Byron York On The Plame Referral

Byron York continues his fine work on the Plame case with an overview of the process that led to a criminal referral from the CIA to the Dept. of Justice.

The annotated Byron York reader (available here!) includes the following:

(1) A link to the letter to John Conyers from the CIA describing the process as it unfolded from their perspective;

(2) A link to the court opinion and Fitzgerald's filing cited in Mr. York's article;

(3)  A mention of the tidbit that the political firestorm broke after news of the criminal referral was leaked to Andrea Mitchell, who has not left this story.

(4)  A summary of the key points of the referral (h/t PollyUSA).

MORE:  Wish I didn't know now what I didn't know then:

Let's go through the referal criteria and mock the CIA!  From Fox:

The standard list of information, approved in 1969 by FBI Director J. Edgar Hoover, that the Justice Department (search) required the CIA (search) to provide before deciding to pursue a criminal investigation into the leak of a covert operative's name.        

The CIA provided its answers last week. They were not made public.

The information asked:

1. Date and identity of the article or release disclosing the classified information.

Easy - the Novak column on July 14, 2003.  Or, add the Pincus story from June 12, 2003 and the Kristof column from May 6, 2003 for discussing the classified Wilson trip to Niger.

2. Specific statements which are classified and whether the data was properly classified. 

Let's assume they focused on the Plame outing - was her status properly classified, or was she classified only because of bureaucratic inertia?  Fitzgerald won't release information addressing this point.

3. Whether the classified data (search) disclosed is accurate.   

Novak was close enough for government work - certainly, Plame was employed by the CIA.

4. Whether the data came from a specific document and, if so, the origin of the document and the name of the individual responsible for the security of the classified data disclosed.   

Don't ask - apparently, the Wilson-Plame connection was widely known within the State Dept.  As to her specific function at the CIA - well, the notion that she was a covert operative may have come from a CIA leak similar to the one reported by Andrea Mitchell (and echoed by Reuters) on July 8, 2003.

5. The extent of official dissemination of the data. 

Does "official disemmination" include Aldrich Ames selling her name to the Russkies?  Probably not.

6. Whether the data has been the subject of prior official releases.

Hmm, was it "official dissemination" when the CIA accidentally outed her to Cuba?  Allegedly, let me add. 

7. Whether the prior clearance for publication or release of the information was sought from proper authorities.   

Don't ask.  Bob Novak called the CIA press office, which failed to either dissuade him, or call his publisher as a follow-up.

8. Whether the material or portions thereof or enough background data has been published officially or in the press to make an educated speculation on the matter possible.

I'll accept that publishing that Ms. Plame is with the CIA links her to the CIA.

9. Whether the data can be declassified for the purpose of prosecution and, if so, the name of the person competent to testify concerning the classification.   

This hurdle has been cleared, in part - obviously, Libby's team is looking for other classified info as well.

10. Whether declassification had been decided upon prior to the publication or release of the data. 

Don't ask - Fitzgerald refuses to release any data about her employment status.  We have wondered, since Ms. Plame was reportedly in transition to a liason function with State cover, whether there was a plan to de-classify her at some future date.

11. What effect the disclosure of the classified data could have on the national defense.   

Don't ask - Fitzgerald is refusing to provide an CIA damage assessments to the defense.

I'm just guessing here, but I bet the prosecution really does not want to hand over that referral.  But I bet Jon Stewart could find some great material in it.

Comments

[Leonidas]

Thanks for the link. It's a great article.

It's really pretty ridiculous that someone might go to jail over this. Unless that someone were Joe Wilson, which wouldn't be ridiculous at all.

[clarice]

I said it on an earlier thread, but I;ll repeat it:The reason I think DoJ sat on it is that they felt the Agency had not provided adequate documentation to justify going further and that that is so obviously true it explains Fitz' refusal to turn it over to the defense,

In simple terms, the unconstitutional contra statutory appointment of Fitz was itself preceded by an unwarranted referral by the CIA to the DoJ.

[Neo]

Byron York's piece does everything except connect the dots correctly.

Fitz doesn't believe that there was a "leak" of classified information. Rather his prosecutions are based on perjury obtained during his investigation of these non-crimes.

Personally, I hate perjury charges relating to non-crimes or civil seizures related to non-crimes. If you have no crime, there should be no investigation. Had Fitz found that the lies related to a crime, I could see this thing going forward, but Fitz has no crime except the lies which were about something non-criminal.

I bet Fitz could put anybody before a Grand Jury and get them to "lie" about something, like what you had for lunch 2 years ago .. who you talked to 3 years ago .. was that sprocket or socket ?

This sort of crap goes back to the Iran-Contra prosecution where some Reagan White House folks plead guilty to non-crimes. The Prosecutor and the judge didn't bother to figure out if the charges related to actual crimes, but they sounded good so you're guilty. Extra Justice is .. bogus?

[noah]

Clarice, I quit about halfway thru Fitz' motion...do judges actually read this stuff and look up all the cites? If so my hat is off to them...gotta be the worst job on the planet.

BTW...the link to the opinion didn't work.

[Patton]

It sounds from the Conyers letter that DOJ weren't dragging their feet, they were waiting for the agency to do their own internal investigation first.

Like to see the results of that investigation!

[clarice]

I think York connects the dots but subtly. He's hinting there was nothing to the referral, that the DoJ knew it, and that Tenet not only pushed the investigation but leaked that he was doing so to force DoJ to act.
Why? ts's intra agency spat and Tenet's desire to nab Armitage is the best theory I've seen yet.

Still, DoJ dropped the ball in preceding when they knew the referral was insufficient evidence to go forward.

[clarice]

Good judges do read the cites. Bad Judges like Tatel apparently just read the press. I'm sorry if the opinion link is no longer working You can probably find it right here if you rummage around TM's attic.

