The Plame Case - Libby Replies On Disclosure

[WaPo coverage here - Carol Leonning emphasizes the "I am a busy but innocent man" angle, rather than the looming media meltdown.  Well, it's a reasonable choice and will only heighten the public's surprise later.

And Byron York has a good summary of the back and forth about Ms. Plame's status.]

The defense team of I. Lewis Libby has posted their response to Fitzgerald as the discovery ping-pong ball flies back and forth.  Here is their five page affidavit exhorting the court to provide the Presidential Daily Briefs for Libby's defense and rejecting the "greymail" allegation.  The gist - Libby's notes do not include material from the highly-sensitive PDBs, but he is sure that the stuff in there was a lot more important than anything he heard about Wilson and his wife; now, unfortunately, as Libby prepares his faulty memory defense, he can't remember what it is he forgot.

Oh, you see why these lawyers command the big bucks.  That said, if Libby can show in court that during the week he was supposed to be focusing on outing Valerie he was actually helping to save the kidnapped daughter of the Saudi Ambassador (while keeping it out of the press!), well - my jaw will drop, but I bet the jury will buy it.

And here is their second filing, a 32 page effort explaining the importance of some of the other discovery items.

One point they emphasize - the defense really does want to learn what other reporters told Fitzgerald, whether it involved Libby or not.  Frankly, I don't see how a judge can dispute its relevance, but let's let the lawyers tell it:

In a case that essentially pits Mr. Libby’s memory of certain conversations against the recollections of three reporters, in which knowledge by the reporters as well as by Mr. Libby is at issue, it is astounding for the government to assert that Mr. Libby should not have the opportunity to investigate the state of mind of any other witness.

Second, the information Mr. Libby seeks is necessary to prepare the defense not only based upon state of mind, but also based on the truth of Mr. Libby’s testimony to the grand jury that he and other government officials were hearing from reporters that Ms. Wilson worked at the CIA. In that regard, the defense is not bound by a reporter’s published statement, much less by the Special Counsel’s conclusion, about what a particular reporter knew or heard.  Further, in a case where one journalist publicly stated that Ms. Wilson’s employment by the CIA was “well known” to journalists covering national intelligence matters, Mr. Libby is obviously entitled to all the information in the government’s possession that would assist him in investigating and establishing the truth of that statement.

Mr. Libby is also entitled to investigate whether the reporters who will testify at trial are mistaken, biased, or otherwise not credible. The government concedes that “[t]he fact that some reporters may have known of Ms. Wilson’s employment could only be relevant if the that some reporters may have known of Ms. Wilson’s employment could only be relevant if the defendant, or the reporters with whom the defendant spoke, became aware of it.” (Gov’t Br. at 12 (emphasis added).) This is precisely one of the issues that the defense is seeking to investigate. For example, the indictment alleges that Mr. Libby falsely stated that Tim Russert told him that “all the reporters” knew about Ms. Wilson’s employment at the CIA. Accordingly,
the defense is entitled to investigate which reporters did know about Ms. Wilson’s employment status, and whether Mr. Russert could have been aware of such information before he spoke to Mr. Libby. The requested documents are necessary to investigate fully the answers to these questions and to prepare for the cross-examination of reporters like Mr. Russert and Mr. Cooper.

Hey, a quick sidebar!  Is that "well known" quote a reference to Andrea Mitchell?  Her actual words were "widely known".

Or is it possible that the defense is referring to Nick Kristof?  Back in October 2003 he offered his own hint that he knew more about Ms. Plame than he was telling:

Third, Mrs. Wilson's intelligence connections became known a bit in Washington as she rose in the CIA and moved to State Department cover, but her job remained a closely held secret.

"Known a bit" is not "widely known", either.  We'll see if subsequent filings clear this up, but I am betting Mitchell.

The rest of Kristof's hinting was in his lead paragraph:

I know Mrs. Wilson, but I knew nothing about her CIA career and hadn't realized she's "a hell of a shot with an AK-47,'' as a classmates at the CIA training "farm,'' Jim Marcinkowski, recalls. I'll be more careful around her, for she also turns out to be skilled in throwing hand grenades and to have lived abroad and run covert operations in some of the world's messier spots. (Mrs. Wilson was not a source for this column or any other that I've written about the intelligence community.)

Not familiar with her career?  I know Nick Kristof is currently a Times columnist, but I am not familiar with his full career, either.  Clearly, Mr. Kristof is not exactly saying "I had no idea she was presently at the CIA".

And what about this odd disclaimer - "Mrs. Wilson was not a source for this column or any other that I've written about the intelligence community"?  Gee, was she a source for a column about, I'm guessing, Iran's nuclear aspirations?  North Korea's terrorist capabilities?  Why the odd, caveatted denial?

These journalists write "denials" they would never tolerate from a public official, and they wonder why we are suspicious.  But I'll say this - if Nick Kristof takes the stand and admits that Ms. Plame outed herself to him in May of 2003 (or earlier!), the case against Libby may collapse in gales of laughter.  [Put Novak in the mix for "well known" - see NOVAK]

OK, back to the filing - as previously reported, the defense really is thinking about  targetting a number of journalists and Bringing Down the House:

Furthermore, it is apparent that during its investigation the Office of Special Counsel chose not to seek information from many reporters and news organizations that is essential to a full investigation of the charges made against Mr. Libby. Thus, it will be necessary for the defense to issue Rule 17(c) subpoenas to certain journalists and their employers in any event, and litigation concerning reporters’ privilege may be unavoidable in this case.

