Libby Versus The Press

Libby's team continues their tussle with the press.  I intend to post the documents shortly.

Lawyers for I. Lewis "Scooter" Libby urged a federal judge Monday to force several media organizations to turn over e-mails, drafts of news articles and reporters' notes they say the former top White House aide needs to receive a fair trial in the CIA leak case.

In a 45-page filing, Libby's lawyers said reporters have "no right _ under the Constitution or the common law _ to deprive Mr. Libby of evidence that will help establish his innocence at trial."

Hmm, I am looking at more than 45 pages here.

1.  Here is Part 1 of the Consolidated response (23 page .pdf)

2.  Here is Part 2 (27 page .pdf)

I am wimping out on the exhibits for now - they seem to be press clippings of various stories.  [I am wimping out but cboldt is not!  See UPDATE for a list of exhibits.]

Just picking through it - on p. 2, we see that the defense subpoenaed the Wash Post, which handed over the Woodward memo about his meeting with Libby (as previously reported at the bottom of the story, or by Jeff, with Eerie Prescience).  HOWEVER - the defense did not pursue other material provided by the WaPo to the prosecution which the judge ruled did not have to be disclosed to the defense, and considers the WaPo to be finished.  So, the whole question of who leaked to Woodward won't be answered by this route.

And on p. 12 of Part 2, we see that Andrea Mitchell has handwritten notes of what "may" be a conversation between her and Libby during the relevant time period prior to the publication of Novak's column.  Her side claims they are irrelevant since they make no mention of Ms. Plame; Libby's side notes that, if Plame was not mentioned, the ruthless campaign by Evil BushCo to punish Joe by outing Valerie was evidently pursued with sub-maximal vigor.  Well - it i snews to me that these two spoke.

The defense also slips a bit in describing Ms. Mitchell's situation vis a vis the investigation - they criticize Fitzgerald and cite Ms. Mithcell's statement that she has never been asked to testify, but overlook her earlier statement that she had spoken to investigators.

This is what she said on Oct 29, 2005 when discussing the case on CNBC's "The Tim Russert Show":

MITCHELL: You know, I should have spoke--'cause there's been a lot blogged about all of this--I was called by the CIA because it was erroneously reported in The Washington Post that I was the recipient of the leak before Novak's column came out, and I had not been. So I was never questioned because I simply told the FBI--and, you know, NBC put out a statement that night--that I had not been a recipient of the leak; in fact, I had learned about it from Novak's column like everyone else.

She was never questioned because she simply started talking... gee, that could have been any Saturday night when I was younger.  Well, I still don't know what she meant by that.

On Matt Cooper, p. 13 of Part 2 provides a real headscratcher on the topic of Cooper's notes about the Cooper-Libby phone conversation on July 12:

In fact, there is no mention in these neasrly verbatim notes, in subsequent emails with colleagues, or elsewhere that Mr. Libby made any comment about Ms. Wilson at all.

Wow - is the prosecution really relying on Cooper's undocumented memory?

And even stranger - documents provided by the Special Counsel show that Matt Cooper kept a "Scooter Libby file" on a TIME database called Nirvana, which he updated after the July 12 talk.  But the prosecutor has, apparently, not turned these over to the defense.  Well, that may be a misunderstanding, since the prosecution has turned over other things.  Still, the defense hammers the point that "it is hard to believe the government's allegation - that Mr. Libby confirmed this affiliation - if not a single employee of TIME took a moment to memorialize this fact".

From p. 18, we learn that Matt Cooper asked Tim Burger, another TIME reporter, to follow-up on Rove's information by calling Bill Harlow of the CIA press office.  What, the defense wonders, did Mr. Harlow offer?  One might presume he was chastened by his debacle with Robert Novak, but who knows?

And someone from TIME, probably Massimo Calabresi (who got a byline on the "War on Wilson?" piece) called Joe Wilson before the Cooepr-Rove talk, and again afterwards to get his reaction.  Was he asked about his wife's role in his trip, or her CIA connection?  What did he say?  Inquiring defense lawyers want to know.

NOTE TO PACER FANS:  I can't figure out the case numbers for the media related filings, but no matter - on PACER, go to Civil cases, District of Columbia, and name search on "Libby".  A block of about six cases appear from 2006, and your common sense will take you from there.  For the Libby *criminal* case, the case number is 1:05-cr-00394.

UPDATE: From cboldt:

Exhibits List

.A - 18 Apr 06 NBC letter - we have nothing responsive

.B - 31 Mar 06 CNN letter - we have nothing responsive

.C - 14 Apr 06 WaPo letter - we have been fully responsive

.D - 16 Oct 05 NYT article (Miller), "A Personal Account"

.E - 16 Oct 05 NYT article (Van Natta, Liptak, Levy), "The Miller Case: A notebook, a Cause, a Jail Cell and a Deal"

.F - 01 May 06 screen capture of http://judithmiller.org/news/ including "Responses to Byron Calame's Questions"

.G - 30 Oct 05 WaPo article (Gellman), "A Leak, Then a Deluge"

.H - 18 Jul 05 Bloomberg story (Keil, Roberts), "Special Prosecutor's Probe Centers on Rove, Memo, Phone Calls

.I - 17 Jul 05 MSNBC/Newsweek story (Fineman), "White House: Rove at War"

.J - 07 Feb 06 Slate article (Dickerson), "Where's My Subpoena?"

.K - 12 Jul 03 NYT article (Stevenson), "Bush has Praise for Uganda in Its Fights Against AIDS"

.L - 14 Apr 06 truthout article (Leopold), "Libby Filing: A Denial and a Mystery"

.M - 28 Sep 03 WaPo article (Allen, Priest), "Bush Administration is Focus of Inquiry"

.N - 01 Oct 03 Novak column, "The CIA Leak"

.O - 01 Aug 05 Novak editorial, "The allegation against me is so incorrect I feel constrained to reply."
.P - Pages 333, 334 & 346 from Joe Wilson's book, "What I didn't Find in Africa"

.Q - 27 Jul 05 WaPo article (Pincus, VandeHei), "Prosecutor in CIA Leak Case Casting a Wide Net"

.R - 01 May 06 screen capture of http://judithmiller.org/news/p20051101.php including "Oct 23, 2005 Letter to Maureen Dowd"

.S - Date ???? Vanity Fair article (Marie Brenner), "Lies and Consequences: Sixteen Words that Changed the World"

.T - 03 Oct 03 Transcript of CNBC Capital Report (Andrea Mitchell)

.U - 23 Nov 05 Transcript of MSNBC Imus (Andrea Mitchell)

.V - 10 Nov 05 Transcript of MSNBC Imus (Andrea Mitchell)

.W - 12 Jul 03 Transcript of NBC Nightly News (David Gregory on Tenet accepts blame)

.X - 17 Jul 03 Time magazine article (Cooper, Calabresi, Dickerson), "A War on Wilson?"

.Y - 25 Jul 05 Time magazine article (Cooper), "What I told the Grand Jury"

.Z - 30 Oct 05 Time magaizne article (Cooper), "What Scooter Libby and I talked About"

AA - 30 Apr 06 MSNBC/Newsweek article (Isikoff, Thomas), "Back on the Stand - Rove's Latest Trip to the GJ ..."

BB - 17 Jul 05 Transcript of Meet the Press (Russert interviews Cooper)

CC - 12 Dec 04 Transcript of CNN Reliable Sources (Kurtz interviews Cooper)

Comments

[Syl]

I have no idea what this business has to do with the FBI, but Spectre was asking Mueller. Mueller responded that in the Libby case a judge had been involved and had ruled that it was all hunky dory.

Shows even more that bit of dishonesty in Fitz ex-parte filing.

And I'm sure subpoenaing journalists and holding them in contempt of court in a perjury investigation isn't in the DoJ guidelines.

[Squiggler]

I would like to hear from some of the lawyer-types whether a filing such as this one might influence a judge's decision on a motion to dismiss.

[Patton]

So whoever told Fitz that there was a plot in the White House to take revenge on Wilson and call six journalists, etc.

WHY HASN'T THAT PERSON BEEN ARRESTED FOR MISLEADING THE INVESTIGATION.

