Who Are The Sources?

It was win some, lose some for Libby in court today.  Here is the Wapo:

Vice President Cheney's former top aide is not entitled to know the identity of an anonymous administration official who revealed information about CIA operative Valerie Plame to two journalists, a federal judge ruled in a hearing yesterday.

To defend himself against criminal charges, however, I. Lewis "Scooter" Libby does have the right to copies of all the classified notes he took as Cheney's chief of staff from spring 2003 to spring 2004, U.S. District Judge Reggie B. Walton said. Libby sought the notes to refresh his memory about matters he was handling while discussing Plame with reporters and when questioned by investigators about those conversations.

One official, two journalists?  Whom might we be talking about?  More hints:

But Walton's decision to continue to protect the anonymity of one administration official, whom Libby's attorneys described as a confidential source about Plame for two reporters, one of them apparently Washington Post Assistant Managing Editor Bob Woodward, is a blow to Libby's case. Defense attorneys had said they needed to know the official's identity and the details of his conversations with the two journalists to show that Libby was not lying when he testified that many reporters knew about Plame's identity.

But Walton said the source's identity is not relevant, and there is no reason to sully the source's reputation because the person faces no charges.

The official's identity has been the subject of intense speculation since syndicated columnist Robert D. Novak published Plame's name in July 2003 -- eight days after her husband, Joseph C. Wilson IV, accused the administration of twisting intelligence to justify going to war with Iraq.

Defense attorneys in yesterday's hearing described the official as someone who did not work at the White House and was the source for two reporters. They said that one of those reporters had revealed in November that he learned about Plame from the official in mid-June 2003.

Woodward came forward in November to reveal that he had learned about Plame's CIA status from an administration official in mid-June 2003. Novak said in a speech in December that President Bush knew the identity of his source, and suggested that the official also was Woodward's source. Sources close to the leak investigation have said that Woodward and Novak received similar information from the same official.

Well, well.  Presumably the prosecution would have corrected the record if the defense was misleading the judge when they said the official was "someone who did not work at the White House".  And it seems to be pretty clear that one of the reporters in question is Woodward.

Let's put back in the mix these comments from Bob Woodward when he spoke at Harvard:

Woodward on Novak:

“His source was not in the White House, I don’t believe,” Woodward said of Novak over a private dinner at the Institute of Politics on Dec. 5. He did not indicate what information, if any, he had to corroborate the claim.

Woodward on the Administration conspiracy to out Valerie Plame:

Responding to Bernstein’s claim that the release of Plame’s identity was a “calculated leak” by the Bush administration, Woodward said flatly, “I know a lot about this, and you’re wrong.”

A lot of pixels have been spilled on speculation as to who might have been Woodward's, or Novak's, source.  This old post followed the trail blazed by the sometimes-reliable Mike Isikoff, who suggested that former Deputy Secretary of State Richard Armitage may have been Woodward's source.  And let's remember this about Armitage, from the Isikoff piece:

Armitage was, if anything, a foe of the neocons who did not want to go to war in Iraq. He had no motive to discredit Wilson.

As to discrediting Wilson by leaking the Plame connection, I made the point in that post that the State Department had their own gripes with the CIA on the Iraq-nuclear question, and note that the CIA recruitment of a hubby retired from State may have struck Armitage as an amusing anecdote that discredits the CIA, not Wilson  (My hypothetical cheap shot from Armitage would be something like, "When the CIA needed an answer they came to State anyway - why did anyone even waste time asking them?"). 

As to Armitage being a foe of the neocons, that could describe Bob Novak - I took a stab at their relationship here by reviewing Novak's old columns and concluded this:

Novak praised Armitage regularly, seemed to use him as a source (just from reading between the lines of some of the columns), shared Armitage's skepticism about the war in Iraq - he [Novak] would have to be a much friendlier source than Hadley.

So, is the WaPo telling us that Novak and Woodward shared a non-White House source?  Could that source be Armitage?  There are plenty of straws in the wind.

Now, the judge is currently keeping this from Libby.  What does that suggest?  Some guesses would be: (a) the judge does not think it is relevant, or (b) Libby's team can get what they need by questioning Woodward and Novak.

Here is another stray question - how can it be that Libby's team knows this official is a source for two reporters, but does not know the official's name?  Or do they know the name perfectly well, but just want the grand jury transcripts?

The AP provides another headscratcher:

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.

So the defense listened to a taped interview but can't identify the person?  How did this tape even come to be played - one imagines the defense had reviewed a transcript and requested a ruling on admissibility.

I'm brainlocking, or missing something.  Not the first time.

Final thought - *IF* the official leaked to Novak and Woodward, it is highly likely that the official neglected to mention the Woodward conversation until November 2005.  So here is someone who leaked to Novak, gave incomplete or misleading information to the prosecutor about his leaks, and yet his anonymity is being protected because, per the WaPo's paraphrase of Judge Walton, "there is no reason to sully the source's reputation because the person faces no charges". 