This case may be stalled for a long time.

NOVAK:  Put Robert Novak in the "well known" mix with this:

How big a secret was it? It was well known around Washington that Wilson's wife worked for the CIA. Republican activist Clifford May wrote Monday, in National Review Online, that he had been told of her identity by a non-government source before my column appeared and that it was common knowledge.

OK, "well known" matches nicely, but... the defense filing also cites "journalists covering national intelligence matters".  Here is Ms. Mitchell:

It was widely known among those of us who cover the intelligence community and who were actively engaged in trying to track down who among the foreign service community was the envoy to Niger.

Ms. Mitchell would also tie in to the defense's interest in Mr. Russert, so she is my bet here.

Comments

[clarice]

To make it easier to work with than a pdf file, I copied it and Rick will post it on the YARGB site.

There are a lot of goodies there for the hungry feeders..

[Dwilkers]

Hmm.

In addition, given Mr. Libby's past and continuing access to the nation's most sensitive secrets...

Continuing?

[clarice]

Rick kindly posted the brief in non pdf format here.http://yargb.blogspot.com/

Dwilkers apparently he hasn't lost his ecurity clearance and is allowed to view what classified info they get in discovery to aid in his defense. No?
What a weasel Fitz is..In the presser he claims Plame was classified and their was damage to national security , in discovery he claims those things are not material, and yet as Libby notes, the SP will surely try without evidence to sneak those things in before the jury..

[epphan]

These journalists write "denials" they would never tolerate from a public official, and they wonder why we are suspicious.

That says it all, TM.

It may not get Scoots off the "lying" charge...but will make for great viewing.

[clarice]

I think the prosecution will not be able to show that anything Libby said was beyond a reasonable doubt a deliberate lie, especially since he cannot show it was material to anything. I doubt that someone with such a strong reputation for honesty and probity as Libby will be so easily defeated by the likes of Matt Cooper and Tim Russert .

[Jeff]

I couldn't find all that much of real interest or new insight, but I do wonder whether they need the identity of Woodward's and Novak's sources for anything more specific than just to establish that it's really possible that all the reporters knew or what. Wells' sealed affidavit apparently explains in detail why the identity of these sources is crucial for the defense; but it was only sealed, they say, because it discusses stuff the government has designated as confidential, not because of the detailed explanation itself apparently.

Also, given the central place that the defense will be giving to the idea that Wilson's employment was not important to Libby in the forgetfulness part of the defense, I wonder whether some of the material from this LAT article might come back to haunt Libby. Libby is lucky, however, that some of the juiciest bits seem to come from April 2004, after his testimony. But how about getting Matalin up on the stand to testify to how Libby operated:

One prominent former Cheney aide defended Libby on Thursday, saying he was zealous and passionate about everything he worked on — not just the Wilson episode.

"Scooter is the most methodical, detail-oriented and comprehensive worker of anybody I've ever worked with in my life," said Mary Matalin, a former Cheney advisor who worked as a consultant on the 2004 campaign.

"He leaves no stone unturned, and it doesn't matter what the topic is," she said. "That's the nature of Scooter, and that's why he's such a superior intellect and why Cheney and the president and everybody over there respects him."

Oops.

[topsecretk9]

it is apparent that during its investigation the Office of Special Counsel chose not to seek information from many reporters and news organizations that is essential to a full investigation of the charges made against Mr. Libby.

Judy Miller.

Libby. Knows.What. Judy. Knew. And. Knows. Fitz. Did. Not. Go. There.

[clarice]

My recollection is that the PDBs were far scarier and loaded with high level threats than the briefings shared with Libby, and if that is true, and he gets them, his claim that he had far more pressing charges on his watch than whatever crap anyone told him about the insignificant Plame connection to the Wilson story.

[Jeff]

My suspicion is that Libby will get a lot of what he wants, especially when it comes to the reporters. He might even get discovery on one or two PDBs to use as examples, as his team's motion more or less invites the judge to rule. Presumably that would be enough to provoke a lengthy and unyielding fight with the Bush administration. I don't think the issue of Plame's status being classified will amount to much -- and Libby's team continues to fudge what it is their asking for in this regard -- unless it really is a submerged battle between the two sides over what all of them know, that her status was in the process of being declassified, as I think you've suggested, TM.

I see clarice has been reading scooterlibby.com. Such a strong reputation for probity and honesty! Just ask Cheney, right?

[TM]

Troubling:

Scooter is the most methodical, detail-oriented and comprehensive worker of anybody I've ever worked with in my life," said Mary Matalin...

And you think a jury will take seriously someone who described Cheney as "worthless"?

IIRC, it was John Dickerson, now of Slate, who noted that Libby has a rep for having an adamantium-trap mind.

I'm still holding out for the "unexpected drug-interaction" defense - Viagra + DayQuil = Confusion.

