fitzgerald, in a letter last month to the defense, had cautioned Libby's lawyers that some e-mails might be missing because the White House's archiving system had failed.

I also meant to mention the emails earlier.

[Sue]

...another government official who is said to have divulged a CIA operative's identity to reporters...

Then, without talking about another government source...

...over whether the unidentified government official - who does not work at the White House...

It is definitely the same person. Novak's other source. Tenet?

[JM Hanes]

From the Forbes piece:

"Walton said he is concerned that Libby's request could "sabotage" the case because President Bush probably will invoke executive privilege and refuse to turn over the classified reports."

I can see why the judge would want to take his time on the PDB's, but I think he may rue the day he shared this particular bit of thinking out loud.

If he denies the PDB's, the defense starts prepping that appeal; If he allows the PDB's, & the Pres invokes privilege, they prep for that appeal. If, however, the judge denies the PDB's in anticipation of privilege claims, not relevance, he might as well tie a ribbon around the appeal that follows and deliver it himself.

Does granting access to Libby's notes, I wonder, make it more difficult to deny the PDB's? If the Prosecution is arguing that Libby is a liar, it would seem hard to insist that his notes alone should suffice to establish the credibility of a "too busy" defense -- a defense I would assume forms the basis of the Judge's decision on the notes.

Any likely spots for a transcript of this hearing?

[Jeff]

The new WaPo story indicates that the administration official was almost certainly both Woodward's and Novak's source. No mention of a tape, and makes it sound a little more like the person never was a White House official, though not completely unambiguously. There are a few other interesting things as well. Libby gets his own notes, which seems right and obvious, and the article presents Walton as skeptical of the PDB (or Libby morning briefing) claim, though undecided. Also interesting to note on the topic of Libby's morning briefing claim, that Walton in his order from yesterday has already decided the defense's position on Brady grounds is baseless, and is now looking only at Rule 16 grounds.

[clarice]

The last time I dealt with this--years ago--believe it or not the transcripts belonged to the Court reporter (they make mucho bucks) and you have to pay them for them. Counsel of course cites to them and reprints portions in briefs, but unless you go to the courthouse or counsel's office to read them, they are not generally available.

[Sue]

I can't work this out. Libby can't find out the identity of this other government official, so how does he know what was said in a taped interview? Someone? Anyone? What am I missing?

[Sue]

I don't know about criminal cases, but in civil cases, the attorneys have to pay for transcripts also.

[JM Hanes]

Glad I didn't spin my wheels scouring the web, then!

[Rick Ballard]

JMH,

If one steps back and looks only at trajectory one might conclude that Judge Kennedy is aiming for the same ditch that Fitz has set his sights on.

"Resolution" has many meanings n'est ce pas? The ditch is one such meaning.

The matter t'aint for trial.