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May 12, 2006



people are saying she was involved in sending him on the trip


This is the quality of evidence used to discredit Libby ?




I am astonished by this revelation and wonder why Grossman is getting a pass just like Armitage.


Let's see. If we seperate the element
hydrogen from the element oxygen and examine
them in a vacuum, maybe no one will notice
they are combined at the moment and actually
comprise, water!

Nobody is going to dispute the WH effort to
attempt correction of the Wilsonian 'errors'
to the press. That, indeed was the prime
directive. The issue centers on the desire
to exact retribution on the enemy. The
attempt to redirect the focus on what can't
be denied could, conceivably, mask the
behaviors (sans explicit language *wink,
*wink*) which reveal the intent to do harm
to the perpetrators who suggest, correctly,
the emperor's naked state.




Lew Clark


You don't realize the power of that statement. This is a nation "Of the People, by the People, and for the People". Thus, the People are the highest ranking entity in our nation. Outranking even the President. So if Libby heard it from the People, the highest ranking entity in the nation, he sure should have kept it secret!


Thanks for the link to the transcript. For what it's worth, it converts easily to plaintext, but I'm hesitent to post it as such.

Gary Maxwell

Usually requires two to shut down the open tag!! I laughed outloud Boris, thank you.




You expect something different?

Fitz is the guy after all who is supposedly supervised by what his superiors in the DOJ read in the WaPo.

Frankly this is starting to go beyond a self-parody. All we would need is for Fitz to combine with Nifong, a la Transformers, and they both indict Libby & the LAX players for both outing Plame * rape. Toss in the Palm Beach prosecutor and Limbaugh's persecution and we'd have the TV news trifecta of drugs, sex and politics.

What a complete mess.

Lew Clark

The indictment is not going to the jury?

Fitzgerald's opening statement: During the period of time in question, I can prove that Mr. Libby was not comatose and thus had to do something. I intend to prove that, in fact, he did do something. It will be the duty of this jury to find him guilty of doing something and impose the most severe penalties for his having done something."


With respect to the charges in the indictment, Wells asserts that teh primary defense is the preoccupation defense (page9, line 24). As for most of "concessions" that Fitz makes, relating to Wilson's veracity, etc. - my suspicion is that his concesion is based on irellevance to the perjury case and context, not on irrelavence in the universal sense.

Judge Walton's phrasing and thought process is difficult to follow - I'm finding the transcript to be tough slogging.


19 relationships? Is that safe?

Sopheline: Where do you get 'correctly', or 'naked'?

Appalled Moderate

A few observations:

1. Materiality of the perjury to investigation of the underlying charges did not seem to be an issue under discussion, even as an alternate argument. Clarice, and all those other lawyers, why not?

2. Not just Fitz, bt the judge seems inclined to a "small case" view of this prosecution. Guess what the trial is going to look like.

3. Love to know who the "five witnesses" are who will testify that they knew Val was CIA because Wilson told them. Wonder if Cliff May is one of them?


Judge Walton is finding the whole thing difficult to wade through, too. That's why the tortured language and thought.


Re the update, "A Rap Sheet?"

What the hell?


Fitz p. 22. We'll turn over the documents he wants unless we don't.

Is this amateur hour?


Good lord.

Please tell me that nobody that was or is working in the White House has a 'rap sheet'.

I'm off to beat my head against the wall in the garage.


I really like Fitz's 'innocent accused'. This is a prosecutor?

That means he doesn't have to turn over anything except from the convicted.

Appalled Moderate

What's your problem, Dwilkers. The President has a rap sheet. (Those old DUIs)


Don't knock it.
Just lock it.
Lean with it.
Rock with it.


They were talking theoretically. No reason on p 22 to believe the witness has a rap sheet. What we do know is that Fitz is protecting his identity and there may be some evidence to impeach him --all we do know from the discussion is that he spoke to Libby and the press. For all we know it's Armitage *cough* UGO.


materially advance my examination of Mr. Grossman and to try to show that he is not being totally candid

Last week I posted a hypothetical http://justoneminute.typepad.com/main/2006/04/waas_on_rove.html#comment-16759997" target="_blank">example of complex truth where a suspect knowing he's being framed feigns a memory lapse, uncertainly suggesting he went golfing, to hide that he was fishing on the afternoon in question in order to keep the investigation from discovering planted evidence in the boathouse.