Or something.

[epphan]

Does Scooter need the PDBs? Surely he remembers what was going on. Couldn't he just spill it all out there and force Fitzgerald to come up with evidence (The PDBs) to refute it? Maybe I'm watching to much television.

[topsecretk9]

PDBs?

What if it's not so much really about the bigger fish to fry defense, but really those PDBs contain a helpful factoid.

File under:Maybe I'm watching to much television.-too!

[clarice]

epphan, everyone who ever worked with him said that. And that he's brilliant.

As to the PDB's--at least the ones prepared for him during the relevant period, he observes he didn't include them in his notes. As I said, they were reportedly chock full of scarey stuff which are certain to underscore his claims that Plame may have been high in Wilson's mind, but not Libby's.

[Jeff]

And you think a jury will take seriously someone who described Cheney as "worthless"?

Well, I think a jury could be persuaded to take such a person seriously if she hadn't also described Cheney as "Harry-centric". No way Fitzgerald puts her on the stand.

It was Dickerson in Slate who wrote that article.

topsecret - I think it is possible that Libby's team will go after Miller's notes. And I do bet that Libby knows a lot more about Miller's sources than Fitzgerald does, but it's not because Fitzgerald didn't go there. We know that he was pretty aggressive in questioning her about her other sources on Plame. The trouble is that Miller claimed forgetfulness - in other words, in my judgment, she lied her ass off. And as, in my view, Miller was Libby's target of choice for the public hit on the Wilsons, I bet Libby knows a good thing or two about who Miller heard what else from. So Fitzgerald went there, he just couldn't arrive - and Libby does know what Miller knows.

Beyond that, I suspect Libby's team will go after, especially, Mitchell and MSNBC, Kristof and the NYT, Pincus and the WaPo and possibly some other WaPo reporters.

[topsecretk9]

I could be wrong, but I highly doubt Mary Matalin would be a scary hostile witness for the defense.

[Dwilkers]

It isn't gonna fly.

I read the whole thing and I don't think this prosecution is going to fly. I have always wondered how Fitz was going to prove it and the filings by Libby's lawyers make it clear they are going to force him to do so. Every burden is on Fitz, and his witnesses are completely not credible. It'll never work for him - I put his odds at 8-2 against.

[Rick Ballard]

The post is entitled ">http://yargb.blogspot.com/2006/02/in-re-libby.html"> In re Libby

[topsecretk9]

Jeff
I understood different...Fitz was overly considerate of Judy's other sources that is why she got her get out of jail card and I do think you are over characterizing Fitz aggressive questioning...He allowed her to protect her other sources to a fault --- as in "you only have to tell if was Libby"

[topsecretk9]

as in "you only have to tell if was Libby"

or - I only want to hear if it was Libby, the rest earmuffs and duct tape

[clarice]

Dwilkers, there is some fundamental due process/sense of decency missing in this prosecution. I find it deeply troubling.
Perhaps because I live in D.C. and know what it does to decent people to be ensnared in such a nightmare. Perhaps because I once represented someone trapped in the Watergate prosecution who didn't deserve to be and who was ultimately acquitted.
And the more I read of it the stronger that feeling grows.

[clarice]

I recall, too, that when I first started writing about my concerns, my editor was swapped with hate letters--so important was his pilloring to the Fitzmas wishers. Most of them,BTW, cited the Tatel drivel as proof of the "outing" of a "covert agent" by Libby. SOmething now that the veil has been lifted turns out to be the usual Fitzcrap.

[clarice]

swaMped. not swapped..*

[Jeff]

topsecret - I think you're confusing a couple of different things. With Miller as with the other reporters (from everything we've heard), Fitzgerald questioned them about all their sources on Plame. And Fitzgerald pursued them aggressively if they resisted - witness how Fitzgerald went after Cooper for his original source when he discovered, to his apparent surprise, that Libby was not, as Libby himself suggested, Cooper's original source but rather his confirming source.

Fitzgerald did not limit his questioning with Miller to her dealings with Libby. The deal they worked out was that she was only going to testify on Plame-related matters. I think what happened was that Miller was freaked out by the part of her subpoena that included the Niger-uranium business beyond just Plame. (From my perspective, she was worried about her crappy, indefensible reporting being probed. But nothing hangs on that particular point.) Fitzgerald assured her that he was not going after sources who had nothing to do with Plame, or perhaps the Wilsons -- and as it turns out, the reason Fitzgerald had to include that bit about Niger-uranium in the subpoena was that Libby's testimony was that he talked with Miller about that topic but not about Plame on July 8, so Fitzgerald had to include the possibility that he was going to ask her about a conversation that in fact did not have had anything to do with Plame. So that's what the deal was ultimately about, though of course Fitzgerald couldn't flat out tell Miller that in their negotiations.

So Fitzgerald assured her he was not after other sources who had nothing to do with Plame. But he asked her about her other sources on Plame. She just failed to provide a positive answer -- again, I think because she was lying through her teeth. And given the connection between Libby and Miller I believe existed, i find it entirely credible that Libby knows all about what Miller refused or failed to tell Fitzgerald herself.

