Fitzgerald On Discovery - May Call Cheney!

E&P reports on a new Fitzgerald filing and exhibits, but they bury the lede, which is this, from the filing:

By his own account, defendant understood from the Vice President that it was necessary to get out “all” the facts in response to the Wilson Op Ed. The response to the Wilson Op Ed was a matter of repeated discussion between the defendant and the Vice President following its publication.

It is clear from context that "all" refers to the annotated op-ed with the note from Cheney wondering whether the wife sent Wilson on a junket.  However, Libby says that Cheney did not discuss Ms. Plame with him after the op-ed until July 12 at the earliest, but after the Russert-Libby chat in any case.

[And let's not forget this defense filing (p. 20) which told us that:

In fact, as the government is well aware, contemporaneous documents reflect the points that Mr. Libby was to make to reporters, and these documents do not include any information about Wilson’s wife. ]

Well - back to E&P:

Vice President Dick Cheney could be called to testify in the perjury case against his former chief of staff, a special prosecutor said in a court filing Wednesday.
 
Special Counsel Patrick Fitzgerald suggested Cheney would be a logical government witness because he could authenticate notes he jotted on a July 6, 2003, New York Times opinion piece by a former U.S. ambassador critical of the Iraq war.

Fitzgerald said Cheney’s “state of mind” is “directly relevant” to whether I. Lewis “Scooter” Libby, the vice president’s former top aide, lied to FBI agents and a federal grand jury about how he learned about CIA officer Valerie Plame’s identity and what he subsequently told reporters.
 
Libby “shared the interests of his superior and was subject to his direction,” the prosecutor wrote. “Therefore, the state of mind of the vice president as communicated to (the) defendant is directly relevant to the issue of whether (the) defendant knowingly made false statements to federal agents and the grand jury regarding when and how he learned about (Plame’s) employment and what he said to reporters regarding this issue.”

This looks new to me:

In his grand jury testimony, Libby said Cheney was so upset about Wilson’s allegations that they discussed them daily after the article appeared. “He was very keen to get the truth out,” Libby testified, quoting Cheney as saying, “Let’s get everything out.”

 And a bit of drollery:

In a filing last week, Libby’s lawyers said Fitzgerald would not call Cheney as a witness and would have a hard time getting the vice president’s notes admitted into evidence.
 
“Contrary to defendant’s assertion, the government has not represented that it does not intend to call the vice president as a witness at trial,” Fitzgerald wrote. “To the best of government’s counsel’s recollection, the government has not commented on whether it intends to call the vice president as a witness.”

MORE:  This looks like a new high-water mark in the "Get Dick" Derby - from p. 8:

By his own account, defendant understood from the Vice President that it was necessary to get out “all” the facts in response to the Wilson Op Ed. The response to the Wilson Op Ed was a matter of repeated discussion between the defendant and the Vice President following its publication.

Oh, Fitzgerald so wanted Libby to confess that Cheney ordered him to out Plame!  Well, the trial is not until next January - Keep Hope Alive!  But IMHO, Fitzgerald doesn't have it and isn't getting it.

Exhibit A is a transcript of a portion of Libby's Grand Jury testimony.  He confirms that Cheney frequently clips out articles, claims he does not remember seeing the Wilson op-ed, but certainly discussed it with Cheney.

IN ENGLISH, PLEASE:   Apparently Cheney told Libby that Ms. Plame worked in "the functional office of the Counterproliferation of the CIA" (quoting Fitzgerald, presumably reading from something).  Is that a special part of the CPD, and what does "functional" mean here?

NO HEDGE:  When asked from whom he learned about Ms. Plame on July 10 or 11, Libby does not hedge, but names Tim Russert.  That said, the rest is redacted, so draw conclusions at your own peril - perhaps the caveats came later.

CALL CSI D.C.:  How could it be that Cheney wrote on the Wilson op-ed a note about the wife sending Wilson on a junket, but never discussed that with Libby until after the Novak column?  When asked this, Libby offers some circle-squaring speculation - Cheney sometimes kept columns on his desk, and may have jotted that final thought after the Novak column came out.

Well, get the CSI people to see if it was done in the same ink - that would be suggestive, but probably not dispositive, since Cheney might have a favorite pen he uses all the time.  Take a look, but Libby's suggestion seems far-fetched to me.  That said,  Libby added "You'll have to ask him", referring of course to Cheney.

SPEAKING OF WHICH:  With all this talk about Cheney's state of mind and Libby's recollection of his chats with Cheney, how could Cheney *not* be called as a witness?  And surely Fitzgerald covered this ground when he interviewed Cheney - one wonders what Cheney said.

REFIGHT THE INTEL WAR: Fitzgerald has been trying to limit the discussion to Libby's state of mind and avoid a long exposition of the entire Niger trip.  Fine, but Sara points out he may have hurt himself by introducing Cheney's exhortation to get "all" the news out:

Hasn't he now opened the door for all that to come in and isn't that great news for the defense?

Hey, I think so - surely Libby ought to be able to explain what was meant by "all" - but I'm not the judge.  Still, keep an eye out for this defense come-back in the next go-around.

Comments

[kim]

As if bosses were reliable witnesses to the state of mind of their subordinates.
================================

[ed]

If your boss tells you to do something it vanishes from your mind?

[topsecretk9]

Fitzgerald needs these!

[danking70]

What was Libby's state of mind at the time?

Not important. Irrelevant.

