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April 27, 2006

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Sid

I scanned through the Judge’s decision on the illegal appointment issue and found a few interesting tidbits. I have read through the comments but might have missed discussion on these things.

Walton states:
First, he is given only limited jurisdiction—to investigate and prosecute only certain alleged violations of criminal law arising out of the alleged unauthorized disclosure of specific classified information…

ME It seems that one would have to determine that “unauthorized disclosure of specific classified information…” actually was a violation of criminal law before you even send out investigators or convene a GJ. If that was true (not so per Clarice who seems much more logically informed than fritz or Walton) one would then have to establish whether what was disclosed was indeed “classified information”

Walton states:
…the Attorney General, at least in an abstract sense, continues to direct and supervise…

ME It seems that Walton would cite an authority for “abstract supervision” in some statute or controlling case law. Is abstract supervision a legal norm?

Walton states:
Here, the Special Counsel is essentially removable by the Deputy Attorney General.
and
The court found that the Attorney General’s ability to remove Morrison …

ME Is there any legal support for “essentially” being in control being legally equal to actually having the “ability” to control?

Clarice is right. One becomes dizzy from all the circling. I wish my boss had full “abstract” supervision over me. And I’m also glad that I am “essentially” a billionaire, lacking only the net worth part needed to be an “actual” billionaire.

Also, reading Walton’s text he seems to say that the Independent Counsel law that congress allowed to expire, because it had created what congress had determined to be uncontrollable monster witch hunts, did not constrain the Attorneys General during its life from appointing a Special Counsel even more uncontrollable than the IC law. Did I correctly interpret this? Is he even close to correct on this?

I don’t see how the SCOTUS can let this stand.

clarice

Thanks, Sid. That's how I see it.

As to the Judge's request on April 25 for the CIA referral letter and documentation, I wonder if the McCarthy case played any role in this.

larwyn

Updates to DUKE CASE:

MSNBC reporter on Arbrams:

V Mother: The rape was by her boyfriend and 2 of his friends.

One of the boys named in that report:
"I was 13 years old. I have no idea who this person is. Neither does my brother"

Per another attorney earlier on FOX: An "expert" Rape Nurse said that problem with basing fact that a rape occured in particular time/place is:
evidence that Rape Nurse sees lasts for 5 days

Gary,
add to you synopsis:
A website was immediately set up "support the victim" it showed all the photos of the entire team and also all the information on their families including addresses and other properties owned.
Very simple to determine the affluent from zipcodes and property records in public records.

The 2 indicted were selected long after the websites were operating.

When Lis Whiel and others state:
"This will set back women rights 50 years" or similar fears. It gives me chills. Women are now sainted, unable to lie, cheat or steal. And we all know that MEN
are evil

I have daughters and grand daughters, but I also have grandsons.

kim

C, the judge is asking for the referral letter? Ah, this is a red-letter day.
============================

Squiggler

Well the victim is reportedly now talking to a potential law firm to be on her side. Its about time she got some professional legal help here with all the media and all those high priced defense attorneys tearing her to shreds on the hour every hour.

Dan Abrams on MSNBC makes me want to vomit. All he cares about is protecting his precious alma mater, Duke, like anyone cares whether its Duke, Harvard, or San Jacinto Community College. Poor Dan, now he's on a how maligned the media is by the prosecutor.

Gag!

Patrick R. Sullivan

' I hold that a social/legal system that tolerates deliberate misleading of investigators is a system worthy of nothing but ridicule and scorn.'

I hold that the above attitude is worthy of nothing but ridicule and scorn. That it is fundamentally un-American.

Investigators get paid to separate the wheat from the chaff. Professionals can take the stress of knowing someone might not be entirely up front with them. And they're better off in the long run having people talk and lie sometimes, than not having people talk to them at all.

The Martha Stewart case illustrates the issue almost perfectly. If she and her stockbroker lied--and I think it's at least within reasonable doubt that they didn't--it wasn't to cover up any crime either of them committed.

The lies would have been to prevent a very public woman from embarrassment, or image problems. Which is very understandable in her position.

Or, to provide some cover for the stockbroker--a personal friend of Martha--who might (or might not) have some ethical problems with his bosses at Merrill Lynch for telling one client what another client was doing. Even here, the issue is murky, since the other client happened to be under an obligation to publicly disclose his intentions to sell stock in his own company.

Would it have been better for the prosecutors not to have any input at all from Merrill Lynch employees about Sam Waksal's actions on the fateful day? Because that's what the incentives are now that they prosecute people not for insider trading, but for...not being nice(?)

MJW

Clarice, I enjoyed reading your article on Walton's decision. I do have a minor quibble. You say, "Because without consultation and with no supervision, Comey was in the dark when he expanded Fitzgerald’s delegation of authority." If Fitzgerald had gone to Comey to request expanded authority, I think that would indicate some level of supervision, which I'm sure Fitz would have highlighted in his response brief. Rather than expanding Fitzgerald's authority, I believe, in response to a request by Fitz, Comey simply acknowleged that Fitzgerald already had that authority. I suspect what happened is once Fitz realized no national security charges would stick, and he decided to pursue obstuction type charges. He knew his authority to investigate such charges might be questioned, so asked his old pal Comey for some clarification.

cboldt

Patrick R. Sullivan

I hold that the above attitude [social/legal system that tolerates deliberate misleading of investigators] is worthy of nothing but ridicule and scorn. That it is fundamentally un-American.


You're playing parsing games with the sentiment of my expression. Either that, or you think lying to investigators is okay. May as well do away with penalties for perjury and false statements, eh? No value in enforcing honesty at all, no siree.

MJW

Cboldt, what Cathyf was referring to his the oddity that one of the alleged lies by Libby is that he was surprised when Russert told him Plame worked for the CIA, when actually he wasn't surprised because he already knew it. Yet the indictment denies Russert even mentioned Plame, so Libby his charged with lying about his reaction to an event that never occurred.

clarice

Thanks, MJW, you may be right. I basically think it was a cover my ass request from Fitz..It comes so close in time to the date he found out from Novak that no one in the WH was the source for the leak--something I suggest had a lot to do with how he chose to proceed--that in a regular prosecution he would have had at that point to explain to his superiors what was going on.