An official leaked Plame's identity to the press twice and misled the prosecutor about it; now, not only does he not face any charges, but the court is going out of its way to avoid sullying his reputation.  I can't wait to see how that is explained, and I bet Libby's defense will make this an issue.

MORE:  Because he faces no charges *at this time*?  Maybe.  But my own sense is that, with the possible exception of Rove, Fitzgerald is done indicting people, and he won't be indicting someone from State.

UPDATE:  Whoa, talk about differences in story placement - the entire NY Times coverage of the "one official, two reporters, no charges" puzzle is in their last sentence:

Judge Walton also rejected a request by Mr. Libby's lawyers to obtain information about an unnamed official who worked in the administration but not in the White House who discussed Ms. Wilson's identity with reporters.

A quick guess - the WaPo could not duck this because Woodward is one of their guys; the NY Times is engaging in professional courtesy by letting the WaPo handle its own laundry.

But what about Novak, if he is in fact the second reporter?  My theory suggests, look to the Chicago Sun-Times.  If they cover this story, they may tip their hand a bit.  Maybe.

Comments

[topsecretk9]

Kim
But why, tsk9, is everyone protecting Scowcroft,

If it were him, he outed himself quietly to Fitz on Novak (or Novak outed him) and it was somewhat of a secret until Woodward felt it shouldn't be anymore so...who knows, maybe no one there knows too.

If Novak came to him (I'd like to ask you a few questions about Joe Wilson...), Scowcroft would not see himself as "leaking" but rather defending Wilson and his wife's involvement as being inconsequential

Seriously I can't even keep any of it straight anymore. There are some many weird tid bits, Senior Admin- Senior White House - this and that -- it's hard to know anything anymore.

[Syl]

Clarice

Thank you. Means a lot!!

PeterUK

It discredits wilson because his wife 'sent' him, not Cheney. It becomes immediately apparent that Wilson is exaggerating to make himself look more important.

[Syl]

coolpapa

Oh, you mean a whistleblower has a penumbral right to expect his/her allegations to be unassailable?

I don't mean that. But that's where fitz seems to be because he didn't even care whether Wilson was right or wrong, nor even whether a criminal act had occurred. In his view, one simply does not attack whistleblowers. Period.

But politics are another matter entirely. The whistleblower gets his accusation out there, the administration responds, and the war of ideas takes place. As it should. But that's not criminal.

[maryrose]

Lew and Kate:
your views and summations have made this case clearer to me. I never looked as hard as these last two days and that Fitz whistleblower defense is the only explanation that makes sense.
Syl;
Your view of the situation also exposes everyone's role but I am stunned that an experienced prosecutor would stray so far afield. Couldn't anyone at the WH see that this was an off track investigation or was the fact that Fitz answered to no one a factor in this trip to fantasy island. No person was harmed here and all the reporters knew. Travesty of justice which hopefully won't stand
Can anyone give their best guess as to who the leaker is?

[MJW]

Cecil's recent post, seems to indicate that he believes Judge Walton will be fair in granting Libby's discovery requests. I'm less optimistic. When Walton was selected for this case, word was that he's somewhat of a prosecutor's judge. His decisions Friday seem in line with that assessment. The decision to allow Libby access to his own notes strikes me as an almost a foregone conclusion under Rule 16(a)(1)(E), so that's hardly anything to take comfort in. The decision to not provide the name of the earliest known leaker, who was the genesis of the entire investigation, merely to protect that individual's privacy, indicates a view of materiality that's narrow beyond reason. I wouldn't be all all surprised if Walton refused to allow any discovery related to Plame's status or any reporter besides Cooper, Miller, and Russert. I hope I'm wrong, and that it's just my natural pessimism speaking.

[maryrose]

MJW:
You make an excellent and I'm inclined to agree with you. I am comforted by the notion that President Bush could pull the plug on this thing before it gets too out of hand. I'm glad there is a fund for Libby because he shouldn't have to go bankrupt over this just because Wilson has a vendetta against Libby Rove and the whole administration because he didn't get the job he wanted and decided to become a FAUX whistleblower. He gives regular whistleblowers a bad name.

[maryrose]

should be make an excellent point.

[Kate]

maryrose, one thing I was always suspicious of about Fitz was why very leftist reporters and publications seemed to be the only ones that received leaks from what looked to be the prosecution team.

I suspect that certain members of his team were hostile to the Bush Administration and bought into the whistleblower theory.

I'm not talking about the leaks from Larry Johnson from lawyers for Wilson that went to Raw Story, I'm talking substantive leaks that went to Waas.

[PeterUK]

Syl,
From this side of the pond this all looks incredibly self indulgent at a time when perhaps you nations attentions should be elsewhere.
Wilson did go under the auspices of the CIA,if anything discredited him it was the op-ed in the New York Times.
Wilson a nd the CIA have been allowed to make all the running on this.

[kim]

But why would Bush be protecting Scowcroft, or whoever. When Woodward said that Bush knew, and that it was the same as Novak's, I knew it had to be Tenet. Who else would Bush protect to the degree he has, who else could it be for all this dancing and prancing around the truth to be going on? Rice? Why hasn't she come up before?
===================================

[clarice]

Fitz punted on prosecuting Harkin when he had him dead to rights. So there is some claim for partisanship.

