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April 13, 2006



I am finding the Anon Lib's point - if documents indicate that notwithstanding the President's public statements about the leak investigation, Mr. Libby had no reason to fear losing his job, the defense is entitled to production of such documents." to be very interesting. (And if I were doing this right, I would hat tip Jeralyn.

My very first reaction was that Libby might just mean, hey, my conscience was clear, so I had nothing to fear.

But having stared at the filing, the structure of the defense presentation does not suport that. The defense mentions the possibility of a secret understanding, then moves on to the issue of whether Plame was classified.

So, am I worried? C'mon, Alfred E Neuman has nothing on me.

First, Libby may have had a "secret deal" that, although different from the public announcement, would not be objectionable. For example, suppose Bush and or Cheney told people (Libby, Rove, ...), look, this referral looks like a CIA dirty trick - just tell the truth, cooperate with the investigation, and we will take care of that.

Second, Libby may be playing with Fitzgerald's head. Presumably, Libby knows whether he had a secret deal. But Fitzgerald relied on public accounts to establish Libby's motive.

What if Fitzgerald never asked Bush or Cheney about any understandings they had struck with Rove, Libby, et al? Then he is standing on a trap door - can he go into court with this story about Libby's motive despite not knowing the backstory?

I don't know if Fitzgerald discussed this with Bush, but:

(a) Libby ought to know if he himself testified about it, and maybe he didn't;

(b) Libby's team can see a glaring absence in the filing of private testimony on that point, and it can't be because Fitzgerald was worried about sparing Dick Cheney's sensibilities.

So this might be their way of finding out what documents Fitzgerald has, while helping him reconsider his MMHFOOHA theory about motive.


How about the Novak statement that Bush knew who leaked to Novak? Maybe that is what Libby is referring to. Bush knows who UGO is. Has known who UGO was and knew it wasn't Libby that leaked to Novak? And it wasn't Libby that told the only reporter to publish her name and involvement. Maybe that would explain why Libby was not worried about losing his job.


The only way that suggestion could be negated is by evidence that Bush knew about Libby's involvement and still had no intention of firing him, and therefore Libby had no reason to lie about it.

What was the true extent of Libby's involvement? He wasn't involved in the leak that launched this investigation.
I think there is genuine dispute about what an affiliation with the CIA being classified might even mean.

Anonymous Liberal

Your speculation that Fitz has documentation of a Buch-Cheney conspiracy capable of getting Libby off the hook ...

That's not at all what I'm suggesting, Boris. I'm suggesting that at some point after the leak and before Bush made his public statements, he had already learned the extent of Libby's invovlement. Is that so hard to believe? This story had been raging for quite a while before then.

But if Bush knew about Libby's involvement before he made his statements, Libby would have no reason to fear that truthful testimony would get him fired.


There doesn't seem to be any evidence that the name of Plame was anything but a minor detail compared to declassifying NIE to rebut claims of admin exaggeration.

If there isn't something to rebut that, Libby's bafflegab, implausible based on hindsight, can't be spun up as anything more than forgetfulness and motor mouth.


he had already learned the extent of Libby's invovlement

What possible document could Fitz have on that score ???



Which could explain Bush's careful wording that anyone involved in leaking 'classified' information would be fired. And if Libby had a secret deal, why would he then go out and spin the yarn he spun anyway? I would suggest Bush knew the leaker to be someone other than Libby. UGO...who is UGO?

Cecil Turner

My very first reaction was that Libby might just mean, hey, my conscience was clear, so I had nothing to fear.

But having stared at the filing, the structure of the defense presentation does not suport that.

One of us needs to reread it. I'm not getting your "secret deal" stuff at all, whilst the "clear conscience" part comes through loud and clear.

That could be a poor choice of words by Libby's attorneys, but it seems to me they are asking for documents which might tend to prove that Bush did not really take this threat very seriously.

Poor choice of words? He's saying he was innocent of the specified wrongdoing, and thus not liable to be fired. Okay, let's try this again.

  1. Fitz said: "The President had vowed to fire anyone involved in leaking classified information."
  2. Defense says: "[Libby] testified to the grand jury unequivocally that he did not understand Ms. Wilson’s employment by the CIA to be classified information."
  3. Then they argue: “the defense is entitled to discovery about whether Ms. Wilson’s employment status was classified
First of all, there is little genuine dispute that Plame's CIA affiliation was classified information. Fitzgerald has made that clear.

Well, in that case, let's just open up them documents and have a look, eh? Sorry, but this is absolute nonsense. Fitz is not a disinterested party here, and so far his statements do little to inspire confidence. If he wants to claim that as a fact, he needs to prove it.

I wonder what Libby's attorneys know about that referral letter. I'm guessing they know there is something in there that is gold for them.
Alternatively, it's that what's NOT in the referral letter which is gold...

cathy :-)

Cecil Turner

I'm suggesting that at some point after the leak and before Bush made his public statements, he had already learned the extent of Libby's invovlement. Is that so hard to believe?

Okay, but are you basing that on some evidence, or faith? And if Fitz is all-knowing, why is he so fouled up on this point:

"During this time, while the President was unaware of the role that the Vice President’s Chief of Staff and National Security Adviser had in fact played in disclosing Ms. Wilson’s CIA employment . . ." ?
Seems to me like an epidemic of trying to have it both ways.



good point! Either way, I think that referral must not be a total mystery to them. They are fighting too hard for it.

Anonymous Liberal

To clarify,

It's not that I think Libby had a secret deal with Bush. I just think he may have come clean to President before the President issued his public statements, and therefore Libby knew that Bush's statements were not directed at him. He knew that he was not in danger of being fired for his involvement in this affair.

If I'm right, then Libby's lawyers may be fishing for some sort of documentation of Bush's knowledge, something that would prove that Libby had no reason to fear that Bush would fire him.


It could just as easily be Libby knows there are documents with Plame on them that are unclassified. Therefore, Libby didn't 'leak' classified information, therefore, he wouldn't be fired.


I'm suggesting that at some point after the leak and before Bush made his public statements, he had already learned the extent of Libby's invovlement.

I don't have the least bit of a problem with that scenario. Actually, I would hope it to be true. That doesn't mean that at the time, Bush knew who had spoken to Novak.
The Novak-speaker seems not to be a terribly forthcoming man.

