Libby's Team Replies On Disclosure

Jeralyn Merritt has Team Libby's latest on the disclosure question (29 page .pdf or here) and has added some must-read UPDATES.  It's hard to believe this will make as many headlines as Fitzgerald's last filing, but dig in.

Here, for example, is a headline that will not appear: "Libby Didn't Lie, But Fitzgerald Did".   From a footnote on p. 3:

Perhaps not surprisingly, given the media’s overwhelming interest in this case, an erroneous statement in the government’s response brief led to stories in the press that falsely accused Mr. Libby of making inaccurate statements – or even lying – to reporter Judith Miller about the contents of the NIE. (See, e.g., Walter Pincus, Specter Says Bush, Cheney Should Explain Leak, WASHINGTON POST, April 10, 2006, at A04, attached as Ex. A.) The government has since written a letter to the Court to indicate that, consistent with his grand jury testimony, Mr. Libby did not tell Ms. Miller “that a key judgment of the NIE held that Iraq was ‘vigorously trying to procure’ uranium.” (See Ltr. from Patrick J. Fitzgerald to Hon. Reggie B. Walton, dated April 11, 2006, attached as Ex. B.) Instead, during his testimony, Mr. Libby drew careful distinctions between the key judgments of the NIE about WMD and its section on uranium. Accordingly, there is no basis for the media reports that accused Mr. Libby of misrepresenting the key judgments of the NIE to Ms. Miller.

My apologies - I see the NY Times is covering this, with a different headline: "Prosecutor Corrects Filing About Former Aide to Cheney".  Folks who track this sort of thing will want to see how many of the blogs that pounded Libby for misrepresenting the key judgments of the NIE to Miller will note the correction [And I am advised in the comments that several have; here, for example, is TalkLeft].  And here is the letter itself.

And as we read on, we wonder - was our man Fitzgerald being a bit cute with other facts in his last filing?  More from Team Libby (p. 20):

The government pretends that Mr. Wilson’s wife was a part of the response Mr. Libby was instructed to make to Mr. Wilson’s false claims, and even argues that “[d]isclosing the belief that Mr. Wilson’s wife sent him on the Niger trip was one way for defendant to contradict the assertion that the Vice President had done so . . .” (Id. at 19.) In fact, as the government is well aware, contemporaneous documents reflect the points that Mr. Libby was to make to reporters, and these documents do not include any information about Wilson’s wife. Further, the government’s theory ignores the fact that neither the indictment nor the evidence supports the notion that Mr. Libby told any reporter that “Mr. Wilson’s wife sent him on the Niger trip.” The only reference to such an idea in the indictment is the allegation in paragraph 23 that Matthew Cooper asked Mr. Libby on July 12, 2003 whether he had heard that Wilson’s wife was involved in sending him on the trip, and Libby said “he had heard this information too.”

Emphasis added - presumably this refers to some typed-up talking points.  We harped on the broader point a bit, or meant to - Fitzgerald never presents evidence that Cheney directed Libby to discuss Ms. Plame, even though there are passages from the Fitzgerald filing where presenting such evidence (if it existed) would be totally appropriate.  For example:

Defendant further testified that on July 12, 2003, he was specifically directed by the Vice President to speak to the press in place of Cathie Martin (then the communications person for the Vice President) regarding the NIE and Wilson. Defendant was instructed to provide what was for him an extremely rare “on the record” statement, and to provide “background” and “deep background” statements, and to provide information contained in a document defendant understood to be the cable authored by Mr. Wilson. During the conversations that followed on July 12, defendant discussed Ms. Wilson’s employment with both Matthew Cooper (for the first time) and Judith Miller (for the third time). Even if someone else in some other agency thought that the controversy about Mr. Wilson and/or his wife was a trifle, that person’s state of mind would be irrelevant to the importance and focus defendant placed on the matter and the importance he attached to the surrounding conversations he was directed to engage in by the Vice President.

Here is the TIME article co-authored by Matt Cooper that came from that, as well as Matt Cooper's recollection of the circumstances.

And Judy Miller's account includes this on her July 8 interview with Libby:

Mr. Fitzgerald asked me whether Mr. Libby had mentioned nepotism. I said no. And as I told the grand jury, I did not recall -- and my interview notes do not show -- that Mr. Libby suggested that Ms. Plame had helped arrange her husband's trip to Niger. My notes do suggest that our conversation about Ms. Plame was brief.

And for their July 12 talk, it is not clear whether Ms. Plame was mentioned at all:

My third interview with Mr. Libby occurred on July 12, two days before Robert D. Novak's column identified Ms. Plame for the first time as a C.I.A. operative. I believe I spoke to Mr. Libby by telephone from my home in Sag Harbor, N.Y.

I told Mr. Fitzgerald I believed that before this call, I might have called others about Mr. Wilson's wife. In my notebook I had written the words ''Victoria Wilson'' with a box around it, another apparent reference to Ms. Plame, who is also known as Valerie Wilson.

I told Mr. Fitzgerald that I was not sure whether Mr. Libby had used this name or whether I just made a mistake in writing it on my own. Another possibility, I said, is that I gave Mr. Libby the wrong name on purpose to see whether he would correct me and confirm her identity.

I also told the grand jury I thought it was odd that I had written ''Wilson'' because my memory is that I had heard her referred to only as Plame. Mr. Fitzgerald asked whether this suggested that Mr. Libby had given me the name Wilson. I told him I didn't know and didn't want to guess.

My notes of this phone call show that Mr. Libby quickly turned to criticizing Mr. Wilson's report on his mission to Niger. He said it was unclear whether Mr. Wilson had spoken with any Niger officials who had dealt with Iraq's trade representatives.

With the understanding that I would attribute the information to an administration official, Mr. Libby also sought to explain why Mr. Bush included the disputed uranium allegation in his 2003 State of the Union address, a sentence of 16 words that his administration would later retract. Mr. Libby described it as the product of a simple miscommunication between the White House and the C.I.A.

So, based on this defense filing, Libby had prepared talking points which did not include a mention of Ms. Plame, nor did he mention a connection between Ms. Plame and the Niger trip to any reporter.

The defense re-emphasizes this:

The government’s argument that Mr. Libby attached importance to “the controversy about Mr. Wilson and/or his wife” (id. at 20) cleverly masks the fact that the evidence on which this argument relies – e.g., the involvement of the President and Vice- President, the declassification of the NIE, the Vice President’s direction that Mr. Libby speak to the press, the rarity of “on the record” statements by Mr. Libby – has nothing whatsoever to do with Mr. Wilson’s wife.

Here is yet another reason to look forward to a trial - the defense tells us yet again that they may call Joe Wilson:

Further, because the defense may call Mr. Wilson as a hostile witness, we need to prepare to examine him, if necessary, on the details of the trip, including his wife’s role in selecting him for the assignment and the findings he reported to the CIA, and later, to the press.

I'm not a lawyer, so help me out - is there a category of witness beyond "hostile"?  "Incandescent", maybe?