I am not sure. I tend to go along with the notion that his first contacts were with the very agency that set this up and the press reported this almost unanimously as a smear against a whistleblower (hiding well the SSCI report).

I must tell you each day my Spidey sense about Margolis and Comey tingles a bit more.
I once thought the referral leak had to come from the agency. Now I think it came from Comey's shop--just like a lot of the NSA leaks. Wou;dn't is be fun to see Margolis' phone records, expecially calls to Kennedy and to discover his contacts with Fitz at the beginning?

I see no evidence, however, that Fitz' shop leaked. Though the presser was a damned outrage of legerdemain and smear.

[maryrose]

Kate:
I agree that the leaks to Waas seem strange because everything was so on the QT with this investigation. You had moments of wild speculation and then you had Woodward on Larry King Live saying it was much ado about nothing. Woodward is the only one after Miller to really be honest in what he knew but surprisingly he doesn't reveal his sources either. What are all these people afraid of? They won't be indicted; Fitz doesn't seem interested in indicting the real perps.

[clarice]

I believe Scowcroft and the President's dad are close allies and IIRC in business together, but I do not think Scowcroft ws Woodward's cource. It was someone who served in this administration-and someone I think at DoS.

If you go to Joe's June 2003 EPIC speech in DC --before his op ed--he already refers to himself as a whistleblower who will suffer for it. And what he leaked to reporters is of no interest to Fitz? Even if he had this all set up from the get go?

[kim]

Could we maybe send the bill to Comey?
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[clarice]

Leaks to Waas? Waas Nicht? Perhaps he picked up his not very hot tips in the courthouse mens room? Or perhaps it was Wilson's counsel or other anonymous "people close to the investigation" which could mean anyone or no one..really.

[topsecretk9]

But why would Bush be protecting Scowcroft, or whoever.

Bush being overly respectful to the ones that do not reciprocate (Dad's friend). Kim, I think you are probably right, that it is Tenet. I just wondered if it were Scowcroft and he is still requesting Woodward keep quite, might signal he understands that he may have also stepped into Wilson poop too. (Like he was too much of a cheerleader and maybe should have used more judgement and not gotten involved-- That notion probably occurred somewhere after the July 04 SSIC report findings --think website airbrush)

[clarice]

I have to think if it were Tenet he'd come out with it. You need a snake to try to get Woodward to stay quiet about it even though an innocent man will be destroyed by this..No, I think now it was Armitage or someone else at DoS..

[Rick Ballard]

It might not reach quite as high as Armitage. Someone that served on Powell's staff and was a political appointee would work. "SAO" is a term of art that can extend downward depending entirely upon the reporters sense of self importance.

[MJW]

I do wonder, in a wishful-thinking sort of way, whether Fitzgerald's offer to stipulate that Libby was a busy man might be used by the defense to argue that Fitz, himself, acknowleged that the type of information provided by the PDBs is material to Libby's defense. Rule 16(a)(1)(E)(i) provides that "[u]pon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and ... the item is material to preparing the defense." It makes no exception for items that may result in executive privilage being invoked.

(I admit I may be a hypocrite from Andrew McCarthy's point of view for hoping Libby isn't convicted, even he uses techniques I might not approve of in other cases. But it's not like he's accused of child molestation. Even if all the charges against him are true, the worst that could happen if he escapes punishment is he'll be out on the street, free to fib again. As to whether it will teach a bad lesson for others about perjury, I think the lesson it should teach is that if you're facing a prosecutor with unlimited time and money who's intent on finding someone to charge to justify his investigation, keep your mouth shut.)

[JM Hanes]

Cecil

Ironies tangential to the central point you made abound in the quote you posted. Not least of which is the fact that if anything has put a chill on "a reporters responsibility to cover as broadly as possible controversial public issues," it's the idiosyncratic parameters Fitzgerald, himself, set up.

[clarice]

Yes, JMH--what a brilliant observation.

I wouldn't read a great deal into this preliminary hearing. It's early. The judge is feeling his way around, and he has deferred acting on the most important issues.
And then, possums, we have the Motion to Dismiss.

[clarice]

I'm sorry that my memory is so bad and that I have no great access online to legal research materials. In the back of my mind I recall that the Federal Rules (FRAP 5) permit someone to take an appeal to the Ct of Appeals on an interlocutory order if the court certifies that.
If Walton denied the Motion to Dismiss and my recollection of the rule is correct, he could try to persuade J. Walton to certify the issue for appeals even though it is
interlocutory in nature.

RULE 5. Appeal by Permission

(a) Petition for Permission to Appeal.

(1) To request permission to appeal when an appeal is within the court of appeals' discretion, a party must file a petition for permission to appeal. The petition must be filed with the circuit clerk with proof of service on all other parties to the district-court action.

(2) The petition must be filed within the time specified by the statute or rule authorizing the appeal or, if no such time is specified, within the time provided by Rule 4(a) for filing a notice of appeal.