[Neo]

Libby's lawyer should appeal the denial of the referral and other structural documents, now. The real question at stake here is .. should the Grand Jury have ever been empaneled to begin with ?

As with the DeLay case in Texas, prosecutors aren't allowed to go on fishing expeditions with a Grand Jury in their back pocket.

If Fitz knew there was no crime, because the referral from CIA was bogus, then Fitz had no right to empanel a Grand Jury or call Libby as a witness. Libby's indictment would then be void.

[BN]

How does the DOJ's reluctance to investigate the CIA leak help Libby's case? In my mind, the fact that an independent investigator was eventually appointed by the DOJ renders any initial reluctance on their part irrelevant.

[ed]

Just so you know how it looks from the other side, the delay and subsequent recusals gave the appearance that the department was not going to follow through on the referral for political reasons. It took a public move by Tenet, a politically conflicted player in his own right, to get the ball rolling and then two white house appointees recuse themselves? The whole thing will make for a great book someday, however it turns out.

[Javani]

The "classified information" may be more than the mere leak about Mrs. Wilson but also the leak of memos and their contents.

[Sue]

Noah,

Judges have clerks that do the hard work. Good judges actually read what their clerk gives them, though.

Smaller court judges, where the judge doesn't have a law clerk, rely on the attorneys to submit the orders for their signature. It has been my experience that the order is written by the party that 'won' the legal argument, then submitted to the opposing counsel to either sign off that if reflects the court's ruling or ask the lawyer preparing it to tweak it. If they can agree without going back in front of the judge for clarification, that is typically how it works, where the judge doesn't have law clerks.

[clarice]

BN, there's no independent counsel statute any more. Fitz was ostensibly appointed under the special prosecutor statute but he couldn't be because he was himself a government employee barred from holding such a position and the AG was not overseeing his work, no confirmed appointee was. That is the basis for Libby's Motion to Dismiss to which Fitz has not yet filed a response.

Neo, for this reason there is nothing yet for Libby to appeal--the judge hasn''t acted on the motion. If he denies it, there is a question as to whether this may go up the Court chain on an interlocutory appeal. (My guess is it can if the judge certifies it and I think he may well do so if he denies the motion.)

[clarice]

Sue, I promise you J. Walton is reading the cases in these motions.
As to the way the orders are prepared, that is the practice here. But don't confuse the orders from the briefs filed in support of the motions.

[BN]

Thanks for the explanation Clarice.

[clarice]

You're welcome. If you want to read the Motion to Dismiss look on the right side of the page to the Libby website. Click it and go to News where you can find the motion in pdf format.

[Rick Ballard]

Clarice,

If the judge dismisses (and is upheld) would the remaining "investigation" pass back to DoJ Main? If so, how would they close it?

[clarice]

Nothing like this appointment has ever happened before , but yes, my guess is that if the Motion to Dismiss is granted, the DoJ will have to decide what to do--even perhaps whether it wishes to appeal the dismissal.

(A similar --no, not identical--thing is happening to Earle. There's a pending motion to dismiss during which Earle subponaed everything he could think of. The Court just quashed those on the ground that until the Court resolves the pending motion , he is without authority to proceed.)

I expect Fitz to file a response any day now..I haven't been counting the days but it seems time. And I can't wait.

[Sue]

Clarice,

It was a memorandum from the Judge that I thought we were discussing. If it was a brief prepared by the lawyers, then nevermind. ::grin::

[sylvia]

Yes, I agree Mitchell is the key. If Libby's lawyers can prove that Mitchell likely knew, and there are plenty of her own statements already to point to that, and it is known that Mitchell and Russert have a close and open relationship who share political secrets, then it is likely she told Russert. If she told Russert, then Russert's testimony that Russert did not tell Libby that "other reporters knew" is discredited.

If Russert's testimony is discredited, then the assumption can be made that Libby's testimony with regards to Russert has more weight and may be assumed true. If Libby's testimony that Russert told him that other reporters knew is believed, then Libby would have good reason to think he said that "other reporters knew" to Miller and Cooper, even if he didn't, and it was just an honest mistake, not perjury.

See, I already got Libby off. He should pay me to be his lawyer.

[Patton]

""""Underlying the crimes charged in Poindexter and George was the Iran Contra
affair. Underlying the crimes charged in this case is the failure by a senior national security
official to adequately safeguard sensitive classified information.""""

I FIND THIS STATEMENT BY FITZ SHOCKING. IS HE PLANNING TO BACK THAT STATEMENT UP WITH ANY EVIDENCE? OR IS HE TALKING ABOUT ARMITAGE??

Could Fitz just as well have said "Underlying the crimes charged in this case is a senior national security
official murdering 16 people.""

THEN JUST SAY, BUT LIBBY ISN'T CHARGED WITH MURDERING 16 PEOPLE, JUST WITH LYING, SO WE DO NOT HAVE TO DISCUSS THE 16 DEAD PEOPLE YOUR HONOR.

[clarice]

That's it in a nutshell.

Now, the judge has reserved ruling on the question as to whther Fitz has to turn over the evidence on "classified" and "national security" (and I think the referral from the CIA), but I think the ice under his skates is thinning fast.

[Rick Ballard]

I hope Chairman Hyde is taking note of the approaching end of this mess. A nice investigation by the House Judiciary would be a fitting coda. With Joe and Val in the hot seat, under oath, followed by Novak, Tenet, Armitage, Libby and Rove.

A week long (maybe two) hearing would dispose of the matter appropriately.

[clarice]

One of the ironies--and there are many here--is that virtually everyone in town knew lyin Joe and Val except Libby and Rove.And a great many of those people in and out of the government knew the real story of the Mission before even Tenet did.