And Cheney's is?

Is this another instance of Fitzgerald arguing both sides again?

[clarice]

He will never call Cheney.If those are his notes Cheney could authenticate them by stipulation.
I wonder how probative(and therefore admissible) the court will view the notes of a superior which were never shown to the defendant to prove they discussed something that the defendant says they never did in the time frame the prosecutor is trying to establish.

News paper article, morever, as Fitz argues are "self authenticating" but to the extent the fn implies that one with someone's notations on them are, he should retake Evidence.

[danking70]

Is Fitzgerald hoping for his Tom Cruise moment?

[Sara (Squiggler)]

By his own account, defendant understood from the Vice President that it was necessary to get out “all” the facts in response to the Wilson Op Ed.

Why was Fitz arguing against admitting the war stuff if now he is using this statement to try to mean trashing Val. "All the facts" to Cheney and the WH meant the facts about the NIE and the facts about Cheney having NOT been the one to send anyone to Niger. Hasn't he now opened the door for all that to come in and isn't that great news for the defense?

[topsecretk9]

--Is this another instance of Fitzgerald arguing both sides again?--

AND he's alluded to Libby being afraid to tell the truth for fear he'd make boss man mad and get fired.

Big Case, Little Case and a whole bunch of others that might work...you know what the chimpanzee's do with a certain you know what at the local zoo!

[Pisistratus]

Actually Libby testified they did discuss it in the time frame Fitz is trying to establish. Libby even wrote that Plame was CIA in his personal notes-per Libby's testimony.

It was important enough for Cheney to use his little pen knife and personally annotate Wilson's op-ed, but Libby just forgot all about it.

A real crackerjack staff man. No wonder Cheney didn't do more to head off his indictment.

[boris]

Gosh if only Libby had remembered that Cheney and Bush wanted him to blow Plame's cover he wouldn't have had to lie about forgetting ...

... wait ... um ... lemme see here ...

[Sara (Squiggler)]

It was important enough for Cheney to use his little pen knife and personally annotate Wilson's op-ed, but Libby just forgot all about it.

_____________

The questions that comprise the annotations were rhetorical. Why would Libby see them? Supposedly he did this all the time and stacked the articles or papers on the corner of his desk.

[clarice]

On a related note, ABC's Brian Ross seems to be channeling Jason Leopold:
"ABC News is looking very stupid tonight. It is now “reporting” this:

Despite a flat denial from the Department of Justice, federal law enforcement sources tonight said ABC News accurately reported that Speaker of the House Dennis Hastert is "in the mix" in the FBI investigation of corruption in Congress.

Speaker Hastert said tonight the story was "absolutely untrue" and has demanded ABC News retract its story.

Law enforcement sources told ABC News that convicted lobbyist Jack Abramoff has provided information to the FBI about Hastert and a number of other members of Congress that have broadened the scope of the investigation. Sources would not divulge details of the Abramoff’s information.

"You guys wrote the story very carefully but they are not reading it very carefully," a senior official said.

More here.

I don’t know who this senior official is, but not only did I read the original story carefully, I broke it down into little parts, and it still didn’t make any sense. (See below.)

The phrase “in the mix” can refer to anyone Jack Abramoff ever lobbied. This story tells us absolutely nothing. And “the sources” do not appear to have direct knowledge about what they’re leaking. Moreover, the Justice Department would not release a statement flatly denying the existence of an investigation of Hastert without checking with internal primary sources. I know this as I used to be a chief of staff to an attorney general and I have no doubt the department checked this thoroughly before speaking on the record. "
http://levin.nationalreview.com/post/?q=OGNiNGM5ZmE2MTA3MTJkNzFlM2JmNzc4NmQ5YTVlNDI=

[clarice]

I see this stretchhhhhhhhh effort as an admission that he doesn't think his motive to lies stuff is very strong. Well, if so, Fitz and I are in agreement for the very first time.

[topsecretk9]

imcompentent

[boris]

This is Fitz's way of asking Cheney to shut down the whole thing in a way that saves face for Fitz.

[clarice]

Were I judge Walton I'd be flagellating myself in chambers every morning for denying the Motion to Dismiss.

[kim]

Right, boris, and keep lefty conspiracy theories alive forever, too. Looks like winners all around. Deal?
===============================

[steve]

Doesn't this look bad for Libby?
So Wilson and his wife are talked about with him (or at least in his presence) twice in June w/the CIA dudes. Then he and Cheney talk about Wilson 'daily' right after the op-ed comes out. And even though he learned in June that his wife was involved somehow, and even though Cheney apparently knew enough to annotate the op-ed, Libby never knows about Plame?

As much issue as I have with Russert in this, finding out that Cheney and Libby (allegedly) talked daily about Wilson and never mentioned Plame strains credibility. If they were pushing back on the "OVP sent me", wouldn' they have been likely to discuss who DID send Ambassador Munchausen?

[Tom Maguire]

"All the facts" to Cheney and the WH meant the facts about the NIE and the facts about Cheney having NOT been the one to send anyone to Niger. Hasn't he now opened the door for all that to come in and isn't that great news for the defense?

Seems like an excellent point to me. Any takers?

[Tom Maguire]

finding out that Cheney and Libby (allegedly) talked daily about Wilson and never mentioned Plame strains credibility.

It seems odd, but - not calling Cheney to help establish that point also strains my credulity.

Unless, that is, Cheney told a story to Fitzgerald that matched Libby's; if Cheney had contradicted Libby he would be called, yes?