Let me be clearer. I believe by that date in Feb he knew there had been no IIPA violation nor Espionage Act breach.In a normal case, he would have had to tell his superiors that and a discussion of the evidence and the discretionary considerations would have taken place then. He was diddling around on actually seeking UGO and as we know once he found him he did bupkus against him.


(When I worked in the DoJ criminal division, we had to write extensive memos for review up the chain before we were allowed to initiate actions. And in those memos we had to account for the evidentiary record as we knew it, including how we planned to get in what we had , any notable problems and discretionary considerations of note. We had to do that as well, when we decided not to prosecute, and I must tell you there were cases I refused to prosecute because of what I perceived were evidentiary or legal questions which we were unable to resolve before preceding.)

MJW

In regard to Walton's decision and the DoJ guidelines, one thing that hasn't been mentioned much is that a large fraction of the DoJ requirements designed to restrain prosecutors involve the necessity to seek approval to take certain actions. None of those limitations apply to the self-supervised Fitrzgerald.

cboldt

MKW

Yet the indictment denies Russert even mentioned Plame, so Libby his charged with lying about his reaction to an event that never occurred.


So if Libby said he heard it from space aliens, we'd be mocking Fitzgerald for that. Sort of like blaming Fitz for being the object of a defective appointment. As in, both sentiments are illogical.

Barney Frank

".....so Libby his charged with lying about his reaction to an event that never occurred."

Not trying to be a smart ass, but isn't that what lying usually entails; an event that never occurred?

clarice

Well, MJW, the Judge says "bypassing" those regulations doesn't mean not being bound to them.

cboldt, who's blaming Fitz for an illegal appointment? I think Comey goofed. But just because it wasn't Fitz' fault, it doesn't mean the prosecution isn't fatally flawed, does it?

clarice

Barny, isn't the argument--smart assery aside--that Libby recounted the conversation to the best of his memory and what he may have gotten wrong was the name of the person at the other end of it?
IIRC he reported that he was hearing about Plame in the summer of 2003 from other reporters and officials who told him of other conversations with reporters. To the best of his recollection the first of those conversations was with Russert. But, in fact, the first may have been with Woodward.

Given Cooper's comments suggesting he didn't see any real distinction between Libby's accounr and his, don't you suppose that on the stand the reporters will agree that discretion is the better part of valor and indicate that the'r memory's are imperfect and that they testified to the best of their recollections but cannot say to a certainty that the conversations were verbatim accounts of what occurred? I do.

clarice

********that theIr memorIES *

cboldt

clarice

I think Comey goofed.


Walton has punted that issue upstairs. The upshot of a defective appointment is a political argument that the administration isn't even capable of mounting an objective investigation (at best) or that it INTENDED a defective appointment (typical DEM conspiracy mindset).

cathyf
the Special Counsel is essentially removable by the Deputy Attorney General.
This is another curiosity of the whole relationship between Emperor Fitzgerald and the United States government. Comey appointed Fitzgerald because Rove had been Ashcroft's campaign manager and Rove was frog #1. Ashcroft has been gone for a year-and-a-half -- did Gonzalez become his supervisor when Ashcroft left? Comey has been gone for a half year -- who has been supervising Emperor Fitzgerald since then? Walton's wording Special Counsel is essentially removable by the Deputy Attorney General implies that this is some relationship between officers of the US government. But Fitzgerald is quite explicitly not a Special Prosecutor of the US Government, because that's a different office and Comey made quite clear he doesn't hold it. And the whole Deputy AG thing is also bullshit -- Comey appointed Fitzgerald in his role of Acting AG For Plame Kerfuffle.

It seems to me that the minute Gonzalez took office (Feb 3, 2005) the office of AAGFPK was terminated and Gonzalez became Fitzgerald's supervisor. Did the DoJ submit any documentation that Gonzalez has been supervising Fitzgerald, or had delegated the supervision of Fitzgerald to someone else?

cathy :-)

clarice

Nope..Nor did they provide any documentation or argument that Comey's successors in office had a single contact with Fitz. Apres the Feb 6 "clarification" the world was his prey.

clarice

cboldt, I do not doubt for a second that the Administration's opponents will argue something along those lines, but as none of those geniuses ever signalled there was anything wrong with the appointmnet, I doubt it will carry much water.

cathyf
So if Libby said he heard it from space aliens, we'd be mocking Fitzgerald for that.
Sure, let's pursue that thought. Suppose Libby said he heard it from space aliens, and Fitzgerald said, "Well, since we believed that he heard it from space aliens, we didn't pursue our investigation. Then we were shocked, shocked to discover that there are no space aliens, and we are charging Libby for perjury and obstruction for fooling us with his space alien story." Ok, that's not anything like anything I see anyone claiming, but if it were, then I think mere ridicule would be too kind a reaction...

cathy :-)

Squiggler

Rush Limbaugh arrested.

clarice

Squiggler, the report is a bit overblown. Rush has worked out a plea deal. He is pleading not guilty to one count of perscription fraud, will stay in treatment for 18 months and will pay $30k to pay for the cost of the investigation.

Squiggler

I didn't hear the details, I was just turning off my car and it was the last thing I heard before the radio went off. Haven't seen anything in the last 20 minutes on TV. Figured someone here would know. So is this the old charge? I thought he already went to a rehab?

I'll tell you, since my bad fall on the ice in December, I have a new appreciation for those who suffer chronic back pain. This has been one of the worst and most painful things I've ever been through.

clarice

I'm sorry to hear that, Squiggler. Chronic pain is so terrible.

Patrick R. Sullivan

'You're playing parsing games with the sentiment of my expression.'

By quoting your exact words, and stating I believe the opposite?

MJW

Cboldt: So if Libby said he heard it from space aliens, we'd be mocking Fitzgerald for that. Sort of like blaming Fitz for being the object of a defective appointment. As in, both sentiments are illogical.

The situation is more like Libby said he heard it from space aliens and that they talked to him from space using a huge speaker. Then Fitz not only alleges he lied about talking to space aliens, but also alleges as a seperate lie the claim that the aliens used a speaker, since sound can't travel through a vacuum.

The supposed unlikeliness of Libby's reaction may be evidence that his version of the Russert conversation isn't true, but it's not an independent lie.

