Byron York On The Plame Investigation

Byron York has a useful article describing the cross-currents of the Libby case:

A pattern is emerging in pre-trial arguments in the perjury and obstruction of justice case against former Cheney chief of staff Lewis Libby. That pattern is the recurring conflict between the Little Case and the Big Case.

The Little Case is the narrow, tightly defined charge that Libby lied to prosecutor Patrick Fitzgerald's grand jury. For example, did Libby lie when he testified that NBC's Tim Russert "said to me, did you know that Ambassador Wilson's wife…works at the CIA? And I said, no, I don't know that"? ... At every hearing, and in every court filing, [Fitzgerald]has argued that the case is simply a matter of a few specific false statements allegedly made by Libby. Nothing else matters—just the Little Case.

The Big Case is what Fitzgerald originally set out to investigate: Who leaked Mrs. Wilson's identity, why was it done, and did it violate the Intelligence Identities Protection Act, the Espionage Act, or some other law? ...[Fitzgerald] has learned about the Big Case as much as one man with subpoena power, no supervision, unlimited funds, and no hesitation to threaten reporters with jail can learn. He just doesn't want to talk about it.

But Libby's defense team, led by attorney Theodore Wells, does.

After reading this, I have two quibbles and a plea.

(1)  Mr. York is presenting a defense argument here, so let's not whack him, but...:

Libby and his colleagues in the Bush White House, Wells continued, had their hands full trying to get out the word that "Mr. Wilson's report contained some inaccuracies." Chief among those inaccuracies, although Wells did not dwell on it, was Wilson's assertion that he had proven that papers purporting to document a sale of uranium to Iraq had been forged. The Senate Intelligence Committee later showed that Wilson could have done no such thing, because the documents which he had supposedly debunked were not even in the possession of the government at the time Wilson said.

Timing is everything - the SSCI reference was to questions to Mr. Wilson about anonymous quotes (later attributed to Joe Wilson) which appeared in a June 12, 2003 Wash Post article by Walter Pincus (see page 55 of the 521 page .pdf).  In that article, as well as two Nick Kristof columns and a New Republic article, Ambassador Wilson seems to be claiming to have debunked the forged sale documents.

However, in his original NY Times op-ed, Wilson told a different story:

(As for the actual memorandum, I never saw it. But news accounts have pointed out that the documents had glaring errors — they were signed, for example, by officials who were no longer in government — and were probably forged. And then there's the fact that Niger formally denied the charges.)

So what caused this confusion?  Matthew Continetti of the Weekly Standard lays out Wilson's "misquotes or misattributions" theory, which Wilson also explained to Paula Zahn:

If they're referring to leaks or sources, unidentified government sources in articles that appeared before my article in the New York Times appeared, those are either misquotes or misattributions if they're attributed to me.

Well, then, that clears that up, for the totally credulous anyway.  One might have hoped that the Times would have alerted their readership to Wilson's shifting story (or Kristof's bum reporting) on the day they delivered the July 6 2003 op-ed.  But hey - Nick Kristof addressed this on his hidden blog over two years later so that is almost as good.

Anyway - it would be worth knowing just what the defense said in court here.  They may be on thin factual ice if they are citing the op-ed exclusively.

(2)  Mr. York baffles me by blurring the distinction between "classified" and "covert":

That got to the questions that are at the heart of Fitzgerald's investigation: Who revealed the identity of Valerie Plame Wilson? Was she a covert CIA agent, and if so, who knew about it, and did the disclosure of her name damage national security?    

The Libby side has asked for three things relating to those questions. The first is evidence showing that Mrs. Wilson's job status was classified. (Fitzgerald demurs whenever the word "covert" is mentioned, so the argument is about whether her status was "classified," even though most experts don't see a significant difference between the two.)

What?  A "covert" agent is defined by the Intelligence Identities Protection Act as:

[Sec. 606 (4)](A) a present or retired officer or employee of an intelligence agency or a present or retired member of the Armed Forces assigned to duty with an intelligence agency—

(i) whose identity as such an officer, employee, or member is classified information, and

(ii) who is serving outside the United States or has within the last five years served outside the United States; or

Plenty of ink has been spilled on the probability that, whether her CIA affiliation was formally classified or not, Ms. Plame was not "covert" because she has not served outside the US in the last five years.  That may hinge on whether "served outside the United States" is satisifed only by a formal posting abroad, or whether an airport stop-over in Europe qualifies.

Now, if Mr. York is telling us that experts don't see a significant distinction between "covert" and "classified" because "served outside the United Sates" is easily satisfed by any CIA-related overseas travel, that strikes me as worth emphasizing.

Well, enough with the quibbles and on to the plea - Mr. York's article is rich with quotes from the courtroom.  If he has a transcript, he ought to think about sharing.  Please.  It would greatly aid me in my vendetta against David Shuster quest to establish the truth about the implausible MSNBC report (seemingly contradicted by the AP) which told us that Libby was warned to stop the Plame leaking.  The more plausible AP version is that he was given a stop-go on the NIE leaking.

Comments

[clarice]

Give him a break. He seems to be the only one who sat thru the hearings and he has accurately described the big case small case convergence..I think he might be trying to say that most people think contending her identity was classified is the same as saying she's covert..Well, that's the razzle dazzle Fitz is trying, but WE know better. Only the identity of a Covert agent cannot be disclosed and that she seems not to have been in July 2003.

[xrayiiis]

Hi. First time posting here, but I've been following your excellent discussions for some time. I just wanted to put a few questions out there.