[clarice]

To me, too. Including of course the stop/go/stop in the declassification of the NIE and any stuff relating to what was on Grossman's mind in this period and Tenet's..Hell, I want to know the dire reports I know they were getting when this all took place..I want to see the whole picture so we can see if Fitz put the right degree of importance on what to me seems diddly squat.

[kim]

Yep, state of mind is going to drag the big case in like a tarbaby. Oops. I was supposed to check if that was originally from pine tar.
===================================

[clarice]

Well, I don't think Fitz will put Cheney on the satand and, yes, I think Tom's point is shrewd about what Cheney testified to. But if push comes to shove and Fitz at trial tries to convey the idea that Plame was numero uno on the OVP's to do list, I wouldn't be surprised if Cheney breaks precedent and testifies for the defense on rebuttal.

[clarice]

And when he does I wouldn't be surprised if it comes out that he told the very same thing to Fitz at the very outset of the investigation.

[kim]

And the satand is where you'll find the details.
============================

[clarice]

**THWAAAACK*

[ghostcat]

Bonus points to kim.

[Jeff]

This is Fitz's way of asking Cheney to shut down the whole thing in a way that saves face for Fitz.

You can't be serious.

[TalkLeft]

To answer your question about how he could not call Cheney, here's my thought:

He doesn't need to call Cheney to authenticate the documents under Rule 901,FRE. And he says the notes corroborate his other evidence and witnesses --

Therefore, the annotations corroborate the government's other evidence indicating that these issues were communicated to defendant by his immediate superior, who also directed defendant during the critical week after July 6 to get out into the public "all" the facts in response to the Wilson Op Ed.

...

Evidence placing defendant's conversation with the Vice President shortly after the publication of the Wilson Op Ed also corroborates the accounts of a number of government witnesses who will testify that defendant discussed Mr. Wilson's wife on or before July 8, 2003.

He writes that the notes and other evidence make it "more likely than not" the conversation about Plame working for the FBI occurred during the first week in July.

The fact that comments regarding Wilson's wife were included among the Vice President's annotations also supports the proposition that defendant's conversation with the Vice President regarding Mr. Wilson's wife more likely than not occurred shortly after the publication of the Wilson Op Ed, rather than later, as defendant claimed

He may be content to go with "more likely than not" since the jury will be instructed it can draw reasonable inferences from the evidence presented.

If Cheney is a target of his investigation (or indicted by trial time) he won't call him because he'd take the 5th.

If Cheney's in the clear, Fitz might not want to call him because of concern Cheney would try to help Libby.

I think he's using Cheney's notes more to corroborate his other witnesses.

[Jeff]

I take it we can put to rest the idea that Libby's story is that he never claimed he learned the info about Plame as though it were new from Russert, right? That we was just feigning a state of mind of ignorance with Russert? Or are there still takers for that idea?

And is the claim that Joe Wilson was a matter of great concern in OVP July 7-14, but his wife was peripheral? That is, is Libby going to acknowledge that Wilson's article was a matter of great concern in OVP? Or just daily, but not great, concern?

[Jeff]

Tom and Talkleft - Maybe I'm missing something, but I thought Fitzgerald made clear in this filing that the defense is simply wrong to assert that he, Fitzgerald, has made representations that he won't be calling Cheney. He's not saying one way or the other. But he is clear that he never told Team Libby, as far as he's concerned, that he wouldn't be calling Cheney.

[clarice]

Haven't the parties listed in connection with the judge's requests the names of the witnesses they are calling in their case in chief? I know Libby provided one and a notation he intended to call 5 or more (unnamed) to testify that Wilson disclosed Plame's identity and employment to them.

[Jeff]

Fitz at trial tries to convey the idea that Plame was numero uno on the OVP's to do list

He will try to convey no such idea.

[topsecretk9]

He will try to convey no such idea.

Jeff's channeling Fitz again...or Jason Leopold's source.

[Kate]

Fitz will not indict Cheney. It's looking inceasingy unlikely that Fitz will indict Rove. This is it. A weak perjury case that Libby won't plead. I agree that Fitz is signalling the WH and OVP that this can get embarrassing for them.

I notice the Fitz uses every filing to slam Cheney. Cheney must think Fitz is such a nuisance, such a weasle.

[Kate]

To me Cheney and Libby were focused on the war, defending the intel, the NIE. Plame was a triffling issue that just reinforced the incompetence of the Agency in their minds.

Here you have the Agency, instead of sending a competent, knowledgable analyst, engaging in nepotism and sending an incompetent hack who blabbed all over town.

A minor, but related, personnel issue: an Agency official with bad judgement, practicing nepotism.

Plus they needed to know who sent the incompetent Wilson since they were being blamed for this fool's errand.

[Kate]

I would like to remind TalkLeft that before she starts weaving tales of Cheney's indictment, something that not even Fitz suggests, she remember that she posted an article from Wayne Madsen.

I hope she now regrets that and may want to be really careful about speculating. Please indicate to me that this is anything more than a perjury case. Didn't Fitz himself say in October that he was essentially finished his investigaion.

[TalkLeft]

Kate, not fair. In writing about Madsen, I said, "I don't know Wayne Madsen so I don't know whether his report is credible, or just a rehash of Jason's with the most skeptical portions removed."