Anonymous Liberal

Okay, but are you basing that on some evidence, or faith? And if Fitz is all-knowing, why is he so fouled up on this point

A good point, Cecil. I wonder what Fitzgerald's basis for that statement is. Probably the President's own testimony. If so, that would mean for my theory to be correct Bush would have to have lied to Fitz. Possible but not likely.


Here is the relevant section that intrigued Anon Lib:

To prepare to address the government’s arguments about motive and the NIE at trial, the defense needs additional documents. In particular, the defense needs documents from all the relevant agencies, including the White House, State Department, and CIA that relate to the Administration’s strategies for countering Mr. Wilson’s criticism. Based on the government’s articulated motive theory, the defense is also entitled to investigate the Administration’s response to the leak, such as any alleged threats by the President to fire officials who were involved. For example, if documents indicate that notwithstanding the President’s public statements about the leak investigation, Mr. Libby had no reason to fear losing his job, the defense is entitled to the production of such documents. That is the essence of Rule 16.

Finally, the government’s arguments about motive further underscore that the defense is entitled to discovery about whether Ms. Wilson’s employment status was classified, as the defense has requested in previous motions. The government resists disclosing information regarding the allegedly classified status of Ms. Wilson’s employment, and the knowledge and understanding of others as to whether that employment was classified, on the ground that the information is not relevant to the defense. Yet, almost in the same breath, the government presents an argument on Mr. Libby’s motive to lie that makes this information highly relevant and material to preparation of the defense.

The government states that it will argue Mr. Libby feared losing his job because the President “had vowed to fire anyone involved in leaking classified information” (id. at 28), and because Mr. Libby had requested that the White House Press Secretary say that “Libby was not the source of the Novak story. And he did not leak classified information.” (Id.) Mr. Libby was not, of course, a source for the Novak story. And he testified to the grand jury unequivocally that he did not understand Ms. Wilson’s employment by the CIA to be classified

The two points are made sequentially, but one might argue (and I do) that they can be evaluated separately, although they are clearly related.

As a matter of intellectual completeness, the defense is right - evidence of a private deal would be highly relevant.

My guess is that the defense doesn't think Fitzgerald has anything, but wants to be sure.

Certainly, if Fitzgerald *did* have evidence of a ghastly secret deal, his last filing should have included it, since it would clearly establish a motive for Libby to lie.

And that said, the last paragraph I excerpted does unite the two strands (if they were ever separate). One might argue that Libby's team is not making any point other than Fitzgerald can't argue that Libby was worried about being fired for leaking classified info without establishing that Plame was classified.

So I must be saying that, in addition to the issue of Plame is classified or not, Fitzgerald can't insist that the public record is the full story of Libby's motivation, and has to cough up anything else he has on that, since it is likely to be argued in court.

Gary Maxwell

I would call for a little common sense here. Pwehaps its in short supply since we are changing the tanks over to summer blend or something or other. Exactly what kind of document would fit the discription that the conspiracists would find fulfilling? "Honestly old scoots, lie your ass off cuz I got your back. W. " How fing ridiculous is that. If you were going to appeal to someone to break the law and wanted them to trust to cover them, would you not do that in person where they could look you in the eye? Why on earth would you put a piss ant conspiracy on paper, cuz you were busy? Cmon please folks work with me here.


It would be sweet if the secret deal were to let the Dems have their independent investigation and prosecution, then blow it away with defense discovery and testimony. At one time I wondered if it weren't Fitz's strategy to let the defense demolish the press and Wilson in court because he couldn't because of DOJ restrictions. Well that theory has moved on in the absence of any demonstration of respect by Fitz for the DOJ guidelines, and his apparent credulity in Wilson. Now I wonder if some WhiteHouse strategist hadn't anticipated either Fitz finding nothing, or if he did pursue a will o' the wisp, that he'd be in a treacherous bog soon enough. That attitude could be inspired by a White House secure in their knowledge that the pushback against Lyin' Joe would only implicate his wife if she were involved. Then Joe's guilty conscience gave the game away, that Tenet had tipped them to.

Wasn't it Lew above who's curious why defense is seeking to expand discovery and prosecution to curtail it? Is Fitz Actaeon, about to be devoured by own hounds?



Bush lied...Libby fried

keep hope alive!!


Cecil, you are always a model of logic and clarity.AL, you make my head spin with tautology after tautology.


I'd call Wilson before Plame. That way Plame could never be sure what Wilson had said.

I got the feeling they may not themselves call Plame. This is Joe's day. They aren't going to demonize her...because she never was the issue. And oddly she still isn't.



"There doesn't seem to be any evidence that the name of Plame was anything but a minor
detail compared to declassifying NIE to rebut claims of admin exaggeration."

That depends on timing. At some point, Plame turned into a, if not the major detail. Congress was all atwitter about "who leaked the covert agent's name?" etc. And -that- inquiry was mighty intense in late September, and into October 2003. http://www.freerepublic.com/focus/f-news/1599605/posts?page=74#74>click here for Congressional Record snippets that illustrate the political intensity.

Other events, DoJ authorized FBI investigation on September 26 (indictment paragraph 25), and Libby was questioned by the FBI on October 14 and November 26, 2003 (indictment, paragraph 26).


TM I share your analysis of what Libby was saying..Fitz consistently has shown that he wants to contune to make charges for which he feels he should not have to provide documentation to Libby.
Thus, for example, the "classified" fandango in the presser and indictment and the insistence that her status isn't relevant to a perjury charge. As Wells said in his last oral argument--you can be certain that Wilson will do--what he clearly did before the gj--try to imply in oral argument that Plame was classified, thereby showing that Libby's misstatements (if any) were material. Mr. Muddy Waters.

Lew Clark

I love the twists and turns the left makes trying to find that illusive crime that they know the "White House" committed. Now we're on this "secret deal" between Bush and Libby where Libby could divulge anything and everything he knew that was classified and he was safe because Bush had his back.
There is a much simpler explanation. Bush's statement referred to the disclosure of the identity of a covert agent (as defined by the law). Since Plame was not such an agent and Libby didn't out her anyway, of course he felt safe in not being fired.
And even if Bush were painting with a broader brush, shooting a shot across the bow of those who were actually "leaking" classified information, that boat wasn't being sailed by Libby ( or Rove or Cheney). In fact the crew of that boat ended up being Fitz's star witnesses.
In fact, if Fitz didn't jump on board that boat early on, we'd be reading about the trial of former ambassador Joseph Wilson and his co-defendants (wife and other assorted ant-administration "leakers"). And Scooter Libby's name might never be mentioned (even as a prosecution witness), considering how uninvolved he actually was.


