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March 31, 2006

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jerry

Looks to me that they're scared of ol' Fitz. After that it's all huffing puffing bloviating torturous legal distraction.

clarice

Proposed headline (I read it and posted some highlights)
It's Not the THOUGHT That Counts

clarice

I'll redo the quick summary:

Libby argues that the legality of the appointment depends on its objective terms , not on any previously undisclosed subjective understanding between Comey and Fitzgerald. (In this respect it notes that both men were superceded by others and there isn't even a claim they were made aware of Comey's "intentions" never revealed before the Government replied to the Motion to Dismiss and which appear contrary to all his public statements.
And--If the Ct believes that the subjective,undocumented and previously undisclosed understanding of Mr. Comey and Mr. Fitzgerald is relevant, Mr. Libby requests an evidentiary hearing at which he may examine the witnesses and obtain heretofore undisclosed communications between Mr. Fitzgerald and Mr. Comey (or Mr. Margolis and Mr McCollum) and other documents concerning the authority of the Special Counsel

On p 17 of the pdf file Libby notes that Fitz learned as early as 2/24/03 who revealed Plame's identity to Novak:
"A properly appointed principal officer may well have disagreed with special counsel that, notwithstanding that revelation, it was worthwhile to pursue the investigation of Mr. Libby or others based on alleged inaccuracies in statements to the FBI. Now, hoever, it is too late for anyone to undo that decision."

__Another fabulous filing--He has the Fitz by the short hairs..

clarice

Rick--that doesn't work for me--I hit select all put it only copies the first page headers so PLEASE let me know when it's on html and give me a cite..I'm working on a new piece and want to fit it in........

topsecretk9

Boy, Comey and Fitz (who relies on newspaper "reports" so frequently) sure think they should be allowed to easily dismiss everything they say or mean, when challenged, don't they?

Do defendants get this luxury?

clarice

Remember nowhere in their reply with the freshly inked affidavits about "understandings" contrary to their repeated contrary statements, did they indicate A SINGLE MATTER in whcih there had been supervision and direction...NOT A SINGLE INSTANCE.

clarice

Honestly, I think one contrary is enough-It should read
"contrary to their repeated public statements"

Sue

Clarice,

They picked up on your no present employee of the department confirming his awareness.

Page 2: Attorney General Margolis and Associate Attorney General McCallum - whose role in this matter is asserted for the first time in the government's response. The government fails, for that matter, to provide an affidavit from Mr. Margolis, or Mr. McCallum or any other present employee of the Department confirming his awareness of the limits Mr. Comey 'intended' to apply.

Patton

Perhaps there's is a Brokeback Mountain kind of relationship.

Fitz says to Comey...or Comey says to Fitz

'I wish I could quit you'.

But neither has the authority to break those deep bonds.........

topsecretk9

"Government Officials ought not to be permitted to hand over vast, unsupervised powers to so-called inferior officers, and then deflect legal challenges by claiming that they never "intended" to do so."

Particularly when all you have to go on is their words-- i.e. Press Conference--- that indicate, unequivocally, otherwise.

I also like that they point out - it's still not clear whose holding the rulebook- since the rule maker left some time ago?

topsecretk9

Sue..got that. Ooops

Neo

With jail time unlikely till all appeals are exhausted and many conjecturing that Bush will pardon before leaving office, Libby will never see the inside of a jail cell.

I expect an immediate appeal if the judge rules against either party. If Libby's attoneies are correct, Fitz is uncontrolled so moeny for an appeal will be no object. The AG should then show Libby's counsel that they are incorrect and shut Fitz down.

Sue

Whoa...

Page 13: For example, it only recently came to light tha the Special Counsel learned as early as February 2004 who disclosed the CIA identity of Valerie Plame Wilson to Robert Novak.

Patrick R. Sullivan

I liked the line about supervision not being confined to occassionally reading the WAPO to see if anything new popped up.