[Rick Ballard]

eppure - si e' bel pieno di crap

[clarice]

crap is right--the deal was clear..she ONLY was going to be questioned about her conversations with Libby and that's all she was questioned about.

I regret that Judge Bryant died. He was the only judge on that court with street smarts. He was a black lawyer at a time when the going was rough..and supplemented his defense work with operating an elevator for the government, and he'd have seen thru Fitz like glass.

[Rick Ballard]

ooops - merda

[topsecretk9]

Judy Miller is going to tell us the "coalition of the widely" was well inform on their own, it will be shown that Matt Cooper has a real future in drama as well as comedy and Tim Russert will allow that he may have perhaps spoken about "Wilson's wife" but the question was asked in such a way that he answered in such a way and Andrea will be confused about what she said about what she said on Don Imus.

sound about right?

[topsecretk9]

Jeff
I'm not confused, just see it entirely different than you, that's all.

[Jeff]

Here is what Miller said in her own account of her testimony:

Mr. Fitzgerald asked if I could recall discussing the Wilson-Plame connection with other sources. I said I had, though I could not recall any by name or when those conversations occurred.

Will this make a difference to clarice, who is so street? I predict not. She will go on claiming that the deal was Fitzgerald was only going to ask her about Libby. And she will claim that Fitzgerald did not ask her about other sources. Whatever the terms of the deal, which were never spelled out publicly with any clarity, as far as I can tell, the fact of the matter is that Fitzgerald asked Miller about her other sources on Plame, she testified that she had them, but she was unable or unwilling to specify who they were or even when those occasions happened.

[clarice]

Any recollection of Fitz asking her what she recalled of the substance of those conversations?

I do recall she VOLUNTEERED but wasn't asked that Flame in her notes appeared to have come from someone other than Libby.

[Jeff]

topsecret - The simple fact of the matter is that Fitzgerald did not allow Miller to protect her other sources on Plame, unless by that you mean he allowed her to refrain from answering his questions honestly, but I don't see how he can get around that. Here's what Miller said:

Mr. Fitzgerald asked if I could recall discussing the Wilson-Plame connection with other sources. I said I had, though I could not recall any by name or when those conversations occurred.

Please tell me how you square that with your claim that Fitzgerald said, in effect, "you only have to tell if was Libby".

[PeterUK]

In what way was it a " public hit on the Wilsons,"?
Val is a celebrity and Joe got more publicity for his book than he could buy,as a by product the Democrats got the scandal they were looking for.
Any guesses as to what the Wilson's income is now compared to pre "outing",when she was a public servant and he was an unemployed C list diplomat.
On this basis there must be hundreds of desk bound CIA drones paying to be "outed",it isn't a punishment it is a great career move.

[clarice]

IIRC that was the reported deal.Then she remembered before the gj that she had another notebook..and in that notebook was Flame.

[Jeff]

I do recall she VOLUNTEERED but wasn't asked that Flame in her notes appeared to have come from someone other than Libby.

I'm curious where you recall that from, clarice, since what Miller herself has written directly contradicts your own recollection:

Mr. Fitzgerald asked me about another entry in my notebook, where I had written the words ''Valerie Flame,'' clearly a reference to Ms. Plame. Mr. Fitzgerald wanted to know whether the entry was based on my conversations with Mr. Libby. I said I didn't think so. I said I believed the information came from another source, whom I could not recall.

As for what Fitzgerald asked about the substance of those other conversations, Miller is silent. And obviously Fitzgerald is not telling. But again, I bet you probe and honest Scooter knows.

[old cranky exspook]

TM is right. The question we should be asking is will this go to trial. I am begining to think not.(Still, to see Russert on stand would be worth the delay.)

[topsecretk9]

Gee I wonder

I'm sure she also only agreed to testify if Mr. Fitzgerald promised he would not ask about any other sources or information.

Where I got that idea

ABRAMS: We couldn't have had the same deal. Indeed, in one respect I tried to get a deal a year ago. I spoke to Mr. Fitzgerald, the prosecutor, and he did not agree at that time to something that he later did agree to, which was to limit the scope of the questions he would ask, so as to assure that the only source he would effectively be asking about was Mr. Libby. She has other sources and was very concerned about the possibility of having to reveal those sources, or going back to jail because of them.

[clarice]

Thank you ts. That's what I remembered, too.

[danking70]

Yeah, like that Abrams bozo would know...

[old cranky exspook]

I see Jeff is still tap danceing madly.(Must be the duel six-shooters Clarice is using.)

[Rick Ballard]

TS,

Are you alluding to an intimation that the dreck schmeck is clueless?

If so, barring other evidence in the affirmative, I would tend to agree.

[Cecil Turner]

epphan, everyone who ever worked with him said that. And that he's brilliant.

I don't put too much weight on second-hand character references, and actions speak louder than words. Everyone said Fitz was scrupulously fair; my only data point is his presser . . . and it didn't impress. Libby's rambling testimony (when the obvious answer was to be taciturn) didn't make him look too smart . . . and his "Aspen" letter to Miller was just plain weird.

They made a better argument for the PDBs than I expected, but I still don't see how they can win that one (especially since the President isn't going to give it to them). Might form the basis for an appeal, but I doubt it. The rest of their demands look pretty reasonable to me.