***conTINUE***correction in previous post.
Exactly Lew..For the left, why take a straight logical line when you can twist it into a pretzel to fit your fixed delusions.

Does anyone recall when the referral letter was sent to DoJ? Thanks.


He knew that he was not in danger of being fired for his involvement in this affair.

Since Libby is out of a job and paying zillions in legal fees, any secret deal wasn't worth the paper it's not written on.

C'mon ...

There is a much simpler explanation. Bush's statement referred to the disclosure of the identity of a covert agent (as defined by the law). Since Plame was not such an agent and Libby didn't out her anyway, of course he felt safe in not being fired.

Well said, what I have tried to claim as well.


This fear of firing business is IHO a little silly. Bush could/can fire anyone he wants, whenever he wants for more insignificant issues and I'm pretty certain that a White House staff knows this.

I think SUe's 8:03 makes much more sense and as hard as it is to fathoms to us maniacs, laboring over declass and secret deals doc during a time of war is dumb.

I said last night that Libby's newest, in a way, is 1- to argue every hypothetical to the Judge and 2-using those hypotheticals to their advantage so as to not give away the playbook to Fitz

For instance, the bit about Tenet, they make it sound as if Tenet had it out for Libby and they will show this...and then jump to State and Grossman would protect his Armitage at the expense of WH.

I am just saying, that while hypothetically true (their arguments) and worth illustrating to the Judge does not necessarily mean that they are or the defense intends to show these and big dollar attorneys are not going to give away they're strategies...in fact more likely to do the opposite.


In which case lack of documents is as godd as document of lack.


Anonymous Liberal:

So Libby thought being indicted for perjury and obstruction would be a better job retention plan?


And what the facts support, Boris.

cboldt, go back and look harder..Wilson admits that early on he contacted Senators with his fairytale. Leven began bleating about the uranium remark in the SOTU one day after it was given. The Sept and Oct stuff was a coordinated deal..Levin and Rockefeller and Conyers were certainly on Wilson and the VIPS rolodexes.

Cecil Turner

As a matter of intellectual completeness, the defense is right - evidence of a private deal would be highly relevant.

My guess is that the defense doesn't think Fitzgerald has anything, but wants to be sure.

Well, I finally see what you guys are getting at . . . and suspect the "private deal" description was the barrier to communication. ISTM Libby's team is asserting his innocence and also referring to Fitz's description of the post-hoc dicussions about leaking classified information (which explains the paragraph placement). That particular phrase connected to Libby's desire for this public statement:

Libby was not the source of the Novak story.
And he did not leak classified information.
Which, as the defense points out, is at least partially true, and perhaps completely accurate. I presumed at the time that the statement was returned to him with a note of regret, probably with a supportive statement, and that's what he was discussing. But that's pure conjecture.


That depends on timing. At some point, Plame turned into a, if not the major detail.

Beware of hindsight. Your logic can't apply to the actual discussions between Libby and reporters, only to his testimony. Based on the unimportance of Plame at that time, "forgetting" official info about her is not implausible beyond reasonable doubt.


Waxman was squawking too. Someone, in his letter he described them as 'private' sources, was talking to him.

Anonymous Liberal

I'm hardly suggesting anything as conspiratorial as many of the commenters here contend.

Libby's lawyers are searching for documents which might rebut the contention that Libby feared that if his true role in this affair became known, Bush might fire him.

The most obvious documents that fit this category would documents that indicate that the President was aware of Libby's involvement at the time he made his statements about firing people.

I'm not positing some grand conspiracy. I'm not suggesting that Bush knew before the fact that Libby was going to discuss Plame with reporters. I'm merely suggesting that it's possible that after this scandal broke, but before Bush made his statement, Libby and/or Rove came clean to the President about their involvement. If this is true, it would tend to establish that Bush was not referring to Rove or Libby when he made this statement. If so, this would support Libby's contention that he thought his job was secure and therefore would not have lied to protect it.


ts--good re strategy, but I do think it is more than that re Tenet. The record has always been vague about hos that referral letter made it over to DoJ and why the CIA conducted an internal investigation AFTER (not as usual, BEFORE) the submission to DoJ and why DOJ waited for--was it one or two months?--before proceedings.
I recall reading somewhere an explanation (perhaps it was speculation) that Tenet signed it because it was buried in a stack of insignificant things for him to sign and never read it.
Libby offers up another hypothetical, and I don't think it is pure speculation on his part.
As to Fleischerr who knows what's in the sealed declaration? Possibly a statement from someone present on Air Force One that Ari told him/her.
As to Rove and Grossman--I thinkwe are getting into hypotheticals. I can't see why Grossman is as signficiant a witness, as say UGO if UGO is Armitage.



"go back and look harder..Wilson admits that early on he contacted Senators with his fairytale. Leven began bleating about the uranium remark in the SOTU one day after it was given. The Sept and Oct stuff was a coordinated deal..Levin and Rockefeller and Conyers were certainly on Wilson and the VIPS rolodexes."

I agree with all that. My point was on the general question of "how important was Plame in the scheme of things?" and I noted that it depends on timing.

Libby is arguing that Plame was unimportant in June/July, and that the administration was intent on repudiating Wilson's lies. At that time, Plame is unimportant.

Later on, Plame got to be a big political hot potato, see speeches on Senate floor, etc. in the late September, early October time frame - all the calls for a special prosecutor, etc.


Think about this. If you are Libby, what is ace in the hole? A pardon. No matter the outcome of the trial on perjury, etc., at the end of the day you feel secure that your former boss will make sure his boss pardons you. How can that be done if you are implicating them? You lose your ace in the hole. Whatever happened, and I'm not implying there is any truth to the what is being bandied about here today, remains between Libby/Cheney/Bush, unless there is documentation that Libby isn't aware of. You gotta cover that base first.

Cecil Turner

Libby's lawyers are searching for documents which might rebut the contention that Libby feared that if his true role in this affair became known, Bush might fire him.