The judge has said he does not want to try the legitimacy of the war. He has also said he does not want to try the veracity of Wilson's statements. York seems to think these are "the big case".

I think the point team Libby should be (is?) trying to make is that there was a concerted effort to frame him and Rove.

Are they trying to make that case? If so, is the judge trying to stop them from doing so? Can Fitzgerald get away with limiting this case to a minor technical detail? Can the judge limit the case to the letter of the law?

[xrayiiis]

I need to amend my previous post, where I wrote:

"The judge has said he does not want to try the legitimacy of the war. He has also said he does not want to try the veracity of Wilson's statements. York seems to think these are 'the big case'."

York actually said the big case was who was the original leaker and was it really a leak. I agree with that but I think the question of a concerted effort to frame Libby and Rove is also very important.

[Tom Maguire]

I think he might be trying to say that most people think contending her identity was classified is the same as saying she's covert...

In a moment of panic (I have added a paragraph to the post) it dawns on me that maybe he is saying that, per experts, the overseas service is so easily satisifed as to be a non-issue. Yike.

But if he *is* saying that, it merits more emphasis.

[Kate]

This York article below from The Hill elaborates a little more on what a joke the Libby case has become and if he indicts Rove it will be two sorry cases:
http://www.hillnews.com/thehill/export/TheHill/Comment/ByronYork/051106.html

[Kate]

I'm starting to doubt that Rove will be indicted. I've been reading the articles by the journalists with the best access: Waas' last article admitted it was a he said/he said article; the New York Times has been bland on this; and York isn't sure. Even the leftist The Note seems to unenthusiastic. The most definite is Shuster who has been studying body language and is developing a numerology theory.

However, if Rove is indicted, I hope Bush doesn't come out with mush. He needs to be quiet and let others start critiquing this shabby case and this prosecutor's poor work.

[Cecil Turner]

Superb article. (And a very nice post on it, as well.) York covers the essence of the Big Case/Little Case tension very well. He also captures the frustration of those of us with an interest in the larger case, and correctly points out Libby's prosecution is not the same, nor even close.

It seems to me most commenters on the left want to try Libby as a symbol of the Administration (and then connect the dots in the newspapers, with "fake but accurate" points as necessary). I want to know what happened, from the initial leak (Wilson's) to the media blitz, and the Administration response. Libby's perjury charges just interfere with the main event.

[Sara (Squiggler)]

I'm with you Cecil. And I would add that it makes me damn mad to have Fitzgerald waste my money on this junk with Libby and totally ignore what he was charged to investigate in the first place. Aside from the fact that it is just downright tacky, I do not think he has a snow ball's chance in hell to win this case against Libby when a jury is asked to believe that a bunch of sleazy reporters are more credible than someone with the creds of Libby.

[AnonZ]

Big Case, Little Case. Has a nice ring. Evokes memories of another Big Case, Little Case: Whitewater/Perjury - one that Byron probably didn't get his panties into such a wad about.

Byron criticizes Fitzgerald for not being more forthcoming with information. How dare Fitz honor the integrity of the investigation/trial by not explaining his moves to the public!

Byron clearly missed Fitz's superb baseball analogy: He couldn'd fully investigate and solve the Big Case because Libby lied and obstructed the investigation. And Libby's supposed to get a free pass because his efforts succeeded? How much clearer does this have to get? Eesh, these people.

[kim]

I would argue strongly with the contention that Fitz knows as much about the big case as any one with his powers could. It seems obvious that if that were so, and he is not pursuing justice in the big case, then he is corrupt. He only gets a pass if he hasn't learned as much as he should about the big case. Then the question is, why not. Is he stupid, or corrupt. Is his ignorance deliberate or not?
========================================

[Jane]

I'd like to know more about Fitzy's motives as well. It's the missing piece here.

[kim]

anonz, it is apparent to all but the most biased observers that something besides Libby's testimony has obstructed Fitz's investigation. Most of the curiosity provoking points of the big case are untouched by what Libby had to say. So why the lousy investigation, if Fitz had unlimited funds and power?
===============================

[Sara (Squiggler)]

I have so many threads going on JOM, I have no idea where to post this, so it is going here.

This is the last paragraph of a 9 May article in Accuracy in Media by Jennifer Verner entitled "Post Reporter Dana Priest's Troubling Connections"

http://www.aim.org/special_report/4557_0_8_0_C/

Priest's Pulitzer Prize-winning story not only lacks evidence, it looks like a carefully designed and planted effort to sabotage the war on terror, a move that has put Americans at increased risk of terrorist attack. The Post has a lot to answer for at its annual meeting on May 11.

A blistering denunciation of Priest and the whole CABAL. Go read it.

[Sara (Squiggler)]

More from the middle of the article:

Luckily for Goodfellow, his wife's work has come in handy on occasion. In CIP's 2004 published report on Latin America, "Blurring the Lines," Dana Priest's work is cited to make the case against U.S. military involvement in the region.

But since 9/11, Latin America has taken a backseat to the Middle East, especially Iraq. In 2002, Goodfellow joined forces with Fenton communications—a "progressive" PR firm whose client list includes CIP, IPS, moveon.org, the Heinz family foundation, the Ford Foundation, George Soros' Open Society Institute, and an assorted host of left-leaning environmental and "human rights" groups—to fight George Bush's "lies" and "rush to war."