(3) If a party cannot petition for appeal unless the district court first enters an order granting permission to do so or stating that the necessary conditions are met, the district court may amend its order, either on its own or in response to a party's motion, to include the required permission or statement. In that event, the time to petition runs from entry of the amended order.
Here are the rules in the Fourth Circuit for the filing of an appeal of an interlocutory order upon permission of the District Court---

(b) Contents of the Petition; Answer or Cross-Petition; Oral Argument.

(1) The petition must include the following:

(A) the facts necessary to understand the question presented;

(B) the question itself;

(C) the relief sought;

(D) the reasons why the appeal should be allowed and is authorized by a statute or rule; and

(E) an attached copy of:

(i) the order, decree, or judgment complained of and any related opinion or memorandum, and

(ii) any order stating the district court's permission to appeal or finding that the necessary conditions are met.

(2) A party may file an answer in opposition or a cross-petition within 7 days after the petition is served.

(3) The petition and answer will be submitted without oral argument unless the court of appeals orders otherwise.

______________

I would think that such an issue that goes to the heart of the case--the claim that the entire proceeding is unconstitutional would be just such an issue.

[maryrose]

Well whoever this snake is he should fess up and admit his error - If Fitz and the prosecuting team take this to the limit the defense will be aggressive and relentless.
Clarice who at Dos could it possibly be?

[JM Hanes]

tops

"Because really, the chance friend/Novak encounter on the street is just preposterous."

I've always found that particular episode inexplicably bizarre, myself.

I've taken your advice about URL'g myself, although after a temporary hiatus that kept getting longer, I've only recently started to use my blog for items that seem a little long to post on other people's comment threads. Appreciate the encouragement in any case, and posted an piece on the Motion to Dismiss, today: Meet Special Prosecutor J. Edgar Hoover, with a tip of the hat to you.

[clarice]

It has to be someone high enough up that Woodward would be interested in interviewing.Armitage? Powell? Wilkerson? Just malicious speculation, I'm afraid.

[clarice]

I think the "chance"meetup was explained some time ago. I think it was Larry Johnson who accosted Novak at Wilson's suggestion.

[maryrose]

I know you mentioned Armitage but if it is him why is he being protected? Did he strike a deal with someone.?

[clarice]

Ask Fitz..Whoever he is he apparently never disclosed this when first interviewed it would seem. And he kept Woodward from testifying about it for a long time by refusing to waive the pledge of confidentiality.

And yet Fitz thinks his reputation should be protected.
Let me take a stab at it--Fitz liked his motive because he didn't think he was "trying to smear a 'whistleblower'".

[maryrose]

If Powell, does he get an automatic pass because of his position? Were the VP's office and the DoS in conflict or disagreement? I thought CIA and all these offices were supposed to work together for better security. CIA sending Wilson seems like a blunder to me. Didn't they have anybody else?

[clarice]

The VPs office and the Pentagon were on one side/the CIA and Dos on the other.

[kim]

But why should Tenet 'fess up? He probably believes, as does Bush, that he really didn't do anything wrong, and they are both appalled at Fitz. Woodward and Novak tried to goad either of the two into letting the cat out of the bag back when Libby was being indicted, but it didn't happen. Just why, I don't know, but I'd like to.
=================================

[kim]

Fitz, too, should be happy to let the order for an interlocutory appeal go forward. It certifies him, or excuses him.
=============================

[kim]

And a question of this moment should get stovepiped to the Scriptural Roberts Show.
=======================================

[kim]

The Blue Ribbon Commission Solution.
=====================================

[clarice]

Because anyone of character would, kim.

My memory hasn't completely failed me--Here's a government motion seeking certification of an appeal of an interlocutory order in the Hamdi case .http://news.public.findlaw.com/hdocs/docs/hamdi/hamdirums81902gmot.pdf
28 USC 1292 sets out the procedure and standards to do this and is cited in the Hamdi case.

[kim]

Excellent point, C, and he does have one. Even men of character get backed into situationsl, though.

Then, does this source have a poor character? That should help identify him. Unless there is an overweening motive we're not guessing at.
==========================================

[kim]

I just had a horrible thought upon which I'll not speculate further, just yet. It came as I was thinking of the saying "When in trouble or in doubt, run in circles, scream and shout", and I thought Pepi Le Phew sure generated a lot of screaming and shouting.
=====================================================

[kim]

This has all gotten torqued to protect someone's honor, and it ain't Joe's.
=====================================

[kim]

Toujours, C. la F.
=====================

[TM]

In the back of my mind I recall that the Federal Rules (FRAP 5) permit someone to take an appeal to the Ct of Appeals on an interlocutory order if the court certifies that.

My official prediction/punt, which I tacked on as an Update to an earlier thread, is that Judge Walton can't/won't dismiss this high profile case himself regardless of how strong or weak the Constitutional issues raised by the defense may be- it's above his pay grade.

However, he will engineer an expedited appeal to save both sides the pain of struggling over classifed info and subpoenaing reporters.

Maybe the Supreme Court provides an easy way out.