As long as you're aware they're contending that "true role":

  1. Wasn't the source of the leak; and
  2. Didn't disclose any classified information.
Then I think we're on the same page. (And kinda makes that "come clean" point less than dramatic.)


Libby and/or Rove came clean to the President about their involvement

Hindsight again. Rove wasn't aware what his role was. Libby's awareness is difficult to gauge. In order to get to your "innocent" supposition Libby would have to admit he knew a lot more than he testified. Don't see how that helps.


I invoke the preview is for sissies rule, more commonly referred to as Rick's Rule.


Byron York and I are on the same page this morning:
NRO: http://corner.nationalreview.com/


I have a story up on the latest in the CIA leak case, in which Lewis Libby says that neither President Bush, Vice President Cheney nor anyone else instructed him to discuss Valerie Plame Wilson with reporters. That's news. But what is perhaps bigger news is not explicitly stated anywhere in the legal papers, and that is that prosecutor Patrick Fitzgerald appears to be losing control of the case.

Since indicting Libby on perjury and obstruction of justice charges last year, Fitzgerald has said that he wants to keep the case narrowly confined to the question of whether Libby lied to the grand jury and obstructed the investigation. But actually trying the case -- and we're just in the discovery stage now -- has forced Fitzgerald to put forward a theory of Libby's motive and to try to place Libby's actions in the larger context of an alleged White House plot to punish Joseph Wilson. And doing that has forced Fitzgerald to open the whole pre-war intelligence can of worms and to argue at length about the White House's effort to rebut the arguments of critics like Wilson, which is not specifically part of the charges against Libby.

Yet even as he has fallen into the trap of widening his arguments to include the Bush case for war, making the case seem more and more like a political prosecution, Fitzgerald is still refusing to hand over evidence to Libby -- for example, documents relating to whether Valerie Wilson's CIA status was classified or not -- on the grounds that Libby does not need such evidence to defend himself against the narrow perjury and obstruction charges. So on the one hand, Fitzgerald is increasingly bringing the big picture into the case, and on the other he is desperately trying to keep the case tightly focused on the little picture. It's not going to work. Either through his own errors, or his own lack of insight, or perhaps just the impossible nature of the case, Fitzgerald is moving himself into an untenable position. And the case is really just starting. ***********



I only used that as an example. In fact, I think the opposite, that Tenet got involved late because he was gunning after UGO -- and that Tenet's objective was to embarrass the jerk who was dissing him around town.

Libby's team would present to the Judge a theory about Tenet as he relates to libby, but the objective is just to get the Tenet information period.


Yes, that's true--But the point is whoever the CIA was gunning for they unlawfully used a bazooka (fake assertions to the DoJ) to get a gnat.


As for AL's point, the timeline seems to go like this:

1) Libby told Bush his story of his involvement with the Plame outing.

2) Either before or after, Bush said that if he found out that somebody in the White House had leaked classified info, Bush would fire him.

3) Bush did not fire Libby.

4) Sometime later, Libby talked to the FBI, then grand jury. Because Bush had not already fired him (see point #3), Libby could be confident that his almost-nonexistant role in the Plame outing was not enough to satisfy Bush's criteria for firing, if he had indeed told Bush the truth. So *bing* the "I'll be fired" motive just disappeared.

I think that some of this rests upon the most audacious part of Fitzgerald's indictment, which is that the story that Libby testified to and the actual events are different by more than the normal non-autistic human function of memory. This, combined with discussion of calling memory experts, suggests a defense strategy of that looks something like this: "Ok, here's what Bush remembers Libby told him. Here's what Cheney remembers Libby told him. Here's what Libby told the FBI he remembered. Here's what Libby told the grand jury he remembered. Here's what Russert said he remembered. Here's what Miller said she remembered. Here's what Woodward said he remembered. First of all, Libby's testimony is more or less the same as the other parties' testimony, and differs no more from them than they do from each other. Secondly, what Libby told Bush about his involvement obviously did not get him fired. If what Libby told Bush is close enough to Fitzgerald's version of what happened, then a reasonable juror would have to conclude that if Libby had said all of the things that Fitzgerald claims are the exact truth exactly as Fitzgerald claims them as opposed to the approximate truth that Libby told, then he wouldn't have been fired even then, either. Therefore, no motive, QED."

If one is a non-autistic human being, then the data stored in the neurons of the brain will always be an approximate truth. What the law demands in telling "the truth" is that a witness accurately and completely relate what is stored in his or her brain. This is not a photographic record or a recording, it is a memory. If the differences between Libby's testimony about events and others' testimony about events are no more than plausibly explained by normally imperfect memories on all sides, then the perjury charge is rebutted. If the differences between Libby's version and what Fitzgerald is claiming are not enough to be the difference between keeping and losing his job, motive has disappeared, and there is no evidence left at all of perjury.

cathy :-)


At the time the CIA made those assertions they had to know she was not covert and they had been sloppy beyond belief in protecting her identity if she had been covert.

And I think the reason Fitz never charged the IIPA is because he knows the underlying charge was not provable because Plame never met the Statute's narrow test.


I've never gotten an answer as to when all you righties became such Slick Willy fans of weasly legalizing to condone obvious wrongdoing. Funny, but it seems not that long ago you thought such sleazy behavior deserved nothing short of tar and feathering in the public square. Your endless, obsessive spinnathon is becoming a bizarre spectacle.

You need to step back occasionally and look at things the way the vast electorate does. To them, Clinton's crime was getting a blowjob, facts be damned - because that was simple and it was TRUE. And now, to them, the rapidly hardening perception on Bush is that he lied us into a shamefully unnecessary war and completely,totally lacked the competence to effectively execute his foolish fantasy. This is simple and this is TRUE. All the legalized horseturds that give you all so much self satisfaction will never reach the consciousness of the average citizen.

And just as Clinton's personal immorality was used to create a perception that Repubs had a higher moral star (ha!), so will this vile deception by the Bush admin, and their rampant corruption and shameful incompetence, become part of the common wisdom about the now flailing Repub party. No matter how evil the Repub plan may have been, if they'd had the capability of executing effectively, they could still have justified their arrogance. As it is, their almost unimaginable ineptness - at literally ANY task of governance - is now their clearest legacy.

I enjoy skimming the nonsense here because it's a great comfort...knowing this is all you have left. Not only is it mostly irrelevant, not one millionth of the electorate will ever care about it for a second.