Either Team Libby is a lot smarter than Fitz et al, or Fitz has a really weak position.

Sue

Whoa again...

Page 13: ...much of the information in the public domain about this case is flat wrong.

Patrick R. Sullivan

After reading the transcript of the Feb. 24th proceedings, the judge has to know that this is going to be a case full of headaches. Here's his way out of that. Accept Libby's very coherent argument and dismiss.

Sue

I doubt the judge dismisses because of potential headaches. I doubt the judge dismisses...period. But the Libby team made a strong argument for the government creating a strong precedent for future SPs. It might just fly.

topsecretk9

Sue

I keep WHoa'ing too.

Sue

Top,

If nothing else, Libby's team is getting information out. And getting digs in while doing so.

topsecretk9

--smack--(p.14)

unchallenged "presuppositions" have no precedential effect
See Webster v. Fall,

"Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been decided as to constitute precedents"

other-words, Law 101- nice try

topsecretk9

Also that comes under

"The Special Counsel's "Theoretical" Removability...

Comey's afterthought

TM

Another fabulous filing--He has the Fitz by the short hairs..

OK, I think so too, but I thought Fitzgerald was pretty good too. That said, this seems like a strong answer on Comey's ability to delegate authority but inability to delegate responsibility. Well, it is strong on the ESP appointment ("I thought he understood his limitations"), strong on the "read the papers for oversight"), and strong on a lot of stuff.

Are there any constitutional law bloggers that might be good on this and interested in it? Maybe one of the Volokh people (I imagine Glenn Greenwald is pre-occupied...). There is no way this argument is as good as it looks, but Libby's guys have me out-classed.

Secondly, am I alone in wondering about this "recently came to light, Feb 2004, Novak" comment? I haven't had time to track their cite (Mem 17 - thanks, guys!) and I am drawing a blank.

topsecretk9

Pat

You are right! That got a huge healthy HAH here.

"...The government also points out that"much information about the investigation of the SP is in the public domain and therefore available to the Acting AT in exercising the power to remove the SP"...

...Whatever Edmond contemplated by "direction and supervision at some level," it surely meant something more than periodically checking the Washington Post to find out if one's unchecked "subordinate" has gone too far..."

topsecretk9

I alone in wondering about this "recently came to light, Feb 2004, Novak" comment?

I think this is two-fold--recently came to light tothem, I.E Not in the WAPO public domain, but cloaked in the secrecy of Fitz.

as in taking a jab at his

"much information about the investigation of the SP is in the public domain and therefore available to the Acting AT in exercising the power to remove the SP"

Sue

Tom,

I didn't know the exact time Fitz found out about Novak's source. Very early in his investigation was all I had ever heard mentioned. February 2004 would have been very early.

topsecretk9

Sue above notice it was a clear drip.

It's obvious in the discovery and bound to come out, so they put smack in this.

Patton

Finally finished reading....

I need a cigarette....and I don't smoke.

maryrose

I don't get how checking the newspapers fits into the oversight of Fitz by Comey. We need Comey and his subordinates to state their degree of involvement or lack thereof and then some heads need to roll if they dropped the ball with this Runaway Prosecutor. Hey that could be the title of a new Grisham book or the one that TM and Clarice write.

Sue

This...

much of the information in the public domain about this case is flat wrong.

...taken with this...

much information about the investigation of the SP is in the public domain and therefore available to the Acting AT in exercising the power to remove the SP

...and add...

Certainly, the Acting Attorney General cannot meaningfully oversee the Special Counsel by reviewing the overheated speculation about this case.

...pretty much smacks Fitzgerald's argument upside the head. At least as far as knowing what was going on in the case by reading the newspaper.

Sue

That was about the dumbest argument Fitzgerald had in his reply, IMO. Oversight by public domain? Fitzgerald wasn't leaking. Unless Fitzgerald was sharing something with the Acting AG, and it appears he wasn't, the Acting AG would have had no way to know what Fitzgerald was up to by reading the newspapers. Dumb argument.