[larwyn]

Ronald Wieck essay at American Thinker Whose Chappaquiddick was Chappaquiddick?

has put into words what I have tried to express in praying that Libby himself will want this to go to trial.
This essay is really about how morally lax the Left is. But by using a meme repeated endlessly they time and again get away with it. I have written that even very good parents sometimes just give in to have a little peace and quiet. It appears to me from the polls that Americans are at this point with the War in Iraq. They just want some peace and quiet and the DPW issue shows many including "the hell with them Hawks" are for a stop riling them up. This makes the proponents of taking the war to them the "rilers" and the feeling that "you just made it all worse sticking that pole in the hornets' nest" and all the "civil war" talk just encourages the "hell with them" - they don't deserve our help and on and on.

It is the Media driving on that issue and on every issue that undermines the President, so it makes great sense to discredit the Media. Oh, we have been doing this, nibbling at their edges, but if Mr. Libby has the conjones to mount the full frontal assault it could be the tipping point.

The point is Mr. Libby has an opportunity to attack not some outlier outposts of the LEFT STREAM MEDIA - but many of their Icons - very like hitting the CENTCOM COMMAND AND CONTROL INFRASTRUCTURE.

I pray Mr. Libby keeps this in mind when making his decisions on how he wants the case to proceed. I know that his legal talent will be advising him to take the short and sweet road to dismissal. That is their job. I hope Mr. Libby looks at benefits his demanding a trial will mean to the governance and the safety of the United States of America for years to come. It really is in his hands. I do not think that others who feel as I do will ever allow his family to suffer financially from proceeding to trial. And I do not doubt that GW in Jan 2009 or before will grant a pardon if the worst of the worst would happen. And finally counting on the slowness of the Justice's grinding, with appeals and other delaying tactics that in the very worst case, Mr Libby would not serve one day in prison prior to the pardon.

Here's how Wiek puts it:

........Confrontations between liars and honest souls tend to benefit the liars.

The very act of exchanging identical-sounding charges establishes for the undiscerning public, i.e., most voters, a qualitative equivalence. A real problem arises when one side is reality-based, while the other relies heavily on falsehood and distortion. In the absence of critical thinking skills, it is impossible to tell the knights from the knaves. And The Huffington Post is crawling with knaves.

snip

Propaganda has to be repetitive to be effective, and it doesn’t get more drearily, mind-numbingly predictable than this. But every so often, just when you thought you’ve heard everything—when you’re certain that the limits of shameless effrontery have been reached—along comes something of such surpassing moral idiocy that it doubles you over like a Joe Frazier left hook to the liver. You’re left gasping: They can’t possibly be going there.

[clarice]

Libby's Motion to Dismiss was filed on Feb 23, http://www.scooterlibby.org/news/briefs/022306_motion_dismiss.pdf I can't understand why a response wasn't filed yet.

[Rick Ballard]

"I can't understand why a response wasn't filed yet."

Fitz can't decide whether to throw the towel in underhand or with a full wind up.

[clarice]

I think the normal rule is 20 days in which to respond.

[Jim E.]

So Byron York writes how the Justice Department originally dragged its feet (sidenote: we already knew about their foot-dragging, so the overall theme to his article is not new) and people here conclude that that means there's nothing to see. Not necessarily. In fact, that Tenet got personally involved could suggest the exact opposite. In any case, people can surely see that the Justice Dept's foot dragging can appear sinister, rather than exculpatory. And York can roll his eyes all he wants, but a senior administration member has been indicted as a result of the investigation.

At one point in the article, York writes: "With political pressure even more intense, the attorney general and his deputy recused themselves from the matter and appointed Fitzgerald."

What political pressure? I did a quick search of news coverage during the weeks prior to Aschcroft's recusal, and found very little Plame coverage, and almost no editorials, columns, or letters to the editor. The only uptick in coverage was feature stories on the Vanity Fair layout. In short, I don't see much evidence of "intense" political pressure. The story was kind of dead by late December 2003. (In fact, aside from a couple weeks of reaction after Tenet's leaked letter in late September 2003, the Plame matter had very little sustained coverage/attention until this past summer.)

Short of a rebellion amongst its own ranks (or very negative poll results), the Bush administration circa 2003 wasn't exactly spineless. There was no political pressure. Maybe there was FBI pressure (their agents were the ones who thought Rove and Libby were lying), but there was NOT "intense" political pressure. Why would James Comey and John Aschcroft be swayed by non-existant political pressure?

York's article has a lot of fluff. I trust he gets paid by the word.

[clarice]

There was a virtual press and political tsunami. And there is every reason to believe that the CIA referral was crap because there is no evidence that Plame ever met the test for a NOC and that the CIA ever had evidence of harm to national security which should have been in that referral before DoJ acted.

[Sue]

Full docket text:
Set/Reset Hearings as to I. LEWIS LIBBY: In Camera Pretrial Conference pursuant to Section 2 of the CIPA is set for 4/10/2006 09:30 AM in Courtroom 5 before Judge Reggie B. Walton. (mpt, ).