Hey clarice - Are you in touch with Comstock and the Libby organization she is speaking for?


Cathy, Have I told you lately you're brilliant? Cause you are.
Jeff, it's none of your business but my only contact is to be on the email list to receive documents once they are filed in Court.


OT...about the Duke lacrosse team scandal. It has been reported and has not been disputed that there were no DNA matches. But wouldn't the only reason to do the DNA testing in the first place be the finding of foreign DNA on the woman? And if there are no matches to that foreign DNA doesn't that prove that there was no rape by the players?


A (somewhat) contrarian view of Libby team's filings:

Pre-trial motion practice has two purposes:

1. Actual discovery of evidence tending to prove or disprove the allegations charged.

2. Definition and focus for trial on actually contested facts and issues.

Much of the discussion here (and elsewhere) has revolved around (1). That is to say, commentators and news reports discuss whether Libby is likely or not to get the information that he has requested from Fitzgerald. Further, there has been much speculation as to whether that information will exonerate him, implicate others, or even cause Fitzgerald to drop the charges.

Obviously, if Fitzgerald’s team has seen the material, merely requiring its disclosure to others will not affect his decision (taken with the publication of the indictment) to proceed to trial. Nor is a judge likely to rule that a trial should not be held merely because some evidence exists that disproves Fitzgerald's broader points. Although I disagree that the difference in testimony is material, the fact remains that there is a difference in testimony and that difference is sufficient to sustain an indictment. The question of whether the additional disclosures of information would implicate others has no relevancy to the actual charges against Libby. (It is, however, as the last week has shown us, very interesting to people not currently charged.)

As I see it, Libby's lawyers are using the pretrial motions to refine the contested issues for presentation at trial. I see that they are laying the groundwork for a motion in limine. Thus, if they can get Fitzgerald to argue that a particular point or argument which would tend to help him get a guilty verdict is irrelevant to the charges, they can argue that those points/arguments are off the table at trial.

Viewed in that light, the fabulously important motion to dismiss based on Fitzgerald's lack of supervision and unrestricted mandate is an invitation for Fitzgerald to say that his investigation was narrowly focused on a particular issue. While Libby would not mind if it succeeded, no defendant has yet succeeded in throwing out an indictment on that basis. To the extent that Fitzgerald does describe a limited jurisdiction to investigate specific allegations, however, he must show that Libby intended to thwart that specific investigation (obstruction of justice) and that (a) the (relatively limited) disagreements between Libby and reporters and (b) the objective disconnect between provable knowledge and Libby's subjective recollection of his earlier state of mind are material in the context of that investigation. A federal prosecutor generally has very few constraints on his/her ability to pursue allegations of wrongdoing. Thus, any misstatement in response to almost any question arguably obstructs the prosecution and tends to lead them in a different direction and/or causes them to expend additional resources to confirm their suspicions of falsehood. If Fitzgerald's jurisdiction in this case is more limited than that of an ordinary prosecutor, then the alleged obstructions must relate to that particular investigation. Thus, win or lose, the motion (and argument thereon) serve to elicit admissions helpful at trial.

As CathyF :) has pointed out, the request for the referral serves much the same purpose.

Clarice: The referral is _not_, however logically related, analogous to an affidavit for a search warrant. The cases cited by Fitzgerald (and the lack of cases cited by Libby) make it clear that these are not generally available to the defense. As mentioned above, because a prosecutor is generally not limited to prosecuting the crimes alleged in a referral, the actual criminal referral ordinarily bears no necessary relevance to the crimes charged.

As others have mentioned, Fitzgerald painted with broad strokes at the press conference, and, somewhat less broadly, in the indictment. A jury, (heck, even the media and many who paid close attention did actually) would understand that, viewed in the broader context given by Fitzgerald, Libby was trying to hide, well, something. Given the opportunity, a jury would convict on some crime based on the view (currently held by over 60% of those with an opinion) that Libby's actions in broader context where either morally or legally wrong. Like it or not, most prosecutors are allowed to bring up things like the NIE, Plame losing her job, Wilson's sense of persecution, etc. in cases ostensibly unrelated to those charges. They make you dislike the defendant and dislike --> conviction.

The stand way around bringing otherwise inadmissible evidence (hearsay, irrelevant, etc.) is to say that it is not offered for the proof of the matter, but merely to show the state of mind of [some otherwise relevant person].

With Fitzgerald forced to argue that these issues are not (even for state of mind) in the discovery context, he has far less latitude to bring them up at trial. Thus, if the motion succeeds, Libby can bring in evidence to rebut allegations or (viewed from the other side) obscure the actual issues at state. If it fails, he has a prior ruling from the judge that these matters are irrelevant to the charges. Honestly, I'd guess that he is hoping for the latter.

My thoughts,



The prosecutor asked for the DNA and the players voluntarily provided it. At the time the prosecutor asked for it, he said the DNA tests would be dispositive. When they came back and showed none of the boys' DNA was on the woman, her clothing, her body, or even her fingernails,he said he'd proceed anyway.

I hope you are all learning a couple of useful lessons about criminal prosecutions.


Nice to see some attention about Tenet, maybe my crayons are working Clarice?

I expect Fitz's prosecution will turn to bigger WH issues than Libby soon enough.



Nice. Thanks for taking the time to post your thoughts.


stand = standard
state = stake

I don't know how people TM keeps his posts free of that stuff...



people TM = people like TM

I'm better off lurking.



Some interesting thoughts those are, Walt.

There may not ever have been a case where the referral was provided to the defense, but IIRC there also has never been a case brought under the IIPA. Certainly not one where the facts on the public record so clearly indicate there could not have been an honest referral.
Let's say, the Court is reluctant to turn that over--recall, however, J, Walton has been expansive in indicating that Libby's prior handling of classified material and his team's security clearance indicate they should see more than is normally provided the defense--and it detremines to examine the doc in camera.
J. Walton is not some rube who just fell off the turnip truck. If he thinks the factual assertions in the referral are hooey, how do you think he will react?

(We've seen in the unredacted portions of the Miller case how Fitz pulled off an extensive slip slide in ex parte representations to the Court.And Tatel alone fell for it.)


Tatel--I find it impossible to avoid typos writing in this tiny space..We all do it. and have determined to ignore most of them and read them anyway because generally the meaning is clear.
I, too, am glad you posted. You are a fine addition to the gang.Thoughtful and interesting.