[clarice]

What about the briefing books specially prepared for Libby?

[Javani]

"And what about this odd disclaimer - "Mrs. Wilson was not a source for this column or any other that I've written about the intelligence community"? Gee, was she a source for a column about, I'm guessing, Iran's nuclear aspirations? North Korea's terrorist capabilities? Why the odd, caveatted denial?"

Good point. He could have simply said no connection at all. There's something there. And what about Mr. Wilson?

BTW, does anyone care anymore who Novak's first source was? Isn't that the primo issue?

[clarice]

Libby's counsel's been told but only under double super secret disclosure..

[topsecretk9]

I love speculating about Judy and Matt

But I think that Judy is protecting other sources and her protection was to the detriment of Libby...because Judy DID NOT want to be the one that got Libby off the hook

You see how she has been treated about her WMD reporting, she certainly didn't want to be the one seen as helping Libby.

That's why everything hinged on protecting those other sources...she knew Libby didn't leak anything to her so was not afraid to testify about Libby.

[Rick Ballard]

"Isn't that the primo issue?"

No, no, no,no,no. You haven't been paying attention. That was the reason that Fitz was appointed - which has precisely zero to do with what he is about at this time.

At this time, Prosecutor Clouvert is concerned about other things. Why, oh why, do the bluebirds fly? Why do I love you as I do? Why is the grass always greener... etc.

You can't really expect him to hold himself to the germane on an unlimited budget withou supervision can you?

Such simplisme.

[Cecil Turner]

What about the briefing books specially prepared for Libby?

I doubt it. Same issue, and one this Administration takes seriously. (And regardless of how good the defense argument was, only tangentially related to the case.)

[clarice]

I can't tell you how much diagram paper I've wasted trying to figure out the presentation of Fitz' case.Maybe Cecil can do it--

[Cecil Turner]

No chance.

[Kate]

Libby's legal advise during the investigation was weak and I think his lawyer should have advised against the 'aspen' letter.

However, he has a new team of excellent lawyers.

Whenever the media, in lockstep, insists I admire a person, writes puff piece after puff piece about their hero, I tend to get very suspicious and resentful (let me decide for myself!).

Poor Fitz began to believe his own press clippings. A less grandstanding prosecutor would have dropped the case when he realized the Identities Act did not apply

[topsecretk9]

Clarice
Do you have a WSJ subscription?

[Sue]

Kate,

I have some thoughts about all of this that are along a somewhat different line. I think Fitz saw a chance to get at Miller, a person he was thoroughly disgusted with. If she had not been a player, I don't know that he would have continued it. Sometimes, even the most professional prosecutor gets emotionally involved in the case and Judith Miller had already thwarted him.

[Kate]

Sue, I hadn't thought of that angle and there may be some truth to that. I think Fitz bought into the Wilson as whistleblower narrative and never let it go.

However, I think there was a White House witness that fed his belief that there was a smear campaign against Plame. I just can't figure out who that witness is. I heard the person referred to several times.

[Sue]

He definitely investigated it as a whistleblower case. That is evident by his responses to discovery. Anything that didn't fit that narrative was not investigated. But how sweet was it to have Judith Miller sitting in the hot seat when another judge had just let her go?

[Jeff]

topsecret - Yeah, that was exactly one of Abrams many appearances I was thinking of. When he says the only source Fitz would effectively be asking about was Libby, that's the tipoff that Miller had nothing to give Fitzgerald on her other Plame sources, which again we know as a matter of fact he did ask her about. Here's my transcription of another one of Abrams' descriptions of the deal, from an NPR interview:

Recently, though, he did agree that he would inquire as to Libby-related matters dealing with Valerie Plame or something in that area, that he would not ask for a list of names to be identified or not as either being or not being confidential sources, and I think he was persuaded that Judy Miller -- and accurately persuaded -- that Judy Miller didn’t have any other source who really had information as to which she could provide testimony which bore upon the Plame situation other than Mr. Libby.

And again, the simple fact of the matter is that the upshot of the deal was that Fitzgerald asked Miller about her other sources on Plame. Do you acknowledge that, or not? Or is that me tap-dancing, according to the evidence-immune old cranky spook?

[MJW]

Jeff, from the section you highlighted, it's apparent that there was an understanding that Fitzgearld would ask a pro forma question about Miller's other sources, Miller would claim forgetfulness, and Fitzgerlad would drop the subject.

[Sue]

I like the phrase "really had information". What the hell does that mean? Did they have 'not really' information? As in, someone other than Libby could have told Miller or she could have just known because she worked that beat, that Plame was CIA? I like all these non-denial-denials.

[MJW]

" I think he was persuaded that Judy Miller -- and accurately persuaded -- that Judy Miller didn’t have any other source who really had information as to which she could provide testimony which bore upon the Plame situation other than Mr. Libby.

Miller more or less admitted she had sources other than Libby who talked to her about Plame, yet Fitzgerald doesn't consider these sources "who really had information as to which she could provide testimony which bore upon the Plame situation."