With Fenton's help, CIP initiated the Iraq Policy Information Project (IPIP), a group of diplomats and academics opposed to the Bush administration's Iraq policy. Among IPIP's star speakers was former Ambassador Joseph Wilson, who became famous for writing a New York Times column attacking the rationale for the war in Iraq and whose wife, Valerie Plame, was exposed publicly as a CIA employee. It would turn out that Plame helped arrange her husband's mission to Africa, supposedly to investigate an Iraq-uranium link, resulting in the Times piece. Both would later surface as contributors to the Kerry campaign. (Recently, the newsletter containing photographs of Priest, Wilson and Goodman at a meeting was mysteriously removed from the CIP website.)

Why should Mr. Goodfellow's ideology and political action have anything to do with Priest? Perhaps we should ask her why she chose to appear in CIP's "Cowboy Diplomacy" congressional conference, a frontal attack on the Bush Administration's foreign policy, in October 2003. Ms. Priest shared a panel with CIP national security director Melvin Goodman, a vicious Bush administration critic who encourages CIA "whistleblowing." Another speaker at the conference was Wilson.

Wilson, whose statements about what he found in Africa and his wife's role in his mission have been completely undermined by a Senate Intelligence Committee report, seems to be in the same category of Dana Priest, whose Pulitzer Prize-winning story still remains unsubstantiated by any official government source in either the U.S. or the E.U. Her story, like Wilson's tale, has been a gold mine for the enemies of the Bush Administration.

[AnonZ]

kim: So the grand jury members who handed down the Libby indictment for obstruction of justice and the judge who presided fall into the "biased observer" category?

[kim]

anonz, read my post again. What you want to put in the class of biased observer is people who haven't looked at the big case.
========================================

[Dwilkers]

We have to find a better way to investigate this sort of thing.

These special prosecutors have been running amok for years now. At least since Lawrence Walsh's infamous election eve indictment of Caspar Weinberger.

With the independent counsel statute at least there was some formal supervision of these guys however ineffective it might have been. Prior to wandering off into lala land AnonZ makes a fair point about the Whitewater investigation - IMO that is symptomatic of the problem as well.

I'm not sure what the solution is, but for my part I am sick of these decades long investigations into every administration.

Maybe these guys should be strictly limited to the investigation for which they are appointed. If they uncover evidence of other crimes fine, that could be handed off to someone else. That way the Whitewater investigation doesn't turn into an investigation of Vince Foster's death, the Plame leak investigation doesn't become a decade long effort to create a case of perjury against each administration official that spoke to investigators.

[windansea]

apparently Joe is a great kisser...on the third date Val couldn't help but out herself

and this was when she really was super secret

who knows what kind of secrets she told him after years of marriage

[ordi]

anonz,

I would hope you realize that the GJ is only presented what Fitz wants them to see and hear. Both sides have not been heard yet.

[kim]

I'm really curious just how involved they are with each other on this matter. Are they foux a deux? Are they an extremely subtle manipulative pair? Is he a liar and she a fool? Did her love for him survive her post-partum question? What did she tell him about the Yellow Cake papers? How did he get picked to go to Africa? Were he or they in contact with Democratic Party operatives, and more than idle contact.

Granted, it was shaded with irony, but Byron York apparently wants to believe that Fitz knows the answer to these questions. Does he?
======================================

[sad]

TM

Here's another York article in THe Hill.

http://www.hillnews.com/thehill/export/TheHill/Comment/ByronYork/051106.html

[kim]

This is a nation under the rule of law. What law rules Patrick Fitzgerald?

No wonder we're having difficulty, it's an alien invasion.
=======================================

[kim]

An alien concept of justice, anyway.

I'll get in trouble, here, but wasn't he Jesuit trained?
=========================

[kim]

I'm just trying to figure out how and why he has gone so far awry. You don't have to be Jesuit to do that.
====================

[kim]

I highly recommend Chesterton on 'The Dumb Ox'.

There, do I really have to do all those Hail Marys?
=============================

[kim]

The Grand Jomery WOULD like to hear from the prosecutor.
====================================

[sad]

Kim

Val's book will clear up all the questions. Fitz doesn't want to ruin her opportunity to make money now that her job is gone because of the big, bad White House.

[Dwilkers]

I'm just trying to figure out how and why he has gone so far awry.

Because he was allowed to.

If he was only allowed to investigate the Plame leak he'd have to focus on, you know, the Plame leak and whether that was a violation of the law or not.

What would Fitz be doing right now if he weren't chasing people around trying to create cases of perjury?

As far as I can tell he'd be finishing up his final report telling us Plame wasn't covert and that therefore no laws were violated.

[windansea]

If he was only allowed to investigate the Plame leak he'd have to focus on, you know, the Plame leak and whether that was a violation of the law or not.

he may still be focused on this...we haven't seen the referal yet

of course the referal may be part of the game :)

[steve]

So do you guys REALLY have a problem because Fitzgerald seems to be focusing on the 'little case'? Seems to me like if he WAS focusing on the "big case" we'd all be whining about a prosecutor run wild. Can you really have it both ways?

To me, it comes down to did Libby lie. Did he make false statements to the FBI, etc...

All the focusing on Wilson (and have they scheduled his indictment yet?) doesn't distract from the charges: Did Libby lie to the FBI on such and such a date, did that obsturct justice, blah blah blah...

Isn't it possible that Fitzgerald can't charge on the IIPA BECAUSE Libby lied to him? If so, doesn't he need to prove the perjury charges before moving on to charging him with IIPA or Esp. Act violations?
(In other words, let's say he convicts Libby..Atthat point doesn't he have more leverage to use on Libby to admit to/roll over/whatever on IIPA violations?