*sigh* I meant that to be addressed to WALTER--why I typed Tatel god knows but I was up most of the ngiht writing and I am more overtired than usual.



"Beware of hindsight. Your logic can't apply to the actual discussions between Libby and reporters, only to his testimony. Based on the unimportance of Plame at that time, "forgetting" official info about her is not implausible beyond reasonable doubt."

I was adding an irrelevant point to the discussion (and apologize if I was), if you were focused on the importance of Plame in July.

Mu comment wasn't meant to apply to discussions between Libby and reporters. And it wasn't so much logic as a statement that "how important was Plame" is a variable, depending on timing.

And I agree, the believability of Libby forgetting that he had official information re: Plame as of July (and later, when he was questioned about "the leak") depends in part on Libby's interest (or lack thereof) in "Who sent Wilson" as of July.


No one will be surprised that York got his scoop on Fitzgerald's correction via Libby's team. (Today's story makes it evident that he's channeling Comstock, which is good to know.) But the judge is apparently pissed, says AP:

Meanwhile, U.S. District Reggie B. Walton, who is presiding over Libby's perjury case, threatened Thursday to issue a gag order for defense attorneys and prosecutors over the release of filings to reporters before they are placed on the court docket.

In a brief order, Walton warned that such action by the lawyers could impair the court's "ability to ensure that both sides receive a fair trial." He gave the lawyers until April 21 to say why the judge should not restrict their contact with the media.

Walton appears upset over the release Tuesday night of a letter from Fitzgerald to the judge correcting one sentence in a prosecution filing from a week ago.

Libby's defense team released the letter to reporters via e-mail Tuesday night. The letter didn't show up on the court's docket until Wednesday afternoon.


I have read this entire thread, but all I can think of is the fact, just learned as if for the first time, that the GJ was shown articles by Pincus and others as "exhibits." I am trying to understand, giving Fitz the benefit of all my doubts, how those articles can in any sense be relevant to the GJ. Anything in a Pincus article that the GJ needs to know could be obtained by taking the testimony of the person who told Pincus. Why give the GJ the slick, slanted and cherry-picked "reporting" of a second-hand witness?

And more importantly, is there any way that the defense could use this behavior by Fitz to demonstrate Fitz's bias to Libby's jury?


Lot of leaping going on there--re Byron. The order seems to indicate the letter was released to the press (all of it) at the same time.

In any event, it appears the NYT's dog ate it's email. It didn't get around to the correction until today stating they didn't check their email.


I don't see how that could be brought to the jury's attention John H, but it is a reminder that gj proceedings are ridiculous and that an indictment isn't that hard for a prosecutor to get.

That Cooper's article was one when he is cited in the indictment and that two of them were written by Pincus who helped set off the firestorm and only years later had to concede he'd printed 100% pure crap is unbelievable. To recap:The press started this by printing lies and their lies themself were used to obtain an indictment.



I think I agree with you that the referral _should_ be provided. I think I disagree on whether, and why, it probably will not.

Again, drawing on my broader point, a federal prosecutor has (relatively) unlimited jurisdiction to enforce any federal law. Unless Libby can get Fitzgerald to admit that his mandate (and hence his jurisdiction) in DC (as opposed to Chicago) is limited to investigating crimes alleged in the referral or relating to the investigation thereof, the referral is simply not relevant to the prosecution.

The cases (and Fitzgerald’s arguments derived from them) treat the referrals as the trial plan that the (in-house) agency counsels would like to use, if only they were allowed to prosecute them themselves. As a practicing attorney, I personally would dislike it if in-house privileges were limited more than they are currently.

Again, the two motions, taken together, force Fitzgerald to define his role (broad = no necessity for referral vs. narrow = not excessive authority w/o Senate approval).

I see your point as “no referral = no investigation”. I see the DoJ’s point as “we can investigate anything we darn well please”.



Clarice (sorry, no "s")

I should make clear that, I am generally in favor of more discovery from the prosecution in criminal cases than we see in civil. After all, in civil cases, we all want our client to win. In criminal cases, the prosecution seeks justice--not victory.



I am trying to understand, giving Fitz the benefit of all my doubts, how those articles can in any sense be relevant to the GJ.

Good catch on the fact that Team Libby mislabeled one of those articles as being by Priest and Allen when in fact it was Allen and Pincus. Have you looked at the articles? My guess is that the WaPo articles were projected on a screen or whatever regarding 1x2x6 - as Fitzgerald has told us in a previous filing, a good deal of time was spent investigating 1x2x6 and trying to track down who 1 was. Likewise, don't you think there's a good chance Fitzgerald projected Cooper's article while trying to track down Cooper's sources? The only Pincus article properly cited by Team Libby, by the way, isn't to anything used by Fitzgerald, but rather Pincus' report on Fitzgerald's erroneous and later corrected statement.


I see what you are saying, but I think the IIPA and the special appointment here change the calculus. If there was no reason to investigate what is obviously a political dispute, not a leak of classified information, no special prosecutor would have been appointed --and this SP was given the power to act as if he were the AG with no confirmation by Congress, no budget or tenure restrictions and no supervision.

The Constitution simply doesn't countenance handing out fishing licenses to criminalize political disputes, I think.


C, that may be another problem they have, banker's hours. They really are printing yesterday's newspaper, and who wants that?


Where is the coverage of this:


Instapundit links to story &
Wizbang is organizing Demonstration in D.C. against the eviction of Fran O'Brien's which will be forced to close down April 30th!

HILTON closing down Fran O'Brien's - Too many disabled served there!
HILTON WORRIED about "the number of wounded and disabled people" (who happen to be soldiers from Walter Reed and Bethesda) dining at Fran O'Brien's? Sounds like an ADA lawsuit waiting to happen, if this report is true.
posted at 10:51 AM by Glenn Reynolds

Hot link is to the post at:
Argghhh! The Home Of Two Of Jonah's Military Guys..
I will take a wild leap here and judge the HILTON family by their shining daughter "lifestyle choices" and bet they are DEMS. Are there now separate classes of disabled - the wounded Vets that dine at Fran O'Brien's must not be depressed enought to really qualify for an "annointed" victim class.

Sure many of JOM readers are in D.C. area and may be able/willing to attend.

Ya think the Dem gang on the Mall Sunday will join in this one?