Sue

IANAL and I don't even play one on tv, but unless you read all the cases Libby's team cited, you really don't have anyway to determine how strong their argument is. And I haven't done that.

Eric J

TM: Don't be so cynical. "There is no way this argument is as good as it looks, but Libby's guys have me out-classed". The law and legal arguments ought to appeal to the rational brain. You have such a brain and have seen both sides' best cases and arguments. I've been a member of the Bar since 1970 and think they have Fitz by the shorts. I think the Judge will have to stretch a long way to avoid granting the motion. Best to all you rational brains. EJ

clarice

That was about the dumbest argument Fitzgerald had in his reply, IMO
It was all he had. Again--If he had a single document or memo or anything at all to show that no matter what Comey and Fitz said publicly there had been some superivision and direction, Fitz would have argued it.
Instead, he pointed to that weak bit in Comey's presser that theoretically he could but admitting that was hard to do. And in response to the argument in the Motion that this was preposterous in light of no knowledge at DoJ of Fitz' actions, Fitz reached to the bottom of the barrel and picked up the stupid suggestion DoJ would know from the press reports.(Worked for Tatel, though didn't it?)

TM, If the SP had a stronger constitutional argument than he presented , I have to think he'd have raised it. He raised a lot of dust and stuff and it's getting thrown right back in his face.

clarice

Clarification*that theoretically he could [FIRE THE SP]but admitting that was hard to do

Rick Ballard

HTML Version is here.

I did not reformat or check for OCR errors but it appeared to scan cleanly.

clarice

I love this pleading--I especially love this:
If the Ct believes that the subjective,undocumented and previously undisclosed understanding of Mr. Comey and Mr. Fitzgerald is relevant, Mr. Libby requests an evidentiary hearing at which he may examine the witnesses and obtain heretofore undisclosed communications between Mr. Fitzgerald and Mr. Comey (or Mr. Margolis and Mr McCollum) and other documents concerning the authority of the Special Counsel

If the judge thinks that the esp argument is relevant he SHOULD hold a hearing, and wouldn't we all like to know how Fitz and Comey communicated and Margolis and McCollum! There's got to be money in an ESP program that actually works.

TM

Don't be so cynical.

Hmm, where you see cynicism, I see humility and fatigue. I agree with Sue - without checking the cites and knowing the relevant history, it is hard for me to have confidence in my own opinion.

For example, they explain how Morrison followed Edmond and takes precedence (or the opposite). Seems like the sort of thing they would get right, but maybe other opinions have re-priortized those two cases - I wouldn't know, and it would not be their job to tell me.

That said, this looks brutal (which we said on Day 1) - with Fitzgerald saying that the AG can just pick up the paper to provide oversight, and filing affidavits saying this is what we understood to be his authority, well, anyone can see how weak that is.

I stand by my prediction - Walton denies the motion but expedites the appeal so that this can be killed above his pay grade. But very cool if he grants the motion and expedites.

And if Novak on Feb 2004 is news to us, then presumably that ties in to interview notes or a grand jury transcript the defense received. But whose? And if it is Novak (why would it be? Because Rove mentioned Novak to Libby?) then wouldn't Novak's first source be named (Offical One, the UGO, Armitage)?

Or did they get redacted transcripts for some reporters (IIRC, they did). One more thing to double-check.

Rick Ballard

Clarice,

The ex post facto arguments re Fitz and Comey's affidavit tickled me.

Neither affidavit suggests that Mr. Comey ever told Mr. Fitzgerald about the newly claimed limitations on his powers as Special Counsel—limitations that are nowhere mentioned in the letters of appointment, or in Mr. Comey's public statements, or in Mr. Fitzgerald's prior affidavit, or, apparently, in any other contemporaneous document. Nor does Mr. Comey's affidavit state that he communicated those limitations to his "successors," Associate Deputy Attorney General Margolis and Associate Attorney General McCallum—whose role in this matter is asserted for the first time in the government's response, see Resp. at 21.