Filed: 02/03/2006
Entered: 02/03/2006
Entered By: erd,
Event Name(s): Set/Reset Deadlines/Hearings
Full Docket Text:
Set/Reset Deadlines/Hearings as to I. LEWIS LIBBY: Defendants Dispositive Motions due by 2/24/2006. Responses due by 3/17/2006 Replies due by 3/31/2006. (erd)

Filed: 02/03/2006
Entered: 02/03/2006
Entered By: erd,
Event Name(s): Set Deadlines/Hearings, Status Conference
Full Docket Text:
Minute Entry for proceedings held before Judge Reggie B. Walton :Status Conference as to I. LEWIS LIBBY held on 2/3/2006. Defendants dispositive Motion due 2/24/06, Opposition due by 3/17/06, Reply due 3/31/06. Motions in Limine due 11/3/06, Opposition due 11/17/06, Reply due 11/28/06, Voir Dire and Jury Instructions due 11/13/06. Jury selection set for 1/8/07 through 1/11/07 at 9:30 a.m. daily. Motions due by 3/3/2006. Responses due by 3/20/2006 Jury Trial set for 1/15/2007 09:30 AM in Courtroom 5 before Judge Reggie B. Walton. Status Conference set for 2/24/2006 02:30 PM in Courtroom 5 before Judge Reggie B. Walton. Speedy trial waived from 2/3/06 until 5/1/06. (Court Reporter William McAllister) (Defense Attorney William Jeffress, Theodore Wells, Joseph Tate (PHV), John Cline; US Attorney Peter Zeidenberg, Patrick Fitzgerald) Defendant continued on PR bond. (erd)

[topsecretk9]

In fact, that Tenet got personally involved could suggest the exact opposite.

Yep Jime, that he was putting the screws to that a-hole Armitage for pissing on the CIA for setting up that boondoggle to Novak.

[danking70]

Very little coverage...No intense political pressure.

"16 words" "Outing of a covert agent". These stories barely registered on the charts.

You're sounding a little desperate.

[clarice]

And? This is the hearing dates for some of the matters in issue. On Feb 13 Libby filed his motion to dismiss. Unless DC follows a special rule or I misread the Fed Rules of Crim Procedure the response to that motionis due today (you don't count the day of filing the motion).

[topsecretk9]

Jime
There are plenty of google finds of Dems mad the Ashcroft had refused to recuse himself (Conyers), so sorry If I ain't buying no pressure/ la la newsdays.

[Sue]

Not filed yet. At least not on Pacer yet.

[clarice]

Thanks,Sue. Keep your eyes open for it,please.

[clarice]

Oopps--Response is due tomorrow--this isn't leap year..tomorrow the response!

[MayBee]

http://www.senate.gov/~schumer/SchumerWebsite/pressroom/press_releases/PR02078.html>Here is Schumer calling for Ashcroft to recuse himself,Jim E.
He wasn't http://www.buzzflash.com/alerts/03/12/ale03004.html> alone.

[Jim E.]

OK, just so I'm clear: anytime Schumer or Waxman or Conyers issues a press release, that equates with intense political pressure? Is that what you're saying? Schumer opens his mouth and a political tsunami results? Next you'll be telling me that the world (and esp. the Bush administration) holds its breath waiting for Kucinich's next speech.

Please. Those politicians make arguments all of the time and it gets no coverage, and zero reaction from the Bush administration. I guess you guys are arguing that this administration is spineless and easily swayed by Democrats. Color me unconvinced.

There were a bunch of articles during the first two weeks of Oct 2003. That's it. (Ashcroft recused himself 2.5 months later, under the cover of the X-mas/New Year's holiday--and 3 months after Tenet's letter.) If there was "intense" political pressure, why a dearth of media coverage leading up to his recusal?

Since when did Ashcroft turn into such a wuss in your eyes?

[Sue]

Mr. E.,

What is your point? I'm not sure I'm following where you are trying to lead.

[topsecretk9]

Oh for petessakes Jime.

I am so tired of revisionism and then being challenged to prove otherwise.

OK Jime, your are right. Ashcroft recused himself because he just had too much on his plate after all and didn't want to deal with it.

[maryrose]

"
A senior administration official has been indicted as a result of the investigation"
I would comtend JimE that Libby has been Wrongfully indicted-hence my eyes are rolling too. Also you talk about this so called investigation- it has been flawed from the very beginning. Fitz had a scenario in his head a pre-determined bias toward the WH and unlimited power and money. That is a bad combination for even the most virtuous of prosecutors. Fitz has his own self-promotion agenda. Being made a fool of by Armitage was not on his dance card. He took a chance and trumped up charges against Libby on the chance that he might catch bigger fish like Rove or Cheney. He ended up with nothing on his line because the fish weren't biting and nobody was flipping Now he is stuck and his chance for promotion to judge are a distant memory. Initially I was willing to see it handled fairly. It has not been from day one. The reporters have aided and abetted this tragedy. I agree with Rick; I want Hyde to conduct a hearing after chartges are dropped. I bet you every reporter pleads the 5th just like they did in the Marc Rich hearings.

[topsecretk9]

anytime Schumer or Waxman or Conyers issues a press release, that equates with intense political pressure?

Since when did these guys become ignorable in yours?

[TM]

From Jim E:

At one point in the article, York writes: "With political pressure even more intense, the attorney general and his deputy recused themselves from the matter and appointed Fitzgerald."

What political pressure? I did a quick search of news coverage during the weeks prior to Aschcroft's recusal, and found very little Plame coverage, and almost no editorials, columns, or letters to the editor. The only uptick in coverage was feature stories on the Vanity Fair layout. In short, I don't see much evidence of "intense" political pressure.

I made that same point myself when whacking someone on the left - the Ashcroft recusal was a bit of a shock, and the story had gone quiet. There was background noise calling for a recusal, but hardly a firestorm. So let's spin the recusal as a job well done by Ashcroft. Of course, Jim E and I could both be wrong, but I'm sort of stuck with this position now.

Knowing what we know now - by Dec 2003, the FBI had already heard Libby's weak "I forgot" story.

And Rove? I am connecting a dot from yesterday's thread, where I wondered why, in the heavily studied and redacted filing by Fitzgerald, he mentions that the defense got a redacted transcript of Woodward's testimony, but no redacted transcript from Novak.

One possibility - Novak just is not relevant to the defense (but Fitzgerald did not seem to be arguing that).

So, my guess - there are no Novak transcripts, because he talked to the FBI, which famously does not record interviews (IIRC, they record Form 302s).