[Kate]

Patton: do we know who that person is. I'm convinced that he/she along with FBI investigators swayed the gullible Fitzgerald early on that there was a plot to harm the noble Wilson and that Rove and LIbby were the key players.

[Squiggler]

Better yet, why hasn't Wilson been arrested?

[Patton]

Walter:

"""Fitzgerald to show (and invites Fitzgerald to parade 7 credible witnesses to show) that it is implausible for him to have forgotten. ""'

Fitz does not have seven witnesses that can prove Libby couldn't have forgotten something....they can only testify to what they said. If Fitz wants to prove that it was impossible to forget this shocking information, he may want to start with this:

1. MILLER FORGOT AND HAS NO RECOLLECTION THAT LIBBY TOLD HER ABOUT WILSONS WITH AT THEIR JUNE MEETING.

2. UGO FORGOT HE TALKED TO WOODWARD ABOUT VALERIE SENDING WILSON TO NIGER.

3. ROVE FORGOT HE TALKED TO COOPER ABOUT WILSONS WIFE.

The evidence shows that Libby is not the only, but is the FOURTH person to forget a conversation about Plame.

Unless Fitz is going to indict the other three for lying...since this was information you couldn't possibly forget.

And Walter, you failed miserable to make you case that Libby has taken any position
in the brief with regard to his testimony.

[Squiggler]

We've all heard the idea that the referral was in a stack. Now that it might have been put there by Mary McCarthy it all gets curioser and curioser. Fitz seems not to want to disclose the referral letter and the lefty sites are all horrified at the suggestion that it might not prove Val's covertness.

Months ago I speculated that Tenet's medal was Bush recognition that Tenet had been hornswoggled about the referral. I would bet the referral is why he left. I think that's about when the White House figured out that the referral had to be bogus.

Are you arguing here that MOM slipped the referral in with others without her superiors approving it or even knowing about it until it was a done deal?

If MOM did something like this, she is in a whole heap more trouble than I thought. And if this would turn out to be a bogus referral, wouldn't nearly everyone involved have a massive civil suit against the guilty parties? Criminey, Miller spent 85 days in jail (a fate even a reporter shouldn't have to endure) and Libby lost not only his job, but years of service have been trashed and his reputation thrashed.

Anyway, before I get too far off on this tangent, is this conclusion the above is supposed to lead to?

[Syl]

Nobody is informing us of the date MoM came back and started work in the IG office. I saw something that only said 2004 but the vagueness surrounding the timeframe makes me wonder.

Maybe this is why.

[Syl]

It's always possible, since leaks have been coming out in a steady stream, that someone who left was 'one of theirs' and MoM was the replacement.

Who brought her back?

[davod]

Syl:

1. Specter is a fool. It should not matter whether the case is perjery or national security. I often wonder if these guys just like the sound of their own voices.

If there is a problem it is that the judge agreed with the prosecutor.

2. The case against Libbey will proceed to a jury. There is no down side for Libbey and any review by Justice will be seen as political interference.

[Tom Maguire]

He came back completely brainwashed.

Just a light rinse was sufficient, actually.

[Tom Maguire]

On the revelation that Miller knew about Joe Wilson prior to meeting with Libby - as I recall, Woodward said he knew about Joe relatively early in the game.

And we got a hint about Ms. Miller's prior knowledge from her own account last fall:

Mr. Libby said the vice president's office had indeed pressed the Pentagon and the State Department for more information about reports that Iraq had renewed efforts to buy uranium. And Mr. Cheney, he said, had asked about the potential ramifications of such a purchase. But he added that the C.I.A. ''took it upon itself to try and figure out more'' by sending a ''clandestine guy'' to Niger to investigate. I told Mr. Fitzgerald that I thought ''clandestine guy'' was a reference to Mr. Wilson -- Mr. Libby's first reference to him in my notes.

A plausible reading of this is that Libby referred to Wilson on a no-name basis, but Miller already had the name. That interpretation is apparently consistent with the new filing, so it is nice to get a bit of confirmation.

SO, does Matt Cooper with no notes (and TIME with no notes) contemporaneously referring to Libby as a confirming source for the Plame leak strike anyone as else as the headline here?

I can't square that with Libby's testimony that he told Cooper about Plame, but still - how is Cooper going to explain that he remembers this newsworthy tidbit, but didn't find it so newsworthy to be worth documenting?

Not impossible, I suppose - I don't have a diary entry recording my whereabouts on the morning of 9/11 - but Cooper does not even claim that Libby's response was burned into his memory. IIRC, Cooper wrote that Libby said 'I heard that, too', or words to that effect".

He will be great witness, like Judy.

[Cecil Turner]

SO, does Matt Cooper with no notes (and TIME with no notes) contemporaneously referring to Libby as a confirming source for the Plame leak strike anyone as else as the headline here?

Considering (as you noted) Libby was the one who originally overstated the encounter, I'm not sure how much practical effect that'll have. It clearly looks to be a minor point that everyone is having a hard time recalling, which is all in Libby's favor, but this was always the weakest of the charges. (And I suspect the Emptywheel crowd would cite it as proof Libby made it all up to cover for Rove . . .)

[Pofarmer]

"I find it amazing that the prosecutor is so naive that he thought asking a couple of reporters a few questions about a finite number of sources would get him anywhere near the truth. NBC,the NYT and Time look very bad"

I gave up on the notion that this investigation was about anything like getting at the truth a long time ago. Only letting the reporters testify on a selected little slice of the info was the first tipoff. When did journalists become immune to the truth?

If MOM was indeed involved, this will make an interesting movie someday, provided the MSM doesn't sweep it all under the rug somehow.

[Syl]

davod

Specter is a fool. It should not matter whether the case is perjery or national security.

And why shouldn't it matter? I'm serious, here. A democracy needs information on corruption and wrongdoing by its government among other things so we can be better informed at the ballotbox. Doesn't matter who the current government is. Punish leakers for classified info, punish the media for national security harm when they go too far.

Forcing journalists to testify against their sources dries up their sources and it should only be done in cases of serious national security issues.

That's why the DoJ has very strict guidelines about going after journalists. Many prosecutions have been dropped after weighing the benefit of punishing one person against the harm to all of us if journalists can no longer do their jobs.

Shall we subpoena a journalist who got a leak that, for example, the FBI was taking money from sub-offices to make up a difference in amt of money they were given for a certain program and the amount of money they had left available? That info read in a newspaper alerted a congressional committe to look into the matter. Everything turned out legit, but it doesn't always.

We're just so focused on the high-value stuff going on that we don't see the day-to-day necessary info getting out to the public.

So, yes, I agree with Spectre that if there is going to be a federal shield law (which I don't really approve of) it should have some guidelines such as when it is legit to subpoena journalists.

[cathyf]

As for Bush, if Fitz indicts Rove, it's time to take off the gloves. Hints of a vast left wing conspiracy, media setups. Why wait until Jan of 2009 for the pardon. If he plays it right he can do it sooner.

Actually, I think a real good shot across the bow would be a special prosecutor, works directly for Gonzalaz with investigative resources taken from outside normal DoJ assets, to investigate whether Comey and/or other DoJ employees leaked the NSA program to the NYT. The press has spent the last three years shredding any press shield guidelines which might have slowed an investigation down, so we might actually get somewhere...

cathy :-)

[Syl]

I'm not all that certain Libby actually said he TOLD Cooper FIRST anyway. I just reread the indictment and it sounds to me like it's perfectly plausible to read that Cooper brought it up first and all the stuff Libby said he said was in his non-confirmation.

There's nothing I saw that would make this false:

Cooper: I heard Wilson's wife is CIA.

Libby: Yes, I've heard from reporters that Wilson's wife is CIA and sent him on the trip. I don't know if it's true, but that's what they're all saying.

[boris]

Agree Syl, made the same point a few threads back discussing with jeffy.

[Patrick R. Sullivan]

'he remembered it being Russert but maybe his memory is faulty'

Well, the motion suggests that they're going to argue it's Russert's memory that's faulty.

They're checking to make sure he doesn't have any notes of the conversation he could have used to prep for his interview with Fitz. That he was simply misremembering a year old conversation.

It's a coin flip as who to believe. I.e. reasonable doubt.