[Jeff]

the source as *not* in the WH, and the prosecutor did not correct that, then the NSC would seem to be out

That has been my understanding as well. But I will mention that on p. 4 of the 2-3-06 Cepa hearing transcript, Fitzgerald goes into some of the different agencies, with ambiguous specifications:

It was also review by the Department of Defense and then there was also a review done by the White House, the executive office of the president, as well as the National Security Council, NSC, together. And the office of the vice president documents have been treated at part of the White House.

Seems like Fitzgerald might be identified the NSC as part of the White House. But then he continues:

So we've been dealing with, if I got that correctly, and I'm looking at Mr. Kean, but the White House as an entity has multiple components. But then CIA, State, and NSC; and also I think sometimes other agencies are looking to see if the NSA has any material involved.

There it seems like Fitzgerald is treating NSC as separate from the White House. But maybe the major point is that Fitzgerald himself is uncertain and/or unclear about this. But I still suspect Hadley and the rest of the NSC can be ruled out.

[Jeff]

Maybe the Supreme Court provides an easy way out.

Now why does that sound vaguely familiar?

[clarice]

TM, Yes I think you're right. This is not the kind of precedent setting blockbuster type ruling a district court likes to make on its own..But I recall a similar situation I was in like this years and years ago and the judge did certify, the Ct of Appeals liked the argument but also was reluctant to decide it on its own..We took an expedited appeal to the SCOTUS (Maybe used an extraordinary writ) and we won..Ye, that's another beauty of this clean legal argument..it can be done this way whereas it's impossible on any of the discovery disputes or factual issues.
In sum, I agree.

[Rick Ballard]

How can it set a precedent if Fitz is a one off?

I'm rooting for it to wind up on Tatel's calendar to see if he makes a jackass of himself again.

"Uh, but judge - why didn't you catch that last time?"

Or is that simply additional argument for it to be kicked straight upstairs?

[clarice]

HEH--Let's send a judging for dummies book to Tatel before it ends up there, Rick.

Why do I say precedent setting when Ftz is a one-off? Well, because presumably (he says so for what it's worth) his investigation is continuing, and such a decision would cut off everything.
Walton could do this. Were I in his position and I thought the case for improper appointment clear, I'd do it..but district court judges often like to avoid such things.

In the case I'm thinking of, the statute clearly said that only the DoL could bring a suit to upset a union election. DoL brought one but was doing a piss poos job and we moved to intervene, arguing that once the DoL has decided to proceed there was no good reason to keep out of the litigation the people (we represented the opposition in the union) with the best knowledge and biggest stake in the outcome should be foreclosed from entering the litigation as a party.

After all that, one day into the trial with us as intervenors, Judge Bryant announced to the Court, "Now, I see the wisdom of the Supreme Court order."

You don't think DoL or its DoJ attorneys cared half as much about a sweeping reform of union elections as we did, do you? LOL

[Rick Ballard]

"Now why does that sound vaguely familiar?"

Cling to that. Hold it tightly, lay it on your pillow and murmur to it as you drop off this evening. It's all just a big bad conspiracy and those meanies are gonna get theirs someday.

Always listen for a train whistle when you see the light at the end of the tunnel. Sometimes things just don't turn out.

Cheer up! Your side won't lose more than another five or ten seats in November. What's there to complain about?

[clarice]

"poos" should be "poor"--And it's only 9 minutes to midnight..

[Gary Maxwell]

Rick

You forgot to tell him that was the Senate! And of course with even 4 - 5 more seats no more temper tantrums by the reality based folks will be tolerated.

[clarice]

And that doesn't count the jiggering of the Diebold machines which are wired to Rove's player piano.

[kim]

What do you bet it will be 9-0 at the SCOTUS, Jeff?
============================================

[Rick Ballard]

Kim,

That would just mean that Rove got to three or four of them. This is fantasy league, right?

I want to know if they'll shut up when they get their butts kicked in November again. A little reflection and introspection might lead to an opposition party worthy of more than ridicule. The current status just isn't healthy.

[kim]

Yeah, it's sick compared to years past. I about half expect we'll evolve a functional three party system with a center of generally moderate economic conservatives and the two wings being social conservatives and social liberals.
=========================================

[PeterUK]

I do hope you are all prepared for a WHO? moment when the perpetrator is unmasked.If many great crimes of history are examined they were invariably committed by nonentities,

[clarice]

Do you imagine Woodward was spending so much time interviewing a nonentity?

[JM Hanes]

I don't know about you Clarice, but I must admit that Woodward's deep throat pretty much got a Who? from me.

[MayBee]

"But Walton said the source's identity is not relevant, and there is no reason to sully the source's reputation because the person faces no charges."

You know, if Libby lied he lied and I can't feel sorry for him about that. But this just irks me to no end when I compare this person's treatment to the 'sand in the umpire's eyes' opening statement Fitzgerald gave.

There are actually people out there that believe Fitzgerald couldn't investigate who leaked Plame's name because Libby obstructed him. Yet we now know that Fitzgerald knows who leaked Plame's name, and he wants to protect that person.
That is the part that seems a travesty to me.