Planted evidence is not "the truth" and hiding it is not misleading, but that’s an abstract point. Rather it does seem that Libby's defense is moving in the direction of claiming his testimony should be evaluated in the context of a setup.


Scratch that some evidence to impeach him---It is a witness Fitz is protecting who spoke to Libby and the press and about whom Welles is seeking to know whether they are getting from Fitz aany documentation of the conversations with Libby--

"Libby, that sort of thing was turned over.
01 MR. WELLS: I would submit that if Mr. Rove, for
02 example, who is likely to be a witness --
03 THE COURT: The government said he won't but maybe
04 you will call him. The government said he will not be a
05 witness for the government.
06 MR. WELLS: If they don't call him, we're calling
07 him. With respect to Mr. Rove, we believe there is no
08 exception in the case law that says Mr. Libby's discovery
09 rights are diluted because the government has an ongoing
10 investigation.
11 The government controls the timing of its indictment.
12 It could have waited until it finished the whole thing. Just
13 because the government says there is a continuing
14 investigation, it cannot hold back on discovery materials.
15 THE COURT: I guess it depends upon, and I assume
16 that Mr. Fitzgerald would not disagree with that but, I assume,
17 would take the position that once the investigation is complete
18 which I would assume would be sometime in the foreseeable
19 future, that then maybe the landscape changes. And we're far
20 off from the trial at this point."(p. 24)

So much for the fever swamp's claim that Rove turned state's witness..LOL
And perhaps a suggestion that the Rove GJ is useful to Fitz because it makes it unnecessary for him to turn over some material to Libby sooner


So Walton sees a forseeable future? What has Fitz told him to get him to think that? Or is it a forlorn hope, a hint of despair?


WH big mistake similar to Nixon's failure
to destroy the tapes. They classified every
take-out menu and snot rag, why did this
escape their gill-net? Then they could
shut down the investigation by telling
FitzZorro that he hasn't the clearance.

Too late.
Their bad.


Fitz sure is trying to keep the defense from seeing or even arguing the evidence re "MR. WELLS: With respect to the issue potential harm,
23 Mr. Fitzgerald expressly said a few minutes ago that on that
24 issue he's not even claiming that there was actual harm
25 concerning Ms. Wilson. Potential harm is more in the abstract.
01 So I don't understand why we would be in a position
02 where the defense could not participate in discussion of that
03 issue. Perhaps the classified issue might be different though.
04 I don't want to concede that.
05 THE COURT: I don't know if the government because I
06 just issued this supplement to the opinion and indicated that
07 if the government was going to be submitting information to me
08 for me to review ex parte without defense involvement that they
09 would have to articulate why that particular item was such that
10 its mere disclosure to the defense would not be appropriate.
11 MR. FITZGERALD: Your Honor, I think that was
12 submitted ex parte appropriately on notice to the defense. I
13 think when Your Honor rules, if Your Honor rules against us
14 they'll get more. We have a right to appeal if we wish to take
15 it.
16 When they get the materials, it may make more sense.
17 I didn't say there was no actual harm. I didn't say there was
18 actual harm. What I said is the issue at trial was we are not
19 calling a witness as to actual harm.

20 THE COURT: Are you going to provide this information
21 to them or not?
22 MR. FITZGERALD: That's Your Honor's ruling. The
23 ruling, I mean the filing we submitted is a proposed disclosure
24 to the defense. So if Your Honor approves it, Mr. Wells and
25 his team will have more information and then it seems to me we
01 can have a further discussion.
02 THE COURT: I guess Mr. Wells' position is that since
03 they have security clearances the whole thing could be
04 presented to them and then we would debate the issue as to
05 whether what you are proposing as a substitute that would be I
06 guess then used during the trial, that we would use that
07 process. And I assume you are saying that what you submitted
08 to me you didn't think that they should be able to see.
09 MR. FITZGERALD: Yes, Your Honor, but I will say,
10 getting to the question of what comes out at trial, if Mr.
11 Wells sees this material and wants to offer some of it more
12 than we offer or impeach it or cause disclosure of classified
13 information, then they would file that in their Section 5
14 notice. Or it would come up if we indicated something, it
15 would be resolved in a CIPA hearing. I think it will be easier
16 for everyone to tackle it if Your Honor agrees with the
17 disclosure. When they have it, they'll be in a better shape to assess harm"