MORE:  Fun's fun, but who's having fun now?

The press had a great time taking a Fitzgerald comment out of context - in making a banal point about the difficulty of delivering documents with the objective of proving a negative, Fitzgerald wrote that "it is hard to conceive of what evidence there could be that would disprove the existence of White House efforts to 'punish' Wilson."  (Here, for example, is the Tuesday Times pretending that Fitzgerald was claiming to have an overwhelming case demonstrating a conspiracy.)

However, the defense is turning that back against Fitzgerald:

The government asserts that documents exist that could be characterized as demonstrating that the White House planned to punish Mr. Wilson, and that the plan involved talking to reporters about Mr. Wilson’s wife. (Gov’t Br. at 29-30.)  However, the government says that although it has divulged some of those documents to the defense, it is currently withholding others. Rule 16 entitles the defense to all such documents.  On this critical issue, the defense needs to know everything the government knows, to avoid getting blindsided with unexpected testimony about such a plot at trial.

One hopes that Mr. Fitzgerald enjoyed his headlines - now, if the defense is successful in using all that press attention as additional leverage, he gets to deliver the documents he was trying to retain.

STILL MORE:  How Covert Was Valerie Plame?  The defense makes a good arguement for finding out:

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 information. The government’s argument puts squarely at issue the credibility of Mr. Libby’s position that he did not leak classified information. The government surely cannot, on the one hand, contend that Mr. Libby knew he had revealed classified information (and thus felt in jeopardy of being fired), and on the other hand withhold from the defense information that would tend to prove her employment status was not classified and that others who knew of that employment had the same understanding.

I find this to be a bit muddled - even if her status was in fact classified (and IIRC, Fitzgerald has asserted that in various filings, and the original CIA referral was for a leak of classified information), the key point would seem to be, did Libby know (or fear) that at the time he testified to the FBI and the grand jury?

Well.  The defense also reiterates its request for the CIA referral document.  Here is just one of their arguements:

And, to the extent that Director Tenet was involved in the creation of the referral documents, or actively pushed the DOJ to investigate the disclosure of Ms. Wilson’s identity, the referral documents would show that the bias against Mr. Libby reached to the highest levels of the CIA and did not simply represent the complaints of lowerranking employees. Further, Mr. Tenet is a likely witness. If he was personally involved in the referral process, then the referral documents would be important for preparing to examine him on the issue of bias. To prepare for trial effectively, the defense must have the opportunity to explore all of these issues further.

I have not seen (or don't recall) a timetable for the judge's final decision on these discovery questions.

UPDATE:  A very interesting point from the Anon Lib - does the filing contain a hint that Libby had a secret understanding with Bush and/or Cheney such that Libby was not worried about being fired for leaking classified information?

My quick reaction - if Fitzgerald had such evidence, his most recent filing would have been a great place to introduce it.  Fitzgerald is clearly scraping around for any evidence at all of a Bush or Cheney role in this, so again, his silence speaks volumes.

Comments

[clarice]

If the Post does not fully comply with the subpoena they will have to tell us by April 19, the date set by the judge. In their article they make no reference of not turning over all the requested notes, so you are speculating out of nothing.
If this had been subpoenaed by Fitz he would have had to turn the notes over to Libby in discovery and Libby would not have had to subpoena the WaPo to get them.

[JM Hanes]

Walter

"I still like my explanation as it explains Fitzgerald's investigation and prosecutorial tactics without reference to bias...."

The interpretation I suggested neither refers to nor relies upon bias at all. Indeed, the bulk of what I've objected to most in this prosecution can be chalked up to an overzealous prosecutor who is convinced he smells a rat and is determined to put someone in jail for something, no matter how thin a case he ends up making and without regard to damage done -- to legal precedent as well as people -- along the way.

[topsecretk9]

--FBI's counterterrorism ---

Oh, I have the name in mind for that one...starts with a S

[topsecretk9]

Posted by: clarice | April 13, 2006 at 10:57 PM

--to Jeff, right?

[clarice]

Thanks for the reference--I found the Forbes article. I have to get some sleep..Later..I leave you in charge of Jeff.%^)

[JM Hanes]

MJW

Excellent observation! Indeed, in terms of relevance to the Prosecution's mandate, the Comey letter, and not the CIA referral would be dispositive.

There are other substantive reasons for going after the referral, but as you point out, per Comey, the crime Fitz is charged with investigating -- and aside from ancillary charges -- the only crime he was actually authorized to investigate was "the alleged unauthorized disclosure of a CIA employee's identity." Period.

[clarice]

Yes, to Jeff--sorry..His explanation ignores how this subpoena and discovery business works.

[topsecretk9]

Next up?

Guarantee...Clarice.

I've been harping on the NYT's for not TELLING US THE INFORMATION IT HAS - with regard to the subpoenas (and who the dang other 6 are)

Once the left ingests this --- I AM PREDICTING NOW ---MARK MY WORDS ----

A NEW -- Hamsher minion directed Comment/Email Jihad campaign on the WAPO to INSIST it tell us WHEN they received the subpoenas and BECAUSE that will PROVE why they wrote their OP-ED.

You watch. You heard it at TM"s site first.

(insult to injury, she has really lost all credibility with that paper, since she encouraged her readers to reveal how tacky they are by complaining that their Cheney at baseball BOO Coverage failed to tell readers how loud or at what times the booing occurred -----MayBee was right, MayBee was serious.

[JM Hanes]

tops

Meant to thank you for the Comstock info. Could be actually be thanking you for a daily collection of news and related connective tissue.
So, many thanks! :)

[topsecretk9]

JMH

Meant to tell you if you even *try* to --edit one word, or *slim* it up a bit -- I'd hunt you down mister!

I wish I had your patience to get it right, but then I wouldn't be the bad, bad girl --so you know, I know my place :-)

[topsecretk9]

IMO the -Larwyn tag thang? Lighten up people. It's bound to happen on any given thread anyways --

and I sorta like/look forward to it -- in that "Groundhog Day" kinda way.

Larwyn is "blindish", or eyesight impaired.

She's also in the golden part of life and I think it is fabulous and a kick she even knows what a -HTML TAG- is!

I'd hate to think anyone would give up participating on blogs because a community was so snooty about copy formatting.

[larwyn]

Well thank you Top,
I'm learning - but glad I give some some enjoyment.
wish it were "golden" feels more like "over-ripe" lately.
At least I see that I have company in Clarice with the allegies - they just came on so suddenly - It was freezing here and in two days blooms everywhere.
Sneezes everwhere also.
Glad to have a real challenge-
closing tags.
Only when the children/grandchildren were very young was there ever a TV on in the daytime in my home (Mr.Rogers/Sesame St). Since 911 it is on all waking hours. It wasn't until about a week after 911 that I found FOX news & MSNBC. When I finally got exclusive use of this orphan computer - wow! No longer lamenting my difficulty with reading books.
It is fascinating to follow the Libby/Plame case at JOM, as you go so deeply into each of the details.
IMHO "Asked and Answered" Rules
might be more important than runaway tags, but then IANAL so must have a bit less patience for the circular argument for sake of argument.
Late, like now, I get rather anxious as to how the Pubs are going to pull out the midterms.
(I am mad as hell at many of them- and hate that they backed Specter, I live in Pa. He had signs that had Kerry/Specter - the SOB!) But
cannot even consider giving any power to the Dems. Look at Philadelphia and Pittsburgh - Dem Bastions. When I hear these wacko's suggest we give Iran something - Matthews wants Bush to copy JFK in Cuban Missle Crisis - and make deals "under the table".