[Patrick R. Sullivan]

'Specter is a fool. It should not matter whether the case is perjery or national security.'

Oh, but it does if a prosecutor argues before a Federal juge that his purpose is to investigate a national security matter when he knows it isn't.

Gonzalez ought to appoint a special prosecutor--dotting all his i's and crossing all his t's--to investigate Fitzgerald's behavior. We might have an 'Absence of Malice' moment, with Fitz as Sally Field.

[Tom Maguire]

I'm not all that certain Libby actually said he TOLD Cooper FIRST anyway. I just reread the indictment and it sounds to me like it's perfectly plausible to read that Cooper brought it up first and all the stuff Libby said he said was in his non-confirmation.

There was more detail about Libby's testimony in some subsequent filing, but I lack details and time just now.

I do recall thinking it was pretty clear when I read it.

[clarice]

Article's up. http://americanthinker.com/articles.php?article_id=5465

[windansea]

But I guess the story is changing now.

uh huh...unlike Jeff who has been the paragon of consistency...what's your latest unified theory again?

[boris]

A lot of stuff seems pretty clear when reading Fitz that turns out to be "ooops". Just to whistle up Trigger for one more loop 'round the petting zoo ...

Regarding the 7 witnesses and 7 times Wilson's wife was mentioned in Libby's presence and how that proves he KNEW all about it. We've only seen the Fitz version and what "seems pretty clear" might seem less so after the other side gets a say.

An explanation of Libby's testimony that sounds credible to some might look like this:

"Yeah, my notes contain one mention of Wilson's wife during a meeting with VP. Don't recall that detail because our focus was on an unofficial cabal of low level CIA dissidents (which as it turns out included Val) who sent Wilson and that’s the point we were working to put out. If the subject of the wife came up in other contexts I probably wasn't paying attention. It wasn't until reporters thought it was a big deal (her being a super secret covert agent and all) that it really registered, but then they tend to focus on personal details like that. Now, trying to reconstruct my thoughts back then, I seem to recall that I acted surprised, as if hearing for the first time, when the first reporter (Russert I think, coulda been Woodward though) told me about Wilson's wife sending him. I'm not sure if that was because it actually slipped my mind briefly or that I didn’t want to confirm her secret spy status. I don't recall that I ever knew that and certainly didn't want to confirm it even if it was true!"

[Walter]

Patton,

Sorry I mentioned it. Obviously, my interpretation of the representations made by Libby's lawyers on his behalf was incorrect. I defer to your greater wisdom.

Not that it matters, but implausible # impossible.

"The truth is out there..."

Jeff,

I had noticed the lack before. I did notice Libby's team taking positions inconsistent with that defense in prior pleadings, perhaps because my focus was elsewhere (note "surprise" above). It could also be that this is Libby's first pleading in which Libby must focus on "admissible" as opposed to "likely to lead to admissible" evidence. For the evidence to be admissible, it must relate to an actual, as opposed to a merely potential defense. Thus, Libby has represented that he intends to put on a specific defense rather than argue in the subjunctive ("If I were to argue 'X', 'Y' would help me develop that argument" vs. "I will argue 'X'. Regardless of whether the documents show 'Y' or 'Z', it supports 'X'." I saw the second proposition it as if for the first time in this pleading.

Kim,

I have no doubt that Libby will file a motion to dismiss, followed by a motion for a directed verdict at the close of the governments case and prior to submission to the jury. Were he to win on either of the first two, he would not have to testify. But, as you can tell by the fact that I am not using FRCrmP rule terminology shows, I'm no expert here.

Clarice, who has been through this before, could tell you whether she has seen a perjury/false statements trial with "he said/she said" elements in which the defendant has not testified. My uninformed guess is that it is relatively unusual.

[Walter]

I did ***NOT*** notice Libby's team taking positions inconsistent with that defense in prior pleadings.

[kim]

Ah, good point, W. You can see I'm no expert.

Foolish diamond shape shifter, now there's a calling.
===============================

[clarice]

Walter, I cannot answer your question, but all defense counsel in every case tries to destroy the government's case before setermining whether to put his client on the stand. And in this case.....

[boris]

it must relate to an actual, as opposed to a merely potential defense.

Don't disagree in principle, but check this.

Short version ...

Claim: Evidence of a frame up is not relevant and should be excluded.

Response: The case is too big to constrain that narrowly.

[clarice]

At this point in the case where the issue is discovery, Libby only has to show the documentation he seeks is relevant to a potential defense. He is not super glueing himself to any particular theory or defense.

[cboldt]

FWIW, My present brief (certainly incomplete) crib sheet re: Libby's testimony (to investigators and/or GJ; as alleged in the indictment) reads:

• Libby on Russert
  
  • Russert rainsed Plame's name
    
  • Libby said "hadn't heard that"
    
  • Russert said "all reporters know it"
    
  • Libby was surprized at "all reporters know it"
    
  
  
• Libby on Cooper
  
  • Libby told Cooper that reporters were telling administration that Plame worked at the CIA
    
  
  
• Libby on Miller
  
  • Libby did NOT discuss Plame on July 8
    

[Patton]

""""Libby on Russert

Russert rainsed Plame's name"""

NOT TRUE....PLEASE go back and research and re-submit. Libby NEVER has claimed Russert raised Plame's name...not that I can tell.

[clarice]

I believe Libby's version is that Ms. Wilson worked for the agency and everybody knew it. Interestingly, this fits into his subordinate, Mitchell's, statement that she didn't know Plame's name or her exact position in the agency.

For a very long time TM has noted the word dance NBC did about this denying Russert mentioned her name or position which, as Libby notes, no one said he did.

[cathyf]

Clarice, something about your comment about Miller

But there is much more reason to question the reliability of her recollection. It looks to me that she was trying to set up Libby and is trying to hide that fact.

There is the whole NIE subplot. Somebody in the WH (it looks like Cheney) picked Miller to be the recipient of a highly-unusual push-back against Wilson. Not unusual in the way that Wilson claimed -- personal attack -- but unusual in that the NIE was declassified specially for Miller and given her as an exclusive. I'm speculating, but it appears that maybe the WH thought that Miller could be trusted with the NIE, and that by giving it to a NYT reporter they could get the paper to wake up and realize that they were swallowing Joe Wilson's lies (which are fundamentally lies about what the NIE says) and that their own pride would make them stop.

If I am correct, the problem is that Ms. Run Amok was a disasterous choice. She apparently didn't realize that she was getting exclusive access to the full NIE, and focused on the society-gossip-page aspect of Wilson's blonde-babe wife being part of the claque of CIA clowns who sent Wilson. (Which she had access to enough of the right kind of sources to have been able to figure out completely independently of WH help, and very well may have.)

One could make a particularly sarcastic comment here about how when Tenet distributed the NIE to reporters more generally later, Miller saw it "as if for the first time." But one might also note a curious feature -- both Libby and Miller claim that {the NIE's consensus intelligence analysis about Saddam's WMD ambitions} and {Mr and Mrs Wilson's domestic life} were too many topics to pay attention to both sets. Libby claims to have paid attention to the NIE, while Miller seems to have been paying attention to the society-gossip stuff, and not paying much attention to the guy who was blabbing on boringly about all the boring national security stuff.

So do we know when Miller found out that she had been given the "scoop of the century" but she ignored it because she was too busy collecting information for catty gossip about the Wilsons? Did she find out in March with the rest of us when Fitzgerald outed the covert NIE operation as part of Fitzgerald's smear of Cheney-the-whistleblower? Or did she already know at the time she gave her testimony? Missing the NIE scoop would be a humiliating defeat for a real reporter. Was Miller humiliated? Did it color her testimony?

cathy :-)

[cboldt]

It's sad when I need more coffee at noon. THis is supposed to be beer time. At any rate, my "crib sheet" lacks expression of ambiguities, and this one is important. Although I think resolution of the ambiguity falls to the "surprised that Plame was CIA".

Libby was surprized at either "Plame works at CIA" or "all reporters know it"

(para 26.a. "LIBBY responded to Russert that he did not know that [Wilson's wife worked for the CIA], and
Russert replied that all the reporters knew it. LIBBY was surprised by this statement."
I ask, "Which statement?" Plame is CIA?, or All reporters knew?)