[windansea]

yes thats possible Steve as my comment above yours notes

it is also possible that Fitz has been fooled or is running amuck

OT new DNA evidence in Duke rape case

The Durham Herald Sun newspaper reports today the tissue sample used for testing did not allow for a 100 percent match, but that it is "consistent" with the DNA of the third player. Because a complete DNA pattern was not obtained from the sample on the fingernail, it was impossible to match that sample with near certainty to the third player, the newspaper says.

http://abcnews.go.com/US/LegalCenter/story?id=1948939

[boris]

The other article mentioned above is York On the Hill "Plame leak probe descends into absurdity".

Some overlap.

[Cecil Turner]

I would add that it makes me damn mad to have Fitzgerald waste my money on this junk with Libby and totally ignore what he was charged to investigate in the first place.

It also makes me mad at Libby. If he hadn't tried that Clintonian parsing crap in the first place . . . (Though, after reading that "aspens" letter and hearing of some of his other "weird" conversations, I'm starting to think his rambling might just be the way he talks, encouraged by some multipart open-ended questions. Still, the verbal diarrhea didn't add.)

Byron clearly missed Fitz's superb baseball analogy: He couldn'd fully investigate and solve the Big Case . . .

Oh, nonsense. Fitz knows who leaked to Novak, he just won't tell us about it. The whole of Libby's purported misdirection didn't affect that one whit, and if Fitz can't make a case, it's because there isn't one there.

Isn't it possible that Fitzgerald can't charge on the IIPA BECAUSE Libby lied to him?

Ah, the Soviet approach: "Confess Comrade" and conviction on obstruction if you don't? Since when does a prosecutor need a confession in order to investigate?

The biggest problem with an IIPA prosecution is that Plame wasn't covert in any meaningful sense. (The second biggest is that Libby isn't the one who outed her.)

[maryrose]

steve:
There are no IIPA violations. Libby did not obstruct his case nor did he lie to the FBI or the gj. He's too smart a lawyer to do that. The original complaint by Wilson needs to be deconstructed because that's where the lies are. Joe is a careless person -he outs his wife and then tries to cover his tracks about his trip and his wife by using bafflegab and macho phrases like "frogmarch" and "fair game" You can't trust him as far as you can throw him.

[boris]

Did Libby lie to the FBI on such and such a date

http://justoneminute.typepad.com/main/2006/05/libby_versus_th.html#comment-16840940" target="_blank">Maybe not.

Also, the Big Case may provide http://justoneminute.typepad.com/main/2006/04/waas_on_rove.html#comment-16781109" target="_blank">context for evaluating testimony that appears untruthful and unwise.

[Steve]

There are no IIPA violations. Libby did not obstruct his case nor did he lie to the FBI or the gj. He's too smart a lawyer to do that.

Okay, I'm not near as obsessive as some of you peeps, but you're stating that with no qualification. If he told the FBI or the GJ that he heard it from reporters, and there's evidence that he and Cheney were briefed on it on such and such a date, isn't that de facto, a lie? Sure, maybe he was so busy, misrememebered, whatever, but doesn't it still come down to that statement being false?

That's what I don't get about the Libby supporters. There's not a possibility that he's guilty because 'he's too smart a lawyer'? That's really waht you're basing your opinion on?

[Cecil Turner]

If he told the FBI or the GJ that he heard it from reporters, and there's evidence that he and Cheney were briefed on it on such and such a date, isn't that de facto, a lie?

No. He does not claim he never heard it from the VP, only that he heard it from reporters, too. That's a common misreading.

[boris]

As someone about Libby's age seems to me I've heard "Don't you remember me telling you that?" about a brazillan times.

[kim]

Steve, read Libby's statement again. What is it's context? One context is that many of the players had ongoing revelations about this affair that constantly recast it in a new light. In fact, that is still going on.
===============================

[Sue]

Big Case, Little Case. Has a nice ring. Evokes memories of another Big Case, Little Case: Whitewater/Perjury - one that Byron probably didn't get his panties into such a wad about.

You must have slept since then. The Little Case (perjury) was not from the Big Case (Whitewater), which was investigated (ad nauseum, I might add). So...where does that leave your analogy?

[Jeff]

York is probably trying to salvage one of the hallmarks of his recent reporting on the Libby case - his complaint that Fitzgerald was not offering evidence that her status was classified. Now Fitzgerald is going to offer evidence that her status was classified, so York has to figure out some way to not simply acknowledge that the complaint in no way weakens Fitzgerald's case against Libby.

It's weird to me that someone as smart as York doesn't seem to recognize the difference between what happened and the strict limits of the case Fitzgerald is making against Libby.

[Epphan]

Fitzgerald knows as much as any person…

That may well be true, but he remains oblivious to a whole lot of stuff. Don’t forget that he indicted Libby and was completely unaware of the Bob Woodward connection. TM has documented Andrea Mitchell and other pieces that Fitzgerald seems completely unaware of. To suggest that he is seeking a perjury conviction as a precursor to a more important charge gives Fitzgerald a lot of credit. If he has a master plan, he’s doing a good job hiding it behind incompetence.

AnonZ unwittingly stumbled across the broadest point. Fitzgerald has at times suggested he could not pursue the “big case” because Libby lied to him. Unfortunately for Fitz, that suggestion is ludicrous and not backed up by any of the facts.

[Sue]

Jeff,

Try this. Instead of thinking York doesn't recognize the difference, think of it as expressing to a larger audience the same frustrations we feel here, day after day.

[Sue]

Re-read his presser. He isn't going to indict Libby on anything else. He as much as says so.