I so want Libby to stick it out and have it go to trial. I know Clarice and others think that the Pubs can have hearings to get it all out. I watch the hearings on CSPAN and then I see how they are reported. So I don't have much faith in that. And CSPAN gets worse and worse in programing -
hearings helpful to Pubs,showning those in the middle of the night.
I rather doubt that when push came to shove that Thomas would call Russert, Pinkus, Mitchell and the rest of that gang. (The spineless would talk him out of it) And in hearings you have that immediate "rehab" of the witness by the Dems for each Repub point.
My fear in the midterms is that Pubs stay home. Like giving in to the screaming child cause you cant take it anymore. That's my fear.
(no tags!)

[JM Hanes]

larwyn:

"IMHO "Asked and Answered" Rules might be more important than runaway tags."

Amen to that!

[larwyn]

I had to visit a few more favorites before sleep - and found this at the ANCHORESS:

I’d like to read more of Sam Freedman’s take on the superiority and “mediating intelligence” of Bigtime Professional Journalism, but I am frankly all done in. I cannot understand why anyone in the press thinks we should believe a word they write or report. The guardians need guardians - thank God for the new gatekeepers.

The harm and destruction being wrought upon this nation and others by people who have moved far beyond their commission to simply supply the facts of any given story is becoming incalculable - politically, socially, societally, militarily. Our press is out of control, or - more correctly - under the control of something malicious. Without a free and honest press, we are in trouble. And we are without a free and honest press, these days.

And this:

Pope Benedict XVI (H/T Patrick):

“Despite all the darkness in the world, evil does not have the last word,” said Benedict XVI, frequently changing his prepared text off the cuff. “For our part, let’s commit ourselves to create a more just world with more courage.”

Let's hope Europe and the Democrats are listening.

[JM Hanes]

tops:

Appreciate the kind words. In the interest of frank disclosure, though (which I usually avoid in favor of trying to maintain a gender neutral personna), I'm actually part of the goddess crowd, not the the mister contingent. :)

[MJW]

Jeff, given that Libby signed the waiver, that Woodward agreed to testify about his conversations with Libby, and that the WaPo was, in your version, willing to release some of the memo to Fitzgerald, I'm not buying your theory that he received a redacted version. I'm not saying it's impossible, just that it's more likely he neither asked for nor received any of it. Fitzgerald didn't see Woodward as anythinhg but an impediment to prosecuting Libby, so his interest was limited.

[JM Hanes]

TM

"Maybe Congress can build a statute to Joe Wilson somewhere - I'm sure he can hold a pose."

Typo or just the usual superior wit?

[Patton]

JUDGE TO ISSUE GAG ORDER IN THE LIBBY CASE.

Libby should file a motion requesting the Gag Order be delayed until Fitz finds an alternate means to report to his supervisers at DOJ.

[Patton]

Jeff says:
""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:""""

IT APPEARS LIBBY WAS ASSISTING FITZS SUPERVISORS IN SEEING HOW BAD HE IS SCREWING UP THE CASE..HOW ELSE WOULD HIS DOJ NANNY'S KNOW ANYTHING? IF NOT FOR SUPERVION BY WAPO REVIEW.

[Patton]

Walter says: """the actual criminal referral ordinarily bears no necessary relevance to the crimes charged."""

Do we even have clarification on what this document really is? Is it a criminal referral? Or is it a referral that 'classified information may have been publicly released'.

I thought we were told that CIA routinely sends these things to DOJ everytime classified appears in the press?????

[Patton]

And was there a referral when Wilson wrote his OP-ED?

[Dwilkers]

These threads are getting so long I don't have the time to read them.

I find it interesting that Judge Walton appears to be pissed at the defense over their release to the media of the Fitz correction letter. The WaPo wire story on it is in my local paper this morning.

I mean, here we have a mini media scandal that runs for a week over a baldly false assertion in Fitz' filing and the judge gets pissed because the defense released the correction letter? A letter that corrected a national firestorm of false "Bush told Libby to LIE" BS inspired by Fitz' false assertion?

Sorry, but that seems to me to be a bit of misplaced anger. When I first saw the headline that Walton was pissed I figured I was about to read about how Fitz was standing tall, not the defense lawyers. What Fitz said wasn't true. What the defense lawyers did was point that out. So the judge is pissed at the defense?

That doesn't inspire confidence for me.

[Patton]

"""But the judge is apparently pissed, says AP:"""

I WOULD HOPE THE JUDGE IS PISSED AT FITZ FOR FILING FALSE INFORMATIION WITH THE COURT, THEN WAITING A WEEK TO CORRECT IT AFTER ALLOWING THE MEDIA TO CARRY ON AND ON.

FITZ HAD TO HAVE KNOWN HOW EXPLOSIVE HIS CLAIM WOULD BE THAT CHENEY AND/OR THE PRESIDENT TOLD LIBBY TO PROVIDE FALSE INFORMATION NOT IN THE NIE KEY JUDGEMENTS.

This was an intentional public smear and Libby should be allowed to respond PUBLICLY.

This is not the first time Fitz has attemtped to smear Libby with lies. He still hasn't corrected his lie that Libby was the first to disclose Plame to a reporter.

[kim]

Yet another brick in the wail of appeal.
=======================

[Dwilkers]

Speaking of the WaPo wire story, it is amazing to me how little it tells about what is going on in this story.

It is 10 paragraphs. The first 3 paragraphs are straight facts about what Walton is doing and said. The following 7 paragraphs are empty uninforming drivel. The story:

* mentions Fitz' filing saying that Cheney authorized Libby to leak.

* mentions but does not detail that the defense said that wasn't related to Plame.

* then spends 3 paragraphs to restate the left's 'Plame outed to punish Wilson' line.

* finishes up with the charges against Libby.

In the entire story it fails to explain what the defense released to the media. It doesn't explain that the Fitz filing was false in any way. It doesn't mention Fitz' letter of correction, which is the root of the gag order story AFAIK.

In other words, in 10 paragraphs it restates every meme and reports what the judge said, but there is no context and nothing of "why". A reader that was depending on this story - and remember 99.9% of the people in this country are in that group - is left with the impression of defense misbehavior, told nothing about what Fitz did, and given no update at all on the machinations that we here know so well.

Pathetic. Is that a class they teach in journalism school or something? "How to Write a 10-15 Paragraph Story that Appears to be Informative but in Reality Fails to Inform your Readers and Perpeptuates a Myth 101" or something?