[Patton]

""Libby on Cooper

Libby told Cooper that reporters were telling administration that Plame worked at the CIA"""

No, Cooper told Libby that Wilsons wife worked at the CIA.

TIME: Cooper had asked Libby if he had heard anything about Wilson’s wife sending him to Niger. Libby answered with words to the effect of “Yeah, I’ve heard that too.”

[clarice]

cathyf. These meetings were to (a) debrief Miller about the WMD search in Iraq from which she'd just returned and to advise her about those portions of the NIE which supported the factual pushback against Wilson.

I think JM was smarting from the cold treatment she was getting from the NYT and was trying to get a scoop on Wilson's wife. Libby was talking about one thing and Miller was trying to probe very subtly for something else.

When forced to testify she refused until there was a promise she'd not have to reveal sources other than Libby..her bafflegab was to divert attention from (a) her motive in the meetings and (b) the identity of her other sources.

[cboldt]

I've adjusted my crib sheet to substitute "Wilson's wife" where the word "Plame" appears. I was using "Plame" as convenient shorthand, and also on the opinion that the case does not turn on the difference between conversations in July 2003 using "Wilson's wife" vs. using "Plame."

I am aware that some people hold the position that in order to constitute a disclosure, the name "Plame" has to have been uttered. I do not hold that opinion.

[Sue]

Didn't Miller say something along the lines that give me something new when Libby told her the declassified information?

[clarice]

J. Walton redid his CIPA discovery order (via ts)

Because this Court is granting the government’s motion f 1 or reconsideration, it need not resolve the
government’s motion for clarification.
1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
UNITED STATES OF AMERICA, )))
v. ) Criminal No. 05-394 (RBW)
)
I. LEWIS LIBBY, ))
Defendant. )
____________________________________)
MEMORANDUM OPINION
Currently before the Court is the government’s Motion for Clarification of the Opinion of
April 5, 2006, Concerning Ex Parte Submissions Under CIPA Section 4, or in the Alternative,
Motion for Reconsideration, and the defendant’s opposition thereto. At issue in the
government’s motion is whether the Court intended to restrict Section 4 proceedings to classified
information that had already been deemed discoverable. To prevail on such a motion, courts
have concluded that the movant must demonstrate that there has been “an intervening change in
controlling law,” there is “new evidence,” or there is a “need to correct clear error or prevent
manifest injustice.” United States v. Yakouu, Crim. No. 03-449, 2004 WL 884545, at *2
(D.D.C. Apr. 9, 2004); accord Fed. R. Civ. P. 59(e). For the reasons set forth below, the
government’s motion is granted because the Court concludes that it must correct a clear error of
law.1
Case 1:05-cr-00394-RBW Document 102 Filed 05/03/2006 Page 1 of 5

2
Section 4 of the Classified Information Procedures Act (“CIPA”) provides, in pertinent
part, that
[t]he court, upon a sufficient showing, may authorize the United States to delete
specified items of classified information from documents to be made available to
the defendant through discovery under the Federal Rules of Criminal Procedure,
to substitute a summary of the information for such classified documents, or to
substitute a statement admitting relevant facts that the classified information
would tend to prove.
18 U.S.C. Appx. III, § 4. In this Court’s April 5, 2006 Memorandum Opinion, it concluded that
“[b]y its terms, Section 4 applies only after it has been determined that documents are
discoverable.” United States v. Libby, ____ F. Supp. 2d ____, ____, 2006 WL 862345, at *3
(D.D.C. Apr. 5, 2006). Accordingly, this Court held that arguments challenging the materiality
of a classified document could not be made in an ex parte pleading; rather, such arguments must
be fully litigated between the parties. Id. The Court’s holding was made, in part, based on the
context of what had already transpired in this case, that being the materiality challenges having
been fully litigated in earlier pleadings. Id.
This Court’s earlier interpretation of Section 4 limited its application to circumstances
where materiality determinations have previously been made. However, this contextually
restricted application of Section 4 conveyed broader applicability and therefore erroneously read
into the text of the statute requirements that are simply not there. Section 4 of the CIPA
provides that the government may seek to “delete specified items of classified information from
documents to be made available to the defendant through discovery . . . .” 18 U.S.C. App. III, §
4. The text of the statute does not limit when in the discovery process Section 4 can be invoked
and the Court appreciates that the government may seek to utilize Section 4 at any point
Case 1:05-cr-00394-RBW Document 102 Filed 05/03/2006 Page 2 of 5

3
throughout the litigation. See United States v. O’Hara, 301 F.3d 563, 568 (7th Cir. 2002)
(“CIPA’s plain terms evidence Congress’s intent to protect classified information from
unnecessary disclosure at any stage of a criminal trial. Any other interpretation would be wholly
inconsistent with and threaten to undermine CIPA’s fundamental purpose—protecting and
restricting the discovery of classified information in a way that does not impair the defendant's
right to a fair trial.”) (emphasis added). For example, the government could invoke Section 4 to
delete specified classified information from documents that have been deemed discoverable by
the Court under either Federal Rule of Criminal Procedure 16 or Brady v. Maryland, 373 U.S. 83
(1963). Moreover, the government could also file a Section 4 motion seeking to delete specified
items of classified information from documents which the government has decided to produce
even though it is under no legal obligation to produce the information. In addition, by permitting
the government to seek “delet[ion of] specified classified information from documents to be
made available to the defense through discovery . . . ,” Section 4 accords the Court authority to
determine whether classified documents or certain classified information contained therein
should be produced at all. 18 U.S.C. Appx. III, § 4.
It remains this Court’s conclusion that, just as the Court did when addressing the
defendant’s first two motions to compel, questions of materiality can largely be resolved through
adversarial proceedings. These type of adversarial proceedings best ensure that the defendant’s
right to a fair trial is preserved. However, Section 4 permits the government to petition the Court
for non-disclosure of specified classified information. In such circumstances, the Court would
necessarily have to resolve in the first instance whether the information is material to the
preparation of the defense. While this Court is disquieted by the prospect of having to make such
Case 1:05-cr-00394-RBW Document 102 Filed 05/03/2006 Page 3 of 5

The defendant will no doubt continue to object to this procedure. T 2 he Court notes, however, that this
process actually places the defendant in a stronger position then he otherwise would be. If this Court did not amend
its April 5, 2006 Opinion, the government, not the Court, would be tasked with independently determining the
materiality of certain classified information. Here, the Court, as it must under CIPA, will be the final arbiter of such
determinations.
4
a determination through ex parte proceedings, and trust that because defense counsel in this case
have security clearances the need for such proceedings will be rare, it can certainly envision
situations where materiality will have to be addressed in ex parte Section 4 proceedings. This
could clearly occur if the government is of the view that simply disclosing the nature or mere
existence of certain classified information would alone pose significant harm to national security,
even where defense counsel have security clearances. To conclude otherwise could undermine
the very purpose of the CIPA. This result comports with the Court’s ability under Rule 16 to
“deny, restrict, or defer discovery,” which is the basis for the Court’s authority under Section 4.
United States v. Sarkissian, 841 F.2d 959, 965 (9th Cir. 1988) (“Congress intended [Section 4]
. . . to clarify the court’s powers under Fed. R. Crim. P. 16(d)(1) to deny or restrict discovery in
order to protect national security”) (citation omitted). Accordingly, the Court cannot
preemptively constrain the government in any manner from making filings it deems appropriate,
necessary, and permissible under Section 4. To the extent the Court suggested otherwise, that
suggestion is retracted. However, in those rare situations where the government is compelled to
make an ex parte Section 4 filing containing arguments in support of immateriality, the
government should fully explain why the ex parte filing is necessary and appropriate. The Court
will then carefully scrutinize any such filing to determine whether it should remain an ex parte
filing or whether it should be served on the defendant.2 And if the Court concludes that an ex
parte filing should be served on the defendant, and thus requires the disclosure of classified
Case 1:05-cr-00394-RBW Document 102 Filed 05/03/2006 Page 4 of 5

Nothing in this Opinion, or the Court’s April 5, 2006 opinion, sho 3 uld be construed to limit either party’s
ability to proceed under Rule 16. These opinions are intended only to address the Court’s interpretation of Section 4
CIPA filings and how they will be resolved.
5
information, it will afford the government the opportunity to appeal the decision pursuant to
Section 7 of the CIPA or, if appropriate, withdraw the motion.
For the foregoing reasons, the government’s motion is granted and the Court’s April 5,
2006 Memorandum Opinion is amended as set forth herein.3
SO ORDERED this 3rd day of May, 2006.
____________________________
REGGIE B. WALTON
United States District Judge
Case 1:05-cr-00394-RBW Document 102 Filed 05/03/2006 Page 5 of 5

[cboldt]

26. ... During these interviews, LIBBY stated ... During a conversation with Matthew Cooper ... LIBBY told Cooper that reporters were telling the administration that Wilson's wife worked for the CIA, but that LIBBY did not know if this was true

[nittypig]

"I am aware that some people hold the position that in order to constitute a disclosure, the name "Plame" has to have been uttered. I do not hold that opinion."