Nor did I suggest above in my comment above that Cheney will be indicted. I wrote:

"If Cheney is a target of his investigation (or indicted by trial time) he won't call him because he'd take the 5th. If Cheney's in the clear, Fitz might not want to call him because of concern Cheney would try to help Libby."

I don't regret writing either. And I try not to do any Republican bashing on Tom's site.

[Kate]

TalkLeft: thanks for the clarification. There has been so much speculation and nonsense on this story that I don't think we (and I include myself) should add to it.

As for Madsen, I took a look around his site and he is truly out there, I just suggesting that you not link to him again.

[Rocco]

On July 6, 2003, Wilson began a media blitz with his op-ed in the NYT's, a Pincus article in the WP and an appearance on Meet The Press.

July 6, 2003 was also the eve of Bush's five nation trip to Africa with 15 billion to fight the spread of AIDS.

July 6, 2000 was also the date on one of the Niger forgeries.

And July 6 is President Bush's birthday.

Happy Birthday President Bush!

[MayBee]

Talk Left-
On the first night of Leopold's report, you mentioned that you believed him. Have you retracted that statement yet?

[Dwilkers]

This strikes me as a huge logical leap:

"Defendant shared the interests of his superior and was subject to his direction. Therefore, the state of mind of the Vice President as communicated to the defendant is directly relevant to the issue of whether the defendant knowingly made false statements to federal agents and the grand jury regarding when and how he learned about Ms. Wilson's employment and what he said to reporters regarding this issue."

I can see Cheney's state of mind being relevant to the issue of how important this was to Libby and therefore whether his claims of forgetfulness are believable. It seems to me they are not relevant to the fact of whether he lied or not and certainly not "directly relevant".

Whatever. Its going to be interesting to see how Walton rules on these discovery motions. The defense would like to introduce anything up to and including a conversation about Libby's opinion on the space shuttle to muddy the water. Fitz wants to introduce everything that can be even remotely implied to indicate a grand conspiracy but absolutely nothing else.

[boris]

You can't be serious.

Always a good bet.

[sad]

A little something to brighten your day. LJ is making some interesting, yet oblique suggestions as to what he is these days. The following is from his website in response to some criticism:

**********FROM LARRY:
GEE TIM, YOU ARE A REAL TOUGH GUY. OBVIOUSLY YOU HAVE TROUBLE HOLDING A JOB AND THINKING CLEARLY. THERE WAS A REASON I DIDN'T TELL BYRON YORK WHAT I'VE BEEN DOING SINCE LEAVING STATE DEPARTMENT IN 1993. IF YOU WERE REALLY THE BAD ASS YOU CLAIM THEN YOU WOULD KNOW WHAT I'M DOING. OBVIOUSLY, YOU ARE PROBABLY FLOPPING BURGERS IN SOME DIVE AND DREAMING OF BEING SOMETHING YOU'RE NOT. YOU ARE WELCOME TO KISS MY ASS. *******

[Jeff]

boris - Good one! (No kidding.)

[boris]

Or are there still takers for that idea?

When Cheney said it was necessary to get out “all” the facts in response to the Wilson Op Ed, what did that mean?

Out to the public ...

The keyfindings of the NIE ... Yes

The NIE yellowcake intel ... Yes

Wilson sent unofficially by cabal of CIA dissenters ... Yes

Wilson's wife was CIA ... No

Background to the reporters ...

All of the above including "don't quote me on this but have you heard reporters are saying Wilson's CIA wife arranged the junket? Explains a lot don't you think?"

In that context hearing the Wilson wife info from Russert would be significant. "Ah Ha! now we can implement plan B!" Thus the act, as if for the first time.

[Tom Maguire]

Folks, we are delighted to have Ms. TalkLeft here, since she is at least as well informed as Jeff on these subjects. And she has been diligent about tracking both sides of the Leopold story, despite her unhidden predisposition for one side.

(1) As to the notion that Cheney had a "You're damn right I ordered the Code Red" moment and told Fitzgerald he ordered Libby to out Plame - wouldn't Fitzgerald have noted that by now, as direct evidence of Libby's state of mind, for example? And doesn't it seem highly unlikely that Cheny would 'fes up regardless of the truth? Why not just forget?

(2) An earlier defense filing noted specifically that the WH prepared talking points in response to the Wilson op-ed, and Plame is not on them. Isn't that also evidence of Cheney's priorities, and Libby's? And who discussed these talking points, who drafted them, and was the wife discussed, then dropped?

(3) Will come back to me, but I'm sure it was witty *and* insightful. Just not memorable.

[verner]

Between Seixon and Byron York, we've got Larry's number. And Cliff Kincaid at AIM is doing a job on Ray MCGovern. It will only get worse. MOM's firing was a sort of tipping point, and the haze is beginning to clear.

If I were Larry and the VIPers, I think I'd move to Cuba and buy a vacation villa from Phillip Agee. They might be answering questions in front of a GJ is they're not careful.

[Tom Maguire]

Ahh, it was not witty at all, but I get double-time as Cheney spinmeister - maybe the "junket" question was an earnest attempt to solve a puzzle - *IF* the wife sent him, there should be paperwork to prove it; if not, then no paperwork,

Get the paperwork, make the case (internally, anyway), maybe go public, otherwise keep quiet, is what may have been in Cheney's mind.

Since the paperwork did not exist, they never went forward with plans to talk about her, and this all stayed in Cheney's mind.

Yikes - do not attempt this at home without supervision...