[kim]

It is only apparently insidious. What is insidious is the intellectual and moral rot that must precede that sort of manipulation.
=================================

[Jeff]

MJW - So you think Fitzgerald just got Woodward's tape of his interview with Armitage, but didn't get anything out of Woodward on Libby? And why does the Post specify that they would comply by giving Libby a complete copy of Woodward's memorandum of his interview with Libby? Why wouldn't they just say that they would comply by giving Libby a copy of the memorandum?

clarice says I'm ignoring how subpoena and discovery works. She's the lawyer, but I don't think so. I'm saying Fitzgerald got a redacted version of the Woodward memorandum, and Libby got that. Now Libby is getting a complete copy, i.e. an unredacted version, from the Post.

[TM]

From Jeff:

One interesting question the Post leaves unanswered is whether the production of the complete Woodward-Libby memo fulfilled their obligations under the subpoena, or whether there is material they are being non-compliant on.

Hmm, I had that very same thought, and encountered a new puzzle, which PACER buffs may be able to solve - per this old post, the WaPo was not on the original subpoena list, which included NBC NEWS & AFFILIATES, MATTHEW COOPER, JUDITH A. MILLER, ANDREA MITCHELL, TIM RUSSERT, TIME INCORPORATED, and the NEW YORK TIMES COMPANY.

No WaPo there. And when I checked PACER last night, I couldn't find a mention of a WaPo subpoena (I searched the Dist of Columbia for "Libby".

I don't see how the only thing requested could have been Woodward's notes, but so far, I'm stuck.

[Sue]

Tom,

The subpoenas are not on PACER. I'm not sure why, I don't do Federal and in State they are returned and filed. I thought once they were served they would show up. It doesn't appear to work that way in Federal court, either that or the Judge has kept them under seal or something.

[coolpapa]

OT, but maybe not, since this the end of VOLUMINOUS comments at the end of the ONLY post here in the last 2 days.

From "Fitzgerald Needs to Make a Second Correction."

"Given how much was at stake, including public confidence in an administration fighting a war in Iraq and more generally against terrorism, correcting damaging, but inaccurate misrepresentations by a clearly partisan and anti-Bush zealot was not only politically necessary, but a public responsibility."

[kim]

It's going to become someone's overriding goal to see that justice is done to Fitz. He is beyond the pale.
========================

[Jeff]

TM - The Post has taken a different approach from other news organizations throughout - more negotiation, less fighting in court (though for a while they were fighting Pincus' subpoena) - and I suspect they may still be in the midst of negotiating with Team Libby on some other things.

Also, what about Novak?

[cboldt]

TM

No WaPo there. And when I checked PACER last night, I couldn't find a mention of a WaPo subpoena (I searched the Dist of Columbia for "Libby".

I did the same search and no doubt obtained the same result you did. Seven "cases" involving subpoenas, numbered 00123 through 00129, all filed on March 28, 2006.

It is interesting, in that a subpoena dated April 13 cannot possibly give the recipient time to reply under the terms of Judge Walton's February 27 order (production, or motion to quash or modify by April 7). The seven cases above are the result of Motions for extension of time to respond to subpoena, and clearly, if served on the 13th, a motion to extend deadline might reasonably be filed on a day or two later, if at all.

Anyway, my point being that the subpoena tracks in PACER are all the result of Motions to Extend Deadlines.

A separate note - I assume all seven movants for extension of deadline were given the same deadline, April 18, but I don't know that for a fact, having only viewed the order to Russert.

[kim]

I love it. CP's quote above refers to Joe Wilson, but read it as if it means Fitz. Har de har har.
=================================

[kim]

Jeff, what might the 'good leak' editorial mean in the context of your perception that the WaPo might be more in a negotiating mode? Are you suggesting they may even be playing the middleman between Fitz and Libby? Forgive me if I misrepresent your view.
===============================

[sad]

I did read it that way first Kim and it really revved me up to go read the article. Hilarious isn't it?

[kim]

Hey, it really works both ways. The judge should read that. Maybe he'd laugh enough to calm down.
================================

[PeterUK]

"The CIA says its counter-proliferation officials selected Wilson and asked his wife to contact him"??????????

Do they have a dead letter drop behind the marmalade pot?

[Jeff]

Are you suggesting they may even be playing the middleman between Fitz and Libby?

No, I didn't mean to suggest that at all. All I meant was that during the grand jury investigation, the Post adopted a different posture from other news organizations toward the special prosecutor when he sought info from them, quietly pursuing negotiations that would allow info to be given without compromising their reporters' (sense of) responsibility toward sources and so on, rather than adopting a more adversarial, courtbattle-oriented strategy, as the Times did, for instance. In other words, the Post worked out deals for reporters' info with the special prosecutor, and my suspicion is they've been trying to do the same with the defense. That may be why they were not subpoenaed at the same time as the other news organizations. The fact that the Post has now been subpoenaed may mean negotiations have broken down. Or maybe not. Who knows. In any case, the Post is clearly attempting to present itself as cooperative, in announcing that it's giving the complete Woodward memorandum. But if I had to guess, I bet the Post will not ultimately be able to avoid a battle with Libby's defense.

[kim]

And you know, the fact is that the mistake is a ground for appeal, and the judge gagging might be another. Given the widespread cast of the false meme 'Bush Leaked, Libby Lied' there is a case that all venues are poisoned.

Another irony: With a gag order, how is Fitz supposed to be supervised? That would stymie one of his arguments for authority. Does the judge have any supervisory authority over Fitz? Certainly ought to over his actions in court.
============================

[kim]

Well, I'll suggest that the WaPo might be playing middleman. The judge prefers that defense and prosecution settle a lot of stuff between them. They are clearly so alienated they need an adjudicator, one not on the federal bench. The editorial was a sign to Fitz that his bargaining position has it's flaws. The transcript, maybe not subpoened, is the signal to Libby's team, though just what that signal is I'm blocking on. C'm'ere, Larwyn; I need your clarity of vision, please.
=============================

[JJ]

Instead of letting these mangled, inaccurate statements/paragraphs on get tacked onto the lede, it does certainly seem that these PJs (professional journalists) could use the cut-and-paste a litte more. Use older stock background paragraphs.

That's a high school thing.

Unless of course it's intentional.

[kim]

I'm not so sure there will be a fight between the WaPo and Libby's defense. Who there wrote about Plamegate, and what do they say now? In contrast, where does Woodward work; and though he's been publicly silent lately, that transcript speaks volumes, I'll lay piles of money on it.
=======================================

[Walter]

JMH,

Maybe I fail to understand the procedural postures of the parties in these filings. As I mentioned before, I am not an FRCrP expert.

As I understand it, Fitzgerald is arguing that Libby is not entitled to additional discovery in his last filing.

The relevant comments appear under Fitzgerald's heading: "Defendant is Not Entitled to Discovery of the Requested Documents on the Basis that Such Documents Will Allow Him to Provide “Context” for Events Alleged in the Indictment."