But note Walton expects Fitz to close investigation at some point in the foreseable future or at least before Jan 2007. So Fitz put up or shut it down.

MR. FITZGERALD: No, judge. The government's motive will be what Mr. Wilson said in July 6, 2003, caused a11 controversy and it is the responses to the controversy in 2003. I believe all our witnesses are people who learned of Mr. Wilson's trip in May of 2003 or thereafter. We're not calling Mr. Wilson or anyone who was on the trip itself. So the discussion of the trip will be in the context post July 6, 2003, people saying who sent him on the trip, what's going on here, who is Mr. Wilson but not the substance of the trip.

Or anyone who was on the trip? Is he saying someone went with Joe?


Not alleging Libby did anything wrong in discussing NIE will Miller(p. 30)



Why would Fitz want to keep some material from Libby? Is this normal practice in your profession?


This is an interesting comment, regarding making this about the legitimacy of the war:

MR. WELLS: Your Honor, if you step back and focus --
11 THE COURT: I don't mean to cut you off. I could be
12 wrong about tactics but I mean I don't know if that's a battle
13 you want to fight before a District of Columbia jury.


Grounds, right there, for appeal if trial continues without change of venue.


***with Miller on July 8** A little waffly as usual about other conversations:
"MR. FITZGERALD: Right. What I'm saying is that,
18 look, that is not the focus of what we are doing and I'm not
19 going to dispute that he was authorized on July 8. I don't
20 know what happened before so I am not going to stipulate that
21 he was authorized on June 23 or July 2. But that's not what
22 the trial is about. The trial is about what happened in the
23 grand jury, you know, lying about the wife.
24 THE COURT: Since the trial is not about those
25 earlier occasions, that's why I'm asking, are you going to seek
01 to introduce evidence about those earlier events?
02 MR. FITZGERALD: I think, Your Honor, we may or may
03 not. Let me be straight. I don't know what the defense is
04 going to be asking about that conversation, whether we're going
05 to be talking about whether he had a conversation with Mr.
06 Woodward or not.
07 We are not calling Mr. Woodward. Mr. Libby had a
08 conversation with Mr. Woodward. I don't know if we're going to
09 get into that or not. And in the grand jury -- I don't know
10 how Mr. Wells is going to open or what he's going to say.
11 The earlier disclosure to NIE isn't the crux of the
12 case. I will be honest. I am a little afraid of tying my hands
13 by saying this isn't important, this isn't important. Then all
14 of a sudden at the trial I'm hearing an opening and I've given
15 away everything that might be responsive."(p 32)


A sad commentary on the citizens of Washington, D.C., largely government employed. By golly, it even sounds racist. What do the W's stand for, White?

Walton and Wells, closet racists. Look what this case does to people.

Cecil Turner
Mr. Grossman separately has a report prepared all about the trip and the substance of it the so-called INR report which Mr. Libby never sees. We don't intend to offer the INR report.
Interesting bit from Fitz. Three quibbles:
  1. It's a "memorandum," not a report (just like it says on top). I refuse to adopt "INR report" over "INR memo";
  2. It's surprising he asserts the negative (instead of just saying: "we have no evidence to suggest Libby ever saw it"), unless he wants it excluded; and,
  3. No kidding he's not going to introduce it, as it supports the defense contention folks were talking about her.

Not just Fitz, bt the judge seems inclined to a "small case" view of this prosecution. Guess what the trial is going to look like.

I think that may be overreading it a bit. My non-lawyerly take is this.