Should I take 'some people' to mean Tim Russert?

[topsecretk9]

her bafflegab was to divert attention from (a) her motive in the meetings

This has become more clear to me. I think Libby's latest filling illustrates (by the media material they have) is not only did JM/TR/MC/AM know Plame's identity BUT HER ROLE in suggesting Wilson, and so they have tried to fabricate a few weeks of investigative/confused reporting as well.

In otherwords, there was no investigative reporting, there was no troubling perplexed people desperately trying to find out anything (AM), the reporters were locked and loaded BEFORE the WH response...so that their bafflegab and notes show there was nothing to note...they were desperately trying to prove a smear campaign -- not figure out any identity or backstory.

[boris]

cboldt,

26. ... During these interviews, LIBBY stated ... During a conversation with Matthew Cooper ... LIBBY told Cooper that reporters were telling the administration that Wilson's wife worked for the CIA, but that LIBBY did not know if this was true

This is not conclusive about who brought up the subject. If it was Cooper, this is not inconsistent with "I heard that too or words to that effect".

[clarice]

Undoubtedly they were projecting.

Watergate ruined Washington reporting and this is evidence of it.

[clarice]

cboldt, Cooper says he brought it up.

[cboldt]

Off topic. Judge Walton's order and opinion re: Fitz's motion to clarify. They ARE easy to convert to text, and text versions are posted at http://noeasyanswer.blogspot.com/2006/05/court-order-opinion-re-motion-to.html

---===---
Regarding the portion of the indictment that is in my my crib sheet, the Libby/Cooper entry is from just one part of the indictment, and only that part that puprorts to represent Libby's testimony. I am aware that the indictment asserts that Cooper mentioned to Libby that he (Cooper) had heard Wilson's wife works at the CIA, and not that Libby first mentioned it to Cooper.

[cboldt]

Just to clarify what I take as a plausible (maybe most likely) conversation between Libby and Cooper

Cooper: Have you heard that Wilson's wife was involved in sending Wilson on the trip to Niger?

Libby: Yes, reporters are telling the administration that Wilson's wife worked for the CIA, but
I don't know if that is true.

[cboldt]

nittypig

Should I take 'some people' to mean Tim Russert?

If you want. Personally, I don't care what Russert thinks because I find him to be a combination of dumshit, crapweasel, and DEM party hack. Those sets have considerable overlap.

[Jeff]

does Matt Cooper with no notes (and TIME with no notes) contemporaneously referring to Libby as a confirming source for the Plame leak strike anyone as else as the headline here?

If it is really the case, it strikes me as significant. But I assume those who argued to me a while back that contemporaneous notes of an interview made no difference when it came to notes that matched a reporter's recollection will disagree that it is a big deal now. clarice? Oh never mind.

I'm not all that certain Libby actually said he TOLD Cooper FIRST anyway. I just reread the indictment and it sounds to me like it's perfectly plausible to read that Cooper brought it up first and all the stuff Libby said he said was in his non-confirmation.

There is a third option here, which I think is the correct one, and the one I have held since we learned of Libby's testimony, I believe. And boris is still not getting it. The point is not that Libby testified that he was Cooper's first source - how would he know? The point is that Libby testified that he brought up Wilson's wife with Cooper, as he brought it up with Miller on that same day, leading Fitzgerald to believe that Libby was Cooper's first source. If anyone would like to contest that, let me know. Fitzgerald was evidently under the impression that Libby was Cooper's first source until Cooper testified that Libby said something completely different from what Libby testified he said. It was then clear that Cooper had a source on Wilson's wife previous to Libby. That's what prompted the second set of subpoenas from Fitzgerald to Cooper and Time.

boris has been floating a complete red herring for a while in insisting that somehow the argument is that Libby testified definitively, "I was Cooper's first source." And so, since Libby didn't testify to that, no problem.

windandsea - Anytime you're ready to make an argument, let me know. Oops, wouldn't want to take myself too seriously in expecting an argument from you. Sorry.

[Patton]

cboldt,

Be careful with what is stated and what is QUOTED.

Q: "Is the sky blue?"

A: "Yes"

I told him the sky is blue....

or, I told him "yes"

[clarice]

Aside from the fact that nothing in Time's records confirms Cooper's account--including his almost verbatim records--the fact that his cohort and co-author of the Wilson smear article Calabresi called Wilson just prior to and just after Cooper's conversation with Libby smells.

[Cecil Turner]

The point is not that Libby testified that he was Cooper's first source - how would he know? The point is that Libby testified that he brought up Wilson's wife with Cooper, as he brought it up with Miller on that same day, leading Fitzgerald to believe that Libby was Cooper's first source.

I think the contention is that Libby may not have testified he brought it up, but that his initial version might be compatible with Cooper having brought it up first. And I admit not being able to find anything definitive in a quick check, either.

Thanks for that filing cboldt . . . much easier to handle.

[owl]

Another great article clarice. You touched on something I have long thought overlooked. Mitchell had Wilson (MTP) same day as op-ed.

Since I think Fitz intends for Russert to carry the day, I go back to who talked to the investigators. The one I would like to hear (only a verified original tape please) is the conversations of all employees of MSNBC/NBC with investigators. Let's begin with Matthews since he figures in the reason for Russert talking to Libby. IMHO the whole bunch lied through their teeth and this is what filled Fitz's ears.

Miller....trying to remember where I read that Miller's editor would not allow her to write about WMD and insisted on pulling her off? Might explain background a bit? Dunno...this might be wrong....

[clarice]

Thanks. The filing notes and cites her claim that she told her editor she wanted to write about this and her editor's denial of that conversation.

Do you think the investigators talked to others at NBC? I've no indication of that.

[owl]

No, never read they did. But how could they not talk to Matthews when he is calling Wilson and he is the link with Russert?

[azredneck]

Why should the judge consider reporters' notes re: other sources any less 'sacred' than Woodward's? If Libby should be able to seek out other sources from Miller's notes, et al, ANY such interviews should be fair game--or is that just too direct for gov't???

[Jeff]

The relevant documents are Fitzgerald's 8-27-04 affidavit, Tatel's opinion (on both Cooper and Miller), and Libby's lawyer in the 2-24-06 hearing transcript (around p. 11 of the pdf).

cathyf - I totally agree with this -

Somebody in the WH (it looks like Cheney) picked Miller to be the recipient of a highly-unusual push-back against Wilson. -

but I think Libby had a significant role in the decision and I think it included both the NIE pushback and the Plame pushback. Miller was with good reason a preferred reporter - she was particularly sympathetic to the hardliners' pov and occupied a perch of unique MSM legitimacy, being at the Times and all. I think Libby saw her as a uniquely good target for the full pushback against Wilson. And it's doubtful Libby knew how much trouble she was in at the Times, and consequently how constrained her freedom of action and publishing was.

[clarice]

And how far she was willing to dig the shiv into his back to become a star again.

[Sue]

Jeff,

You have to bend over backwards for that to work. Why not just go with what we know? Miller knew about Wilson and possibly Plame before she met Libby.