Fitzgerald then lays out those facts that "the evidence will show", including the context (my word here) that this situation was unusual for Libby because he had direct authority to speak on the record (Side note: not just on deep background as a "former Hill staffer".)

Now, again, I'm no expert, but when I am attempting to minimize the scope my opponent's discovery, I generally do not emphasize in the same document, under the same heading, that I intend to prove facts that fall under that extended scope.

I surmized that Fitzgerald wanted to see whether the WH would be willing, prior to a battle over Executive Privilege or trial testimony, to support Libby's (again, never before disclosed) assertion of unilateral, limited distribution, declassification.

I truly believe the "Libby Lied" front-page stories were a surprise to him and that the phrasing was a mistake.

But, since the discussion regarding his intent to introduce evidence regarding the overall context of Libby's statement seems to undermine the very point he is trying to make, I cannot understand why he would bring it up. Especially in this brief. Especially under that heading.

Am I missing something?

[noah]

WaPo would redeem itself, in my eyes at least, if they would merely publish UGO's identity. You have to wonder why not. It is NEWS!

[clarice]

Compare it with his other pleadings, none of which seem to me to be well thought out or written.(Especially his response to Libby's Motion to Dismiss.)

Patton, very funny point.

[Patton]

How come with Fitz its always an honest mistaken but with Libby its always a conspiracy to corrupt justice.

It appears Fitz has told more lies that have obstructed justive then Libby. It appears Fitz's investigation has onstructed more justice then Libby.

Fitz found out UGO was the leaker, didn't bother to puruse anyone else UGO told and then smeared Libby as the FIRST.

Fitz knew Libby had not lied to Miller to hype the Uranium issue, but put it in his brief anyway then waited a weak until the Democrat media had raped Bush/Cheney and Libby...then Fitz pulls them off Libby like a Duke Rugby team off a stripper.

Next Fitz will claim Libby was drawing cartoons of the Prophet Muhammad.

[sad]

Well said Patton!! Why isn't MSM probing this outrageous miscarrage of justice?

[Patrick R. Sullivan]

'...the premise that Fitz is dumb. But that premise is highly unlikely.'

That's how Libby's lawyers are making him look.

That, and he's drunk with power; 'I'm the functional equivalent of the Att'y General, and I can send whomever I please to jail if they won't talk to me. 'cause I hold the power to destroy a presidency. And this is a lot more fun than Illinois politics.'

[Patton]

But Fitz really hit the heights with his twin stooge affadavits from him and Comey telling the judge, ignore what we said and did, and just go by our uncommunicated understanding.

And this guy claims Libby isn't fit for public office??

[clarice]

Last night I skimmed thru some of the records in this case. Reading the GAO report on the funding for the SP, it occurred to me that the reason Comey set up the extra-statutory appointment (which I think is also unconstitutional) is to allow him to tap an unsupervised, unlimited fund.http://www.gao.gov/decisions/appro/302582.htm
After reading the Motion to Dismiss, I think the justification DoJ gave to GAO repeated in this report is as flawed as the appointment. I wonder if a suit to enjoin further use of these funds might not be brought and would appreciate your thoughts on this.

[cboldt]

Walter

Fitzgerald then lays out those facts that "the evidence will show", including the context (my word here) that this situation was unusual for Libby because he had direct authority to speak on the record (Side note: not just on deep background as a "former Hill staffer".)

Now, again, I'm no expert, but when I am attempting to minimize the scope my opponent's discovery, I generally do not emphasize in the same document, under the same heading, that I intend to prove facts that fall under that extended scope.

I see Fitz's logic here as: Libby already has the documents covering Libby's activity within the OVP, and it is that evidence (plus Libby's testimony to investigators and the GJ, which Libby also has) that may indicate (I say may because I haven't seen the evidence) that Libby's standing in for Cathie Martin somehow creates a "placing of importance on the conversation with Miller," and other conclusions.

Fitz seems to be asserting that Libby already has the evidence that shows he stood in for Cathie Martin, that he expressed this as an unusual event, etc.

Fitz is arguing that Libby doesn't need the documents he is demanding to have from CIA and the State Department, that illustrate the low importance that those departments attach to "matters Plame." Low importance in CIA and State Department do not necessarily lead to the conclusion of low importance for Libby or low importance in OVP.

[Walter]

Clarice,

Interesting thought, but I can't imagine who would have standing.

[clarice]

A quick look--and it is not extensive research--shows that taxpayers have been found to have standing to enjoin funding an unconstitutional program, Walter. I need to check some more, but if Libby's argument that the appointment is unconstitutional is sound--and I think it is--I wonder if this is not the way to more quickly resolve the issue?

As to that nonsense about Libby's never having been authorized to disclose on the basis of the VP's say so..I remind you all that the EO authorizing the VP to declassify documents wasn't signed until March of 2003 , therefore it is no surprise that this was not a normal pattern of behavior.

[Patrick R. Sullivan]

'But, since the discussion regarding his intent to introduce evidence regarding the overall context of Libby's statement seems to undermine the very point he is trying to make, I cannot understand why he would bring it up. Especially in this brief. Especially under that heading.

'Am I missing something?'

Maybe that the prosecution is so shaken by the pounding Team Libby is putting on them that they're just throwing anything that comes into their minds back. Like a boxer who has been hurt trying to buy time to clear his head.

[Walter]

Clarice,

Just caught this in today's Note:

"The grand jury investigating the CIA leak may meet at 9:30 am ET in Washington, DC."

http://abcnews.go.com/Politics/TheNote/story?id=156238

No mention of topics. Nobody named Fitzgerald would ask for an indictment on Good Friday, though.

Enjoy your passover!

[Patton]

I don't think anyone with a pulse could still believe the MSM is unbaised.

After we lived through the Kerry/Bush election where the Swiftboat Combat veterans were attacked and lampooned and called liars by the MSM and the nutcase Bill Burkett,the still unfound Lisa Ramirez girl, and the 1971 Microsoft Word documents were the saviors of our Democracy.

[clarice]

PRS--I fully agree that that argument by Fitz was ill-considered. Both Byron York and I have argued that Fitz cannot have it both ways--raising broader issues and then denying "context" discovery. This is, however, why I have said that he should diagram his damn case. Because it seems to me if he will not turn over this stuff he will not be allowed to argue "context" and if he cannot argue "context" there is nothing material about the minor conflicting recollections. This also goes back to the supervision argument. Had there been supervision, he would have had to justify the indictment and in that debate in DoJ his supervisors would have talked about problems of privilege and classified information having to be revealed in the "context" part of the case and surely would not have permitted the filing of the indictment.

Very funny Walter..after two gargantuan seders on two consecutive nights, I am seeing the wisdom of the Two Minute Seder posted on Salon the other day.(Though as you might imagine, I love reciting the plagues.)

[Walter]

cbolt,

Granted, Fitzgerald is saying that they have the documents underlying the facts we intend to prove. That is to say, he has provided documents showing inculpatory facts.