[Sue]

And he isn't going to indict on the leak because, as I said last night, everything that Libby is fighting for will suddenly become relevant and Joe Wilson is an obstacle Fitzgerald can't get around.

[steve]

No. He does not claim he never heard it from the VP, only that he heard it from reporters, too. That's a common misreading.

But does that "absolve" him of what he's charged with? Like I said, i'm not overly-obsessive, and I won't pretend to know this stuff backwards and forwards, but the 'lie' he's charged with is telling the FBI or the GJ that he heard it from the reporters, right? If Fitzgerald has the evidence (either through briefing material, Cheney's testimony, etc...) that Libby knew about it via Cheney on such and such a date, wouldn't he most likely have covered that angle in questioning? i.e. locking Libby into his testimony, a la "from the Veep? nope, only place I heard it was reporters'...

[Sue]

He didn't say that.

[boris]

a la "from the Veep? nope

Basic facts should not require endless repetition. Fitz stipulated Libby acknowledged learning from VP.

[Cecil Turner]

Now Fitzgerald is going to offer evidence that her status was classified . . .

Well, that will be nice, if a bit overdue. Is he going to stop resisting the defense's discovery on the point, or insist that a one-sided presentation is sufficient?

. . . York doesn't seem to recognize the difference between what happened and the strict limits of the case Fitzgerald is making . . .

Seems to me that's precisely the focus of the article.

But does that "absolve" him of what he's charged with?

Now you're changing the subject. Proving he heard it from the VP proves nothing (besides, he admits it). The dispute in this case is over his recollections (specifically whether his statements about forgetting where he heard it) were true, faulty, or falsified. In order to convict, you need to show he knew it and intentionally lied about it. To paraphrase your earlier point, this is what I don't get about those who want to get Libby: they don't seem to care if they get the facts right, as long as they get him.

[steve]

Okay, Fitz stipulates that Libby learned it from the VP.

But isn't Libby testimony that he heard it from reporters? And not 'one of the places I learned it was from reporters'?

If he did learn it from the VP (in some fashion) doesn't that make the 'learned it from reporters' statements false statements to teh FBI, perjury to the GJ, obstructin of justice to Fitz, yadda yadda yadda...

Like I said earlier, that's what I just don't get here. Fitz is trying the actual case, and people are bitching. No matter what a scumbag Wilson is (and I'll concede that, easily), that doesn't really impact the perjury charges does it? Or can we really reduce it to "it's okay for Libby to lie because Wilson's a sleaze'?

[Patrick R. Sullivan]

'Isn't it possible that Fitzgerald can't charge on the IIPA BECAUSE Libby lied to him?'

No. That's just Fitz's pathetic attempt at self-justification.

Contrary to what Judge Walton is claiming, this case is about the war, and nothing else. If the fiction that it's about perjury is allowed to stand then Libby will probably be convicted--as Martha Stewart was--for helping George W. Bush go to war, not for perjury.

And, Bush is an idiot for allowing this thing to go on. He ought to call in AG Gonzalez and tell him; 'Fitz says he's operating your supervision, so supervise him.'

[boris]

that doesn't really impact the perjury charges does it?

The context of the investigation has everything to do with the pushback against Wilson. If Wilson was deliberately spreading lies in order to provoke the administration into revealing classified facts, that's very relevant to Libby's defense.

[Jeff]

Sue - I think York recognizes full well the difference, he's just glossing over it now so he can hang on to a complaint against Fitzgerald. Here's a little evidence: in his piece in The Hill, York completely drops the issue of Plame's status being classified, and pretends as though the issue all along has been only whether she is covert or not:

Perhaps the key moment in the descent happened last February in the courtroom of U.S. District Judge Reggie Walton. Fitzgerald was there, along with the Libby defense team.

Libby’s lawyers had asked Fitzgerald to produce evidence that Valerie Plame Wilson was a covert agent at the CIA.

In fact, the distinction between Plame being covert under IIPA - which, as I understand it from helpful discussion here at JOM, would have to be proven and determined in court, as it doesn't simply describe any determinate, official category in the CIA - and her status being classified is so obvious and widely accepted that it makes me think that when York says

most experts don't see a significant difference between the two

he has talked to three experts, and two of their names are Toensing and DiGenova.

[Sue]

Jeff,

At least he didn't talk to McGovern and Johnson. ::grin::

[boris]

most experts

Don't know what York means by this. Beyond IIPA there is no legal penalty for revealing Plame was CIA whether her status was "classified" or not.

The only relevant question: Was Libby officially aware that her employment was supposed to remain undisclosed. Specualtion abounds, but unless this can be established any motive for false testimony is greatly weakened.

[Epphan]

Steve: You seem to be fighting a vigorous battle against an enemy that doesn’t exist. If Fitzgerald believes Libby lied…by all means prosecute. But York’s point…and most everyone’s point…is Fitzgerald was commissioned to resolve the “big case.” And until he does that, he is negligent.

[windansea]

Was Libby officially aware that her employment was supposed to remain undisclosed?

a better question, was the CIA aware?

seems like Novak got two diferent answers

[clarice]

If she wasn't covert there is no IIPA violation. And as I've said a jillion times (a) Fitz acknowledged to the Miller Court that he had no evidence that Libby knew her status was "classified"(c) the fact that everybody knew is relevant to that defense--that no one had any reason to think this was classified information.

I do not see how Fitz can refer to her being "classified" without proving that, yet that is what he is trying to do--make the reference without proving it. Just as he is now saying he wants to hint at harm, not by proving harm--there wasn't any--but by arguing "potential" harm. (What statute is that in? The IIPA says he'd have to prove there was an intention to harm national defense.It also says a lot of other things, as does the antique Espionage Act which make both Statutes inapplicable.)