[Florence Schmieg]

Comments on the newest Chris Matthews claim that Plame was secretly working on keeping Iran free of nucs, or some such thing, and that her "outing" ruined that and thus hurt our security? This was in league with Senator Lautenberg wanting to investigate this (what else?) because he heard it from the media so it must be true. Apparently this is another "scoop" by intrepid MSNBC reporter David Shuster.

[PeterUK]

"I think Libby saw her as a uniquely good target for the full pushback against Wilson."

This is a very lame way to push back,the CIA send Wolson,his wife,Plame works for the CIA,SO WHAT? Most people would figure that is nepotism,but who cares?

[Jeff]

Sue - I love it: you say something not in the least inconsistent with what I was saying, which, far from having to bend over backwards for it to work, is perfectly consistent with what we know, and then say that we know that Miller possibly knew about Plame before she met Libby.

[Jeff]

Most people would figure that is nepotism,but who cares?

PeterUK, you might have missed it, but for years now many many people on the right, including many many people here, have been claiming quite ferociously that Plame's purported role in Wilson's trip did discredit Wilson. They've cared quite a lot.

One other thing worth noting about Libby's original version of his Cooper conversation. Libby's claim is that he brought Plame up only in order to explain how Wilson might have come to believe that Cheney ordered his trip, that Wilson knew people at the Agency because of his wife and might have heard from them.

[cathyf]

But I assume those who argued to me a while back that contemporaneous notes of an interview made no difference when it came to notes that matched a reporter's recollection will disagree that it is a big deal now.

I don't know whether you were having the argument with me or not, but I have been claiming something different all along. What we have in the Cooper/Rove conversation is two contemporaneous notes, one an email from Rove to Hadley and one an email from Cooper to his bosses. The two emails are different in that Rove says that he "didn't take the bait" while Cooper's email says he did.

On the one hand, I'm not at all willing to decide for sure that this is a contradiction -- perhaps Rove didn't mean Plame as the "bait" he didn't rise to, both emails are truthful, and just cover different parts of the same conversation. On the other hand, just to keep track of what we know we don't know, Rove's email certainly doesn't confirm that he told Cooper about Plame, either.

So this is speculative -- just comparing the differences doesn't make me say that one email must be lying, but it does make me entertain and explore the notion that one email might be lying. If I am going to explore that, I will start with wondering which of the two would have had a motive to lie on the date which the emails were sent. I just don't see that Rove would have had such a motive that early in the game. But I am wondering if there was a conspiracy in some part of the press to prop up Wilson by making up lies about the White House. And the existence of Cooper's story (The War On Wilson?) is evidence, though far from conclusive, that as early as the beginning of July Cooper was inventing a spin that the fact-based WH debunking of Wilson's lies was not substantive and was instead merely personal attacks. And that this spin evolved into the whole "outed my wife!" bullcrap as the month went on.

I'm curious because IF the whole Plame Kerfuffle was some sort of calculated smear campaign against the White House, as opposed to Wilson & pals just getting lucky, then there is a very good chance that some of those documents which are being subpeona'd might make that all much more obvious.

Admittedly speculative, but hey, Plameaholism is all about the entertainment value of this sort of speculation, right?

cathy :-)

[clarice]

Florence--Daily Howler on the Shuster Hack attack:http://www.dailyhowler.com/

[clarice]

Cathy:-- perhaps Rove didn't mean Plame as the "bait" Then why did his co-autor Calabresi call Wilson just prior to and after Cooper's call to Libby.

As to which email to believe? Remember just the other day TM noted that Cooper's suggested others call Harlow to get confirmation--in other words, his only contemporaneous account suggests he didn't get confirmation.

Let's suppose for the sake of interesting speculation that I'm right and V Novak spilled the beans on the Time set up and Fitz now knows that from the Rove case. What's he going to do? Drop the Cooper part of the Libby indictment or recall Cooper to the stand and let him have it?

[topsecretk9]

have been claiming quite ferociously that Plame's purported role in Wilson's trip did discredit Wilson. They've cared quite a lot.

Well, since Valerie is the sole and premier CIA expert on middle east WMD/Nuc one would think Wilson would welcome the WH informing reporters of his wife's expert recommendation of him and role she played as an excellent confirmation of his charges and point out the WH was deferring to the experts choice, no?

I am confused why Wilson was so embarrassed by this fact.

[Sue]

I did not share the details of my trip until May, 2003, after the war was over

I just realized that Joe supports Bush's Mission Accomplished statement...

from Joe's clarification letter to the SSCI

[cathyf]

perhaps Rove didn't mean Plame as the "bait" Then why did his co-autor Calabresi call Wilson just prior to and after Cooper's call to Libby.

You misread me -- I'm willing to entertain the notion that Rove told Cooper about Wilson's wife sending him, and when he said he "didn't take the bait" he was talking about something else related to the whole Niger boodoggle that he didn't rise to.

I don't think that we can say Rove's email contradicts Cooper's story -- Rove would need to actually remember it so he could answer questions about it, and since he doesn't, no source of clarification exists. But, on the other hand, if there are documents at Time which contradict Cooper's story, then Rove's email certainly doesn't help Cooper, either.

cathy :-)

[Sue]

Jeff,

To be perfectly honest with you, I have no freakin' clue what you just http://justoneminute.typepad.com/main/2006/05/libby_versus_th.html#comment-16852588>said.

[Bill in AZ]

I see a new verb forming from this fiasco, ala "fisking"...

fitzmas: fitz'-mas, verb
1) to reverse the perpetrator and victim in a criminal procesution,
2) to select witnesses and evidence to support pre-determined reversal of perpetrator and victim in criminal prosecution,
3) to maintain pre-determined reversal of perpetrator and victim in a criminal prosecution in the face of overwhelming evidence to the contrary.
4) to maintain pre-determined reversal of perpetrator and victim in a criminal prosecution for political purposes or abject ignorance of Constitutional principals (or stupidity).
5) see "railroading", "witch hunt".

eg. I Lewis "Scooter" Libby was fitzmassed out of his job as Chief of Staff to Vice President Dick Cheney.

eg. Federal Prosecutor Fitzgerald fitzmassed Northern Virgina businessman Frank Cowles out of millions of dollars on trumped up charges.

[sad]

<<<<<<<<<****I did not share the details of my trip until May, 2003, after the war was over****

I just realized that Joe supports Bush's Mission Accomplished statement...

from Joe's clarification letter to the SS>>>>>>>>>>

Great Catch, Sue!!!!!

[topsecretk9]

I did not share the details of my trip until May, 2003, after the war was over

I just realized that Joe supports Bush's Mission Accomplished statement...

from Joe's clarification letter to the SSCI

Sue,

Which also supports declassifying portions of the NIE as historical (and dated) data points to explain and clarify. The left clings to the idea that declassifying portions of this were nefarious and in some way harmful, but really the information was in many ways obsolete for future use.

[cathyf]

but for years now many many people on the right, including many many people here, have been claiming quite ferociously that Plame's purported role in Wilson's trip did discredit Wilson. They've cared quite a lot.

What discredits Wilson is that he lied repeatedly, deliberately, and elaborately about his wife's role in sending him, and continues to lie about lying about who sent him.

cathy :-)

[ed]

Does the meaning change if there's a guilty verdict?

[Jeff]

You have to bend over backwards for that to work.

Huh? How's that?

Why not just go with what we know?

Ok, that's just what I was doing. Libby did something singular with Miller, as cathyf pointed out, he got authorization from Bush and Cheney to leak the NIE. According to Miller, he also told her about Wilson's wife's CIA affiliation. It appears that that was unusual too. As far as we know, he did not share info about Wilson's wife with many reporters at all; and by the time he shared information with Cooper, the circumstances were interestingly different, he already knew that Novak was going to be publishing on the Wilsons, for instance, so he knew the word was getting out, which changes the calculation about what you tell who.

How is that bending over backwards?

Miller knew about Wilson and possibly Plame before she met Libby.

We do know that Miller, like a wide range of reporters working the story, knew Wilson's identity. I don't have any idea what the significance of saying it's possible that Miller knew about Plame before she met Libby. Furthermore, what is it you're suggesting she knew about Plame? That someone named Valerie Plame was affiliated with the CIA? That Wilson's wife was affiliated with the CIA? And what makes you think that, beyond it just being possible - is that sticking to what we know, or bending over backward?