    Discovery is limited:
  • Brady "requires the prosecution to disclose evidence favorable to the defense, which is either exculpatory or impeaching and is material to the issue of guilt or punishment"
  • Jencks Act requires the prosecution turn over impeaching evidence for a witness at the conclusion of his testimony
  • Rule 16 pertains to defendant's statements, "if the government intends to use the statement at trial."; and
  • Giglio is character impeachment information for prosecution witnesses.
(I'm sure there are more I'm missing, but those account for most of the discussion.) Obviously if a witness isn't going to testify, it isn't Giglio. If it's Jencks material, the prosecution can wait to hand it over, and Brady material has to be directly relevant to the charge. I suspect there will be considerably more latitude when team Libby introduces evidence to try to show he had no motive to lie. Forcing the prosecution to cooperate in building their case is a bit of a different subject.


Sue @ 8:27. That is interesting, makes me wonder if someone else did go. Reminds me, too, of something else that bugs me about this trip. 8 days!! 8 days for a few interviews in one small country. I know Cecil travels internationally, and Daddy, and tons of people I know. One thing few of them ever do is spend much time in one city for a few pieces of information. You fly in, you meet, you're out. Either more went on in Niger, or traveling on the government is a lot poshier than travelling on a corporate budget. Or I'm misremembering the 8 days bit.


3. Love to know who the "five witnesses" are who will testify that they knew Val was CIA because Wilson told them. Wonder if Cliff May is one of them?

Love for people to read what Cliff May wrote...he did not say Wilson told him...he said he friend, Cliff May's, said Cliff was being a little on Wilson, his wife does work at the CIA so he (Wilson) does know what he is talking about

Maybe the person who told May this will be one of the 5


Crcil, what's your take on the odds of Fitz being allowed to do the old razzle dazzle of telling the jury Plame was "classified" and there was "potential harm" without any evidence?


I've done a lot of international traveling and my guess it's a two day trip to Niamey and probably it takes time to set up the appointments. He probably flew to France, stayed overnight there before traveling to Africa.


kim, both W's are Black. I think they are talking about the large number of Dems--at least 90%.



You speaky funny. ::grin:: Are you saying May's friend told him he knew about Plame?


Hee hee, I knew their race. Just couldn't help poking some fun, esp. where there are undercurrents. But what do you think of Walton's belief about the inability to get an unbiased jury in DC?

Dave in W-S

"He probably flew to France, stayed overnight there before traveling to Africa."

There's that damned French connection again. Does sound plausible, especially in view of Wilson's past connections to a suspected French intelligence agent. Raises interesting questions. Not sure of the timing, but when DID Wilson see the forgeries?



I think some harm was done due to the 'outing' but Fitz is being cute and says they'll understand when they see it. That means the harm was embarrassment and there's enough detail about the situation surrounding the embarrassment that it has to be kept classified. In other words who (and how) was embarrassed would reveal sources and methods.


>But what do you think of Walton's belief about the inability to get an unbiased jury in DC?

It's a realty in lots of jurisdictions and not usually grounds for a change of venue. I've had judges say that to me in civil cases - plaintiff's don't due well in wealthy towns for example.

The statement jumped out at me as well, but as a hint more than anything else. I'm sure Wells is well aware of that issue and is planning accordingly.


Did Amb Wilson's wife join him for a small honeymoon in Niger? Just asking..

Cecil Turner

Cecil, what's your take on the odds of Fitz being allowed to do the old razzle dazzle of telling the jury Plame was "classified" and there was "potential harm" without any evidence?

Nil on the first, dubious on the second. (At the least, he'll have to provide more discovery.) However, IANAL, and I have been a bit surprised by a couple of Walton's rulings.


Cecil,I think he has to make his case on those issues and if he doesn't Walton will eat him alive..Wells is just setting him up. If Fitz opens his mouth on either of those issues in Court, Wells will insist on hs right to respond and just watch.
Owl, I read elsewhere, maybe in Fedora's finely researched piece at F R that on his 1999 trip Wilson did stop over in France.
Jane, the remark was simply addressed to the war issue. In any event Libby is well aware of the political views of the DC residents and has not moved for a change of venue.