Jeff..the reference of materials in the press supplied to the gj are Exhibits D,E and F.
D is the Sept 28,2003 article by Allen and Priest titled Bush Administration is Focus of Inquiry which quotes "senior administration official" saying this was a revenge leak against Wilson.
E is an Oct 12, 2003 Pincus Allen piece
F is Time's "War on Wilson" which also indicates their was a revenge outing of Plame.

When this crap rises to the level of evidence, I'm leaving the country.

I don't see how that could be brought to the jury's attention John H, but it is a reminder that gj proceedings are ridiculous and that an indictment isn't that hard for a prosecutor to get.
But doesn't the fact that there are 2 obstruction of justice charges bring the conduct of the investigation into play? If they were reading newspaper articles in order to get the testimony of people instead of asking them on the witness stand, then this is not testimony. I mean, I've said this before, but in order to show "obstruction of justice" don't you have to show two things? Namely 1) that something was obstructed, and 2) that the thing obstructed was actually in fact "justice"?

This is like somebody on trial for shoplifting, and the prosecutor arguing that he doesn't have to prove that the things claimed to have been stolen were items that were ever owned by the store.

cathy :-)


Darn my bad!


In an earlier piece (I think Potemkin Prosecution ;Part One) I noted that since the obstruction statute doesn't require a showing of materiality is is used by prosecutors to evade showing any connection to anything. It is a give away to them.
In the Arthur Anderson case, the Court seems to have blown the whistle a bit (tootled) but too late to save a fine company and many many honest people from financial ruin.


Larwyn. honey--why not avoid this problem by simply setting off quoted material with a string of asterisks ? It's easier all around and we will know that you are quoting. Or use [quote][/quote]


On YARGB, another poster made an excellent point:
"Even worse, I think, is that in the wake of Andersen and Libby, you have the erosion of innocent until proven guilty since accusations made by a prosecutor and seconded by a credulous grand jury become, ipso facto, convictions since the accused cannot conduct his business with an indictment over his head."


Thanks, Clarice, for the info on why Fitz can use any slanted article he wants to show the GJ.

I guess I am surprised that the defense is not outraged enough to point out to the judge what trash was shown to the GJ. Maybe they can't find a way to work it into their discovery requests. But in Fitz's claim that he can be monitored by the DOJ through reading the newspapers, defense should have said, yeah, look at the unsubstantiated allegations and outright falsehoods Fitz put before the GJ; no supervision happened there.


John H..The defense DID just point that out to the judge, didn't it?


Judgement of his guilt and interpretation of his actions seem be be so based on 'state of mind' as to be hearsay.


Well,in this case as York points out, Fitz is selecting bits and pieces of the record in his hands to suggest bad motive and refusing to turn over the documentation which his broader allegations cover. I don't think he will or should get away with that.You cannot bring in all this stuff about pre-war intelligence and then refuse to produce a more substantial documentary record by claiming this is just about perjury. TS noted this at the outset. If you are asserting Libby had a motive to lie and you have proof that he didn't, you opened that door.
In Yiddish"With one tuchus you cannot dance at two weddings".If you claim he was lying because he knew he was leaking classified information, you cannot then say we needn't prove she was classified and he knew it because this is just a case about perjury.

M. Simon

Plame lost her job? I wasn't aware of that.


Look at the damages Libby is accruing. Then consider punitive, and RICO. Where is Pinch's board?


Must type this before I faint dead away:



will full interviews of complaining staffers - even tracking down Conyers and doing a 60 Minuterer by Drew Griffen.


Point of story is that there is now an "ETHICS TRUCE where they won't tell on each other.

CNN has "been working on this for weeks!" ...."We can't let them get away with this"......"Not CNN's way!


Would someone be so kind as to post a link to Pincus' mea culpa?


It's in here megrez: www.americanthinker.com/articles.php?article_id=4951


This may already be answered in a comment I haven't reached yet, I've just finished 9:41, and haven't updated recently. "You guys" are PROLIFIC in your ability to generate comment!


Point I:
My memory of Bush's actual public comments is that he would fire ANYONE WHO BROKE THE LAW. Since the leaking of classified information is not necessarily a crime, that could be an important point in terms of Libby's possible motive.

Point II:
Also I think that some, A.L, in particular are equating "classified" with "covert." Merely having her status "classified" does NOT make revealing it a CRIME. For the mere revelation of her status to be a crime, she must have been covert; unless one wants to invoke the "Epionage Act" and in that case other hurdles apply for it to have been a crime.

I welcome any clarification of my understand from those of you who really understand this.

Thanks again for your great discussion.


M. Simon

Please read "lost job" as shorthand for constructively discharged, ie:
"She lost the ability to go overseas to do her job. She had to be reassigned. She coulda been a contender for Rome Station chief. She was avoided by coworkers. She eventually had to take early retirement."

The point I was going for is that, in making the case that the factual disagreements between Libby and reporters had serious ramifications, Fitzgerald (and any other prosecutor) would reach for the outer limits of possible ramifications.



Clarice, if Libby committed perjury in the course of obstructing Fitz's investigation (perhaps protecting Cheney and others) shouldn't he be prosecuted for it?

Isn't this perjury indictment a minor distraction, not Fitz's primary goal?

Isn't the prosecution partly an effort to pressure Libby into providing information for a larger investigation that Fitz has yet to conclude (the details of which are not public)?


Ralph, you are correct on both counts with one caveat.Libby says he never leaked any classified information at all and Fitz says whether Plame was classified isnot relevant to the charge and though he said her employment was classified in his presser and in the indictment he argues he need not provide any evidence that it was.Indeed, he says he never even fully investigated whether it was.

Walter, Plame was outed twice--once by Ames and once by the agency itself. It is absurd to suggest that she could ever have such asn assignment again. Moreover, as the mother of young twins, I doubt as a practical matter that is doable. At the time in question she was on leave for one year post-partum depression.



Libby's lawyers are searching for documents which might rebut the contention that Libby feared that if his true role in this affair became known, Bush might fire him.

Um, what exactly was Libby's true role?

And, whatever it is, it still is not known. Fitz has indicted based on what he thought was Libby's role (first known leaker). Libby's true role hasn't even been established.