But, in saying that, he states that he intends to prove facts beyond the four corners of the indictment in order to provide context for his assertion that Libby intentionally misspoke.

And he does it in a section which, by its heading, attempts to show that Libby is not entitled to additional discovery in order to find exculpatory evidence lending support to Libby's contention, that given the context, either he misremembered or someone else misspoke.

He could have accomplished the goal you describe without leaving an opening for Libby by simply asserting "the circumstances about which defendant testified were memorable." Anything beyond that statement (which does fit within the four corners of the indictment) adds no additional weight to his argument.

Clarice--I thought taxpayer standing was limited to religious funding. Good hunting, though.

[clarice]

Thanks, Walter..(Very droll, perhaps I can find a religious angle..)

[clarice]

P.S. Walter , don't you think he added that "context" stuff to hurt the Administration and hurt himself in the process? Aside from stupidity I cannot think of another reason for his doing that.

[clarice]

In other news, I finally received a response to my request for a transcript for Wilson's speech:
"Ms. Feldman,

Thanks for your interest in Ambassador Wilson's presentation. Yes,
we have a videotape of his speech, but his contract stipulates that
it is for archival purposes only. We can show it in the Student Life
Building, but we may not distribute copies to the public. This is a
fairly standard legal position re: protecting intellectual property
rights.

Someone else has asked about seeing the tape. Would you like for me
to reserve a room and TV sometime next week for a viewing? If so,
let me know when you are available, and I'll check into room
availability.

Thanks,

Bob"

I replied that I couldn't travel there to view it, asked if Wilson had to their knowledge disputed the account of the speech in DailyKos, and inquired as to what if anything had been edited from the video before making it available to the public for viewing.

[Walter]

Clarice,

You did bring up the plagues, didn't you? I'd also look at deification/demonization of otherwise sober, respectable people like Cox, Walsh, Starr, and Fitzgerald once they are given the SP/IP. Check with ?Jake? on the "faith vs. belief" angle.

I know I'm still giving a (somewhat) contrarian view, but I maintain that Fitzgerald knew he was on shaky ground with the NIE stuff (look at Cecil's comments re: declassification authority). There is no strictly legal reason that this "bombshell" could not have appeared as a paragraph in the indictment.

I still don't buy the "hurt the administration" argument. Fitzgerald was an unsung deputy until Bush gave him one of the few non-political US attorney spots in the country--and in a major market, no less. I prefer JMH's approach of power unchecked by politics creates bad results, modified by my own thoughts that politics provides, at best, only a weak check on prosecutors.

[topsecretk9]

JMH

My bad, I'll still hunt you down if you edit one word of your wisdom!!!!

[Cecil Turner]

He could have accomplished the goal you describe without leaving an opening for Libby by simply asserting "the circumstances about which defendant testified were memorable." Anything beyond that statement (which does fit within the four corners of the indictment) adds no additional weight to his argument.

Concur, it makes no objective sense in that context. Hence either Fitz is stupid, or he's working in another context. Judging from his earlier public statements, and the intense interest that particular filing has generated in the press, I suspect the issue is on the PR front. (And I'm having a hard time coming up with an explanation that reflects favorably on Fitz's conduct.)

[clarice]

Me neither Cecil.

BTW today's WaPo article on the "gag order" seemed to me to be less partisan than the one I first saw online. It could be my recollection is failing, but I thought the first focused on the letter to the Judge re the NIE allegations (that is,Libby's fault)and today's paper version is absolutely neutral as to which side has irritated the judge.

[clarice]

Here's today's WaPo article.http://www.washingtonpost.com/wp-dyn/content/article/2006/04/13/AR2006041301687.html

[Jeff]

clarice - the initial report, from AP, fingered Team Libby as having released Fitzgerald's letter of correction to the press early. the WaPo report was always as you describe it, as was the Times - if anything, they actually seem to suggest the fault lay with Fitzgerald, if you ask me.

[clarice]

Thanks, Jeff. I read them at about the same time and may have blurred who said what. Well, at the hearing we may find out more. Do you suppose Fitz released early to the press his original pleading with the now retracted NIE allegation in it? If that's what ticked off the judge, Fitz really goofed.

[Squiggler]

If the judge initiates a Gag Order, how will Fitz get his evidence? Doesn't he rely on press accounts for his claims? Just asking.

Also, why would a suit to stop funding by taxpayers (standing) be limited to religious issues? I know that the "We the People" government has been badly weakened, but it seems that funding an unconstitutional entity should be a definite area that "We the People" have a right to standing in any issue, no just religion.

[clarice]

Well, my quick check shows only cases that invole claims the expenditures conflict with the Establishment Clause have been successful in blocking agency actions as opposed to Congressional actions. Here the GAO reviewed the program and reported the justification of DOJ to Congress..Maybe in failing to act to stop this we can find a Congressional nexus which might change the situation, (Just noodling--not a solid argument for it yet.)

It is hard to avoid poking Fitz on his press arguments isn't it?

[JM Hanes]

Clarice

Your URl for the WaPo gag order article got truncated. The Post piece is, indeed, less specific about what generated this ruling. Did anyone post a link to the initial AP story (Jeff?), as I think it might be worth reviewing. The Post's presentation is also more neutral/less alarmist than usual. Wonder if somebody finally read that crew the riot act.

[clarice]

Someone did post the AP story..I think Jeff had quoted from it without the cite and someone later posted the cite.

[cboldt]

Walter

And he does it in a section which, by its heading, attempts to show that Libby is not entitled to additional discovery in order to find exculpatory evidence lending support to Libby's contention, that given the context, either he misremembered or someone else misspoke.

He could have accomplished the goal you describe without leaving an opening for Libby by simply asserting "the circumstances about which defendant testified were memorable." Anything beyond that statement (which does fit within the four corners of the indictment) adds no additional weight to his argument.

Apologies in advance for the extended length of this.

Fitz discussed the point in detail because Libby argued the need for the evidence in detail. Fitz needed to compose an argument that justifies withholding evidence, where the argument is responsive to Libby's rationale for needing the evidence. A conclusory assertion here, by Fitz, would be a weak rebuttal. Fitz is trying to argue why the material sought is not relevant, rebutting the reason that the defense gives.

Libby's 3rd Motion to Compel contains this heading and argument:

"2. The Defense Is Entitled To Documents that Will Establish the Proper Context for the Events Described in the Indictment"

... Here, we present a second, independent reason why production of these documents is required. They are necessary to put the controversy over the sixteen words, and the peripheral role that Ms. Wilson played in that controversy, in proper context.

... The indictment suggests that to Mr. Libby and other government officials, Ms. Wilson's role in sending her husband to Africa was important. But in reality, Ms. Wilson was not important. ...

The defense will need to demonstrate, in part through the documents sought by this motion, a more complete account of the government's response to Mr. Wilson's criticism, and the defense will also need to corroborate Mr. Libby's version of events.