The reason this matters, is Fitz is providing himself a backup position should the evidence cast doubt on Russert's denial that he mentioned Plame. He still wants to be able to claim Libby attempted to mislead the GJ by lying about his reaction.

boris

Fitz may believe the sound through a vacuum is a stronger case than the space aliens. After all it's hard to prove space aliens are actually telling the truth about not talking to Libby at all.

Really, after the X files who trusts aliens anymore ???

JM Hanes

MJW

"Fitz is providing himself a backup position should the evidence cast doubt on Russert's denial that he mentioned Plame. He still wants to be able to claim Libby attempted to mislead the GJ by lying about his reaction."

Excellent observation.

maryrose

Squig Ts:
Sorry for what happened to you both, my heart goes out to you.
I know I sound like a broken record but losing your job would be no reason to lie to the gj. After seeing what happened to Clinton- no one in their right mind would take that risk that's why Libby didn't lie about this.
My hope is that after midterm elections- Gonzalez makes his move and shuts Fitz down for gross over-reach and no supervision and unsubstantiated false charges of Libby via a perjury trap as suggested by Patrick Sullivan.

clarice

Well, while we're at it, the Court didn't believe the Comey-Fitz supervision by esp story either. Should we charge them for perjury for filing risible affidavits?

Barney Frank

Clarice,
Re: your 3:19 post,
Its perfectly possible that Libby may have confused the reporter's names. That possibility is one reason I'm becoming more doubtful about Libby's dishonesty.
My point however was more of a pedantic splitting of hairs -like most of mine are unfortunately :).
MJW's point seemed to be that there was some logical problem with charging Libby with lying about his reaction to an event that never occurred, and there isn't as far as I can see.

Barney Frank

Sorry, 3:09 post.

Barney Frank

Clarice,
Still on 3:09,
I suppose the reporters will exercise discretion in their testimony, prudent people usually do, but I would have thought Libby would have also, and he didn't to say the least.
I have seen people on the witness stand make some remarkably concrete statements when any sensible person would have hedged. As you know if these reporters are inexperienced in court they can be led by a good lawyer into some pretty tight corners before they even know they're in a box. What I know of the several reporters in question doesn't inspire much confidence in their facility of mind, if you know what I mean.

clarice

I do know what you mean. I also know from experience that a particularly punctilious witness is sometimes deemed incredible because he /she is simply trying to be precise. (How many times have you seen a lawyer on cross demand that a witness answer with a simple yes or no when the question doesn't permit such a response and the judge demands it be answered just that way?) I believe we have only selected snippets of days of testimony and I am certain that(a) Libby prefaced his testimony with comments to the effect that his memory was imperfect, but that he would answer to the best of his recollection and ability at the time of his testimony and (b) the questions he was asked were in the usual Fitzbafflegab.

Barney Frank

Yes, while its true we don't know everything Fitz has, its also true that what he has shown is of course to show Libby in the worst possible light. Its possible that his testimony may clean up a good bit if we knew the full context of some of his more rambling statements.

BTW out here in laid back CA I have honestly almost never seen a judge not permit a narrative or at least fully explanatory answer, but of course my long, miserable, expensive years in court are all in civil trials.

clarice

I have in the tough East and even in civil trials.

JM Hanes

I was going to wait till this thread wound down to post some thoughts on Walton's Ruling to Deny that haven't come up yet (AFAIK). Since that ain't happening, I put them up over at Quasiblog. Didn't want to keep taking up too much space at JOM, but if you make the trek & want to comment, I'll probably be over here!

JM Hanes

Clarice

Did you have an article up on this, or did I just make that up? I gave scanning the thread a shot, but I think maybe my eyes are just too crossed. Then again, could be brain crossed, of course.

clarice

Yes I do on AT.http://americanthinker.com/articles.php?article_id=5451

Syl

Fitz didn't really explain the misleading the investigation part in his presser. The impression fitz left at his presser was that Libby knew and planted the tidbit in the press, via Miller, then in order to pass the information along Libby waited to hear from other reporters and claimed he was only hearing it from reporters so it was okay.

Whatever fitz thought Libby was telling him gave him a picture of a conspiracy to plant the information at point A then disseminate it further as the information came back in from reporters. Fitz mentioned that Rove told Libby that reporter(s) were talking about it. AHA. Libby would think Mission Accomplished. He had gotten the gossip mill running.

Fitz was sure he had them both on conspiracy and leaking, he just couldn't quite make all the connections. When the reporters' stories differed from Libby Fitz was actually DISAPPOINTED. If Cooper and Miller and Russert had cooberated exactly what Libby said, fitz would have had him!

So, it turned out, fitz's theory was wrong and he's blaming Libby for confusing him.

clarice

Frankly, it is obvious that Savonarola Fitzpatrick obstructed his own investigation by carefully NOT asking the right people the right questions (like UGO) and it has come back to cite him in the heinie.

Syl

cboldt

I'm struck by the truth of language being a funny thing. Sometimes a question does come down to the meaning of "is." And here we are having a discussion that goes on and off track depending on the meaning assigned to the word "know."

It works both ways. 'As if' means something too. I heard it for the first time. Or. I heard it as if for the first time.

If one thinks in terms of compartmentalization of information, Libby's testimony can be seen in a different light--even by fitz. He just chose not to.

Two people can go through Libby's statements and bold different words and phrases, and the meaning changes.

And the business about lying to reporters being okay is one thing, but when the same words are used to accuse Libby of lying to investigators instead is quite another.

Rick Ballard

Clarice,

I would say rather that Fitz put a touching degree of faith in the FBI investigators who led him by the nose to the wrong conclusion - where he sits, trapped by his own team. I'd toss in his "conversations" with Munchausen as well. An interrogation of Munchausen might have kept him out of the trouble in which a "conversation" squarely placed him.

JM Hanes

Thanks Clarice, Just back from AM. You really hit on the crazy making quotient here. How can a judge spend so much time talking about plain language and then say something like "the AG, at least in an abstract sense, continues to direct and supervise the investigation and prosecution of this matter."??? When "any" can be expanded to "indiscriminate" dimensions, how can supervision be reduced to termination or...nothing?