Thwap!

clarice

It is not in the defense's interests to misrepresent the cases they cited. I read Morrison and Edmonds the first round, and they did not misrepresent them.

I think, in fact, the party sloppy about the law is Fitz and he has been nailed each time.

Now that Rick saved me by putting it in HTML..Here are some highlights:
(a)Despite the fact that Mr. Comey stated at the time of Mr. Fitzgerald's appointment that the Special Counsel did not "have to come back to the [A]ttorney [G]eneral and get permission" to "expand [his] jurisdiction," Exh. A. at 9, he now claims that it was his "understanding.. . that any expansion of the scope of the Special Counsel's investigation would require my approval." Comey Aff. f 3 (emphasis added). Mr. Comey dismisses his earlier statements as
1 All "Exh." citations herein refer to exhibits to our initial memorandum.

Case 1:05-cr-00394-RBW Document 75 Filed 03/31/2006 Page 6 of 24
"inadvertent[]," "extemporaneous," and "inartful[]." Id. 14. Similarly, despite the fact that as recently as August 2004 Mr. Fitzgerald characterized himself as "the functional equivalent of the Attorney General on this matter," Exh. E f 5, he now insists in response to Mr. Libby's challenge that he always "understood" he had no authority to expand his jurisdiction, and that he was required to follow certain substantive Department policies, see Fitzgerald Aff. ffl| 3, 4.2
_________

The fact that the Special Counsel ignored the Department's policies in his October 28, 2005 press conference is good evidence that he in fact understands his authority to be as broad as Mr. Comey defined it at the time of appointment. See Def.'s Mem. in Support of Mot. to Dismiss (hereinafter "Mem.") at 16-17. The Special Counsel denies that his press conference was not in compliance, pointing out that he "reminded the audience of the presumption of innocence on several occasions." Govt's Resp. to Mot. to Dismiss (hereinafter "Resp.") at 26. But nothing in the policy suggests that a passing reference to the presumption of innocence gives a prosecutor license to say whatever he wants in the remainder of his remarks. Mr. Fitzgerald also insists that he "stay[ed] within the four corners of the indictment in describing the charges." Id. Yet, he does not deny that he claimed the case involved disclosure of classified information or that at one point he incorrectly asserted that Mr. Libby was "the first official to disclose Flame's employment." See id at 26 n.9. Neither of those allegations appears anywhere in the indictment, and both seem wholly irrelevant to what Mr. Fitzgerald has elsewhere characterized as a simple perjury case. Moreover, it is hard to see, as the Special Counsel now claims, how flatly asserting the defendant's guilt or accusing him of uncharged crimes furthers any legitimate law enforcement goal. See id. at 27.
___________
The Court should reject the government's attempt to defend Mr. Fitzgerald's appointment by changing the factual record in this manner. Government officials ought not be permitted to hand over vast, unsupervised powers to so-called inferior officers, and then deflect legal challenges by claiming that they never "intended" to do so. The legality of the Special Counsel's appointment should depend on the objective terms of Mr. Comey's action, not on undisclosed subjective understandings offered for the first time in response to a legal challenge.
In virtually every other context, courts refuse to consider an executive officer's undisclosed subjective intent in determining whether the officer's actions were lawful.


Reliance on undisclosed subjective intent is particularly problematic when the intent manifests itself for the first time in affidavits prepared in the course of litigation. Courts routinely reject attempts to defend unlawful governmental action based on post hoc rationalizations—particularly where, as here, those rationalizations are offered by interested parties.


Notably, though the government dismisses Mr. Comey's statements at his press conference as "parol evidence," Resp. at 28, it freely cites those statements when it believes they support its position. See, e.g., id. at 14, 23.