JM Hanes


Can you post a link to the AP story you quoted on Walton's order? I'd be interested in reading the whole thing and on checking out where it's being run/whose byline etc. Also, would you mind explaining the Comstock reference? I've seen the name floating around, but I've never really known what it signifies.


As if this all really matters anyway. Whether Iraq was trying to acquire yellowcake, was trying to build centrifuges, etc. I mean even if these things had been shown to be undeniably true before the war, do you think the liberals would have been moved?

Talk about cherry-picking. They would be on to the next quibble.

For evidence of these claims, look no further than the current situation with Iran. Iran is waving the goods in our face and what do the liberals want to do about it? Prostrate ourselves before the UN and the internationalists . . . AGAIN?

Yeah, fool me twice, won't be fooled again!


Jerry, the only possible predicate for this investigation would be the IIPA and it is clear it was never applicable.Charging an obstruction of justice may be an acceptable form of dealing with someone who blocked a legitimate investigation. But if the investigation was never legitimate because (a) the referral letter was bunk (b) there never was an underlying crime and (c) the unconstitutional and extra-statutory appointment of the SP was based on the phony referral letter we are heading into never never land.

Nothing can obstruct an investigation into something which never was a crime in the first place.

This is worse than the Martha Stewart case where there was an underlying crime (though not committed by Stewart). This is the Anderson case where the destruction of business records as part of a legitimate housekeeping matter not in any way related to an investigation was itself deemed an obstruction of justice. In that case, the SCOTUS said (too late) fergettabout it and did read materiality into the Statute though the law does not require it.

For people so worried about HSA getting a shoe bomber's library records, the left and the ACLU seem remarkably close lipped about this outrage.


CENSORING SOUTH PARK -"That was a Comedy Central decision" CONFIRMED!

A spokesman for Comedy Central told NRO:

"They reflected it accurately. That was a Comedy Central decision."

NRO goes on to say: "Just in case there was any confusion, that settles it. Comedy Central censored the image."]
In Wednesday's episode, part II of "Cartoon Wars," Kyle (one of the boys of South Park) persuades the President of Fox TV to run a Family Guy episode with a short scene including Mohammed. Kyle lectures the head of FOX about the importance of free speech:

"You can't do what he wants just because he's the one threatening you with violence. . . .
Yes, people can get hurt. That's how terrorism works. But if you give in to that, Doug, you're allowing terrorism to work. . . .
Do the right thing, Mr. President. . . .
If you don't show Mohammed, then you've made a distinction between what is OK to make fun of and what isn't. Either it's all OK or none of it is. Do the right thing."

At the point in the South Park episode where Mohammed is about to be shown handing a football helmet (with a salmon on top of it) to the Family Guy, the screen shows these words:

"In this shot, Mohammed hands a football helmet to Family Guy."

The next screen shows these words:

"Comedy Central has refused to broadcast an image of Mohammed on their network."

In the South Park episode, President Bush then sees the image of Mohammed supposedly broadcast on Family Guy (which Comedy Central censored us from seeing) and says,

"Hey, that wasn't bad at all. They just showed Mohammed standing there, looking normal."

Al Qaeda retaliates by broadcasting its own cartoon showing Americans, President Bush, and Jesus "crapping" on each other and the American flag.
"Al-Zawahri" then praises his retaliatory cartoon:

"Oh Yeah. Take THAT! We Burned you! That was way funnier than Family Guy."

Thus, from the South Park episode itself, it appears that tonight: "Comedy Central has refused to broadcast an image of Mohammed on their network." To be certain of this, one would want confirmation from Comedy Central or the South Park creators.
Tonight's episode is being rebroadcast on Comedy Central at midnight ET Wednesday night and 10pm ET Thursday night.
It should be noted that a 2001 episode of South Park included Mohammed.
UPDATE: As one of the comments below notes, Comedy Central apparently allows South Park to show Jesus defacating on others and being defacated on, but prohibits showing Mohammed "just standing there, looking normal." Unfortunately,..
FURTHER UPDATE: There is much more at
Malkin (including clips and links).

If WIZBANG wants to get the Hilton Corp's attention, does his demo have to include death threats, stone and firebomb throwing to get O'Brien's their lease renewal, so they can continue to serve our wounded and disabled FREE ON FRIDAY NIGHTS.

The LEFTY PC LSM has now set the template - will the Templar Knights rise in some form and turn this on its head?

Will the LSM find itself the "victim" of FREE SPEECH GWOT VETS" demonstrating against them instead of the Government?




I agree. I disagree, however, that those points would prevent Fitzgerald from using the arguments I mentioned.

Indeed, he appeared to imply that her secret identity was important to national security, a statement at odds with the facts you cited.

Again, Fitzgerald will not be prevented from arguing that something is so just because we believe, based on objective facts, that something is not so. That's why I think that Libby's team would much rather have a ruling from a judge that the question shouldn't even be brought up in the trial.

As York (and you and talkleft) point out, this has the possibility of becoming a three-ring circus. If Fitzgerald is allowed to argue X, then fairness (and the possibility of reversal on appeal) will force the judge to allow Libby to present evidence about Y.

The judge has an easy out: Neither X nor Y may be mentioned--This case is a perjury case.



Barbara Comstock, an NRO affiliate heads up Libby's defense trust and Jeff thinks Clarice is mainlining Barbara of which? Who cares.

I am actually a little annoyed by this, because when you recall Jane Hamsher mainlined a little tidbit before major newspapers everyone tripped over their you what in order to bestow a crown on her head -- it's called a scoop and to my notion Clarice hasn't really done that so I think it typical rude and or insinuating something sinister when it is a Repub. but a flipping' coup and fabulous for a lefty.

Rick Ballard


Maybe Fitz should charge himself with obstruction for his lack of pursuit of information from journalists?

"I inhibited me from finding out what happened - clearly throwing sand in my eyes and prohiting myself from learning the truth."

I'd vote a true bill.


Walter...in light of your analysis are you sticking with your general claim that prosecutors are interested primarily in justice? Or was that a tongue-in-cheek remark?

The Duke rape case suggests otherwise.



Definition of the job. Fallible people with egos hold the position, so in individual cases they might not live up to the ideal.


Fitzgerald himself said that these charges were not his first choice, just the least problematic from a prosecution standpoint. Thus, any conviction would serve (capital J) justice even though Fitzgerald believes (in his innermost heart) that Libby's (currently unprovable) real crimes are more important.

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