I got a kick out of this ...

12 (Recess from 2:52 p.m. to 3:02 p.m.)
13 THE COURT: You are good, Mr. Wells, because you
14 actually got me to take a position that's totally incorrect.
15 The witness in Marshall was actually a government witness, not
16 a defense witness.


If it's a small case that's tried how does that help Fitz--No evidence will be allowed in of "classified" or "harm" or "potential harm" though Libby can bring in his busyness on other issues, the fact that her id was irrelevant to push back as far as he was concerned,and the conspiracy against him. He can shred Grossman and Wilson. And then its he said/she said with three witnesses who'll have a lot of baggage testifying against him.

It will, however, destroy Fitz' credibility with the public. His credibility is already in tatters with those who've been paying attention.


"it might be nice to have jurors who can follow along.

Or maybe not."

No doubt part of the hydra-headed defense
strategy. Count on them to exclude any
jurors without short attention spans.

Just sayin'


It looks as though Judge Walton plans to issue his Order associated with this hearing sometime next week.

06 THE COURT: As I say, there is going to be probably a
07 week or so before I issue because I'll wait until I get the
08 government's submission regarding those articles. But it will
09 probably be a week and a half or two weeks before I issue a
10 definitive ruling.


Are you saying May's friend told him he knew about Plame?

I do speaky funny ::grin::...but yes May's friend-- who also knew Wilson-- told May (not verbatim) "You are being kinda hard on him (Wilson), his wife works at CIA you know"

inference...Wilson knows what he is talking about and May took that to mean many people know Wilson's wife works at CIA

Also, I **knew** Grossman did not share that memo.


So you don't think he can get a fair trial, either? Nobody has a long enough attention span? Really, though, it is Fitz's convoluted theory that won't ease reasonable doubt.

Appalled Moderate


The nub of the case is Libby telling investigators and the grand jury that he had forgotten anyone other than a reporter ever telling him Plame was covert. The smaller the case, the larger this issue looms. (Wells seems pretty candid about this problem in the transcript.)


I do not think I am misreading the judge on the big vs small case. He spends too much time emphasizing how he does not want this case to be about the war, and worrying about whether the jury will even be allowed to see the entire indictment document Fitz put together.


One of the critical points for the defense is establishing that Libby really COULD have heard Plame's name from reporters. The "five people" issue goes directly to this point. I was being somewhat facetious that maybe Cliff May had heard about Plame from Wilson, but I did want to emphasize the point Cliff May never really has told us where he heard the name.


Cboldt, it was in Word when I received it and I transferred it to pdf so that people who saved it from Talkleft wouldn't be able to make changes. I guess I forgot to "lock" it. I'll probably do that now, if it's possible. I'd think twice before putting it up in Word so that it's not altered as it gets spread around. Of course, it's your choice.

Tom, I think your surmisals about Fleisher are correct. He was the subject of the sealed affidavit Wells filed.

[At the risk of putting words in her mouth, Ms. TalkLeft seems to be referring to this post. Thanks very much.]


Has anybody heard Shuster moonlighting for NFL Sunday games, as a on-site update-(for FOX radio)?

I think dude is desperate for money.


AM, As I noted, the small case theory is more a problem for Fitz than Libby in my opinion.



I was being somewhat facetious that maybe Cliff May had heard about Plame from Wilson, but I did want to emphasize the point Cliff May never really has told us where he heard the name.

Didn't mean to come off snark, just being literal. I'll assume that May is not betraying the confidence in *public* of the acquaintance who told him such.


Not a long afternoon for me. Looks like as far as Fitzgerald is concerned, neither Cheney nor Libby (or at least Cheney for sure) themselves knew about the CIA report in 2002. And OVP altogether?

Fleischer is almost certainly the witness they're talking about, though I suppose Cathie Martin could be included too, though Fleischer is the only one we've heard in connection with sealed submissions. But I suspect the rap sheet business is just distraction from the fact that Fleischer has a cooperation agreement. But on account of what? And what about the suggestion that that witness talked to reporters about Plame? Does that mean that Fleischer was Pincus' source? Or was there some relevant Fleischer-Novak talk on July 7 - but the redacted affidavit from Fitzgerald seemed to rule that out?