[maryrose]

sad:
flopping burgers ,isn't that flipping burgers?
Anyone taking pains to denigrate someone else obviously is none too pleased with where they themselves are at this point in their lives. Nothing worse than that.
Actually I believe this is good news for Libby because it looks like Fitz is grasping at straws at this point. This is all supposition on his part and not a lot of concrete facts. It's really hopeless for Fitz at this point and he knows it.

[steve]

Dwilkers, on this:
I can see Cheney's state of mind being relevant to the issue of how important this was to Libby and therefore whether his claims of forgetfulness are believable. It seems to me they are not relevant to the fact of whether he lied or not and certainly not "directly relevant".

Isn't that relevant to the OOJ charge? In laymen's terms, if he 'just' lied, it's perjury. If he lied in an attempt to derail the investigation it's OOJ. Doesn't this reflect his state of mind, which Fitz is trying to figure out...I.E. if it was a side issue and unimportant, easy for Libby to get confused on who he learend what from and what he said to who.
BUT if this was important, important enough to be discussed everyday with the the Veep, it starts to look more like he 'forgot' all these conversations and mentions of Plame for a reason-
I read this as Fitz saying 'we think he's lying, and we think that anyone who had this many conversations about subject A, and How "A" ended up in Niger, would remember that Mrs A was involved in sending him. Therefore he's not just messing up dates and people, , he's lying to us in an attempt to obstruct justice'.

And doesn't that tie back into Fit'z press conf...the 'can't discover the 'truth' about the underlying crime (if there was one) because he's throwing sand argument...

[verner]

Not only that Tom, but NO PAPER WORK? Combined with NO CONFIDENTIALITY AGREEMENT? Combined with SENDING AN ENEMY OF BUSH FOREIGN POLICY? Combined with, we still don't know how "classified" Ms. Plame was and who leaked the referral to the press.

I mean, come on. Even Ms. Talk Left has got to notice all that.

[Cecil Turner]

It is clear from context that "all" refers to the annotated op-ed with the note from Cheney wondering whether the wife sent Wilson on a junket.

I think it's clear from context that's what Fitz would like it to mean. But I think it's equally clear from context that's not what Libby meant when he said it. And I'm feeling pretty good about this prediction:

Expect Fitz to argue he can show Libby probably saw the article, and hence it's different from the stuff the Defense wants. Walton, based on past rulings, will probably buy it.

(Though I should've added "or talked about it" -- Oh well.)

I don't regret writing either.

If you're positing indicting the VP as a possibility, it'd be nice to see it attached to a possible charge. Because I don't see one.

Get the paperwork, make the case (internally, anyway), maybe go public, otherwise keep quiet, is what may have been in Cheney's mind.

Seems to me like the annotations all go to CIA management. The logical thing to do with them is ask Tenet whether that's the way they do business. (You'd hope the answer would be: "no.")

[lurker]

I found Ms. TalkLeft to be sensible and lucky to have sensible posters participating at her site.

Andy McCarthy's inputs about VEEP as Libby Trial Witness...with a question mark>

"As usual in this case, there is probably less here than meets the eye. Apparently, Libby's lawyers have indicated that they were under the impression the government would not call the Veep. When defense lawyers say such things, and the prosecutor believes they are mistaken, the ethical thing is for the prosecutor to correct the misimpression so that the defense does not prepare for trial under a false assumption. I'd bet that is all that's going on here."

Andy's probably right about the stipulation. The Libby Team might be trying to figure out whether Fitz still plans on having Cheney on his witness list as an optional witness.

But I think Sara has a good point. There's no way Fitz can avoid the argument as described by Sara. Boris: that was my interpretation as to what is Cheney's "state of mind" at that time...a typical managerial mind.

Therefore, I think Cheney's testimony would end up being irrelevant. Heck, what do I know! I jumped into this game late and learning from you guys!

[Max]

Fitz would'nt be 'asking' Cheney to save his face, he already lost it and, based on his criminal conspiracy background, had passed on prosecuting a 'bad' agent.

As far as the'code red' moment, it 'happened' 'during' Wilson's interview at CNN with the other returned Peace Corps Volunteer. I watched the interview and think that the decision was made there; and allowed to be understood by the audience, to seperate Wilson from Plame's Directorate of Operations work and the contractor work Wilson did for her. Plame was getting dangerous and its historical how she outed AFTER Wilson was pulled out.

CNN became the focus and that is unfortunate. I personally think the decision to seperate Wilson and Plame was made in Wilson's interest and it was probably done by an RPCV. When an operations officer looses the confidence of someone she is using, its the operations officer that has to go. That is standard trade craft.

As far as Larry; it looks like he left at the beginning of the time the decision was made to start looking at arresting Aimes. He was arrested shortly after and, it appears, Larry may have a unique understanding of what happened in Central/South America-his wife was from there. The Director left shortly after the Aimes mess, whether or not this was the correct thing to do is up to Woolsey, but it may have been better for everyone if he had stayed.

[lurker]

OT: Let's hope the Senate will pass the McConnell amendment for requiring photo ID to vote.

Frist Supports Amendment Requiring Photo ID To Vote

Passing of this amendment will force New York to back off its law allowing illegal immigrants to vote. And this will avoid another 2000 recount mess / Safe Harbor argument. Which, btw, I supported the Safe Harbor argument over the stupid 2000 vote chad.