On a related matter, Rocco and JMH my editor cannot post the pics of the before and after EPIC bios which show the scrubbing unless it is in an article, not a blog, so I have to hold that for a bit.)

[danking70]

"They have argued that the Big Case is what's really important. What was going on when Mrs. Wilson's identity was revealed—the ongoing battle over pre-war intelligence, the "16 words," the attacks of Valerie Plame Wilson's husband, former ambassador Joseph Wilson, against the Bush administration, the White House's effort to push back—what was going at the time Libby was talking to reporters? What did he have on his mind? What was he trying to accomplish?"

"They" is not only just Libby's defense team but also the MSM, the Left, and Democrats.

Chickens?

[Dwilkers]

I do not see how Fitz can refer to her being "classified" without proving that, yet that is what he is trying to do--make the reference without proving it. Just as he is now saying he wants to hint at harm, not by proving harm--there wasn't any--but by arguing "potential" harm.

That's what gets me. Assuming the drift of York's reporting is correct Fitz fully plans to simply assert this and doesn't feel he should have to back it up or provide the defense with whatever evidence he has of this.

Fitzgerald: "The only thing we will seek to offer about her status is that it was classified,"..."We will not offer any proof of actual damages" caused by the leak, although he added that "the issue of potential damage will come up several times."

But he shouldn't have to provide any evidence of that?

I repeat that I am not a lawyer but that seems outrageous to me. Surely this will not fly.

[Cecil Turner]

But isn't Libby testimony that he heard it from reporters? And not 'one of the places I learned it was from reporters'?

No. Libby admits hearing it from the VP. Here's Fitz's description from the presser:

[Libby] said that, in fact, he had learned from the vice president earlier in June 2003 information about Wilson's wife, but he had forgotten it . . .

. . . and her status being classified is so obvious and widely accepted that it makes me think . . .

If her status is so obvious, why does Fitz insist on hiding all the evidence? And, just for argument's sake, if she divulged her status to a reporter, would that suffice for the defense cited in the IIPA?

It is a defense to a prosecution under section 421 of this title that before the commission of the offense with which the defendant is charged, the United States had publicly acknowledged or revealed the intelligence relationship to the United States of the individual the disclosure of whose intelligence relationship to the United States is the basis for the prosecution.

[lemondloulou54]

For me the kicker is York's last sentence: After two and half years of investigating, after putting every conceivable witness under oath, after jailing one journalist and threatening others with jail, Patrick Fitzgerald argues that it doesn't even matter if Valerie Plame Wilson worked for the CIA at all.

I think maybe York is finally getting it. LIBBY lied to the FBI and to the grand jury. That's not the Little Case, that's THE case. The sooner Libby and his high-priced legal counsel accept this, the sooner Libby will be out of trouble.

[windansea]

http://www.freerepublic.com/focus/f-news/1526309/posts

[kim]

So, little worldly loopy lou; has Joe lied to Fitz?
==============================

[clarice]

The case is akin to charging someone for jaywalking and not allowing in a defense that he was fleeing from armed robbers at the time.
lemndloulou, it is getting more and more obvious that the prosecutor knew he had no reason to proceed and did so anyway simply to try to trap someone into misspeaking--in Rove and Libby's case it is equally obvious that the misstatements, if any, were inadvertent and understandable and not the deliberate attempt to obstruct inquiry into a non-crime.
Cecil, it is obvious what's going on here, and if the judge allows it, he will be overruled.

[kim]

A little sour fruit there; Joe Wilson and everything he represents may be a big fat lie, but we simply CANNOT have an innocent man let himself be confused by a stupid prosecutor's stupid questions. We'll show you the power of the federal government.

The trouble is that Fitz no longer represents the power of the government. He represents the power of psychosis and self-delusion.
======================================

[Steve]

If Wilson was deliberately spreading lies in order to provoke the administration into revealing classified facts, that's very relevant to Libby's defense.

How does Wilson lying, or the admin revealing classified facts impact Libby's alleged false staements to the FBI/GJ?

does Wilson lying make it okay for Libby to (worst case) lie, or (best case) misremember?

You say it's relevant, is there really a 'he started it" defense?

[kim]

Of course, there is; it's the reality based defense. Once you perceive that the White House response was a legitimate, co-ordinated(poorly) effort to counteract an illegitimate disinformation campaign from political adversaries, yes all that stuff is pertinent. And it is easily explained how Libby could appear to commit perjury in the face of questions from a confused man.

There it is. For real.
==========================

[kim]

Harrumph. Is one side forgetting that the overriding duty of a prosecutor is to see that justice is done? Mr. Prosecutor, would you please report?
=============================

[boris]

does Wilson lying make it okay for Libby to ... misremember?

It is okay for Libby to "misremember" simply because he's human.

Wilson lying when the truth is "classified" makes the effort to set the record straight like crossing a minefield.

It's not fair for Fitz to point out that Libby was zig zagging to avoid the mines yet exclude the reason Libby was in the minefield to begin with.

[clarice]

Every expert I;ve seen including Toensing who wrote the act and Di Genova--both of whom worked with the IIPA and Espionage Act said from day one that neither the IIPA nor the Espionage Act was applicable to this case.

[xrayiiis]

"Cecil, it is obvious what's going on here, and if the judge allows it, he will be overruled. "

Clarice, thank you for answering my question from the beginning of this thread:

"I think the point team Libby should be (is?) trying to make is that there was a concerted effort to frame him and Rove.