Fitz's heading, "Defendant is Not Entitled to Discovery of the Requested Documents on the Basis that Such Documents Will Allow Him to Provide "Context" for Events Alleged in the Indictment," parallels Libby's heading.

With regard to argument and rebuttal, Libby's contention is basically that the whirlwind in the government, surrounding composition of a rebuttal to Wilson, vastly overshadowed concern for who sent him to Africa. In that vein, that Plame's role in sending Wilson to Africa was completely unimportant to to CIA, State, and NSC.

Fitzgerald's response is, "So what if Plame was unimportant to CIA, State and NSC? Libby's state of mind as to the importance of Plame won't be reflected in any activity undertaken by CIA, State and NSC that did NOT pass through OVP." In other words, disinterest at CIA, State and NSC is not exculpatory to Libby (nor would strong interest at CIA, State or NSC be inculpatory).

Said another way, Fitzgerald's response is that Libby can fully support and explore his argument (that the overwhelming interest in the OVP was to debunk Wilson without reference to Plame) using the OVP records, already produced to defense; and that drawing other agencies into the trial amounts to a smoke-screen.

All that being said (and I don't mean to be implying a judgement as to the efficacy of either side's argument - my aim is to reasonably paraphrase them), I do agree that the composition of the government's briefs is awkward and tends to divert attention from the substance of the argument.

[clarice]

There is no reason to follow the format of your opponent in such a pleading if doing so destroys your argument. Where is it written that a responsive pleading is one where you must let your opponent frame the issue and your argument in the least favorable light to your own. (As a rule of thumb you can often gauge how weak your opponent's argument is on a given point by the brevity of it. He doesn't want to highlight it's weakness and often tries tobrush over it with "it doesn't require extensive discussion or citation to dismiss the argument that..." It's a strategic giveaway. LOL

[Cecil Turner]

Did anyone post a link to the initial AP story (Jeff?), as I think it might be worth reviewing.

If so, I missed it, but I think this one is it. It's funny, because while looking for it I ran across this one that I'd forgotten about:

At a hearing Friday, U.S. District Judge Reggie B. Walton warned Fitzgerald and defense attorneys about making too many statements to the news media.

"I've never issued a gag order," said Walton, a former prosecutor. "I don't want to in this case."

But, Walton said, "I do have concerns that statements are being made ... usurping what ultimately I am going to have to decide about what is evidence in this case."

"I hope that a word to the wise is sufficient," the judge said.

Apparently not.

[topsecretk9]

Holy Crud, Cecil...thanks.

Clarice, also who and when was the first reporting on Fitz's firestorm, I mean discovery response...that might help

[topsecretk9]

Clarice

Also, Cecil once mentioned Marc Grossman as a possible for the redaction recreation...anyways, I went hunting around

TNR Link

Here is what I posted and above is the TNR link:

--This wasn't posted on April 1st...It doesn't appear to be a joke, I guess this was pre-Woodward so it may be possible that a spokesman could confirm this. (also TNR crew aren't exactly Wilson devotees - not by a long shot)

10.28.05

GROSSMAN:

There's a lot of speculation about the identity of the Undersecretary of State named in the indictment today. It's Marc Grossman. I confirmed this with Fitzgerald's spokesman today.

--Ryan Lizza

posted 4:48 p.m.

Did anyone double ask Ryan about this? Was this a joke?
maybe it seemed like no biggy so it was glazed over, dunno...I just link

Posted by: topsecretk9 | March 03, 2006 at 04:39 PM--

Link 2

Rick added info on this - and more discussion on Fitz's team talking to press

[larwyn]

If I am duplicating a link - sorry. But this thread is multiplying as fast
as Easter Bunnies.
No PLAMENIAC? SHOULD MISS THIS ONE:

A Brief History of Counsels and Leaks
April 14th, 2006

Who remembers Sam Dash? If you were transfixed by the Watergate hearings, the bloodsport initiation of today’s drive-by media, you may remember him as the “highly respected Counsel to the Senate Watergate Committee.” Sam Dash’s name is now iconic, celebrated as a model of a principled lawyer.

When Kenneth Starr was appointed Special Prosecutor in the Monica Lewinsky impeachment, he hired Sam Dash to be his ethics advisor. One reason, according to Starr, was that Sam Dash was such a principled Counsel for the Watergate prosecution. Dash would never, never leak to the press.

Or, as Mr. Starr said on the PBS News Hour:

KENNETH STARR:***** “Let me say this. Sam Dash is a man of total principle. And I love Sam Dash.”******

Stanley Kutler, however, recently has revealed thatole principled Sam leaked like the Titanic to the Watergate media. So did the US Attorney, Earl Silbert, and the Senate Watergate Committee itself. So did the passed-over J. Edgar Hoover contingent at the FBI, including J. Edgar Hoover’s favorite son-like figure, Mark Felt, aka Deep Throat.
Together they brought down Richard Nixon, the most media-hated President ever. Until George W. Bush, that is.

Really, read it all!
(I closed the tags!)

[larwyn]

This is insane - sending off the email where I typed the comment so
JMH can tell me where I've messed up! I see it slash followed i- I will learn this!

[Cecil Turner]

Larwyn, you are a recidivist. (BTW, you typo'd the end tag (&lti/> instead of </i>).

Not sure if you guys are interested, but I usually use a standard text editor (Notepad) for drafting comments, and paste the following common tags at the top of the file:

&lti></i> &ltb></b>
&lta href=""></a> &ltol>&ltli>&ltli>&ltli>&ltli></ol>

&ltul>&ltli>&ltli>&ltli>&ltli></ul>
&ltblockquote></blockquote>

When I want to use one, I just copy and paste whichever tag set I want into the body, and draft my comment around 'em. When I'm done, I copy and paste the whole mess into the little box, preview, and post.

It makes it much easier to see what you're drafting, and as long as you manage to paste inside the tags, it's a lot less likely you'll ever leave an open tag. (Also makes it easier to use the appropriate tags.) FWIW.

[larwyn]

WHY IS IT STILL GOING ON?
Just closed tag I did not use em used i

THE DYSLEXIC TYPIST STRIKES AGAIN!

[clarice]

Easier for you maybe, Cecil..

I recall that old TNR piece. In fact, I remember posting it a hundred years or so ago. Maybe it caught Libby's eye, too.

[boris]

The explanation by cboldt appears to make a lot of sense. So the Fitz argument is that Plame's role was too important to the OVP for Libby to forget regardless of disinterest in DoS and CIA. This seems to assume the WH conspiracy that is the unprovable crime Libby is being punished for, hence the inclusion of the NIE declassification to establish a "pattern of conspiracy".

[JM Hanes]

Walter

"Now, again, I'm no expert, but when I am attempting to minimize the scope my opponent's discovery, I generally do not emphasize in the same document, under the same heading, that I intend to prove facts that fall under that extended scope."