[Jeff]

cathyf - That's just total bs. Not only has Wilson not lied about his wife's role, the claim from the right has overwhelmingly been that his trip was a result of nepotism, that he was otherwise unqualified, that it was a boondoggle - and even, among the more zany, a set-up of the Bush administration all along by the dark conspiracy of the CIA and their friends on the left in the State Department, the Democratic Party, the MSM, and France.

[Cecil Turner]

The relevant documents are Fitzgerald's 8-27-04 affidavit, Tatel's opinion . . .

Thanks Jeff. Tatel's opinion is the one I was remembering (but forgot the source . . . Hey!). Speaking of which, looking at those two together is very interesting. Here's Tatel:

Libby called several journalists, including Cooper and Miller. (I-202-03.) As Libby tells it, Cooper, whom he reached first, asked him why Wilson claimed Cheney had ordered the trip, to which Libby responded, “[Y]ou know, off the-record, reporters are telling us that Ambassador Wilson’s wife works at the CIA and I don’t know if it’s true . . . . [W]e don’t know Mr. Wilson, we didn’t know anything about his mission, so I don’t know if it’s true.

And here's the affidavit:

33. Libby testified that Cooper then asked why Wilson was claiming that the Vice President had sent him to Niger if the Vice President had not. Libby testified that he then explained to Cooper that Wilson might have heard something unofficial (and inaccurate) about the Vice President sending Wilson and “in that context” and "off the record” Libby told Cooper that "reporters are telling us” that Wilson's wife worked at me CIA "and I don't know if it's true." (Exh. I at 182-86.)

Does it look to anyone else like Tatel is copying the affidavit and messing up the quote marks? Because Tatel's is the only one that really looks definitive to me, but the phrasing is too close to the affidavit for me to think it's coincidence, and Fitz doesn't represent those as continuous quotes. Not sure what to make of this . . .

[clarice]

Do you suppose Tatel picked other excerpts from the gj transcript than Fitz did and offered up a more complete account of Libby's testimony, Cecil?

[Jeff]

Cecil - It doesn't look that way to me, but go for it. Also, don't forget how Libby's own lawyer characterizes Libby's testimony in the hearing. He makes it sound like Libby's own testimony was that he brought up Plame, but he's pleased to hear that Libby got that wrong, since the indictment itself gives Libby another reporter who brought up Plame with him.

Also, there have been two reports - probably both sourced to Cooper's attorneys - that Fitzgerald seemed surprised when Cooper testified that Libby confirmed his own existing info on Plame, and one that Fitzgerald broke off the questioning in order to confer with someone else on his team in the room. And it was shortly thereafter that Cooper got his new subpoena for other sources, whereas the first one was limited to Libby. And Judge Hogan found the new subpoena justified in part on the new grounds (vis-a-vis) the first that the investigation had taken an unanticipated shift, which it's a good guess was Fitzgerald's discovery that Cooper already knew about Plame when he talked to Libby on July 12. Evidently, then, he didn't have that knowledge in hand from Libby's testimony, which he would have had if Libby had testified that Cooper brought up Plame with him unprompted.

[Jeff]

Do you suppose Tatel picked other excerpts from the gj transcript than Fitz did and offered up a more complete account of Libby's testimony, Cecil?

Looks that way to me. That's what he did with other testimony, including Fleischer's, so it wouldn't be shocking.

[cathyf]

Not only has Wilson not lied about his wife's role

So what was that thing he said about how it was absurd that she suggested him for an out-of-town trip, because that would have left her home alone for a week with a couple of screaming babies? Or are you claiming that everyone else is lying and Cheney really did ask for Joe Wilson by name? (Hmmmm, do you think he asked for "Joe Wilson"? Or was it "Valerie Plame's husband" that Cheney asked for?)

cathy :-)

[Sue]

Jeff,

Ok, that's just what I was doing. Libby did something singular with Miller, as cathyf pointed out, he got authorization from Bush and Cheney to leak the NIE.

It wasn't a leak if he had authorization.

I don't have any idea what the significance of saying it's possible that Miller knew about Plame before she met Libby.

If you are asking me what is the significance of Miller knowing about Plame before talking to Libby, then I guess you believe Miller knowing from some source other than Libby isn't a big deal.

We do know that Miller, like a wide range of reporters working the story, knew Wilson's identity.

Not from Fitzgerald we don't. We know only because we have dug into the case ourselves.

I haven't seen anything that proves Libby told Miller anything about Wilson other than he was a clandestine guy. I've seen allegations he told her, but no proof.

[Sue]

Jeff,

Unless Judge Hogan was misquoted, he already has Libby convicted. So maybe you're on to something. He has seen the evidence and we haven't.

[topsecretk9]

Bill

You know I am starting to believe that Fitz and his team of investigators were led to this preconception of the case by the media interviews more so than by the WH interviews, and I think the media built up this incredible perception of this this massive investigative reporting period because they were all just so confused, in a way that mislead Fitz.

So much emphasis has been put on revealing Valerie's identity, (then in the end, the result of the investigation we learned no one is charged with a REVELATION, because no crime is committed by revealing this - UGO)

Good example is Russert and his carefully crafted denial(?)

"During the interview, Mr. Russert was asked limited questions by Special Prosecutor Patrick Fitzgerald about a telephone conversation initiated by Lewis "Scooter" Libby, Vice President Cheney's Chief of Staff, in early July of last year. Mr. Russert told the Special Prosecutor that, at the time of that conversation, he did not know Ms. Plame's name or that she was a CIA operative and that he did not provide that information to Mr. Libby. Mr. Russert said that he first learned Ms. Plame's name and her role at the CIA when he read a column written by Robert Novak later that month."

--Did he know Wilson's wife? Did he know her as Valerie? Did he know she worked at CIA, only that he didn't know she was an operative (which as we know now, that is most likely correct!)? Did he know that her maiden name was Plame, maybe from Wilson's EPIC bio?

So from this statement you can see that Russert just didn't know "Plame" was the name she used at work.

And the same kinda variegated weaslli-ness from Andrea, Judy and Matt.

So, they all testify (give statement, whatever) ONLY to Libby and Rove, because they know Libby and Rove did not give them the NAME - so in that respect, they are safe from scrutiny and preserve what they really don't want Fitz to know

Which is, they not only knew Plame's identity (from someone else) but that they were all apprised of the backstory ( that she worked at CIA and probably that she vouched and arranged for his trip) before the WH responded. or before they sought the WH response

So that any or no response by the WH was already outlined for a story. Who would have apprised them to the backstory? The person whose number they had and I might even speculate the reason Tenet in the end pushed for the investigation was the real crime was the revelation of the backstory details (names were wrong, dates were wrong)

If Tenet knows that Harlow faces no peril, than UGO faces no peril so what was the point? Is the devil in the details? That's what Libby's team have set out, and the big clue was the Wilson media phone communications.

[cathyf]

I haven't seen anything that proves Libby told Miller anything about Wilson other than he was a clandestine guy. I've seen allegations he told her, but no proof.

I don't think Miller knows, either. Given her statements, I think she honestly has no clue.

cathy :-)

[Jeff]

It wasn't a leak if he had authorization.

This is a side point to the response I was actually making to you, but it's not true. It's just not the case that only classified information can be leaked.

If you are asking me what is the significance of Miller knowing about Plame before talking to Libby, then I guess you believe Miller knowing from some source other than Libby isn't a big deal.

No. The point is you say to stick to what we know, then you float something that is possible, but which we have no actual evidence for. How is that sticking to what we know?

Furthermore, even if Miller knew something or other about Plame before talking to Libby, that's hardly inconsistent with the basic claim that Libby targeted her for special attention for his pushback against Wilson.

The rest I just don't see the significance of.

cathyf - Similarly, you're just offering two options as though they're the only two, which is silly.

[brenda taylor]

werent the democrats hollering for that nie report to be released.especially senator graham from fla.this is all very fishy.

[brenda taylor]

werent the democrats hollering for that nie report to be released.especially senator graham from fla.this is all very fishy.

[cathyf]

Similarly, you're just offering two options as though they're the only two, which is silly.