[Jeff]

Exactly, Sue: the key thing is that Miller couldn't really provide testimony. Why? Because she couldn't remember who they were, when she learned from them, and presumably what they said in any specifics. That's her story, anyway. In this regard, I sort of agree with MJW, but I think s/he is insinuating that Fitzgerald went along with Miller's faux forgetfulness, whereas there is absolutely no reason to think that, and there is reason to think otherwise, namely, the fact that he pursued other reporters quite aggressively when they revealed they had other sources (Cooper). Also, it's pretty clear that this was not a matter of MIller and Fitzgerald being sympatico or something. Quite the contrary. Miller is the most hostile of Fitzgerald's reporter-witnesses, her testimony was the least helpful despite the fact that it is the most damning, as is attested by how little she shows up in the indictment.

But if I were arguing the other side, I know who I would start speculating was Miller's other source, and then let clarice take it from there and turn it into a Known Fact.

[Jeff]

MJW - Miller didn't more or less admit she had other sources on Plame than Libby, she flat out acknowledged it. Two passages from her published account of her grand jury testimony:

Mr. Fitzgerald asked if I could recall discussing the Wilson-Plame connection with other sources. I said I had, though I could not recall any by name or when those conversations occurred.

And the other:

Mr. Fitzgerald asked me about another entry in my notebook, where I had written the words ''Valerie Flame,'' clearly a reference to Ms. Plame. Mr. Fitzgerald wanted to know whether the entry was based on my conversations with Mr. Libby. I said I didn't think so. I said I believed the information came from another source, whom I could not recall.

Fitzgerald was persuaded Miller couldn't provide testimony on these other sources because she told him she couldn't remember who they were, when they talked, and presumably what was said, and she had no notes on the matter. There's not much Fitzgerald can do at that point, is there? In fact, the best bet is to get her under oath to have to swear she couldn't remember, in the hopes that that oath would make a difference, which it evidently didn't (not surprisingly to me). And he gets her Libby testimony out of her at the least.

Miller has remained sympathetic to Libby and Libby's worldview to this day. Nothing I have heard her say is out of step with that.

[Sue]

Jeff,

I can't figure out what Fitz was up to with Miller. One of her comments, right after she was released from jail, was along the lines that he agreed to limit his questions to Libby. Why that agreement? IMO, he was, at that point, ready to wrap up because he wasn't going to charge on the underlying crimes, unless Miller told him Libby said Plame was covert, and I don't think he really thought that happened, because I don't think he thought Plame was covert. Ergo, he doesn't need any other testimony to indict on what he indicted on.

[maryrose]

Kate:
I agree with you that Fitz started to believe his own good press and felt obligated after such a long investigation to come up with some indictment. I also wonder if a person in the White House who intimated that there was a smear campaign out for Plame ever thought someone would be indicted. I wonder how that person is feeling now. Also did that person have something against Libby. This sounds like political back-biting to me. Libby could have been set up by some disgruntled employee. If Fitz went after Miller because of some kind of vendetta wouldn't that be prosecutorial misconduct?
On Olberman he talked to david Shuster about grey mail, Keith kept referring to it as Libby's" I'm too busy to remember defense" in a sarcastic tone of voice.

[Sue]

Sure. But you would never be able to prove it in this case. They wouldn't even try.

[topsecretk9]

then he says the only source Fitz would effectively be asking about was Libby, that's the tipoff that Miller had nothing to give Fitzgerald on her other Plame sources,

A tipoff? oh, okay. Please, would you explain to me then if Miller had no other source to protect in the Plame matter, why on gods green earth would she even think Fitz would be asking her about other sources that had nothing to do with Plame?

And why is that Fitz wanted just the bone "without disturbing the body" with VNovak, but postal with Miller?

You assert there is nothing to suggest Fitz wasn't aggressive with reporters sources, I don't agree.

[topsecretk9]

There's not much Fitzgerald can do at that point, is there?

In fact, this worked out well for Fitz, no?

IMO, he was, at that point, ready to wrap up because he wasn't going to charge on the underlying crimes...because I don't think he thought Plame was covert. Ergo, he doesn't need any other testimony to indict on what he indicted on.

Which is why Woodward is such thorn in the behind.

[Sue]

Okay, playing off the 'insider feeding Fitz' information about a 'smear' campaign against Wilson. There is just enough evidence to support that early theory and Fitz is buying it. It explains his actions from that point forward. Only investigating against retaliation for a whistleblower. Not caring what, where, when, how, or anything else about how reporters might have known about Valerie, outside of the WH. He was not going to go to trial on the original charges and he knew it. Otherwise, he would have wanted to know those things, they would have been central to his case and he would not have wanted Libby's defense team having a Perry Mason moment. He would have wanted to know anything and everything about how someone could have known without being told by someone in the WH. The whistleblower theory was the only theory he was investigating. Which takes you back to the insider feeding him information.

[maryrose]

ts:
Once again you have hit the nail on the head or the thorn in the behind. Fitz probably figured I'll indict on this -no harm no foul-and then-woodward soeaks up and blows his plan all to hell!
Also if Fitz was so savvy, how come Luskin has to swoop down at the eleventh hour and rescue his sorry butt before he makes an even bigger arse of himself by indicting Rove?