Tom, I think you're giving yourself too little credit in the Schuster smackdown. But as with the last hearing, it looks like the reporter may have wrongly assumed two separate discussions were about the same topic. It is pretty interesting, independent of the Schuster smackdown, that Fitzgerald says in July 2003 someone described to Libby and someone else - who? Cheney? Martin? some other OVPer? - the damage that can be caused by the outing of Plame specifically. And who was that doing the describing? It does not appear obviously to be part of the indictment, although if Fitzgerald actually meant June 2003 that would make more obvious sense. In July, the candidates from the indictment that I can see are Cheney, Addington, Martin, and I think we can rule out Fleischer and Rove. It's also possible that Libby had a conversation with Martin's source, who might have been Harlow, though we have heard nothing about a Harlow-Libby intersection.

The whole business about the NIE is pretty interesting. One piece of news is that Libby disclosed parts of the NIE on three occasions - there's a July 2 occasion that I don't think we've heard about, and it looks like it might have been with Miller. It also looks like the way this might have come up in Libby's grand jury testimony - the transcript is a little obscure - was that Libby's notes had something to the effect of "Tell Miller," and Libby clarified that that had to do only with the NIE, not with Plame. In any case, it looks like Libby's story was that he got the authorization before July 8 - and then when asked about a July 2 conversation (with Miller or some other reporter) he said he might have gotten his dates wrong, or he might have gone ahead a little too soon, which was understandable because he kept getting the stop and go on whether to reveal the information. There are some dates, somewhat ambiguously, given for LIbby's proceeding. Looks like he was told to go on July 2, had concerns, checked with the VP, also checked with Addington. Presumably, the disclosure of NIE stuff to Woodward on June 23 doesn't really fit well with that; but it looks like Fitzgerald is not going to focus on it, but doesn't want to stipulate that it was all a-okay now so that his hands are tied if the defense argues that Libby always toed the line perfectly on everything having to do with classified information, and the government agrees on his handling of the NIE. Anyway, Fitzgerald on his own understanding probably could not have gone after anyone for that anyway since it fell outside his strictly limited mandate.


TalkLeft said

"Cboldt, it was in Word when I received it and I transferred it to pdf so that people who saved it from Talkleft wouldn't be able to make changes. I guess I forgot to "lock" it."

The ability to convert it to text isn't related to it being locked. It's more in the nature of being able to cut and paste, although that isn't what I do.

A completely irrelevant but interesting technical distraction, I use `pdftotext` to convert the file from PDF to text. The converter is possible even on locked PDF files. It doesn't change the PDF, it just reads the PDF and makes a second file in a different form. `pdftotext` doesn't work on PDF files that are "scanned in," but those can be made into graphics files like JPG.

If you don't mind (and I don't make a point of pushing the site), I'd post it as text at noeasyanswer.blogspot.com. Some folks (the PDF averse) find it helpful.

Appalled Moderate


I'll just disagree. If the case is just whether Libby lied or not, the defenses are seem to be a combo of "I didn't lie" and "I'm busy and I forgot they told me."

The more the case expands, the better the illustration of Libby's busyness and of Fitz's inability to find weapons of mass fabrication.


In his defense, Libby can bring in the stop-go of the NIE declassification, the general busyness and distractions,and Wilson's lies in the small case.

In the small case, Fitz is severely limited (only to Libby's motivation) to claiming "classified" and "harm" but as to those things we seem to know already that (a) Fitz has no evidence that Libby knew it was classsified and (b) the harm has already been downgraded to potential harm and as TM has noted even that seems to amount to little more than some unspecified warning of embarrassment or poor pr.