[clarice]

Mark Felt--He was assistant director of the FBI. Maybe not as well known as Bob Hope at the time but hardly a nonentity in DC.

[MJW]

PeterUK: "If many great crimes of history are examined they were invariably committed by nonentities."

But does it follow that if many great non-crimes of history are examined they were invariably committed by entities?

[Jeff]

There are actually people out there that believe Fitzgerald couldn't investigate who leaked Plame's name because Libby obstructed him.

Really? That's weird, because Fitzgerald was crystal clear that he couldn't get to the bottom of whether, when Plame's cover was blown, a crime that could and should be prosecuted was committed. I don't remember any indication of unclarity about how leaked Plame's name. Could you show me where in the indictment or in Fitzgerald's press conference he indicates otherwise. Or which people out there believe what you say they believe. I'm sure they're out there; but of course there are people out there who believe just about anything. So I'm curious to see indications of how many of them there are, what sort of positions they occupt, and so on.

[clarice]

I believe we are dealing with an unconstitutionally appointed prosecutor who was investigating the non outing of a non covert agent under the cover that he was investigating an actual crime.

[JM Hanes]

Mark Felt -- yes, known in DC, but not exactly the WOW moment we seem to be expecting here -- or maybe hoping for, no?

[MJW]

Jeff, perhaps you can suggest what it is about Libbys supposedly false testimony that prevented Fitz from uncovering the truth, because it's not at all clear to me what it could possibly be.

[JM Hanes]

Jeff

Had a little trouble following the question you're asking -- or perhaps point you're making -- but if Fitz knows who told Novak and decided no crime was involved, how is Libby supposed to have obstructed that investigation?

[MayBee]

Jeff- However you want to word it, and whatever people you personally know say- the point is Fitzgerald knows the person that made the leak that started the investigation, and is in fact protecting that person.
If he wants to know if a crime should be prosecuted, he could simply ask that person what his motivation was. No sand in the eyes from Libby kept him from knowing the identity or motive of the person who leaked to Woodward. That was his own cloud of dust.

And yes, Jeff, believe it or not there are people out there not as crystal clear as you.

[MJW]

Jeff, I believe Fitzgerald lied when he said Libby's misstatements prevented him from discovering the truth; and his lie was far greater betrayal of the public trust than anything Libby's accused of. Fitzgerald lied to bolster the obstruction charge and to provide an excuse for not charging any underlying offense. Fortunately for Fitzgerald, no one can prove it.

[Jeff]

MJW - If you want to, I'm happy to change the subject. So.

what it is about Libbys supposedly false testimony that prevented Fitz from uncovering the truth

I sort of agree with your puzzlement. I take it the basic answer is: it obscures what Libby was doing in blowing Plame's cover, what his intentions were, and more generally whether he did it deliberately or inadvertently. But of course the question that this raises for me is: given all the evidence Fitzgerald appears to have compiled leading him to believe that Libby knew her status was classified, and that he was acting deliberately to blow her cover, why didn't Fitzgerald just set aside Libby's testimony altogether, in effect imagine that Libby, like a sensible potential accused not coerced by President Bush's demand for cooperation, took the 5th, and indict Libby? Not being a lawyer myself, I ran this by my knowledgeable lawyer friends, and the basic answer that came back was, this sort of thing is completely conventional practice among federal prosecutors, who to a much greater degree than others are in the enviable position of just prosecuting on the slam dunk charges, even if they are not the most serious or underlying charges. So basically while it is strictly speaking true that Libby's alleged lies obstruct insight into his state of mind and what he was actually doing in blowing Plame's cover, basically Fitzgerald is going for the slam dunk while mentioning all the underlying issues to make clear that this is a serious matter the obstruction and perjury and false statements are related to.

My own view is that Fitzgerald genuinely believes that Libby committed a crime in leaking Plame's CIA status, he just isn't as confident that he could successfully prosecute that crime. Probably like you, under the circumstances such as we know them, I say, bring it. But oh well.

The for you perhaps maddening implication is that Fitzgerald may conclude -- and I think this may be right -- that while Libby's later leak to Miller was most likely a crime, the earlier leak by, say, Armitage or Tenet or Fleitz or whoever to Woodward and maybe even the initial leak to Novak really were idle gossip, and not deliberate blowing the cover of a CIA agent whose status was classified. In a political environment where elites are highly polarized, that may sound sort of fishy. But in fact the structure of the thing matches lots of real world situations out there where this sort of thing makes intuitive sense.

[MJW]

Jeff, I actually wasn't attempting to change the subject, but perhaps I should have read the recent posts more throughly. I was basically responding to the quote you were addressing: There are actually people out there that believe Fitzgerald couldn't investigate who leaked Plame's name because Libby obstructed him. I may have gone off half-cocked, because (as may be obvious), that's an aspect of Fitzgerald's press conference that really bugged me. I thought your response was quite straightforward, though I disagree with your view "that Fitzgerald genuinely believes that Libby committed a crime in leaking Plame's CIA status, he just isn't as confident that he could successfully prosecute that crime." I think Fitz has known for a long time he had no case, but thinks Libby really ought to be punished for attacking whistle-blower Joe.