"Are they trying to make that case? If so, is the judge trying to stop them from doing so? Can Fitzgerald get away with limiting this case to a minor technical detail? Can the judge limit the case to the letter of the law?"

[Steve]

Boris- is he still not responsible for his 'misremembering'?

And Clarice- if the experts all say that this doesn't apply, why do you think Goss didn't investigate the original referral and cutthe legs out from undernath the investigation? Wouldn't he have been in a position to examine it, and as GWB's hand-picked man, been in a position to announce the referral was bogus?

Sure, that might not have auytomatically DQ'd the Special prosecutor's authority from Comey, but at that point, if there's not 'even' a possible underlying crime, it really does becoem a question of 'what th hell is he investigating'?

[Jeff]

Even if you accept that Wilson did not directly debunk the document, this bit that York gets from the every-misleading SSCI is incorrect (with emphasis added):

The Senate Intelligence Committee later showed that Wilson could have done no such thing, because the documents which he had supposedly debunked were not even in the possession of the government at the time Wilson said.

The documents themselves didn't come into the USG's possession, apparently, until October 2002. However, the February 2002 report was verbatim text of at least some of them, and certainly of the ones that proved the forgery, as Robb-Silberman later clarified. Now, there's some obscurity about what actually happened in this regard. Wilson says the report that was discussed at the February 19 meeting was not very specific. Wilson also says that he told his debriefer on March 5 the names that should have been on the relevant documents, though it appears this didn't make it into the CIA report on Wilson's trip. Part of the point is that if Wilson gave the names that should have been on the documents, it was fully within the government's ability to check those against the verbatim report, and that could have and should have debunked the verbatim text from the documents.

[Sue]

<<<>>>

Why is it that Jeff uses the SSCI when it supports his POV and decries it when it doesn't?

<<<>>>

[topsecretk9]

Byron clearly missed Fitz's superb baseball analogy

Superb? Yikes, it was about the lamest (next to chicken bones and Nuclear bomb work).The guy may be a saint, but superb analogies are not his strong points.

[clarice]

Steve,And Clarice- if the experts all say that this doesn't apply, why do you think Goss didn't investigate the original referral and cutthe legs out from undernath the investigation? Wouldn't he have been in a position to examine it, and as GWB's hand-picked man, been in a position to announce the referral was bogus? Perhaps he;s waiting for the judge to order it given to Libby at which time the agency would refuse. Perhaps he didn't see that as his role. Perhaps like Gonzales he lacked the balls to do what he ought to. Perhaps--and this is my guess--if the Judge says the referral letter is discoverable, once Libby gets his hands on it he will demand the right to cross examine the head of the Agency or some other responsible official to show it is a steaming pile.

[Steve]

So if it's a steaming pile, why wait this long to SHOW that it's a steaming pile. Maybe it is lack of balls, from both Porter and Alberto, but I can't shake the idea that if it was really a totally bogus claim, that SOMETHING (besides spin and opinion) would have leaked out about it...

I've read some of what Toensig and Digenova have to say, and their interpretation is it doesn't apply. But if Tom is right in what he referneces above, and the 'experts' don't see a real difference between classified and covert, we're back to splitting hairs, aren't we? Because it MAY apply, right?

And incidentally, can someone tell me why the referral would be discoverable? If Fitz focuses on 'the little case', is it relevant?

I've thought all along that there's the possibility that Rove, Libby, etc didn't KNOW she was NOC. So there's no IIPA violation because there's no proof thatthey knew. But that doesn't absolve Libby of his lying/misremembering and it doesn't clear Rove of his ever evolving GJ testimony, right?

I saw a runaway bride murder analogy used on this a while back. She disappears, they suspect fiancee, he lies to investigators. they find her alive, so now there's no underlying crime. Do they let him get away with lying to the FBI or a GJ?

So even if he's not guilty of IIPA violations, how does a bogus CIA referral get him out of allegedly lying to the FBI?

[Sara (Squiggler)]

Wouldn't he have been in a position to examine it, and as GWB's hand-picked man, been in a position to announce the referral was bogus?

Would Goss or anyone else have been able to do anything with the referral once it left CIA and went to DOJ? I have not understood why this referral has been such a big secret anyway? For those of us who weren't around back in the beginning, could someone enlighten on this point?

[clarice]

The referral according to Di Genova had to contain sworn statements showing among other things (a) that he was covert within the meaning of the very narroe IIPA and (b) that the agency did everything possible to prevent disclosure of her identity. As I see it, it was false. Part of Libby's defense is that there was an interagency war going on and parts of the CIA were fightinf the OVP. If the referral is based on a falsehood, to my mind, that is like a search based on a false affidavit..and one where everything that follows is inadmissible.

And I suspect that is exactly why Fitz doesn't want to turn it over--even in redacted form.

[Steve]

Case law to back that up? Because why I don't necessarily disagree with you, I also don't think that's 'the way things are'.

IOW, even if the referral was bogus, it doesn't absolve Libby or his alleged lying/misremembering. To reuse the presumed murder analogy, it doesn't matter that the original claim (he killed my daughter!!) proves false. The fiancee (or Libby in this case) is still obligated to testify truthfully to the FBI or the GJ.

[boris]

She disappears, they suspect fiancee, he lies to investigators. they find her alive, so now there's no underlying crime. Do they let him get away with lying to the FBI or a GJ?

The bride's family planted evidence framing the fiancee. The determination of whether the fiancee lied depends on knowing the "evidence" was planted.