There's just too much to cover in a single item isn't there? One of my favorite bits came on page 11:

The defendant’s concerns about interpreting the statutes in this manner are unfounded. Contrary to the defendant’s argument, this Court’s interpretation does not render Section 516 and 519 “a nullity.” First, the delegation of authority in this case was limited to the discrete purpose of investigating and prosecuting individuals who were involved in the alleged unauthorized disclosure of classified information. There was no wholesale abdication of the Attorney General’s duty direct and supervise litigation. Moreover, there could never be a wholesale abadication of such responsibility. As discussed more fully in the following section, any delegation of authority is sugject to the constitutional limites set orth in the Appointments Clause. (emphasis mine)

clarice

An examination of Munchausen, a look at the SSCI report, a more thorough examination of reporters and UGO, a diagram of how he intended to put on his case, all would have helped.

In the end, perhaps he might also have considered that while the Courts might allow him to examine reporters only as to persons in the WH who signed waivers, such a limited examination was certain to kead to a skewed result. A result which will become undone if Libby is to have a fair trial. For he will certainly be entitled to question them about other sources.

Have you seen a recent picture of Fitz? He put on a lot of weight and has facial breakout. He is not riding high.

JM Hanes

Clarice

"it has come back to cite him in the heinie"

LOL!

clarice

JMH, it is a most illogical opinion. As he threw out as preposterous the Fitz-Comey esp argument and didn't even bother to discuss the supervision by newspaper reading, he was left with(a) Comey and Fitz didn't mean what they said (b)the Dept's policy and regs which appear to have been broken (c) bypassing the regs didn't mean Fitz wasn't bound by them and(d) in any event they constituted supervision and direction. UGH!

Very poor performance.

What we have left is an okay to delegating to someone the powers of the AG under circumstances which exceed those in the Statute and in the Independent Counsel Act which was dumped because Congress agreed it was the cause of prosecutorial overreaching.
In other words, he approved a more awful delegation that Congress of the Dept provided for.And something which I think the Appointments Clause forbids.

Syl

cboldt

As I've said, I see what you're saying, but I think your characterization of how fitz thinks Libby misled the investigation is off.

You see (from my post above) Libby didn't fool fitz at all about not being able to be the leaker. Fitz was on to him you see! He saw through what Libby was doing...using reporter gossip as an excuse to pass the info along. Though Libby was using reporter gossip as an excuse NOT to pass info along, NOT to confirm.

And what Libby was doing was making himself look guilty as sin! It was obvious. to Fitz.

Quite the opposite of Libby making himself try to look innocent, isn't it.

Fitz's problem is that he couldn't show that Libby did NOT hear it from reporters. Fitz can show that Libby first spoke with Miller. And Libby didn't help because he couldn't remember either. He thought he first heard it from Russert who actually was later in the chain.

And because Fitz has no proof of when and from which reporter Libby first heard it--even though he was hearing from other 'official' people as well, Fitz just doesn't have a case for his plant it and roll it theory.

And because it was Libby's testimony that caused Fitz to have this theory then Libby had to have obstructed and lied. Even if what Libby testified to was perfectly true.

Now think of this. If there was a reporter Libby heard it from prior to or concurrent to Miller or even Miller herself then Libby is correct that he didn't pass on anything he hadn't already heard from reporters. But he didn't confirm it either. Not to Cooper and not to Russert.

Fitz is totally lost here. Therefore in his mind blame Libby.

clarice

JMH *blush* It's 9 minutes to midnight and time for me to switch to preview..

JM Hanes

It's 12:33 am now, and preview doesn't matter any more! It was a positively grrreat typo. :)

MJW

Barney Frank: MJW's point seemed to be that there was some logical problem with charging Libby with lying about his reaction to an event that never occurred, and there isn't as far as I can see.

You do have my position correct. If we suppose Libby made up what Russert said about Plame, then eveything he said about it is equally untrue. If he testified he wasn't surprised by what Russert told him, is that less untrue? If so, in what way, if the conversation itself -- and therefore the reaction -- never actually took place?

Syl

Well, actually, if Libby lied about his reaction to a non-existent conversation, he still was misleading the investigators. He's basically testifying then to how he would have reacted if the conversation actually took place.

That's fitz's version.

My version is that the conversation took place, but it wasn't Russert, and Libby was pretending to forget--to the person on the other end of the phone, not the investigators.

MJW

Following up on JM Hanes comments about:

The defendant’s concerns about interpreting the statutes in this manner are unfounded. Contrary to the defendant’s argument, this Court’s interpretation does not render Section 516 and 519 “a nullity.” First, the delegation of authority in this case was limited to the discrete purpose of investigating and prosecuting individuals who were involved in the alleged unauthorized disclosure of classified information.
Curious that Walton reads any so broadly in relation to "any function of the Attorney General," but ignores all in "shall supervise all litigation."

clarice

Sometimes "any" means "all" and other times "all" means "some" apparently.The opinion makes no sense at all to me...and I mean all in the all sense.

MJW

Syl: "Well, actually, if Libby lied about his reaction to a non-existent conversation, he still was misleading the investigators. He's basically testifying then to how he would have reacted if the conversation actually took place."

My point remains that Fitzgerald is simultaneously claiming that Libby didn't have the reaction he claimed he had, and didn't have any reaction at all because he made up the entire event.

Patton

ON THE OTHER HAND, LIBBYS' TESTIMONY COULD HAVE BEEN SEEN AS VERY HELPFUL TO FITZS' INVESTIGATION.

Even if Libby didn't have all the particulars right, he told Fitz that some big time reporter in DC (He thought he remebers it being Tim Russert) told him about Plame.

So Libby clued the investigators into the fact that some other big time reporter had allready received information about Plame that he passed to Libby.

Fitz could have then gone back to UGO and said:
'Look, we have reason to believe you may have told some other bigtime reporter besides Novak, can you think of anyone else??"

UGO might have said..."Ohh, yeah..I told Bob Woodward, that might be the guy Libby is thinking about'.

SEE, LIBBY WOULD HAVE BEEN HELPFUL TO FITZ AND FITZ WOULDN'T HAVE LOOKED LIKE A FOOL AND MADE SOOO MANY INACCURATE STATEMENTS AT HIS PRESSER.

If Fitz had actually listened to Libby and undrstood that peoples memories are fragmentary, he may have found Woodward much earlier.

cboldt

Walter

The reporting, editorializing, and public statements by elected officials extant after the indictment (and subsequent other grand jury testimony disclosures) indicate that everything that Libby supposedly had to fear (loss of job because discussed Plame contra Bush's statements, political embarassment of the Administration) happened nonetheless. His mistatements led to no different result (in those areas) than his accurate ones.