Franklinstein

WHO CARES?

cathyf
Courts routinely reject attempts to defend unlawful governmental action based on post hoc rationalizations—particularly where, as here, those rationalizations are offered by interested parties.
Holy subpeona, Batman! Did Libby's lawyers really just accuse Fitzgerald and Comey of perjury?

(Blinks rapidly)

(Shakes head)

WOW!

cathy :-)

clarice

RICK--Great minds...LOL

TM

Here is the AP - not favorable to Fitzgerald, but not as tough as it could be (e.g., they don't mock the "read the papers" argument).

clarice

No cathy- there affidavits don't say they actually did anything contrary to their public statements--only that they INTENDED something else which they somehow never expressed or memorialized...But it will be interesting to see why these understandings never made it to the light of day..I want that hearing and THEN a dismissal..

clarice

TM, the WaPo article isn't favorable to Fitz or the position he's taking. I'd say it's well making fun of him. In any event, it's a far cry from the early the prosecutor who walks on water stories (OTOH at this point, the press is probably praying for a dismissal.)

clarice

Even asssuming the Court decided there was something to the post hoc affidavits of Comey and Fitz, there is nothing at all about their successors McCollum and Margolis--NOTHING..If Libby is right on Edmonds, the SP is in deep poo.

Rick Ballard

I wonder if Comey designated a specific reporter and paper for Fitz to use in making his reports?

clarice

LOL--Rick..Man this is such a beautiful pleading, it makes my hear beat with pride to know that in a world of drecky lawyers, there are some who are worth every cent they charge..It's so rational,crisp, on the mark and puruasive...

clarice

**************pErsuasive*******

SteveMG

This is why the good lawyers make the big bucks. And why, in part, independent/special prosecutors have always been a bad idea (i.e. no controlling authority (thanks, Al) over the investigatory authority).

Although my cynical side is telling me that the political response (which, let's face it, is the key concern here - sorry Scooter) will be that the Bush DOJ deliberately sabotaged the investigation to prevent the full disclosure of the corruption of the White House.

Sue

In a 24-page filing in federal court, the legal team for I. Lewis "Scooter" Libby said Fitzgerald and the former Justice Department official who appointed him, James Comey, are changing the broad mandate the prosecutor was handed to probe the leak in the Valerie Plame affair.

Is this an example of when the AAG is supposed to read the newspaper and reign in Fitz's powers? ::grin:: It doesn't get much better than this, if you are into Night Court reruns.

clarice

Well, if it went to trial and he won there'd be another excuse..They put a man with no perspective in the catbird seat and he drove like a man with no perspective and drove himself over the cliff.

What I want to know is whether the media in their response to the subpoenas will have the balls to acknowledge that the appointment was invalid and therefore the subpoenas should be quashed .

Sue

I wonder why MSM isn't reporting that Fitz knew as early as February 2004 that Libby didn't reveal Plame's name to Novak? The majority of the country, those who aren't Plameaholics, don't know that, I would venture to guess.

maryrose

At this point I have some hope that this case is going to go the route of Fitz's other cases straight in the dumper. He's currently on a losing streak so maybe Libby will get lucky and Fitz will be hauled up by his boot straps on this one.

Sue

Strangely, that doesn't comfort me. I keep harping back to Fitz needs to be the smartest man in the room. Otherwise, we are all screwed.

maryrose

I prefer the name Plameologists since we are searching for the underlying truth in this investigation kind of like archaeologists.

Sue

A couple of points from the February 24th hearing. In the transcript, Fitzgerald represents to the court he is still investigating. Even though he has, in past filings, said he was basically through with his investigation. And Libby's lawyers discuss the emails. Fitzgerald represented to them they did not contain a smoking gun, if you will, for lack of the actual words used at the moment. Wonder if the left will give up the emails now or later?