Cecil Turner

Wow, just finished the transcript, and that whole discussion on Wilson's trip was fascinating. Is it just me, or does Walton clearly not get the issue that the "push back" was related to Wilson's allegations? This bit struck me (though there are some obvious problems with the transcription):

Assuming -- your theory is that he was focusing on the merits and not the nature of the relationship between Plame and Wilson. I mean I guess that would be relevant for you to bring in to show what he was focusing on and why the relationship would not be relevant.
If you do that, I don't think the government then would be able to bring in something to undermine the substance of what he says he was focusing on. My suggest is that in actuality something other had in substance occurred as compared to what the administration was saying took place.
Is it just me, or does Walton clearly buy into the whole "punishing a whistleblower" meme? And isn't that a bit inappropriate for a sitting judge to admit? Further, Walton's bit about the war is interesting:
The only concern I have is obviously it seems to me if information comes before the jury about what Wilson said he discovered during this trip which is inconsistent with the administration's position, obviously the administration's position in that regard was a significant reason for why we ended up going to war in Iraq . . .
The "16 words" was a significant reason for why we went to war? Not by any definition of "significant" I'd buy into. But the kicker is at the end, when Walton says he can bring in anything that refutes the articles:
No, I didn't say that because if the government introduces the article, I would have no problem with your client or any other witnesses who could shed light on what your client's mental state was at that time, bringing out information that this was the administration's position about the accuracy of the situation as compared to what was in that article, and that's what the administration went about the process of disputing, the accuracy of what was in those articles, and that that was the focus of Mr. Libby's attention and not this peripheral information that you say was minor regarding the relationship between Plame and Wilson. No problem with that.
Which seems to me to amount to the same exact information he then ruled wouldn't be admissible (information on Wilson's trip). Someone doesn't get this, and I don't think it's me.


that Fitzgerald says in July 2003 someone described to Libby and someone else - who? Cheney? Martin? some other OVPer? - the damage that can be caused by the outing of Plame specifically. And who was that doing the describing? It does not appear obviously to be part of the indictment, although if Fitzgerald actually meant June 2003 that would make more obvious sense.

I think it's Grossman Fitz is referring to doing the describing...just my hunch.


as TM has noted even that seems to amount to little more than some unspecified warning of embarrassment or poor pr.

Is that what you noted, TM? That looks like a mischaracterization to me, but maybe you were being as assertive as clarice is.

It's also interesting, as best as I can tell, clarice's evidence for her claim that

Fitz has no evidence that Libby knew it was classsified

seems to be a statement from Fitzgerald from August 2004 - almost two years ago and, apparently, before Fitzgerald learned some interesting things, such as the testimony of Robert Grenier - that dealt with Libby's knowledge of her covert work, which is different from her classified status, regardless of what most of Byron York's experts say, and furthermore dealt not with evidence altogether but with direct evidence. Is there no other kind? Like, say, circumstantial? In that connection, here's what Fitzgerald has been saying, after getting a conviction in the Ryan case:

Just last month, United States Attorney Patrick J. Fitzgerald, who is also the special prosecutor in the C.I.A. leak case in Washington, won a corruption conviction against former Gov. George Ryan. Mr. Fitzgerald seemed to put every politician in town on notice when he said: "People need to understand we won't be afraid to take strong circumstantial cases into court."

Finally, it's really pretty amazing. I would've thought from reading that transcript that things didn't go that well for Team Libby at the hearing. But evidently I would be wrong, and in reality Fitzgerald's case just gets weaker and weaker.

Monkey Trainer

I'm not sure how the prosecution can be allowed to present evidence of "potential damage" to national security - which it seems to me would be incredibly prejudicial and have no real bearing on the perjury charge - without allowing the defense to obtain discovery to prove that no actual damage was done.

It seems to me, admittedly a civil litigation attorney who knows very little about criminal litigation, that this would be an error that would be appealable. How can the prosecution be allowed to taint the jury with the implication that national security was damaged by the leak (while claiming the leak itself is irrelevant to the case) and not allowing the defense to demonstrate that the leak did not damage national security. Someone help me out here.



I don't see in May's column where he said his source knew Wilson. Do you have that from some other source?

That wasn't news to me. I had been told that - but not by anyone working in the White House. Rather, I learned it from someone who formerly worked in the government and he mentioned it in an offhanded manner, leading me to infer it was something that insiders were well aware of.
May 9/29/03


Someone help me out here.