So - by December, the investigators had Libby *PLUS* Novak's story differing from Rove's first take - Rove did not initialy volunteer his "I heard that, too", chat with Novak.

That was plenty for a recusal.

And later, Fitzgerald dug up/was presented with Matt Cooper and the Hadley-Rove email.

My guess - Novak never testified to the grand jury, so we will never see a Novak transcript.

Hmm, from MayBee's link, there is this from the Eerily prescient John Conyers:

It is too little, because the Department has failed to appoint a Special Counsel as required by the Department's own regulations. 28 CFR Sec. 600. As respected as the U.S. Attorney who has had the case assigned to him, Patrick Fitzgerald, may be, he still works for the Attorney General and serves at his discretion. It would be far better to appoint an outside person with a 'reputation for integrity' as provided for in the Special Counsel rules.

We all agree then - the appointment did not follow the rules. But is is also unconstitutional?

[SteveMG]

Jim E.
You usually make some (generally) good points but this argument that there wasn't political pressure for Ashcroft to name a special prosecutor ain't one of them.

It's okay. It's only March and I'm sure your fastball will pickup a few feet by Opening Day.

SMG

[danking70]

Jim E.'s just trying to throw sand because he got busted on the "quick news search" crapola.

[clarice]

I think the argument Libby made on that is a good one.

But if I'm wrong whatever remedy is there for appointing someone contrary to the Act, an act particularly designed to overcome the flaws of the independent prosecutor act, and an appointment which gave him more--not less--power when Congress intended him to have less.

[TM]

Continuing my rousing defense of the "No pressure to recuse" idea - a search on the NY Times show 3 hits for [+Plame +recuse] in October 2003, and another on Jan 1, 2004, after the deed was done.

Switching to recusal picks up an Oct 16 story that also hit with "recuse".

Or a new search - [+Plame +"special counsel"] nets 13 hits - 1 on Dec 31 announcing the news, and 12 in Sept/Oct 2003.

I'm sticking with Jim, on this anyway.

[topsecretk9]

he still works for the Attorney General and serves at his discretion.

Didn't the Feb 2004 Comey letter say Fitz had his own discretion and own rules.

I contend the "pressure" was impropriety from start to finish as Conyers letter said immediately. Political calculations aren't made for just that day.

[topsecretk9]

If the consensus inside DOJ that the referral was DOA and languished and then Tenet breathed life into it...the notion of Ashcrocft overseeing an investigation that led to NOWHERE and came up with NOTHING was the intent to avoid.

[clarice]

I agree, ts--From May the drumbeats were mounting..

[MayBee]

Not to beat a dead horse, but the pressure was due to the fact that Rove had consulted for Ashcroft in elections previous.

http://www.villagevoice.com/news/0533,waasweb1,66861,2.html>Perhaps Ashcroft thought it would simply be prudent, like whomever decided to retract the 16 words.

[Sue]

Tom,

Try indpendent prosecutor.

[Sue]

"As usual, what the Bush Justice Department has done is a half measure and nowhere near good enough to restore public confidence in this tarnished agency," Kerry said. "To put an end to John Ashcroft's failure to obey the law, the president must direct the immediate appointment of a special counsel who is not a political appointee and who is in no way beholden to the fortunes of his administration."

[Sue]

Leakgate: Pressure on Ashcroft to Recuse Himself Grows

By Murray Waas, AlterNet. Posted October 31, 2003.

Some senior law enforcement officials believe the conflict of interest is too obvious to be ignored.

[Sue]

Me, I'm in the camp of pressure on Ashcroft to recuse himself.

[MayBee]

TM-remember York says political pressure, not newspaper editorials. http://www.cnn.com/2003/ALLPOLITICS/10/02/leak.main/>There was political pressure, even from our friend Arlen.

[topsecretk9]

Switching to recusal picks up an Oct 16 story that also hit with "recuse".

Did you include "Matthew's" in the searches? That man alone gave Texaco and Haliburton record profits with the amount of gas he kept at his pundit desk for the Plame story ...maybe there lies the impression (that an blogs)

[Rick Ballard]

There is also the not small matter that the DoJ had done a fair amount of work prior to Fitz's appointment. If the sum total to that point was "nothingburger squared" then who was to make the announcement? "AG Ashcroft today announced that Joe Wilson outed Valerie Plame on numerous occasions." has the ring of truth but what would have been the political outcome?

The part that is more than annoying is that Fitz knew it was a nothingburger within weeks - and went back to Comey for a fishing license twice. That seems relatively clear from his very specfic requests.

[clarice]

It's also clear from his representations to the Miller Court that he had no evidence that Libby knew Plame was covert. That was I believe in Aug of 2004.

[clarice]

TM just noticed your fine summary of the referral letter..Yup. I wouldn't want to turn that over either.

[Patton]

Perhaps Fitz has filed his response to Libby's motion to dismiss, BUT, Fitz has filed it as a classified document that he won't make public.

RESPONSE TO LIBBY MOTION TO DISMISS:

PAGE 1 THROUGH 44: REDACTED

[clarice]

HEH

[topsecretk9]

Reading TM's referral

and resurrecting a little rumor floated that Woodward had other motivation than conscience to come forward -- he heard he would be on a witness list...

makes me think the "Tenet out to get Armitage" scenario more palatable.

July to September...Tenet had at the time to go back and find out what the heck was going on in the bowels. Meanwhile after he makes his statement this whole bru ha ha erupts (thanks to David Corn) about Plame...Tenet has to go back again...maybe he does sign off not knowing what he signed off on...so by now he is pretty pissed (because he looks like a dunce upside down and backwards) and he comes to find out that this little nightmare was started by Armitage blabbing all over town what a boondoggle mess the CIA is...Since it is an open secret that Armitage was blab-o-rama with Novak and Woodward (remember that tip Woodward said he gave to Pincus? If he he mentioned to Pincus maybe he mentioned to Bradlee, Downie who knows) Mitchell and Russert...he steps in a writes a letter to the DOJ to light a fire because the presumption and expectation within, is it will lead straight to Armitage and no one else.