Sue

Okay. But I am a Plameaholic. I can't let it go. ::grin::

maryrose

He may need to be the smartest man but as his recent cases prove he often isn't.

topsecretk9

--And if Novak on Feb 2004 is news to us, then presumably that ties in to interview notes or a grand jury transcript the defense received. But whose? And if it is Novak (why would it be? Because Rove mentioned Novak to Libby?) then wouldn't Novak's first source be named (Official One, the UGO, Armitage)?

Or did they get redacted transcripts for some reporters (IIRC, they did). One more thing to double-check.--

I feel strongly (I said earlier today), that Fitz's whole case was built on Libby being the FIRST known official...

and so When Woodward said he was sure his sources was A-Novaks' too and B - Had testified/and or talked to Fitz,

I think it is quite possible the Novak leak wasn't on the table - UGO testified to talking to Novak and that is all he testified to (either because he lied - nah, he be charged -- because he wasn't asked)

Again, I think Woodward was/is a huge blow.

And I think Fitz took over a case that which FBI had formulated and out of professional courtesy to not start fresh or SOP he just went with it.

(Men in Black at neighborhood so late, EPIC, various other doo dahs)

clarice

I recall something in the 2/24 transcript where Fitz indicates that UGO wasn't asked about other reporters--it's in his argument about why UGO has to be protected and where Libby says how can he ask him who else he told if he isn't given UGO's ID..

Here's something fun--Berger's plea agreement,http://www.washingtonpost.com/wp-dyn/articles/A16706-2005Mar31.html He was to make this statement this afternoon..Friday night dump and hide..GRRRRRRRR

Sue

Top,

I think Fitz bought the retaliation theory from the get go. Tunnel vision.

maryrose

The FBI investigating Plame's neighborhood the night before just cries to heaven. Talk about cramming it all in before the deadline. This prosecution just seems out of its depth. There is no supervision, incorrect allegations {Woodward being the first not Libby} and stupid baseball metaphors. Put a fork in this guy -he is done.

topsecretk9

if you are into Night Court reruns.

heh.

Not typing my thoughts too well, but on the FIRST thing...I really think Fitz determined that Libby was the FIrst, therefore to root of all of this...UGO's Novak convo takes place well after Libby's discussion with Miller.

Since Fitz realized there was nothing to the "outing" (off the table), and as he says to Tatel?, ANY punishment is satisfactory.

maryrose

TS:
Woodward- a big blow-agreed which is why the investigation is supposedly still open.
Sue: The whistleblower theory was also swallowed hook line and sinker.

Rick Ballard

TS,

The recently retired Philly Feeb comes to mind and floats before my eyes. How many career dreams did Bush's election thwart? How many people fast tracked under Clinton ran into brick walls under the Bush administration?

Sue,

There is nothing in this "investigation" which could not be brought to light in Congressional hearings. The courts are not the only avenue to truth nor are they inherently the best.

clarice

Libby is engraving the outrageous coments Fitz made in the presser onto Fitz' rearend..And then there's Woodward.
I have to think that if the prosecution wasn't stopped on 2/24 /o4 when Fitz learned Novak's source, it would have been stopped by the DoJ after Woodward came forward.

Sue

Way off topic, but truly unbelievable. Clarice's http://www.washingtonpost.com/wp-dyn/articles/A16706-2005Mar31.html>link to Sandy Burglar story.

He described the episode last summer as "an honest mistake." Yesterday, a Berger associate who declined to be identified by name but was speaking with Berger's permission said: "He recognizes what he did was wrong. . . . It was not inadvertent."

clarice

"Philly feeb",Rick? I don't get the reference.