Any thoughts on other proofs of intent Fitzgerald might offer?


Generally, a lie is told on a calculation involving two universes of consequences, the universe where the lie is accepted as truth (not found out), and a universe where the lie is not believed, or is challenged to be a lie. Make that three universes, add the universe of consequences upon telling the truth.


You raise the point in a way I hadn't considered, but I think the point boils down to motive. If Libby perceived, at the time he was a witness, that telling the truth would certainly get him in trouble, and by telling a lie he has a chance to get out of that trouble, it tips the balance (at that moment) in favor of lying. I think too, Libby may have considered press privilege (confidentiality of sources) as a strong barrier to obtaining inclupatory evidence. This is part of the lie calculus - will the lie go effectively undetected?


Not to "proof of intent (motive)," but to "proof of conscious awareness (of Plame)," I have a number of thoughts - primarily that, contrary to Libby's assertion that interest was "mostly Wilson - little Plame," the reality on the ground at the time of his giving testimony was more Plame than Wilson. Way more. The story of outing of Plame overtook the story of discrediting Wilson by far.

cboldt

Syl

Now think of this. If there was a reporter Libby heard it from prior to or concurrent to Miller or even Miller herself then Libby is correct that he didn't pass on anything he hadn't already heard from reporters. But he didn't confirm it either. Not to Cooper and not to Russert.


I did think of that, and have noted it on many occasions. It matters not if Libby heard it first from reporters. He could hear it first from reporters (maybe he did), which really stirred his curiosity. Being curious, he may have checked the rumor with the CIA. Checking with the CIA to satisfy his curiosity, he learns that Wilson's wife, Plame, in fact works for the CIA. Of course, he promptly forgets that he had curiosity and asked the CIA, and certainly forgets that he knew for a fact that Wilson's wife worked at the CIA.


The indictment isn't about "who knew first" or "who was the first leaker" or "did Libby confirm anything to Cooper, Miller or Russert." Not at all. Even though that is the story that Fitz wove. This is not a leak indictment, even though that's how the majority of discussion here and elsewhere couches the case. The question the indictment asks the jury to answer is "did Libby deliberately mislead investigators away from the (alleged) fact that Libby knew Plame worked at the CIA."

boris

"did Libby deliberately mislead investigators away from the (alleged) fact that Libby knew Plame worked at the CIA."

Which point does not depend on Libby's forgetfulness, but rather on the fact that Libby was exposed to the information early enough to be the source.

Libby's apparent claim that it slipped his mind for the Russert conversation is not a reasonable assertion that he could not possibly have been the leak.

I get the logic that a credulous investigator might change direction from such testimony, but if it goes awry it's his own fault. The subject remains a possible source even if the testimony is his best recollection. "I forgot" has at least 3 interpretations ...

  1. I forgot that I leaked;

  2. I forgot until Russert told me;

  3. My memory now of what happened back then is way jumbled.

The possible past universes of a forgetful witness are many.

boris

the reality on the ground at the time of his giving testimony was more Plame than Wilson

Exactly. Not taking account how that affects recollection of past events is what I call hindsight blindness. Later knowledge alters recollection. Memories of Plame coming up in conversations could be like sightings of Elvis at gas stations.

cboldt

boris

Which point does not depend on Libby's forgetfulness, but rather on the fact that Libby was exposed to the information early enough to be the source.


Delete "early enough to be the source" and I agree.


Libby's apparent claim that it slipped his mind for the Russert conversation is not a reasonable assertion that he could not possibly have been the leak.


Discussed above. I can express my thoughts, but I can't make you understand my explanation. No sense in repetition or yet another restatement. I'm movin' on. This horse was dead long ago,

boris

Happy trails, sorry about Trigger.

My point is skepticism that Fitz was a credulous investigator or that the investigation was sidetracked in any way. Wrong track, yeah. I just think MJW's "sound in a vacuum" argument is more solid.

kim

cb, reread his 'perjurous' statement again in the context of him attempting to explain his state of mind as he navigated the Scylla And Charybdis of the administration's voyage through this monstrous disinformation campaign.

Sure, pen scratches on paper, it's perjury; but not in context, not really.
===================================

cathyf
contrary to Libby's assertion that interest was "mostly Wilson - little Plame," the reality on the ground at the time of his giving testimony was more Plame than Wilson. Way more. The story of outing of Plame overtook the story of discrediting Wilson by far.
But you've just demolished your own argument, cboldt. The whole "how much Wilson, how much Plame" function is a function of time. Libby was under oath to tell the truth about the "reality on the ground" in May/June/July 2003, because that was what he was testifying about. If instead of testifying to the June/July "facts on the ground" Libby had testified to the Oct "facts on the ground" and asserted that they were the June/July "facts on the ground" then that testimony would have been false. And if he had "known full well" that the June/July facts were quite different than the Oct facts, then such testimony would have been perjury and obstruction of justice.

Another example of the whole Through the Looking Glass nature of these things. Offered up as "proof" that Libby is guilty is that he did NOT lie.

cathy :-)

kim

In fact, the horse is not dead; the Fitzombie riding it is tilting at a facade, that the administration's deliberate, concerted pushback against Joe Wilson was illegitimate.
======================================

clarice

Personally, I believe Rick has been right on this. I do not see a clear question. Is the prosecutor asking him if he told the reporters, asking him whether he acted deliberately to leak this information to them, or is he--as he now seems to claim--trying to puzzle out when Libby first learned of Plame's employment?

My understanding is that Libby turned over all his notes and told him he learned first from Cheney so what is this all about?

Barney Frank

MJW,

Sorry I'm late in responding. I took some time to sleep, something that some people here apparently don't do, judging by the around the clock timings of their posts. :)(Not referring to you)

"My point remains that Fitzgerald is simultaneously claiming that Libby didn't have the reaction he claimed he had, and didn't have any reaction at all because he made up the entire event."