[Sue]

It also explains his last minute investigation of Valerie's neighbors. His presser would have come back to bite him on the butt if he had said it was not common knowledge and some neighbor was on another station saying, yeah, we all knew.

[clarice]

Notice that he is resisting discovery resquests that would establish he never had a basis for the investigation in the first case..

[Sue]

He was not going to walk into a courtroom on the original charges with the little information he says he has. Just wasn't going to happen. I don't buy he isn't as smart a prosecutor as they say he is. He would have turned over every stone if he thought he was going to indict anyone on the original charges.

[topsecretk9]

Please, would you explain to me then if Miller had no other source to protect in the Plame matter, why on gods green earth would she even think Fitz would be asking her about other sources that had nothing to do with Plame?

I can answer my own question...unless Plame herself was a source for Judy on previous WINPAC-y reporting

Which takes you back to the insider feeding him information.
that, or Plame outed herself to Fitz as being a whistleblower.

[Sue]

Top,

Hmmm...I didn't think of that scenario. That would make sense too.

[topsecretk9]

yep Sue,

that's why the long drag out the CIA door. Appearances.

[Sue]

Top,

Either way, insider from the WH or Plame herself, Fitz was not investigating the original charges.

[maryrose]

If Plame outed herself to Fitz as a whistleblower , why would her word be more powerful or truthful than someone else's? Why are she and Joe believed without question? Are they consistently viewed as the injured party by Fitz? And if so how did they attain that status. Sue's theory seems to support why Fitz embarked on the course he took and the story he pursued.

[topsecretk9]

why would her word be more powerful or truthful than someone else's?

It's not about her word so much as it is about "reprisal"... the SMEARING not the OUTING, Wilson just tried to make a faux "outing" into a smearing, but smearing is what Fitz bought and went for ( obviously, not the "outing")

To me at least, Plame as"Whistleblower" is the only explanation for the final hour Men in Black.

[maryrose]

But Val Plame was not smeared. This is all about making something out of nothing! I'm amazed if we can all see it why Fitz completely missed it.

[kim]

That might explain a few loose ends.
======================================

[Jeff]

Please, would you explain to me then if Miller had no other source to protect in the Plame matter, why on gods green earth would she even think Fitz would be asking her about other sources that had nothing to do with Plame?

No, I didn't say Miller had no other source to protect. What I said was that Miller had nothing to give because she was claiming that she couldn't remember. My own view is that she was and is protecting those sources. But if she is willing to say under oath that she can't remember, and the other sources aren't coming forward themselves, there is no way to actually compel her to tell the truth.

But regardless of that, you've missed a crucial fact that answers the other part of your question. Miller thought Fitzgerald was after sources of hers on matters not directly related to Plame because of what her subpoena said. It was after material having to do with her conversations with Libby between July 6 and July 13 2003 "concerning Valerie Plame . . . or concerning Iraqi effort to obtain uranium." Miller didn't know that the reason Fitzgerald had included that last part was because that what was Libby had testified the conversation had to do with on July 8. So Miller had good reason to worry that Fitzgerald was not only after Plame-related stuff. She further expressed worry -- and she explicitly stated this worry, with Terry Gross on NPR, I think among other places -- about what had happened with Matt Cooper, where Fitzgerald had a subpoena that seemed narrowly drawn for one source but then went back and generalized it out for another subpoena for other sources. And she didn't want that to happen to her. Put those two factors together, and you've got Miller unhappy at the prospect that Fitzgerald wanted testimony from her on Iraqi efforts to obtain uranium, which could include all number of her sources on it, including sources, of course, who had nothing whatever to do with Plame.

So she had reason to worry about sources other than Plame sources. Nevertheless, she totally had other Plame sources, and did not talk about them, claiming she couldn't remember who they were or when. I don't believe her.

[danking70]

I'm slow. Will someone please explain the "Plame as Whistleblower" at this late stage in the story?

Wouldn't I have already read about it in Vanity Fair?

I thought the story was Joe Wilson "whistleblower" and innocent wife (who happens to be a covert secret agent) caught in the retaliation crossfire.

Now both are whistleblowers?

[PaulV]

Judy Miller surely would remember the identity of any government official who mention P(F)lame to her. She must have been drinking with a bunch of fellow reporters

[kim]

d-soixante-dix: It might explain why Fitz isn't going after Joe and Val for disclosing stuff. She might have told him that she had made an effort to object through channels, but it hadn't worked.

Clever, those two. Too clever for their own good.
=======================================

[topsecretk9]

Dank

"Team Whistleblower"

[topsecretk9]

Jeff
I don't believe her.

not positive I do too, but for different reasons obviously. I am unconvinced that Fitz would be interested in Judy's other source for other areas, uranium, bio-chem, nuc.

Also, I think Fitz's demonstrated interest in bones vs. bodies illustrates this.

[clarice]

I think she had a right to be concerned about the scope of his questioning. I think he's have breached the deal if he'd pressed her further on the source of Flame. Otherwise he could have. When I witness says she doesn't remember counsel has some leeway to try to refresh her recollection and it appears he didn't.

[topsecretk9]

this what I think (not saying I'm right, just think I'm right?)