Would Cowles have been dropped if there were no DoJ direction and supercision?

clarice

superVision--URGH

Sue

The FBI agent in Philadelphia that recently retired. I found an odd story about him and trying to get another FBI agent cleared to return to work for essentially the same charges Libby faces. And the agent used the same defense Libby is using. Overworked, unclear memory, lots happening.

clarice

Yes, now I recall..thanks,Sue.

topsecretk9

Mary
-The FBI investigating Plame's neighborhood the night before just cries to heaven.-

Yes, especially since it is an obvious start AND since he wasn't from way back when going to even charge that.---


So has anyone started to chomp on the cited cases - one thing I feel somewhat confident in- the big dallah lawyers aren't going to skimp the judge with silly frivolous stretches of the imagination.

clarice

Sue--someone's playin games--I thought that was an old story and it is--It's a year old. Nevertheless, the contrast in treatment of the two cases is mindboggling, isn't it?

topsecretk9

Call me crazy, but I thought the Berger thing was over/decided ?

PeterUK

Clarice
"Would Cowles have been dropped if there were no DoJ direction and supercision?"
I prefer supercision it sounds more painful!

maryrose

Rick:
Kerry was so sure he was going to win he had his cabinet already picked out. Our Munchenhausen Joe was really hoping for that appointment to Kerry's home away from home France.

kim

Not inadvertent. And they are letting him get away with not telling us what he was hiding. It is shameful and probably still important to our safety. Hang him by his thumbs until he talks.
========================

maryrose

Kind of like circumcision.

clarice

I thought so, too, ts--and we are both right..someone posted it to me and I didn't check the date--it was LAST year..April Fool's early I guess.

Sue

Clarice,

I didn't look at the date of the story, but I noticed it kept referring to last year and it was if I was reading it for the 1st time. ::grin:: Strange how that works. I'm sure I read it at the time.

topsecretk9

Berger was supposed to personal make a statement tonight? Was that canceled because of McKinney?

woof

It is such a pleasure to read analysis of this story without committed leftist spin. Where are they all?

maryrose

My guess about what the documents contained is information on how once again Berger, Albright and Clarke missed an opportunity to fight terrorism or wussed out on getting Bin Laden. Because it was the 9/11 panel he didn't want everyone to discover how badly Clinton dropped the ball on fighting terrorists. Before Bush was even inaugurated he gave a warning to terrorists so his briefing sessions must have been quite serious.

maryrose

McKinney; Now there's a brain-trust,she said sardonically.

Jeff

I think I saw an earlier reference to the fact the initial motion and memorandum mentions on p. 17 that Fitzgerald learned in February 2004 who blew Plame's cover with Novak, but I can't find it now. One possibility is that Novak was already cooperating by that point, as has been recently reported. Another is that Libby's lawyers are suggesting, as they appear to in their seemingly deliberately ambiguous comments in the Feb. 24 hearing, that Rove said - and testified - that Novak told him who his first source was; though I suspect that's not it. The other possibility is that Armitage identified himself to Fitzgerald that early. There is no question, as someone suggested above, that Libby's lawyers weren't happy with the failure of uptake of the point in the public domain earlier, so they're trying again. Sort of like burning the seal on the fact that there was a transcript of official one talking, apparently with Woodward, in the Feb. 24 hearing, making sure what they want out there gets out and gets heard.

In any case, Libby's lawyers' complementary point that

indeed, charges against Mr. Libby for any unlawful disclosure were "off the table for lack of evidence" long ago

is, of course, a falsehood, and I suspect a knowing one, in several respects (aside from the fact that they give the incorrect page number for the citation of Tatel's opinion). First, Tatel's point about IIPA violations charges being currently off the table was precisely that, depending on Miller's testimony, those charges could be very much on the table. They were provisionally, not definitively, off the table. Second, as Fitzgerald's footnote referred to both by Tatel and by Libby's motion here makes clear, and as Tatel understands, while charges for IIPA violations might have been currently off the table, potential charges for violations of the Espionage Act were not. Regardless of the fact that it drives clarice bonkers, the fact of the matter is that p. 28 of Fitzgerald's 8-27-04 affidavit makes clear that charges of Espionage Act violation were very much on the table. And so charges against Libby for any unlawful disclosure were very much not off the table, contra what Libby's lawyers assert.