I still do not see the logical inconsistency in that. In Fitz's mind the conversation did not occur the way Libby says so he (Libby) AT THE TIME OF THE CONVERSATION had no reaction. Fitz then contends that DURING HIS TESTIMONY Libby made up a false story about his reaction to a made up aspect of the conversation.
Fitzgerald may be completely wrong about all this but it is not logically inconsistent, unless I'm getting feebleminded, which is always a distinct possibility.

boris

Perhaps MJW means that in order to charge based on the content of a conversation it's necessary to stipulate that the converastion actually happened. It's a bit of a cheat to claim the conversation did not happen and also claim that things "said" or "remembered" during a non existant occasion are relevent to anything.

Fitz should either charge Russert for denying talking about Plame before charging Libby with not remembering as if for the first time.

Or charge Libby with fabricating a bogus reporter "source" to pass on the info to other reporters.

Not skip Russert and charge Libby for both.

Sure, if Libby made it up and pretended Plame slipped his mind, they're both false statements. Maybe it's just a pro Libby bias that making Fitz prove the conversation did or didn't happen seems riskier than convincing a jury that Libby could not have forgotten. IOW prove the hard one before taking the easy shot.

Barney Frank

Perhaps claice or someone can clarify for criminal matters but I do know in civil court it is possible to simulataneously plead two different and possibly mutually exclusive causes of action predicated on what set of facts actually obtained.
In other words you can simultaneously plead, for instance, that if the court finds a conversation did occur in which mirepresentations were made a party should be held liable for fraud but if not it is still conversion.

clarice

Yes, you can, though I expect in a criminal case where the proof standard is higher, it is not often done because it makes it easier for the jury to pitch both counts.


Here's something rich..the NYT blames Bush for compelling journo testimony. http://www.nytimes.com/2006/04/30/washington/30leak.html?ei=5094&en=9db240cf3f964691&hp=&ex=1146369600&partner=homepage&pagewanted=all

Actually this was a reasonable and predictable (I predicted it) outcome of the media caterwauling for a full investigation into the Plame "leak" and their lionizing of the SP whose appointment they demanded.
Liptak-Don't play chess for money!

JM Hanes

Barney

Well, according to crime dramas on the tube, prosecutors can't argue more than one theory of a crime at a time. :)

clarice

Here's what I found about charges to the jury when the indictment presents inconsistent counts:
"5. If an indictment contains two inconsistent counts, the court must
submit at least one thereof. If a verdict of guilty upon either would
be supported by legally sufficient trial evidence, the court may submit
both counts in the alternative and authorize the jury to convict upon
one or the other depending upon its findings of fact. In such case, the
court must direct the jury that if it renders a verdict of guilty upon
one such count it must render a verdict of not guilty upon the other.
If the court is satisfied that a conviction upon one such count, though
supported by legally sufficient trial evidence, would be against the
weight of the evidence while a conviction upon the other would not, it
may in its discretion submit the latter count only."http://caselaw.lp.findlaw.com/nycodes/c25/a45.html

JM Hanes

Clarice

I'm not sure how you get to proof beyond reasonable doubt if you're arguing more than one possibility.

clarice

I expect that what happens is sometime before closing argument and while negotiating the charge to the jury, the prosecutor picks the charge he think he has the strongest case on, drops the claim about the other inconsistent claim, and agrees to jury instructions only on that claim in the normal case.

boris

How about, one of the two perps pulled the trigger. Beyond doubt, one of them did it.

The Jury decides which (or both) is found guilty of the lesser crime, but both can't be the "triggerman".

clarice

Sometimes, the prosecutor may have no choice but to charge inconsistent theories.

Let's say two men are positively identified as having been engaged in a stick up, but the witness or video camera cannot detect which one fired the gun. Both are tried separately and both are charged with being the shooter or alternately being the accessory. In each trial the defendant claims to have been the accessory. (f0rget for the moment that in most jurisdictions the penalty would be the same..this is just a hypothetical) It is, in fact, possible that after trial two separate juries could even decide two inconsistent verdicts--that both were the shooters or both were the accessories.

Logic can only go so far.

larwyn

OT - Dana,MOM & the UN:

My, my, the coincidences are so fortuitous for Dana,her Pulitzer and the canonization of Mary O. McCarthy.
Bet we'll see wall to wall coverage by the WH correspondents' preferred cable news station,
front pages and editorials already outlined.

Is this why dear MOM feels no need to come out
-- the UN's all ready to do the dirty work.

Only question is how many of Dana's hubby's buddies will be there and/or helped in preparing
"reports" and "testimony".
---------------------------------
Gateway Pundit today:

Amnesty International Is Taking US to UN Torture Court This Week


Amnesty International Is Taking US to UN Torture Court This Week

...Because, among other things, the US abuse against women in its international prison system -- includes sexual abuse by male guards and shackling while pregnant and even in labor!

Is is no wonder that Hu Jintao from China and Iranian President Mahmoud Ahmadinejad laugh in our face.

This news was posted at the Anti-American Leftist site Raw Story, yesterday:

As the United States prepares a team of 30 to defend its record on torture before a U.N. committee, Amnesty International has made public a report blasting the United States for failing to take appropriate steps to eradicate use of torture at U.S. detention sites around the world, RAW STORY has learned.

U.S. compliance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment will be the topic of May 5 and 8 U.N. hearings in Geneva.

Rick Ballard

Clarice,

Let's not forget that Lyn Stewart has defended more than one miscreant. Were she or one of her ilk the defense attorney, it might be possible to get convictions on both alternatives. I'm a bit despondent, having reread Walton's opinion. "Incoherent though readable" is as charitable as I can get about it.

Barney Frank

I don't think its done much even in civil cases (the only time I was involved in such a case it was brought by a lawyer who, I'm sure, consistently presented legal briefs soaked in his own drool) for the simple reason that whether its logical or not it just plain looks like you're throwing mud at a wall hoping some will stick.
And as you say clarice and JMH, its a lot easier to make a preponderance of the mud stick in a civil case than making it stick beyond a reasonable doubt.

clarice

Rick, Walton's opinion is particularly bad because (a) Libby's argument was so well done (b) the prosecutor's response was so dreadful and (c) the judge did not want to make precedent and was given little help in doing so by Elliot Ness.

(At least the ESP and supervision by newspaper reading weren't relied on. Thank heaven for small things. The truth is the adversary system works best when both sides are good. )

JM Hanes

cboldt
"Delete "early enough to be the source" and I agree."