[Florence Schmieg]

So salacious for the BDSers, so totally unimportant to the average American! I couldn't help but laugh out loud listening to Bob Franken on CNN this morning. "VP Cheney might get called to testify or...might not!!" Can you get any more ridiculous in a so-called "news report"? They then spent several minutes imagining how embarassing this would be if it happened and other examples of wild speculation and innuendo based on nothing or maybe something but who knows. How the mighty news media has fallen!

Also, unfortunately saw a small bit of Hardball last night: David Shuster refusing to give up on the Rove indicted story into which he and Matthews have placed such faith, that he interviewed some ex prosecutor I never heard of who says: "The fact that 28 days have passed since Rove was questioned again without any activity from Fitzgerald is a bad omen for Rove!! If he was going to be cleared, he would have done it quickly." I think I could argue the same for an indictment. But anyway, it is another example of the extreme need the left media has to keep the story in their headlines.

[Other Tom]

I've exchanged several e-mails with Larry Johnson, and initially (because I disagreed with him) he threw out the kinds of personal insults that seem to be his immediate reaction to all criticism. (I must have a low IQ; I must have been disbarred; I must be a short, insecure guy, etc.) I persevered and we are now on cordial terms. He told me a week ago that "he" had a source at ABC, one at Knight Ridder, and one other (I forget)--the same as Leopold. And, I believe, the same ones Joe Wilson has been referring to. If I had a dirty mind, I would think the whole Leopold story is traceable back to Wilson.

I have also exchanged a few e-mails with Marc Ash of TruthOut; he has basically said simply that they have their sources and are sticking with their story. My last message to him a few days ago inquired as to whether he, or anyone other than Leopold, had spoken to Leopold's sources. I also inquired as to whether he had consulted a lawyer with federal criminal defense experience concerning the likelihood that an indictment of Karl Rove would be sealed. Still waiting for a response to that one...

[Seixon]

I've got a simple solution to all of this:

The defense calls Nicholas Kristof to the stand and asks him, "Did Valerie Plame ever tell you she worked at the CIA?"

I think the answer would have been a yes, and I think that would be the end of this charade. No?

I also find it strange that Cheney, after Wilson's op-ed, still didn't know that the CIA had sent Wilson in 1999 on the same type of mission. It seems as though Cheney's notes indicate that he thought he had been set up, that there was something out of the ordinary in sending Wilson.

[NIBystander]

Cecil

Excellent Point!

“Seems to me like the annotations all go to CIA management. The logical thing to do with them is ask Tenet whether that's the way they do business.”

AND, this is a far better explanation of Cheney’s notes than the version Fitz has presented. This would also explain why Libby might not have ever seen the marked article (directly). Cheney would have gone straight to Tenet, not to Libby -- big guy to big guy, -- ‘don’t need no stinkin’ subordinate’.

And, this is certainly an argument Team Libby should use.

[Seixon]

If Cheney does get called as a witness, here's an important question to ask: Does Cheney regularly read the op-ed section of the New York Times, or did someone in the White House point it out to him? If someone brought it to his attention, who?

[Cromagnon]

Looks like poor Libby is toast and Dick is gonna roast him LOL

And in the meantime Turd Rove is sweating bullets... Ya gotta love it!

[Seixon]

Functional vs. operational?

[sbw]

"'all' the facts"

Seems a non-issue insofar as instructions given to a subordinate are concerned. The boss is never reasonably obliged to qualify to the subordinate, "By 'all' I mean only those things you can legally do." and the subordinate, likewise, reasonably assumes that the boss doesn't oblige the subordinate to break the law. It's a softball to the defense if Fitz argues Libby or his boss stepped in it by saying "all."

[steve]

Seixon, let me get this straight.
If Plame told Kristof she worked for the CIA, that makes it okay for Libby to allegedly lie to the GJ?

Can you break that down a little bit more for me? Show your work, so to speak...

[Cecil Turner]

Functional vs. operational?

Might be an attempt at precision, especially since CPD is part of the "Directorate of Operations." I'd note a problem with military jargon, where "operational" could mean:

• something that works as advertised;
• the level of war between "strategic" and "tactical"; or,
• having to do with conducting operations: a "3" function.

I expect the CIA has the same terminology issues, and possibly more.

[richard mcenroe]

sbw — You've never worked for my boss. We have to provide HIM with those qualifiers.

And as far as 'reasonably assumes that the boss doesn't oblige the subordinate to break the law' when I was in IOBC they were very clear about the opposite, using the example, 'if you say, "take care of the prisoners, sergeant,"' the court martial is not going to be very sympathetic to your claim you were surprised to hear a burst of gunfire from the direction they marched...

[verner]

Two words Steve: Victoria Flame.

Judy Miller NYT.

Kristof talked to Val and Joe on May 2. They had a good two months to get the gossipy word out. And Fitz has never looked into how widely Val's employment was known.

[clarice]

In his filing in response to the Motion to Dismiss and in this defense of the annotated article as evidence, Fitz is tipping off his odd thinking.

He argued in the former that despite the clear words in the COmey appointment letter and presser, there were limitations on his power which were unspoken but understood.(The old supervision by ESP argument).
Now he's arguing that despite Cheney's private musings not having been conveyed to Libby as get Plame by telling the truth about Wilson's connection to her they must have been.Isn't he?

[richard mcenroe]

Attention Shoppers! Just one more day to our Weekly Rove Indictment!

[Seixon]

steve,

No, it would not make it OK for Libby to lie to the GJ, if that is what he has done, but it would demonstrate that this whole "outing" business is a complete sham.