(a little variation of what I've been thinking already with more reasoning on the motivation -- which is what TM's been saying, pissing match between CIA and State)

[owl]

Could Fitz just as well have said "Underlying the crimes charged in this case is a senior national security
official murdering 16 people.

THEN JUST SAY, BUT LIBBY ISN'T CHARGED WITH MURDERING 16 PEOPLE, JUST WITH LYING, SO WE DO NOT HAVE TO DISCUSS THE 16 DEAD PEOPLE YOUR HONOR

I thought Fitz's news conference did that.

If an alien spaceship landed and they had to decide who was the criminal...Libby or Fitz? Hmmmm

[MayBee]

I don't know about the out to get Armitage theory.
Remember Michael Scheurer, "Anonymous" author of Imperial Hubris, contends the CIA was fine with him writing what looked like a Bush-basher in an election year.

Scheuer's stunning admission--that CIA officials actively promoted a book criticizing the administration they work for... But one question remained unanswered throughout the coverage--who, exactly, were "they"? Who gave Scheuer carte blanche to attack Bush? At a breakfast with reporters on Friday, Scheuer gave his answer: former CIA spokesman Bill Harlow.

[clarice]

MayBee, I've long wondered about that? Harow? Where's that from?

[maryrose]

Remember Tenet was a Clinton appointee which has always made him suspect. Any former clintonites could have an alternative agenda. If this is a true picture of how the CIA was operating then thank heaven Goss is in there now to fix it. What a mess. TS's theory makes sense to me and if true it's time for Tenet and Armitage to eat crow. You can't leave an innocent man out there to take the heat for your immature whizzing contest.

[pollyusa]

I'm with TM and JimE, the Plame story was dead by mid October except for a 2 little known Waas articles from late October (the AlterNet article was mentioned above by Sue).

Waas wrote an article in August 2005 that focused on the Ashcroft recusal.

Although not reported at the time, when Ashcroft recused himself from the Plame investigation, Deputy Attorney General Comey said in a statement that the A.G.'s personal staff was also being fully recused in the matter.

snip

But it was Rove's omission during an initial interview, back in October 2003, with the FBI?that he had ever spoken with Cooper at all?coupled with the fact that Ashcroft was briefed about the interview, that largely precipitated the appointment of Fitzgerald as special prosecutor, according to senior law enforcement officials familiar with the matter.
Waas 8/13/05

[Sue]

Polly,

I admit I find it amusing that you counter a Waas article with a Waas article. ::grin::

[maryrose]

Regardless of whether there was a groundswell or not it should NOT have been referred out. Let some other lawyer without a conflict of interest take it on. Do not give an out of towner , a babe in the woods unfamiliar with the hardball of Washington politics a free hand and then expect him to go home empty -handed. This is Fitz chance to be a player-his moment in the sun-too bad he's blowing it.

[Beto Ochoa]

This is all so soul breaking. We are at war on two fronts and the domestic ground is covered over and over again. All the while any real social progress is thrown under the bus in order to destroy the Lefts political enemies. The Right is simply treading the water beaten into tempests by the press and the now unmasked Democrat party.
So ask yourself what non-crime will you be charged with in order to destroy you politically? This is no anomoly. This is the bent of the future. Destroy your political enemies in the press and courts. No evidence required. Only Serious Charges.
True progress is is not on the Lefts agenda. Only destruction.
A philosophy of hate.
A philosophy of death.
A philosophy of backwards thinking.
No wonder they side with al-Qaeda.

[Jim E.]

Sue wrote: "What is your [Jim E.'s] point? I'm not sure I'm following where you are trying to lead."

TM already addressed this. But to be clear: my point is that Aschcroft didn't recuse himself due to increasing pressure. York is wrong about what he calls increasing and intense pressure--if anything, the story had faded by late December 2003. Therefore, Ashcroft recused himself because the FBI's investigation had uncovered enough evidence which made further independent investigation necessary.

[TM]

From the Waas article supplied by Polly;

During his initial interview with the FBI, in the fall of 2003, Rove did not disclose that he had ever discussed Plame with Time magazine correspondent Matthew Cooper, according to two legal sources with firsthand knowledge of the matter. Federal investigators were also skeptical of claims by Rove that he had only first learned of Plame's employment with the CIA from a journalist, even though he also claimed he could not specifically recall the name of the journalist.

...But it was Rove's omission during an initial interview, back in October 2003, with the FBI?that he had ever spoken with Cooper at all?coupled with the fact that Ashcroft was briefed about the interview, that largely precipitated the appointment of Fitzgerald as special prosecutor, according to senior law enforcement officials familiar with the matter.

Well, as to Cooper, that's fine, but how did the FBI know, in Dec 2003, that Rove was wrong/lying about Cooper?

The Hadley email turned up in the summer of 2004, and Fitzgerald was surprised to learn from Cooper that he had some earlier source than Libby (Libby had testified that he told Cooper). And I have not looked it up, but I am highly confident that did not TIME fold up like a cheap suitcase and hand over the Cooper material in their possession until much later.

So I don't see how the Cooper angle led to pressure for a recusal.

Which makes me think Novak cooperated in the fall of 2003, and said something interesting, or changed his story, or something.