[MayBee]

But in fact the structure of the thing matches lots of real world situations out there where this sort of thing makes intuitive sense.

Could you provide some examples of such real world situations? Other than situations that involve feeling intuitively that one person is probably innocent and thinking another person is a lying slime. Shouldn't an investigator dispense with such preconceived notions?

[MayBee]

MJW- I know what you are saying, because it is what I am trying to say.

[topsecretk9]

Had a little trouble following the question you're asking -- or perhaps point you're making -- but if Fitz knows who told Novak and decided no crime was involved, how is Libby supposed to have obstructed that investigation?

JM, no concise questions please.

I'd also point out that while Fitz is "protecting" this "source", this person/conversation was not known to Fitz until post indictment..one thing this illustrates was Fitz's investigation was flawed, but most importantly how can Libby obstruct an investigation that never took place (in the first place)

[topsecretk9]

JM
You're the bomb, by the way!

[topsecretk9]

and I think this may be right -- that while Libby's later leak to Miller was most likely a crime, the earlier leak by, say, Armitage or Tenet or Fleitz or whoever to Woodward and maybe even the initial leak to Novak really were idle gossip, and not deliberate blowing the cover of a CIA agent whose status was classified.

WOW, now were at "gossip". Some people are allowed to gossip, WH house officials aren't --- progress has been made, but

doe this pass Wilson's infamous "smell test"

[clarice]

I like that "intuitive sense" where batting back a very damaging lie at a critical time by, say, answering a reporter's statement with "I heard that too" gets you 30 years in the slammer and volunteering that Plame worked at the CIA to two reporters gets you protection from having your name known--Indeed, a nation of laws, not men we are.LOL

[topsecretk9]

"I heard that too"

Geez, the standard non denial "gossip" punt, no less. I wonder if he said "I didn't know", Fitz would be charging "false statement"

[JM Hanes]

You too, tops :)

"didn't know" = "false statement" LOL!

[Kate]

What's disturbed me most about Fitzgerald's prosecution has been the unevenness of the whole thing. I am not a lawyer, but I expect the law to be applied fairly. It's the lack of consistency here, almost like a third world legal system used to punish one's political enemies and show examples.

I don't think Fitzgerald needed much persuasion to go after Rove/Libby and support the media's designation of them as the villians in this political drama. I'm keeping to my theory that a source in the White House helped cement Fitzgerld's opinion and gave the media's narrative more credibility in Fitz' mind.

[kim]

There's got to be some good reason that even with all his resources, Fitz got off on the wrong foot, and never spellchecked himself. That's what reviewing authority could have done for him. Now I'm beginning to feel sorry for him; tossed innocently and rudderlessly into the DC maelstrom.
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[kim]

It is precisely the independence of this prosecutor that has allowed him to get so off on a tangent. The assumption of a whistleblower is that there is something to see when attention is paid. I'm sorry but this is the old story of the Boy Who Cried Wolf. Fitz is defending the Boy. Didn't anyone tell that story to Fitz as a child? Well, maybe not. It takes a village(not a nation) to rear a child.
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[clarice]

That's an excellent point. In a normal federal prosecution or even one properly conducted under the old independent counsel act or the new special prosecution one, Fitz wouls have had to explain his actions along the way and one would think cooler , more sceptical heads would have dissuaded him from this kamakazi mission.

[kim]

The Spiritual Roberts Show will certify him or certify someone else who can review him, probably Bush, but it will be under the cover of the Supreme Court.
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[kim]

I will rid me of this troublesome priest whom my deputy mistakenly anointed in my name.
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[clarice]

Heh--Perhaps a special rite at the National Cathedral..

[Sue]

I'm glad to see that everyone (almost) has come around to my way of thinking. The ugo is not important because he is not part of the smear campaign. Period. Fitzgerald has never been investigating (the early investigation, pre-Fitz, determined the leak of a covert agent wasn't going to go anywhere, or ugo would be in play) the leak of a covert agent. He has been investigating his perceived smear of a whistleblower. When his facts didn't line up, even though he is still convinced that WH (the OVP, to be exact) officials were indeed smearing a whistleblower, he got Libby on anything he could, i.e., punishment is punishment.

[kim]

The cult demands their rites.
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[kim]

Sue, it explains a lot of what has happened.
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[Kate]

Sue - you are exactly right. I read a flattering (was there any other kind) portrayal of Fitz in the WAPO and a fellow prosecutor said exactly that of Fitz. If he thinks you're guilty he'll find some way to get you even if it's not the original charge.

Fitz thought he could get away with it, and may still, because of the universally positive way he's being portrayed in the press.

I hope he gets taken down a notch or two.