Fitz isn't interested in Judy's "other sources", but Judy is

Judy wasn't afraid to testify about Libby, because a- Libby didn't leak anything (name, status) to her and b- she didn't perceive a "smear" campaign

BUT if Fitz probes into Judy's other source she will reveal that the dark forces were NOT at the White House, she was privy to the little whisper campaign (i.e. JFK '04) like Novak picked up, but Judy knew more first hand from previous hands on

So Judy is in the weirdest of positions. She knows she doesn't have what it takes to do Libby in - so hated yet again on the left, but really more of a neutral However she knows she does have what it takes to be REALLY hated on the left, of which she desperately needed to protect.

I bet she is PISSED she took a hit helping the side that threw her under the bus. Sort of thinking - If you only knew.

[clarice]

Once more without typos--I hope--

I think she had a right to be concerned about the scope of his questioning. I think he'D have breached the deal if he'd pressed her further on the source of Flame. Otherwise he could have. When A witness says she doesn't remember counsel has some leeway to try to refresh her recollection and it appears he didn't.

[topsecretk9]

Clarice,

Basically, Judy would only testify until she worked out a deal that "I don't recall" would meet to Fitz's satisfaction.

[Jeff]

topsecret - Again, Fitzgerald was not interested in Miller's other sources on Iraqi efforts to seek uranium in Niger. But Miller thought he might be, because she did not and could not know that the reason Fitzgerald subpoened her for conversations with Libby that might be about that subject was because Libby had testified that such Iraqi efforts were the exhaustive subject of their July 8 conversation, which did not touch on Plame at all. So Fitzgerald had to allow for that possibility in his subpoena, and in his investigation. Of course, it turns out that Miller's testimony contradicts Libby's on just that point.

So yes, the chicken bone for Miller was her sources on Plame, just as in the case of V. Novak it was her interactions with Luskin.

[MTT]

TS9,

I bet you're right.

Or in the team photo, anyway.

It's not what has been asked, but what hasn't been asked that's the issue.

This is true for all of the players, and not just for Ms. Miller, either.

Actually TM's point is very well taken, this is going to take a very long time.

Unless it doesn't.

Just sayin'.

[topsecretk9]

Jeff
I think you can tell, but I think Judy was protecting herself from your side by helping your side. And I can say I don't hate her for it, judging by the treatments she's received so far I can't say I blame her.

[Jeff]

topsecret - I appreciate that it's just what you think, but that is just about the most implausible speculation about Miller, her motivations and her knowledge that I have ever heard. In what sense does Miller desperately need to be protected from the left? She is hated by the left, nothing she's going to do is going to change that. But at the same time, so what? How is that a problem for her? And everything I have seen her say since she testified attests to her continued sharing of essentially a neocon perspective on national security threats. Or at least on terrorism and WMD. Nothing I have heard her say indicates any desire to help the left. Furthermore, the history of Miller's reporting indicates that she is much better sourced on the right than on the left.

Why does Fitzgerald use her so little in the indictment, despite how damning her testimony is of Libby? Because she will be a relatively hostile witness, and because she lacks credibility.

I will give you this: it is true that, from Fitzgerald's perspective, once she has testified under oath that she can't remember squate about her other sources, it's highly unlikely she'll do anything unpredictable at the trial and name her other sources then, regardless of who her other sources actually were.

[Chants]

Will this reveal to the Libby Lawyers Woodward's source?

[topsecretk9]

In what sense does Miller desperately need to be protected from the left? She is hated by the left, nothing she's going to do is going to change that.

You can't be serious. My gawd Jeff, you guys were chewing her up like a pack of wolves, you don't think, you know a little self preservation, a little fear of what might come if she really said what she knows? And no Jeff, while she may believe in her WMD reporting she hasn't shown any interest in going down the Linda Tripp path.

she has testified under oath that she can't remember squate about her other sources, it's highly unlikely she'll do anything unpredictable at the trial and name her other sources then, regardless of who her other sources actually were.

maybe, but then again this will be post early retirement

[clarice]

diagram
(A) elements needed to prove IIPA--Never existed--overt,5 yers assignment, deliberate outing to harm national security and actual harm

(B) purported false testimony about who said what to whom(Libby/Cooper/Russert) and whether it was the first time; testimony that could not affect the proceedings, because (A) never existed and nothing Libby said could change that and nothing he testified to related to those necessary predicates;

(C) Obstruction--basically a repeat of (B) and some oddbits like Miller--still must fail because you cannot obstruct something which never could have gone forward even if Libby had said he deliberately gave her name to everyone in his rolodex to smear Wilson because (A) never existed.

[topsecretk9]

BTW Jeff

The factoid were forgetting is that Judy didn't write anything. So the only thing Judy went to jail for was "other sources" -- NOT other sources for other reporting.

[anonymous]

Fitz would not do his jib because he was afraid. How long did Plame work for Russia? How was she assigned to Iraq?

[anonymous]

Fitz would not do his job because he was afraid. How long did Plame work for Russia? How was she assigned to Iraq?

[topsecretk9]

NOT other sources for other reporting.

Again, unless Plame was a source. But then because of who she is she is related to the "Plame Matter"

[danking70]

"Team Whistleblower". Great picture.