[MayBee]

Clarice- that was from the weekly standard. I'll regoogle and find it. In the meantime, and O/T, look who else Sheuer didn't like:

He blames Sept. 11 on poor leadership from people like former CIA Director George Tenet, his chief deputy, Jim Pavitt, and former White House counterterrorism czar Richard Clarke, who were invited, but declined, to appear on Sunday's 60 Minutes.

....

"I certainly agree with the fact that I didn't go to the cabinet meetings. But I'm certainly also aware that I'm much better informed than Mr. Clarke ever was about the nature of the intelligence that was available again Osama bin Laden and which was consistently denigrated by himself and Mr. Tenet," says Scheuer.

"I think Mr. Clarke had a tendency to interfere too much with the activities of the CIA, and our leadership at the senior level let him interfere too much," says Scheuer. "So criticism from him I kind of wear as a badge of honor."

from a CBS 60 minutes interview on the CBS website.

[pollyusa]

Sue

I admit I find it amusing that you counter a Waas article with a Waas article

Habit, I counter with Waas every chance I get, even if it means countering Waas with Waas.

TM

Let's go through the referal criteria and mock the CIA! From Fox:

Put that out there especially for you.

On York, he seems to just make it up as he goes. What delay?

The CIA submitted it's findings and requested through DOJ that the FBI undertake a criminal investigation on September 16, 2003 then DOJ presumably reviewed the information provided by the CIA and opened the investigation on September 29, 2003.

All told 8 business days.

By letter dated 16 September 2003 and in accordance with standard practice, the CIA informed DOJ that the Agency's investigation into this matter was complete, provided DOJ a memorandum setting forth the results of the investigation, and requested that the Federal Bureau of Investigation (FBI) undertake a criminal investigation of this matter. In a 29 September 2003 letter, DOJ advised that the Counterespionage Division of DOJ had requested that the FBI initiate an investigation of this matter.
CIA Letter 1/30/04

[pollyusa]

TM

how did the FBI know, in Dec 2003, that Rove was wrong/lying about Cooper?

The Waas article said that Rove had denied "that he had ever spoken with Cooper at all".

I think investigators knew Rove had spoken to Cooper from both the phone logs and the Hadley email. The FBI had the WH server in October 2003.

The FBI has obtained desk diaries and phone records and is examining the network server that handles White House e-mail.
TIME 10/27/03

Fitzgerald also revealed that his investigators also confiscated computers.
NY Daily News 2/28/06

did not TIME fold up like a cheap suitcase and hand over the Cooper material in their possession until much later.

TIME folded on June 30, 2005.

Time Inc. said today it would comply with a court order to deliver the notes of a reporter threatened with jail in the probe of the leak of a CIA officer's name
AP 6/30/05

[clarice]

Thanks, MayBee..You needn't seek it out for me..Sheuer is nuts of course, but it is interesting to see Harlow show up again..

[Gary Maxwell]

Maybee your second factoid in a row of stunning importance!

Harlow is a dem mole? Could explain why the discussion with Novak is not more emphatic in the "dont publish this" discussion. Is it possible it was well planned in advance instead of a total misdirection after the fact? Nawhhh, that would make me sound like the liberal conspriacy theorists, just forget it.

[MayBee]

http://www.weeklystandard.com/Content/Public/Articles/000/000/004/946newui.asp>Here's the Scheuer/Harlow quote.

[Gary Maxwell]

Sue

Countering Waas with Waas seems about right to me. What you thought he was Raw Story and consistent ( if consistently wrong still its consistent).

[clarice]

Thanks, Maybee--We don't have the referral letter but Conyers correspondence indicates it first went to DoJ on July 30. http://www.house.gov/judiciary_democrats/cialeakinforesp13004.pdf THEN the CIA undertook its internal investigation.

Michael Ledeen wrote a long time ago in NRO tha t prior practice with hidh profile cases like this was for the CIA to undertake the internal investigation first,, and usually after that NOTHING went over to DoJ.

[Sue]

Gary,

I just like the ease in which his earlier article was shoved aside. Nothing here...move on... ::grin::

[TM]

Polly - the Hadley email was missing until the summer of 2004 - wasn't that all tied in to the Viveca Novak drama a year later?

And there was a bonus controversy about Rove's phone log not including the Cooper call - I don't think that was discovered in the fall of 2003.

This Waas article from Oct 7 2005 is frustrating on the Cooper question:

In his first interview with FBI agents working on the leak probe, Rove similarly did not disclose that he had spoken to Cooper, according to sources close to the investigation,

But in subsequent interviews with federal investigators and in his testimony to the grand jury, Rove changed his account, asserting that when the FBI first questioned him, he had simply forgotten about his phone conversation with Cooper. Rove also told prosecutors that he had forgotten about the Cooper conversation when he talked to the president about the matter in the fall of 2003.

Emp. added. Did Rove change his story about Cooper in a follow-up FBI interview in the fall of 2003? If so, why - at that point, the Hadley email is still missing, and (we think) the phone log does not record a Cooper call.

Well, if his story was waffling on Cooper, that could have sparked a recusal.

[MayBee]

TM- I believe the pressure for Ashcroft's recusal began with Wilson's Rove frog-marching dream.

As Pincus said, the Press, the Dems, and Joe Wilson turned this whole thing into a crime. They believed Rove was part of it from the get-go. Or they wanted him to be, and they weren't shy in saying it. As long as Ashcroft was part of the investigation, the WH wasn't going to be able to give the appearance that they took this matter seriously.
I think they (the WH) thought, and it seems so naive now, that if they cooperated with the CIA's investigation, it would be shown as the nothing story it was. Ashcroft recused himself in an abundance of caution to get rid of one more meme.

[clarice]

That..and the fact that whatever Rove and Libby said to these reporters was so immemorable they had no recollection of it when the President asked..And from all that we know from Fitz he did not find truth to the charge that there had been an organized campaign by them to "out" a "NOC" to punish her husband for "whislteblowing".