[Sue]

The thing is, the trial will have very narrow questions. Because of what he is charged with. Did he lie? Did he make false statements? Did he obstruct? Not did he out a covert agent. I'll guess he did lie and make false statements, but for the life of me, I can't decide why. Is he covering for Cheney? Is she covert and he only found out after he talked? Did he think reporters would not be made to talk (my personal favorite guess)? The thing is, he had to know that others, not reporters, were talking and would be telling Fitz he knew. He had to know it would be in the documents he turned over. He is a lawyer after all. The whole thing makes no sense. He is, by all accounts, a brilliant lawyer. Why would he have such a bumbling, easy to disprove, lie? Covering for Cheney? Possibly. But not likely. If Cheney is in trouble, Libby would also have to know there is evidence of that. Why would he cover if Cheney could still be rolled? The emails? Not buying that. Yet.

[Sue]

It only makes sense if Libby is defending himself against a smear campaign against a whistleblower. Which Libby, being a brilliant lawyer himself, would have guessed was what Fitz was after.

[clarice]

I think he was busy, figured this was a nothingburger and told it as he remembered it. Period. There is no crime against "smearing a whistleblower" and he more than most knew what a pack of lies Wilson had floated.

[Sue]

There is no crime against smearing a whistleblower?

[clarice]

Notin the real world..maybe in inventedFitzlawland.

[richard mcenroe]

This judge's ruling seems to me readily appealable, under Libby's right to face his accusers, but what do I know? I'm just a citizen under the law, not some fine judge or lawyer flying high above it.

[clarice]

This source wasn't his "accuser", just an example of the selectivity of the investigation and the certainty that it was continued on a pretext..

[MayBee]

The AP report says only that Walton thinks Libby doesn't need to know the identity of the other source. It does sound, as TM pointed out, as if he has read the transcript of the other source's interview. Or at least part of it. Perhaps they will be allowed to bring up the facts surrounding Mr. Secret Source, but not his name.
It seems to me very important, especially on the obstruction charge, that the defense is able to show they didn't obstruct or attempt to obstruct the investigation into the crime.

[kim]

Who all knew what has been the kernel of this case from the beginning and you, Sue, have helped illustrate why it may show the way to the resolution, if the case proceeds to trial. Libby's defense will make mincemeat of the reporters who are required to testify, and they will dice up Fitz on his miserly sharing in discovery. It would have to be a jury of morons to convict Libby.
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[maryrose]

Yes Sue the underlying motivation and impetus in this case are now being revealed.I agree I can't figure out what would possess Libby to lie therefore I have conclude he did not lie.iIt's confusion and the almost definitive belief that others knew and multiple reporters per the Andre Mitchell statement knew as well.

[Sue]

I think Kim is joking. I can't even follow my own scenarios. ::grin::

[kim]

I don't doubt that there was a concerted, probably conspiratorial effort by the White House to avoid this train they saw coming down the tracks at them. Joe is the one who tied the fair lady to the tracks and Fitz ain't no Sherlock.

No joke.
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[kim]

I wanta know who killed Cowboy Ray.
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[cathyf]

A couple of days ago somebody made a comment about Fitzgerald as a "star chamber" that sent me off to wikipedia where I learned some fascinating stuff. I already knew this:

In modern usage, legal or administrative bodies with strict, arbitrary rulings and secretive proceedings are sometimes called, perhaps metaphorically or poetically, star chambers.

What I learned that was most fascinating is that the Star Chamber was not just an out-of-control court, it was the 15th, 16th and 17th century version of a special prosecutor. "The court was set up to ensure the fair enforcement of laws against prominent people, those so powerful that ordinary courts could never convict them of their crimes and other shenanigans."

The court turned into a feared tool of oppression where those in power used it as a weapon against opponents who had power and authority. It was abolished because the people became outraged over its treatment of John Lilburne

John Lilburne was arrested upon information by an informer acting for The Stationers' Company and brought before the Court of Star Chamber. Instead of being charged with an offense he was asked how he pleaded. John Lilburne demanded to be presented in English with the charges brought against him (much of the written legal work of the time was in Latin). The Court refused Lilburne's request. The court then threw him in prison and again brought him back to court and demanded a plea. Again John Lilburne demanded to know the charges brought against him.

The authorities then resorted to flogging him with a three-thonged whip on his bare back, as he was dragged by his hands tied to the rear of an ox cart from Fleet Prison to the pillory at Westminster. He was then forced to stoop in the pillory where he still managed to campaign against his censors, while distributing more unlicensed literature to the crowds. He was then gagged. Finally he was thrown in prison. He was taken back to the court and again imprisoned.

This began the first in a long series of trials that lasted throughout his life for what John Lilburne called his "freeborn rights". As a result of these trials a growing number of supporters began to call him "Freeborn John" and they even struck a medal in his honor to that effect. It is this trial that has been cited by constitutional jurists and scholars in the United States of America as being one of the historical foundations of the Fifth Amendment to the United States Constitution. It is also cited within the 1966 majority opinion of Miranda v. Arizona by the U.S. Supreme Court.

Fascinating history -- it suggests that if you completely insulate a court from political control, it will inevitably turn into a tyranny. And it suggests that when the founding fathers wrote the US Constitution and the Bill of Rights they were specifically trying to prevent this from happening.

cathy :-)