Actually, I understand your explanation. It's a perfectly valid point, but it only addresses the issue of whether or not Libby was lying. The indictment however, also charges Libby with perjury and obstruction. The jurors are not simply being asked to decide whether or not Libby deliberately misled investigators, they must also decide if, and therefore how, the alleged lie materially affected the investigation (perjury) and whether it was deliberately intended to derail the investigation (obstruction).

From a logical standpoint, I appreciate the clarity you're pursuing here, but you're working with step one of the indictment when the real penalties to be paid hinge on steps 2 & 3. That's where the nature of the alleged crime being investigated does, indeed, come into play, and that's why Fitz himself couched this as a leak indictment when he announced it.

cathyf

I posted this over at quasiblog, but got no response, so, what the heck, I'll repeat myself...

As I said before but (but nobody else commented on -- hmmmm, suppose I need to get a hint?) there is this curious disconnect. In the opinion, as is proper to a legal document, people are not individuals, but officers referred to by their titles. ("Deputy Attorney General" and "Special Prosecutor") But they are not referred to by their correct titles. Fitzgerald is not a Special Prosecutor, because he has been explicitly appointed something which is not a Special Prosecutor. But Comey is even more interesting. Because first of all, his role in this is not Deputy Attorney General, but Acting Attorney General on Matters Plame From Which Mr Ashcroft Recused Himself.

This is all very personal and individual -- Ashcroft did not recuse the Attorney General, he recused himself personally, individually, as someone who had been an elected official who employed Karl Rove as his campaign manager. But Ashcroft hasn't been the Attorney General since Feb 5, 2005 -- where is the Dept of Justice paperwork stating the Gonzalez has also recused himself? Has he? Did Comey stop being the person with the power to dismiss Fitzgerald on Feb 5, 2005? Did Comey know? Did Gonzalez know? Any documentation? And Comey hasn't been Deputy AG since August, 2005 -- where is the DoJ paperwork showing just what has been delegated to whom? This is a serious question -- if the Fitzgerald prosecution stopped being a legitimate US Government Dept of Justice activity on Feb 5, 2005, then what does that make Judith Miller's imprisonment? Even if the date was Aug, 2005 not Feb, 2005, Miller was in jail until Sept 29, 2005.

Presumably, one of the roles of a prosecutor's supervisor is that if the prosecutor gets a judge to throw somebody in jail for refusing to testify in front of a grand jury, then the supervisor can order the prosecutor to let the person out. Is there any sign that any properly elected or appointed official had the authority to tell Fitzgerald, "Look, this has gone too far, you can't keep this woman in jail, I'm ordering you to find some way to let her out"? This is not some hypothetical here, where we are arguing whether or not someone could have exercised supervision, this appears to be a case where no one did exercise supervision. Clarice, or anybody else here who is familiar with how federal prosecutors work -- could you normally throw somebody in jail for 84 days without having to discuss your justifications with your supervisor?

cathy :-)

clarice

Cathy, those are excellent points. In a discussion with Rick on the opinion re the motion to dismiss I echoed them, saying the Judge should have had a hearing and invited Gonzales in.

As to the affects of no supervision, Libby noted in his brief that as to the misstatments in the Fitz presser, had there been supervision, his counsel could have gone to that person and complained and gotten redress, but in the absence of a supervisor he couldn't.

Under a subscriber only limit, Victoria Toensing has an article in the WSJ today noting that the media is now hoist by its own petard. She indicates in that article (which will probably be online free tomorrow) that DoJ would never have done to Miller what Fitz did.

cboldt

JM Haynes

The jurors are not simply being asked to decide whether or not Libby deliberately misled investigators, they must also decide if, and therefore how, the alleged lie materially affected the investigation (perjury) and whether it was deliberately intended to derail the investigation (obstruction).


See materiality discussion. Granted, it's a bit of a paraphrase in that it doesn't particularly flesh out Libby's being told of Plame by Cheney. The point stands though, because Libby's testimony was "I couldn't have told Russert about Plame, or anybody else for that matter, because even though Cheney told me, I forgot I knew."


There isn't much difference between the false statement counts and the perjury counts, at least not with regard to the nature of the allegedly misleading testimony.


I agree that Fitz has to show that Libby intended his testimony to cause the investigation to look away from Libby as the source of the leak, and I think, to look toward Wilson/Plame/CIA working through reporters.


I'll have to reread the indictment and some of the posts here for a description of how Libby's testimony can be taken as hinting to investigators that he knew Plame worked at the CIA - other than the laughable one that "Fitz knows Libby is lying, Libby isn't fooling anybody. Therefore, Libby can't be charged with a crime that includes the possibility of causing the investigation to go off track, because the investigation couldn't possibly go off track, because Fitz knew Libby was lying his ass off."


From a logical standpoint, I appreciate the clarity you're pursuing here ...


I appreciate that you think I'm trying. But, FWIW, I think I'm wasting my time when I share my thoughts here. Not that I won't waste my time from time to time, just saying that y'all seem to have it figured out, and humor posts like mine just to have a football to kick around.

JM Hanes

Cathy

I'm just back from responding over at Quasiblog myself, but as this is really a better forum for discussion, I'll post my reply here as well:

Given his intimate association with the White House (and his active role at the time the investigation commenced) Gonzalez would be pretty much compelled to recuse himself as well. At the same time, however, we're dealing with some sort of bizarre chain of custody phenomenon that has enormous ramifications (not the least of which is the irony of a temporary ad hoc investigation outliving the tenure of whole administrations & and the bureaucracy which created it). This issue deserves considerably more attention than it's gotten.

I think your point on titles gets at the essence of the problem here, and suggests the very question Walton had such trouble answering: what, precisely, is Fitzgerald, and what is his authority? Whether that's a legal issue or a constitutional issue is something I'm still in the process of pondering myself.

larwyn

Jury Pool Intimidation?

Black Panthers will demo at DUKE

next week!

"promised not to bring weapons!"

Now that the Muslims have proved that our media and book stores are afraid of their threats of violence, it is no stretch that this will be used by other groups.

I wonder if some of the "hung" juries in terrorist trials are not in fact

juror fear of retribution by muslims?

It worked for the MOB.

All cable stations are reporting on Black Panther protest - and also reporting that students are fearfull.

So Duke got a "promise"!

Imagine White Male Athletes marching thru Durham - what would the media label it?