To prove he didn't lie, the fiancee needs to show the "evidence" was planted. The prosecutor claims that's irrelevant.

[boris]

The fiancee (or Libby in this case) is still obligated to testify truthfully ...

Not http://justoneminute.typepad.com/main/2006/04/waas_on_rove.html#comment-16781109" target="_blank">always.

[Jeff]

Why is it that Jeff uses the SSCI when it supports his POV and decries it when it doesn't?

I don't. My position has been clear and consistent. The SSCI has lots of interesting facts useful for understanding the whole case. But 1)it is radically incomplete, in the sense both that a)it omits really important stuff; and b)it presents a lot of stuff in really and misleadingly partial form; and 2)it consistently puts a misleading spin/interpretation on facts, often presenting that spin/interpretation as though it were fact.

[boris]

And the 911 report is worse.

So what, it is what it is. Still far better than anything made public by Fitz.

[boris]

As a basis for net discussion it is for all practical purposes "the truth".

[clarice]

I don't know of a single case brought under the IIPA act so there won't be any precedent on the fake referral letter as an anology to a false warrant. However the case books are full of the latter and those cases are most certainly on point. A person should be free from legal process unless there is a reasonable ground for proceeding and if the referral letter was based on falsehoods there is no reasonable basis.

[boris]

Re: SSCI Still far better than anything made public by Fitz.

Or the MSM.

[boris]

The Fitz scorecard so far:

1. Libby was the primary leak;

2. Plame was not generally known;

3. NIE vigorous pursuit Key Finding was a deliberate lie;

4. Plame was part of secret disclosure conspiracy;

The first 3 are Fitz "errors" and the last the inevitable MSM inference and assertion.

[kim]

Yeah, and the wrongdoers should not be free of legal proceedings.
============================

[clarice]

Let me distill the left's position: Even if the entire case against Libby is a crock, the result of a lie filled referral letter by perfidious weasels in the CIA it must proceed, but the anonymous data mining to find patterns of communication which may help AQ terrorists here and those working with them must be halted immediately because of the outrageous invasion of our right to privacy.
Nutters in a nutshell.

[kim]

It's reality based, so it can't degenerate into conundrums, contradictions, and dilemmas.
===================================

[steve]

Boris- isn't it irrelevant? If the brides family planted evidence, it still doesn't negate the fact that the groom (allegedly) lied to the FBI/GJ. I think that's the point York, Tom, et al are trying to make. As much as it might be useful to Scooter's case to rip into Wilson (and there's plenty to rip) what Wilson did isn't the subject of the indictment. They can't necessarily mingle big case evidence with little case evidence. So it doesn't matter what Wilson did, or what they were responding to, or anything else. What DOES matter is did Russert say this to Libby on such and such date, Libby said to miller on that date, etc...And can Fitzgerald prove that Libby's testimony is in conflict with all these other peeps testimony...

[windansea]

Jeff has been remarkably clear and consistant...the parts that are useful interesting facts are those that support Jeff's arguments and the misleading/incomplete/spun facts are those that don't

simple!

[boris]

doesn't negate the fact that the groom (allegedly) lied

In my counter example it does.

The prosecutor takes the planted "evidence" at face value which contradicts the groom's testimony, hence charges him with lying.

If the groom can show the evidence is false, then his testimony was accurate.

Take a stand consistant with the analogy if you wish to continue.

[Cecil Turner]

Wilson also says that he told his debriefer on March 5 the names that should have been on the relevant documents, though it appears this didn't make it into the CIA report on Wilson's trip.

Apparently the names weren't terribly suspicious for the uranium sale document. Per the embassy cable:

The names of GON [government of Niger] officials cited in the report track closely with those we know to be in those, or closely-related positions.

Why Wilson's expertise would be needed (or believed over the current Ambassador) is hard to credit, nor is there any evidence they had a disagreement on the point.

As to him being able to figure out the forgeries, the first bullet in the "obvious forgery" story cited the "childlike signature" of President Mamadou, which obviously wouldn't be on any text, no matter how "verbatim" . . . Further, the outdated Foreign Minister signature appears to be on a different document (likely the unbelievable military agreement cited in the SSCI). Finally, there's Wilson's own statements:

The former ambassador said that he may have “misspoken” to the reporter when he said he concluded the documents were “forged.” He also said he may have become confused about his own recollection after the International Atomic Energy Agency (IAEA) reported in March 2003 that the names and dates on the documents were not correct and may have thought he had seen the names himself.

I think Wilson's credibility on this issue is shot.

[kim]

Oh my precious, what can Fitz prove?

Beyond many doubts.
====================

[Bor is Socrates]

You know it took people like Plato to even understand him.

[Sara (Squiggler)]

Although I understand the analogy that even if there is no crime that doesn't absolve someone from lying during the investigation about said "no crime." However, in this case, the lie starts with the claim that Libby was lying when he said he wasn't the first to leak. This, as I understand it is Libby's so called crime, but if the fact that he wasn't the first and that is what he has said and what Fitz, by the indictment says is the lie, where does Libby go? It is circular. He is being accused of lying about denying that he was the first to tell the lie. If he didn't tell the lie and he wasn't first in telling the lie, how can he be held accountable for lying when he says he didn't lie about the lie?

[Cecil Turner]

The SSCI has lots of interesting facts useful for understanding the whole case. But 1)it is radically incomplete, in the sense both that a)it omits really important stuff;

That's true. The most glaring omissions are:

1. The obvious fact that Plame suggested Wilson for the trip; and
2. An explanation for why the DO didn't ask Wilson to sign a non-disclosure agreement.