I note that Fitzgerald takes the "all" thing way out of context, here's what was said in the transcript:

LIBBY: I recall that he was very keen to get the truth out. He wanted to get all the facts out about what he had or hadn't done, what the facts were or were not.

I'd say that Fitzgerald is being demonstrably dishonest in taking "all" out of that sentence and removing its context in order to imply something completely different.

[Seixon]

Another important question:

When did Cheney read and highlight the Wilson Op-Ed? Was it given to him after Novak wrote his column, or did he pick up on it the day it was written?

[cathyf]

I said this before on another thread... One of the core duties of the executive is to supervise underlings. The vice president is an elected officer of the executive. It is part of his job to question the procedures and policies of the bureaucracies subordinate to his office, and the judgement of the employees subordinate to his office, and the legality and effectiveness of the actions of the employees subordinate to his office, and to direct that the employees subordinate to his office change policies and procedures which are unacceptable.

This is a huge constitutional crisis that Fitzgerald is kicking off here, and he seems blithely unaware of it. Cheney's marginal notations seem most logically to be the exercise of his core responsibility to supervize bureaucrats, and Fitzgerald is attempting to take what the constitution demands of the executive and convert it into a criminal act. Fitzgerald can be rightly accused of continuing a longstanding and unfortunate trend of criminalizing politics, but it should be understood that he has gone much further than that. He is attempting to criminalize the exercise of control by elected officials over the bureaucracy. This is way worse than criminalizing politics -- it is a direct assault on the fundamental functioning of the constitution.

cathy :-)

[steve]

Seixon and Verner:
With the caveat that the whole outing thing may be a sham, Libby is still responsible for statements (or misstatements) made to teh FBI or the GJ, right?

The way I see it, it doesn't matter how widely known Plame may have been. The alleged false statements are when did you firest learn about her and Libby answers Russert? Despite 2 CIA guys, Ari, Grossman, et al?

[verner]

Seixon, also remember:

Woodward didn't think a crime was committed.

Pincus says he didn't think a crime was committed.

Novak didn't think a crime was committed.

Dana Priest says that Shuster's tale of Val being vital to the Iran nukes group smells fishy.

Why? Because they all know the truth about Val's "outing."

And they all know that if it isn't brought into evidence now, and Libby is convicted, there will be an appeal. And the real truth will eventially come out.

[kim]

Hear, hear, cathyf. Soon to SCOTUS.
======================

[Seixon]

steve,

If the "outing" was a sham, wouldn't that rain on Fitzgerald's claims that Libby had a motive to lie?

Look, Cheney and Libby both testified that they spoke with each other on June 12, 2003 about Wilson's wife. Cheney testified that he told Libby June 12, 2003 that Plame worked for the CIA. Now, obviously Cheney and Libby are the only two people aware of this conversation.

If they really were trying to cover something up, why did they both testify to this conversation?

[kim]

Ridin' that jury, with a cold fury,
Casey Fitz, you better watch your speed.
=========================

[verner]

I don't agree with you. I think that it is highly likely that Libby got confused, considering the job he was doing. Presumption of innocence and all that.

And I have to ask you--Do you think it is fair to send a man to jail for ten years on a technicality (a crime investigation where, we later find, no actual crime was committed) with such flimsy evidence? Evidence that is not even related to a crime?

As we have repeated over and over again--Fitz has NEVER indicted anyone for outing Val, or harming national security. He will not go there.

[boris]

Libby is still responsible for statements

Fitz based his evaluation of the reporter's testimony on a context that turns out to be false. (That reporters didn't know about Plame until Libby leaked it.) By placing all of the responsibility for discrepencies on Libby, Fitz constructs a scenario where the most plausible explanation is that Libby lied.

Many of the differences in conversation recollection can be explained by two observations.

(1) Libby's quoted testimony may be just how the guy actually talks in general.

(2) If Libby talks that way with reporters, they are going to extract a coherent soundbite to remember and forget the rest.

Thus Libby may have said a lot of rambling stuff that didn't register or the reporters didn't bother to remember. He may have been thinking he was saying things that never got spoken as well.

Then again reporters in the MSM have been far far less than up front about what they knew and when they knew it.

[Pisistratus]

Seixon-they both testified to it (well Cheney wasn't under oath) because there'sa blue dress: Libby wrote it in his notes.

But why could Libby not be sure he had the only copy of his notes?

[Sue]

sad,

OMG. The man is a complete idiot. As if anyone would believe he is 'clandestine'. That is about the funniest thing Scary Larry has said to date. ::grin::

[NIBystander]

Boris

Absolutely. Also, if one is inclined to be suspicious of reporters, just observe the recent articles about these filings by the MSM – all spin, virtually no logic or analysis and some outright misinformation. I am inclined to believe Libby.

[Jane]

And they all know that if it isn't brought into evidence now, and Libby is convicted, there will be an appeal. And the real truth will eventially come out.

The truth rarely comes out on appeal.

Facts are established for all purposes at the time of trial.

[kim]

In an ongoing affair, all of the participants are constantly seeing things in a new light. It's that simple, folks. Fitz's ferschtuck, sooner or later.
=============================

[steve]

Seixon- what if there's evidence that they talked about it-
For sake of argument, think it's possible that Libby prepares some sort of Agenda for his breifings with Cheney? Or do you think the VP's COS just kind of 'wings' it? From everything I've red about Libby, he's a pretty squared away guy...Unlikely then that he's pulling a Columbo and doing 'oh yeah, one more thing'. Maybe there's evidence that makes it where they can't deny they talked about it in early June.