Speaking of things that are flat wrong, when I read this from Libby's lawyers:

it is worth emphasiing that much of the information in the public domain about this case is flat wrong

my immediate reaction was, Libby would know, wouldn't he, since he and his people were over a long period of time a main source for flat wrong information leaked into the public domain.

Finally, did anyone else notice the citation, early in the filing, of a 1982 case entitled, hilariously, Harlow v. Fitzgerald?

topsecretk9

hat Libby's lawyers weren't happy with the failure of uptake of the point in the public domain earlier,

What does this mean?

kim

Only on the table because of Fitz's delusions.
============================

topsecretk9

my immediate reaction was, Libby would know, wouldn't he, since he and his people were over a long period of time a main source for flat wrong information leaked into the public domain

And Joe Wilson too, so given what Joe Wilson shouldn't be privy --by fact that he was not in Government-- a test of all his blab he was feeding will will be fun - especially with all the misattributions and so-called mis quotes

clarice

Jeff, I disagree with all that you've said, but my eyebrows also were raised at Harlow v Fitzgerald.

topsecretk9

Was Tatel really that ambiguous?

--They were provisionally, not definitively, off the table. --

I don't agree, and they outcome tends to be on the same side.

maryrose

Jeff:
Is it just me or do you consistently take the opposite view and interpret information through Fitz's rose colored glasses? Neither of the above mentioned statutes or laws apply in this case. Fitz is simply a not so bright or smart lawyer in this case. Maybe he didn't have enough time to give it his full attention. His reponses are weak and do not hold water. I'd be embarassed if I were him to present this dreck to a judge for a ruling.

SteveMG

Harlow v Fitzgerald.

Interesting as well that Fitzgerald was one of the prosecutors in the United States of America v. Usama Bin Laden embassy bombing cases (ca. 2000) where the government used both warrantless searches and evidence obtained during those searches (inherent powers) in a criminal trial.

Fitzgerald as Zelig?

SMG

topsecretk9

Also Jeff

You are totally ignoring the acknowledgment of other charges being sufficient for punishment --as it pertains here-- absent *proof* of an outing. As in, since you can't get to outing, this will be enough

Sue

You guys just missed an important admission by Jeff. He agrees that Fitz saying the AAG could monitor the case through the press was a dumb argument.

What about the emails, Jeff?

Squiggler

I love reading all the break down you guys and gals do here, but since IANAL, I never really have anything to contribute. I saw the following today and thought maybe you would all get a kick out of it, if you haven't already seen it. Thanks for all you do.
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Decision ‘08’s Mark Coffey emails:

Followers of PlameGate will be delighted to hear that the agenda-less, objective Joe Wilson will be appearing with such luminaries as Jane Hamsher, Dan Froomkin, and Larry Johnson to discuss matters at the YearlyKos convention.

I swear I’m not joking...

...to which protein wisdom replies, “wait, there’s something called a ’YearlyKos Convention’? Christ. They’ll probably be enough tinfoil at that thing to grill up a couple thousand ears of corn.”

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as posted on Protein Wisdom

Sue

Not many lawyers posting here, Squiggler. We just pretend we know what we're talking about. ::grin::

Jeff

What does this mean?

Libby's lawyers want the media and the public to focus on the fact that early in the investigation Fitzgerald knew who leaked to Novak, and it wasn't Libby, and he didn't charge it. They revealed their belief to that effect back in late February, but it didn't get any or much attention. So they're trying again by drawing attention to their belief about Fitzgerald knowing who leaked to Novak early on, and doing nothing about it. It doesn't matter to them, of course, that Fitzgerald is on the record saying the investigation from early on wasn't about leaks only to Novak.

As for Harlow v. Fitzgerald, my assumption is that it's not ours - certainly not Fitzgerald, who was pretty young at that point.

topsecretk9

Sue

True that!

topsecretk9

that Fitzgerald is on the record saying the investigation from early on wasn't about leaks only to Novak.

With additional caveat, not being about leaks period.

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Wilson/Plame