Barney Frank

cboldt,

I'm sure you can tell from my posts I don't have much of anything figured out.:P

But I did want you to know I very much appreciate your perspective and in fact agree with a good deal of it. In fact you're almost alone in presenting what strengths Fitz's case has without the political snarking. Hope you hang around.

clarice

Well, larwyn, I'd say the march just made a case for a change of venue.

Rick Ballard

cboldt,

I, too, appreciate the fact that you present your POV with clarity and courtesy. I don't know that I've seen much "kicking around" but I do know that I'm not going to agree that lack of being candid with investigators is indictable unless I have a very clear idea of how candid the investigators were being with the defendant.

There is absolutley no evidence on hand from which the investigators candor or lack thereof may be determined and I will not assume that they or the prosecutor have any interest in the word other than to use it as a club on the defendant.

If Libby told a lie in response to a direct question then a charge would be warranted if the question was material to the purpose of the investigation. You can skip the materiality if you wish and just try to find a direct question and answer and make your case from that. I haven't seen anything more than interpretations of disingenuity on both sides to this point but perhaps Fitz inadvertently said something not subject to interpretation.

JM Hanes

cboldt

"But, FWIW, I think I'm wasting my time when I share my thoughts here."

That would depend on what it is you're trying to do, I suppose. While I think almost everyone occasionally does a turn or two as football, in general folks reply because they are, indeed, responding to something you've said and think it's worth taking time to comment.

In my own experience, assuming a good faith discussion, when I've explained something multiple times and someone still just can't/won't get it, it's often because we really are approaching a problem from very different directions, and we're really talking past each other in some fundamental way. If we're lucky, one of us will have an "aha" moment and be able to identify the disconnect -- and mitigate the otherwise inevitable frustration.

I also think that just because someone doesn't initially find a point persuasive, or acknowledge the underlying logic of an argument, doesn't mean that it's not worth bothering to make it or that it won't affect the ultimate course or progress of a discussion.

That's my 2¢. I think you make a substantive contribution, but whether you think it's worth the effort, of course, is a different matter.

Rick Ballard

JMH,

Could you change your signin so that clicking your name takes me to Quasiblog? You have to delete the Typepad cookie to do it but it would make it easier to follow you around (OK - next time I'll put Quasiblog in my favorites folder).

cathyf

JMH -- I agree that Gonzalez would have most assuredly recused himself (and still would) but the point is more along the lines that nobody in the DoJ seems to have realized that he needed to. What appears to have happened is that in Jan/Feb, 2004 Comey appointed Fitzgerald, and as far as the DoJ is concerned, it's not their project anymore. If that's really true, then Fitzgerald's "office" is a clear violation of the appointments clause.

I suppose one way out is to claim that the DoJ has been lax and incompetent and has shirked its responsibility to supervise Fitzgerald, but I don't see that argument being made. Perhaps it is implicit.

cathy :-)

Syl

cboldt

I, too, appreciate your postings and your logic. I now really understand why the investigation could go off in a wrong direction if Libby lied.

My point, as circuitous as I usually make them--sigh, is that the investigation was not derailed by what Libby said except insofar as Libby genuinely thought it was Russert rather than someone else he had heard it from.

And Fitz, after hearing Russert's testimony, stopped investigating the line of inquiry Libby had set him on. Many (Jeff mainly) have stated that Libby couldn't have possibly forgotten he knew about Plame with Russert because the very day and day before he had conversations with other people concerning Plame. And that's what Fitz saw too.

But if Libby didn't lie, and it was someone other than Russert, the conversation would have taken place at another time, around which there were NO discussions involving Plame that would referesh Libby's memory. Thus it would be perfectly possible for Libby to have told the truth when he said he forgot he knew.

But Fitz stopped the investigation of Libby's line when he heard Russert's testimony. Arbitrarily.

Fitz didn't go back to Libby and say 'are you sure it was Russert and not somebody else?'. Why should he? He had something on Libby now.

That's why Woodward was such a bombshell.

In my eyes Libby obstructed the investigation by telling the truth as he remembered it and Fitz assumed he was lying and doing it on purpose and never even tried to go further with UGO than he did.

Libby's memory obstructed the investigation, not Libby.

JM Hanes

Rick

Sorry, I know I should just leave the URL in place, but after awhile, embarassment about my erratic posting seems to get the better of me... Should be working now.

boris

Fitz knows Libby is lying, Libby isn't fooling anybody

So Trigger came back to life briefly then relapsed before any further beating could occur?

Anyway, that certainly was not my point. I don't even think Libby was in fact lying because his testimony has to be reconstructed and paraphrased to make it coherent. On that basis alone it can't be an attempt to "mislead".

JM Hanes

cathy

"I suppose one way out is to claim that the DoJ has been lax and incompetent and has shirked its responsibility to supervise Fitzgerald"

That's why I go back and forth between technically classifying this as legal (i.e. legislative) vs. constitutional issue. That's what will ultimately determine the remedy/cure should one be deemed necessary. The issue, as I see it, is larger than Libby's case alone, and, unfortunately, I'm not sure that Libby's case will provide a sufficient basis for resolving the fundamental problems unique to this kind of investigation either in the Supreme Court or in Congress.

I've actually begun to lean toward Congress as the appropriate venue, because the crack the arguments keep slipping through is the one between statute and regulation. Unfortunately, Congress is also the place where resolution seems least likely to occur.

BTW, I don't mean to imply that I'm disagreeing with the points you're making, quite the opposite!

larwyn

NEW REPORT TO
Black Panther demo on Duke campus - "promised not to bring weapons"

DUKE students are leaving campus or staying in their rooms - Black Panthers want to "INTERVIEW" players.

Now Duke admin has said they will not allowed on the Duke campus.

Works for the muslims, works for the Mob, will this work to
intimidate the jury pool in Durham and other N.C. cities.

Will judge, as Ito did in O.J. trial,allow Black Muslim bodyguards
into courtroom? Is that what is being set up by V reporting
threats?

Please, I am not saying I do not want rapists punished.

I do not want innocent men to have their lives ruined.
Right now their big crime was being stupid while Rich and
White.

Would you want to be on this jury? In that city?

kim

Hey, good buddy, keep the cb on and keep on trukkin.
=================================

PTB

Better to flog a dead horse than a live lion.

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