What we had was someone NOT in the WH telling 2 reporters and Cooper calling Rove and Libby to confirm what he seems to have known ahead of time.A call to Russert in which (per Fitz) Plame was mantioned and a bafflegab conversation with Miller about Mrs/ Wilson and Bureau.

[clarice]

a call to Russert in which (per Fitz) Plame was NOT mentioned and a bafflegab conversation with Miller about Mrs/ Wilson and Bureau.
____Correction

[Sue]

If Plame's career is over, having been outed by whoever Fitz is blaming today, why is the referral such a secret? If there are places and names in there that would have to be redacted, we all know they have a redaction pen. I don't get why the referral is such a big deal to Fitz. What am I missing?

[topsecretk9]

Maybee

Bradlee and , Jim Pavitt are tight IIRC.

[topsecretk9]

Ashcroft recused himself in an abundance of caution to get rid of one more meme.

And gee, what in the world would give him this notion?

[clarice]

He had other options under the Act,and I maintain he didn't use those because of the media firestorm.

[boris]

The Plame game has had intense focus from the start with the base and the blogs. You could call it the blogbase I guess. So once again there are two parallax illusions ...

(1) The story was fading when it became apparant to insiders that real bad stuff was about to hit the fan so to stop the bleeding they shut down the conspiracy and called in the law.

(2) The media was gearing up for another bashfest over a nothing story and it seemed like the best way to shut it down was to lay the cards on the table and play it out because there was nothing to hide.

How much more do we need to know when it's already obvious there was no conspiracy to make an example of Joe for blowing the whistle. The fact that it's not obvious to the sizable fraction of the blogosphere that suffers from BDS tells me that (2) was probably a bad call.

The old rule was "the coverup is worse than the crime". BDS changes that rule. There was no crime, there was no coverup. The new rule is ... Watch out for BDS! If anything can catch fire and blow up ... it will.

[richard mcenroe]

clarice — My expertise with the law comes mostly under the heading of 'suspect', but doesn't a lot of Libby's defense hinge on WHEN Fitz decided there was no underlying crime? And how far he kept digging after that?

[clarice]

Not that I can see. But that there was none certainly will make it hard for Fitz to shoe motivation to lie or obstruct and to establish the materiality of anything Libby did. I think that as a logical matter if there was no prosecutable crime under all the facts of this particular case, there could be no obstruction.

I'm beginning to think that Fitz' effort to hide that fact in his presser and in his reference to "classified" in the indictment is going to fail I think if he doesn't provide evidence of "covert" harm to national defense, he won't be allowed to raise that at trial.

But J. Walton might surprise me..Even Special Prosecutors are held to the DoJ thics rule and his conduct was not apprpriate in proceeding when he knew there was no crime and in his hyperbolic description of the case at the presser.

[owl]

TM- I believe the pressure for Ashcroft's recusal began with Wilson's Rove frog-marching dream.

Bingo. They were not after Libby, but Rove. Matthews called Wilson with "fair game". Drooling over at MSNBC because Rove should be frog-marched for saying Wilson's wife was fair game. Heard it every day in some way.

[JM Hanes]

I think googling references to Ashcroft's recusal misses the real thrust of the political pressure. Schumer & Co were demanding a special prosecutor, which essentially made an actual Ashcroft recusal redundant -- and thus unexpected.

I also think that folks are also looking for evidence of pressure in the wrong venue. Television transcripts might tell a rather different story; this was a soundbyte war from the get-go. The only cease-fire I recall followed briefly on the SSCI report when Wilson was temporarily & all too briefly erased from the collective Democratic memory.

[kim]

The pressure was real, political, and not so direct as people are looking for. Niether side thought that an 'unindependent' investigation would satisfy the other sides suspicions. What else to do? And no particular need to find a justification or rationale for the recusal.
===================================

[Dwilkers]

I know it is slightly off topic, but I'm going to return to Armitage for a moment, and what Fitz's failure to indict him must mean.

We know know (to a near certainty) that Armitage is the original leaker. We know he was questioned by the SP. We know he didn't tell them about his leak to Woodward. We know Woodward went to him repeatedly and asked him to come forward, and that he did not do so. We know after Libby's indictment and Fitz' presser Woodward called him and said 'Look, Fitz is saying things that are not true. You know it, I know it. I have to come forward' and only then did he relent and say 'ok. if you are coming forward I guess I have to tell them'.

The referral was for the purposes of determining whether classified info was leaked and if so by whom. Armitage being the original leaker means the investigation was looking in the wrong place from the start. The leak didn't start in the WH, it started at State. There was no need to question anyone at the WH about which reporter they talked to and when. There was no need to scour thousands of pages of testimony trying to build a case for perjury.

From the very beginning, the person 'throwing sand' in in Fitz's eyes was Armitage. He deliberately and knowingly misled them into pursuing a false angle of investigation.

There is only one (legitimate) way I can think of for Armitage to have escaped being charged; technically, he didn't lie about it - they never asked him, therefore there is no legal case to make.

That conclusion, if true, undermines everything Fitz has done. It means he was really deceived by Armitage but cannot make the case due to simple incompetence. It means Libby is not the one that obstructed the original purpose of the investigation (IE, his behavior isn't really material no matter how odious) yet Fitz is pursuing him anyway.

It means the whole thing is a bunch of bullsh*t and Fitz is prosecuting Libby even though he knows very well Libby's not the person that really undermined the investigation.

I'm open to other possibilities but my imagination is limited.

[Gary Maxwell]

Surely no one is suggesting that Ashcroft recused himself and his whole dept. and went extraconstitutional on a lark? The Democrats were screaming for this appointment. If Google does not support that then the right search string has not yet been used or as JM Hanes says, how about TV transcripts.