Afraid I'm not even a lawyer, let alone an expert, so I can only speculate along with everyone else and try not to get too far out on the limb of intentions. It does look like every time Team Fitz files, they seem to end up giving Team Libby ammo for discovery and/or the appeal. Part of the problem, I think, is that this kind of case really is above Fitz' pay grade, and since his appointment/powers etc. conform to no known guidelines, he's having to invent new wheels as he goes along.

My 2¢ on the most recent logical conundrum you reference:

Background first. Fitz has made a real habit of laying out his strategies and arguing his case in his filings. This didn't become problematic until he hit Judge Walton's court and Libby's defense team, because so many of his filings were essentially made ex parte. When a big unredacted chunk of Judge Tatel's opinion in Miller was eventually made public (as a result of the Dow Jones litigation, I believe), it became clear how often -- and how successfully -- Fitz was doing just that sort of thing. IMO, it also confirmed Fitz's willingness to make extra-legal arguments to the Court, just as he did to the public in his indictment press conference (which is where I first began to question the propriety of his investigation).

I'm not the only one who began to wonder if those pleadings (rather than the purported inclusion of sensitive material) weren't a big part of why Fitz wanted to keep so much material under seal. Team Libby clearly shared that view, and their motion on ex parte submissions was a critically important corrective. Unfortunately, over on the Prosecution side, old habits apparently die hard, and I suspect they may still be struggling with the transition from the freedoms of a long grand jury phase to the limits of litigation.

Second, I don't get the impression Fitz is saying he intends to prove the facts as to context at all. I think he's saying additional discovery on that score is unnecessary because we already know the context, to whit: [insert NIE script]. That's why patently screwing up an important fact on that point in particular was a monumental error, and one which compelled Fitzgerald to make an official, notably unique, correction to the record.

[boris]

copy and paste the whole mess into the little box, preview, and post.

With dial up and a long comment section the preview wait can be shortened by previewing in a seperate, shorter comment thread.

Paste and preview on the short thread, if it looks ok paste and post in the long one.

[topsecretk9]

When life hands you HTML lemons? Make lemonade...

Larwyn, like I said...it gives me a giggle...It's like "Groundhog Day"

[larwyn]

Cecil,
Prefer "Dyslexic Typist" also in private email to JMH earlier, and considering changing my sign in to
CAITA.
Clue last letter is "a room just under the roof".

But just consider how all will cheer and share my small victory with every successfully posted tagged comment I post.

With this hand me down (get warning hard drive is full all the time) 97 Gateway, dialup AOL 7 (it won't load AOL upgrades) I get thrown off and find my favorites gone etc on regular basis. Grandson will give me newer computer when he returns home this summer.
As it stands, everday that Old Betsy still works is a blessing!

[clarice]

JMH--rather brilliant explanation--sloppy habits from years of practicing before easy courts and not too great opposing counsel.
larwyn, we love you no matter how you post..

[JM Hanes]

boris

Previewing in a short thread, now that's creative problem solving in the flesh. I believe you also suggested just routinely pasting a set of double close tags at the end of every comment, didn't you?

[Walter]

cboldt (sorry about the "d" above)

Thanks. Please don't apologize to me about length. I burned quite a few pixels in my comments.

I understand your point now. I had not gone back and put the three filings next to each other. While I retain some fondness for my contrarian guess, I won't push it further.

Your point about being caught up in a tit-for-tat brief-response-reply mindset and losing sight of the overall goal is far more plausible. I've been there and done that. Unfortunately, it seems much more noticable _after_ the judge rules than during the drafting process.

JMH,
Thank you for your lengthy explanation as well.

Between the two of you, I "really learned something today". As I mentioned before, I like this case as a primer because it touches on so many areas of criminal and administrative practice and because both sides have the resources to fully develop their points. Add in helpful commentators and it's cheap CLE (anyone up for getting JOM certified as a seminar?).

[JM Hanes]

larwyn

See boris' suggestion for the easiest solution. If you just paste in the same set of 4 tags (just as he wrote out) at the end of any/every comment, it should pretty much take care of the problem.

It won't hurt anything to do it, even if you haven't used any tags in your post. Beyond that, it's not something worth driving yourself crazy over -- or letting comediennes manques like me drive you crazy over either. :)

boris

Sometime I'll have to ask you to explain how you formatted those tags so they would actually show up in your comment! I have a similar problem with the theory of relativity: I understand it for about 3 seconds right after someone's explained it to me, and then poof, it disappears back into the general ether.

[clarice]

TS--who and when was the first reporting on Fitz's firestorm, I mean discovery response...that might help That's a good suggestion though I've not time to research it. Walter, I'm delighted you like JOM..You contribute a lot. But if you try to get CLE credit for this,well..watch out..You know what that'll attract here..*wink*

[JM Hanes]

Walter

It's soooo easy to get hooked on this case. Withdrawal & recovery may prove difficult indeed, but Judge Walton's gag order could be telling us we'd better get started. Alas!

In any case, so to speak, I find responding to other folks ends up forcing me to organize my own thoughts -- often in ways I might not otherwise do so on my own, which is part of the pleasure.

[MJW]

Walter: "Now, again, I'm no expert, but when I am attempting to minimize the scope my opponent's discovery, I generally do not emphasize in the same document, under the same heading, that I intend to prove facts that fall under that extended scope."
I think that's a very good point. In a comment on an early thread, I mentioned what I think is another problem with this section (and that occurs elsewhere in Fitz's brief, as well). The argument boils down to: information isn't material if it it's intended to support a theory the prosecution has evidence to refute. Off hand, I don't see how "the evidence will show..." is ever a valid argument for denying discovery. Libby's team refer to this problem when they say at the beginning to their latest filing that the prosecution "proceeds from the flawed premise that the defense must accept the government’s version of the facts in crafting its discovery demands."

[boris]

JM Hanes,

Here's how to display &ltfoo> ...

use: &ampltfoo>

To display &ampltfoo>

use: &ampampltfoo>

If Cecil's excellent shortcuts were posted on a very short thread, that thread can be used as a handy html edit and preview editor.

[boris]

And ... TM would get ad credit for all the extra hits !

[MJW]

TSK9, I'm a little confused about the point of the discussion about Grossman, but in case anyone has a question about it, he is the Underecretary referred to in the indictment. From Fitzgerald's Aug. 27, 2004 affidavit (released Feb. 3, 2006): "Undersecretary of State Marc Grossman recalls telling Libby in early June 2003 that 'Joe Wilson's wife works for the CIA" and that "our people say that she was involved in the organization of the trip.'"

[larwyn]

You will all dry heave if you catch Hardball rebroadcast and hear BenVinesta's description of "sainted Fitz" - believe it is a keeper!

I won't even ask what foo> means - still trying to get "tags K-3"
down. Except if it means poo!
Now I know all about that - and would use on EVERY CNN & MSNBC & CSPAN ALERT I post.

If there isn't a "poo" tag - can we get one invented?

Pleading to our Leaders -
May we move - taking forever and ever to reload

I closed b with/b> slash is really in front - I hope!

[boris]

Just for grins here is a Short HTML Preview thread ...