But even squared away, let's say, arrguendo, that the FDL conspiracy nuts are right. And she was NOC, 'they'(cheney. Libby et al) knew it, and they were willing to blow her cover. Avoiding an IIPA indictment certainly gives him a reason to lie, doesn't it?

And yeah, I know nobody here believes she was NOC, etc etc...But none of that has been proven yet, has it? A lot of people are hanging their hats on the 'bogus' referral letter. If you're Goss, don't you get to teh CIA and immediately check that out, since it's causing trouble for the guy that appoointed you?

[Sue]

Steve,

Maybe I missed it somewhere, but how could Libby have said he first learned from Russert when he testified that the VP told him in June?

[Sue]

Why would Cheney and Libby so obviously out a covert operative? If you believe that story, you have to believe they thought no one they talked to would ever remember the conversations if asked. I have to know why they thought they could out her, if they knew she was covert, and get away with it.

[kim]

Facts are supposed to established at trial, that's why defense fights discovery. Fitz'll be appealing this case forever, as he is now.

Steve: Val is still covert; she's a regime change specialist.
================================

[steve]

And appropos of nothing. Funny ho wperjury was a high crime and misdeameanor circa 1998, but now it's 'a technicality'.

And who says he'll go to jail for 10 years? Sure that's the max, but who ever serves their full term? And isn't that the chances you take with the justice system? He could go scot-free. Or he could go to th ebig house.
But if decisions go against him, wonder if he'll regret turning down the supposed plea deal...

[verner]

Well, at this point, it is up to YOU to prove that she was NOC, cause even Matt Cooper admitted that nobody knows what her status is/was, and there is a mountain of evidence to indicate that she was not.

And as for the rest.

Yes, but Steve the question I have is, could Goss have done anything about it AFTER the referral letter was leaked?

And did you notice, Alan Foley--the hero per Ray McGovern--left soon after Goss took over.

He never did reply to Clarice's e-mail.

[Jane]

Fitz'll be appealing this case forever, as he is now.

Fitz has no right of appeal.

[Pisistratus]

Kim-Fitz cant appeal an innocent verdict.

Meanwhile Steve-there are contemporaneous records that Libby and Cheney discussed Plame in June-Libby own notes.

I asked above why Libby wouldn't have just trashed his notes. But it was a trick question.

Libby wrote it down so that, in the end, they can't blame the whole thing on him.

[clarice]

Libby's a smart lawyer who gave up a great deal more than Fitz earns to go into government service. I am certain that Libby knew that the IIPA and Espionage Act didn't apply to Plame and I find it preposterous to believe that that formed a motive on his part to lie to Fitz.

Indeed. I do not recall a single reputable criminal lawyer familiar with these laws who considered them applicable.

Fitz is making these stretches because even his "creative" mind is telling him that the evidence of motive is too thin to be believable.

[kim]

P, you don't understand; Fitz is already the defendant. He's defending a horrible case, and has been for years. If that's not appealing......well, come to think of it, it isn't very appealing.
==================================

[steve]

Well, at this point, it is up to YOU to prove that she was NOC,

Pardon my french, but it's not up to me to prove jack f*cking sh*t.

I'm not the special prosecutor. (Just in case you guys haven't noticed)

[verner]

Don't start with the rapist Bill Clinton. Perjury was the LEAST of his crimes. And Libby is not the commander in chief.

Juanita Broaddrick and Kathleen Willey were much more believable witnesses than Valerie Plame-- they didn't have Plame's political motive. Kathleen Willey was a documented Democrat activist and Clinton supporter, and Juanita was just trying to live a quiet life until she could not hide the truth any longer from a federal prosecutor and very reluctantly came forward.

Clinton and his agents DID try to destroy them--in Kathleen's case by harrasment and leaking defamatory info, and in Juanita's by simply ignoring her very credible testimony--that was backed up by contemporary witnesses.

Also unlike Valerie, Juanita Broadderick NEVER MADE A DIME off of her accusations, and never tried to.

And, by the way, Gennifer Flowers told the truth as well. Another Clinton lie.

[Pete]

Good point steve.

Dershowitz said that Clinton should have defaulted on the Paula Jones suit. I think that message will not be lost on Bush who will pardon Libby before it comes to jail time. After the elections I predict.

[kim]

We still don't know what she did. So, how do you be both ornamental and covert? I've seen nature do that subtly, but it's usually one or the other. Habeas corpus valopera.
=================================

[Seixon]

So instead of Libby just trashing his notes and him and Cheney getting together and agreeing that they would "forget" their conversation, Libby keeps the notes, and both him and Cheney squeal about a conversation that would apparently implicate them in outing Plame.

Does that make sense??? No, it doesn't.

If they knew Plame was covert, there was no reason for them to out her: they could debunk Wilson completely on the facts. If they didn't know she was covert, as is most likely the case, then it doesn't really matter now does it?

Fitzgerald claims that theres no way Libby is telling the truth when he said that reporters knew about it, but we all know that's not true. Woodward knew, Novak knew, and not from Libby/Cheney.

Fitzgerald is relying on Russert and Cooper as reliable witnesses, when we all know that they'd rather let Libby rot in hell rather than have to admit to the public that they knew all about Plame and thus the scandal is meaningless.