So now you are doing the Brandy The Wonderdog act? Either Judy knows or she doesn't -- there aren't any other options.

cathy :-)

[Cecil Turner]

Do you suppose Tatel picked other excerpts from the gj transcript than Fitz did . . .

Could be, but this part is hard to credit:

• "reporters are telling us” that Wilson's wife worked at the CIA "and I don't know if it's true."
• "reporters are telling us that Ambassador Wilson’s wife works at the CIA and I don’t know if it’s true"

It looks like Fitz is paraphrasing with inserted short quotes, and I can't see why he'd do that if the sum was the same.

Not only has Wilson not lied about his wife's role, the claim from the right has overwhelmingly been that his trip was a result of nepotism, that he was otherwise unqualified, that it was a boondoggle . . .

Oh, dude. This one ain't flyin':

"Apart from being the conduit of a message from a colleague in her office asking if I would be willing to have a conversation about Niger's uranium industry, Valerie had nothing to do with the matter."

And the boondoggle thing is sourced to an Administration official:

On July 12, two days before Novak's column, a Post reporter was told by an administration official that the White House had not paid attention to the former ambassador's CIA-sponsored trip to Niger because it was set up as a boondoggle by his wife . . .

But, perhaps by coincidence, in the same story:

. . . two top White House officials disclosed Plame's identity to least six Washington journalists, an administration official told The Post . . .

Hey, who was that masked man? Grossman? I don't think we can show that's a "claim from the right."

[larwyn]

Like signing a confession that the Clinton Administration has a lot to hide:

GatewayPundit: Mary O MaCarthy's March 2006 donations join other Clintonistas:Sandy Berger/Podesto/Albright/Lake/Hillary to Weldon's Dem opponent - STOP ABLE DANGER HEARINGS

McCarthy, who worked at the National Security Council when Sestak worked there in the 1990s, donated $100 to Sestak on March 1 and $250 on March 11, according to a campaign finance report the Seventh Congressional District candidate filed with the Federal Election Commission.

Weldon, through a campaign spokesman, said he had joined other Republicans in Congress asking for an investigation into what classified information McCarthy may have disclosed to reporters. Agency officials linked her late last week to reports in the Washington Post disclosing the existence of classified CIA prisons in Eastern Europe and elsewhere

Hope TM isn't so "brainwashed that he'll not cover this breaking news
and the cover-up that the Clintonistas are trying to implement by
stopping Weldon's hearings on Able Danger.

Hope someone is going over all the contributions to this DEM candidate with a fine tooth comb.

Hope that they will look for all the VIPS members names on those lists to see how
much Ray McGovern and the gang pitched in.

That's the group that Ray McGovern and Larry Johnson.

Almost like signing a confession that you do not want the public/congress to find
out the truth.

[Jeff]

Cecil - Interesting, so you're saying you think that Pincus' July 12 source was Grossman, who was also 1 in 1x2x6?

I believe when Wilson wrote those words, he did not know that his wife had written up his qualifications for the trip in response to a request from a superior. And the latter doesn't add up to her suggesting him anyway.

[cboldt]

I'm trying to find points of agreement and produce logical support for a paraphrase reduction of the case. The point of the paragraphs below the list is to remove the "which?" questions from the list.

My present brief & incomplete crib sheet re: Libby's testimony (to investigators and/or GJ; as alleged in the indictment) reads:

• Libby on his conversation with Russert
  
  
  
  • Russert asked if Libby was aware Wilson's wife works for the CIA (26a)
    
  • Libby replied he didn't know that (26a)
    
  • Russert said all reporters knew it (26a)
    
  • Libby told investigators he was surprised at "Wilson's wife worked for the CIA" (26a + 32aii + IV.2)
    
  
  
• Libby on his conversation with Cooper
  
  
  
  • Libby told Cooper that reporters were telling administration that Wilson's wife worked for the CIA (26b)
    
  • Libby told Cooper he didn't know if "this" was true (which? "reporters were telling administration" or
    "Wilson's wife worked for the CIA"?) (26b)
    
  • Libby told Cooper that he had heard that other reporters were saying that Wilson's wife worked for the CIA (32b)
    
  • Libby told Cooper he didn't know if "this assertion" was true (which? "other reporters were saying" or
    "Wilson's wife worked for the CIA"?) (32b)
    
  
  
• Libby on his conversation with Miller
  
  
  
  • Libby did NOT discuss Wilson's wife on July 8 (26c)
    
  • Libby told Miller that he had heard that other reporters were saying that Wilson's wife worked for the CIA (32c)
    
  • Libby told Miller he didn't know if "this assertion" was true (which? "other reporters were saying" or
    "Wilson's wife worked for the CIA"?) (32c)
    
  
  

The below is attempting to resolve potential ambiguities in the indictment, that relate to Libby's testimony to investigators. That is, trying to figure out what the drafter of the indictment is saying, and admitting that the drafter may well be "putting words in Libby's mouth":

I see two potential ambiguities regarding Libby's testimony about the Russert conversation, one of them (the subject of Libby's surprise being either "Wilson's wife worked for the CIA" or that "all the reporters knew") resolves by referring to 32.a.ii. of the indictment, to having surprise at "Wilson's wife worked for the CIA."

The other ambiguity regarding Libby's testimony about the Russert conversation is "who did he express surprise to? investigators? or Russert?. I think it makes more sense to resolve this as "to investigators," i.e., that Libby expressed to investigators that (at the time of the Russert conversation) Libby was surprised at "Wilson's wife worked for the CIA." Libby had already told Russert he didn't know that Wilson's wife works for the CIA. While it's certainly possible that Libby would further express surprise (to Russert) after expressing absence of awareness, additional language in the indictment points in the other direction. As a matter of explaining surprise, investigators put in Libby's mouth, "because, while speaking with Russert, I did not recall that he previously had learned about Wilson's wife's employment from the Vice President."

Count 4 has verbatim testimony from Libby that goes in the same direction, that is, Libby telling investigators that at the point in time of talking to Russert, Libby did not have conscious awareness that "Wilson's wife worked for the CIA."

Libby seems to be explaining to investigators why he -was in fact surprised- upon hearing "Wilson's wife worked for the CIA." Libby was surprised (he says to investigators) because he had no conscious awareness that "Wilson's wife worked for the CIA."

With regard to resolving the ambiguity relating to the Cooper conversation, it would be nonsensical for Libby to express uncertainty to "reporters are telling the administration" after asserting to Cooper that reporters are telling the administration. Libby seems to be saying that he asserted to Cooper that reporters are saying, to the administration and amongst themselves, that Wilson's wife worked for the CIA. I think part of Libby's testimony in 26b & 32b reduces to "I told Cooper I didn't know if it was true that Wilson's wife worked for the CIA."

The analysis of Libby's testimony relating to his conversation with Miller is complicated due to the addition of "he had heard" that other reporters were gossiping. Libby can doubt that reporters are gossiping that Wilson's wife works for the CIA. But in Count V, Libby says (to investigators) that "all I had was this information [I assume "this" being that Wilson's wife worked for the CIA] that was coming in from the reporters." I think the drafter of the indictment (who is trying to express WHY Libby is guilty as charged) would mean for the ambiguity to be resolved as Libby testified that he told Miller he didn't know if Wilson's wife worked for the CIA, not that Libby testified that he told Miller he didn't know if other reporters were gossiping.

[Jeff]

Cecil - I forgot to ask you how much you want to bet. Pincus has said his July 12 source was a White House official. And 1x2x6 showed up in a previous article by Allen and Priest, so almost certainly was one of their sources - perhaps Allen, who shares the credit for the story you cite with 1x2x6's reappearance.

[topsecretk9]

What happens if it comes out at trial, it was Wilson who suggested to these and various reporters BEFORE... the WH might say Valerie recommended him / played a role in the trip and if the WH tried this it was evidence of a smear campaign, because they can't refute him?

[Squiggler]

Moussaoui gets life in prison, no death sentence.

[Sue]

Squig,

I'm mixed on that one. He wanted to be a martyr and this way he won't be. But on the other hand, I really wanted him introduced to his 72 virgins.

[brenda taylor]

i also thought he should have been allowed to meet his 72 virgins,and i dont have any mixed emotions