Apparently, Jeff has about 4000 words that will illustrate your very simple to the heart of the matter question and astute observation is so very misguided and wrong.

Cecil Turner

The more the case expands, the better the illustration of Libby's busyness and of Fitz's inability to find weapons of mass fabrication.

It seems to me the bigger issue is that Fitz wants to repeat the conversations with just the pieces that mention Plame. And since that appears to amount to ~2% of the pertinent discussion, by leaving out the other 98% it grossly exaggerates her apparent importance. That back-and-forth over the articles indicates to me Walton doesn't understand it yet (which pleased Fitz, and Wells was gently trying to rectify by asking him to read them). If the case continues in the current vein, I see no way for Libby to get a fair trial (nor any way it'll stand up on appeal). However, I suspect there'll be a significant change after Walton finds out the key article is entitled: What I Didn't Find in Africa.


Cecil--the transcription seems garbled.I think what the Judge is saying is that in the small case, Libby is entitled to show what he was focusing on--fighting back the lies.

Jeff, at the outset Fitz' claim was Libby had a motive to lie because he was disclosing classified information. And now we are far from that to someone told him there might be some harm. And we have no notion of who told him or what that harm was. Do you think that makes Fitz' claim of motivation to lie, stronger or weaker? I say weaker.


Someone help me out here.

Apparently, Jeff has about 4000 words

Fitzgerald is going to show that Libby was warned there could be damage and was aware there could be damage. So he had a reason to lie about outing Plame to reporters. And there's no claim the leaks from Libby are irrelevant to the case.


"Oh, well then. Maybe the prosecutor could deliver a new indictment so we could figure out what we are talking about, then."

Superseding indictments issue in just about every prosecution


MT--I'm with you. Fitz will have to put up or shut up, and I've thought that from the outset.

Monkey Trainer

The other thing I note with interst in this case -

Typically in criminal trials it is the defendant who seeks to limit the evidence that will be presented. Here, it appears that the prosecution is doing everything it can to limit the evidence that the jury can consider. Doesn't that strike some as being somewhat strange?

Keeping aside all of the political baggage that people bring to their opinion of this prosecution, isn't it troubeling that the prosecution essentially wants to limit any and all potential exonerating evidence from the jury? Is this the standard we, as Americans, want in our criminal justice system? Just exactly who is trying to hide what here?


Jeff, if the info was classified and Libby knew that during an investigation purportedly about the leak of classified info he'd be more inclined to lie was the original theory. We know have what ? Someone said it wasn't a good idea P.R. wise? Someone said it might embarrass the CIA and they'd be angry, harming the already strained relationship between the Agency and the OVP? And you think that's a stronger motivation to lie or even an equally strong motivation than Fitz originally offered?


Yes, MT, but that was the trouble with the investigation, too--it was too focused and skewed. For example UGP (probably Armitage) disclosed early on that he leaked to Novak and yet it appears he was never asked who esle he told (Woodward) even though Libby's claim was that he was hearing this from reporters.As to reporters questioned, they were only questioned about conversations with Libby and Rove. And no one seems to have investigated thoroughly how well-known Plame's connection to Wilson and the CIA was even though a number of people, including Andrea Mitchell, Mays, Peretz, etc. indicated it was public information at least in the DC chattering class.

Monkey Trainer

It appears to me that Fitzgerald is attempting to do a bait and switch.

he is trying to convince the judge that the prosecution is only about perjury, and thus evidence pertaining to the leak itself, or the Iraq War, or the articles written by and/or about Joe Wilson, are irrelevant.

However, he is implying that he is going to use that stuff to demonstrate "potential" (rather than "real") damage to national security. Thus, he wants to limit the defense from any discovery on those subjects, but wants a free hand to introduce evidence relating to thos matters at trial.

The only reason I can see for him to do this, rather than simply presenting evidence on the alleged false statements, is that he knows his case is weak and wants to show both a) an alleged motive for Libby's false statements and b) imply that it caused damage to national security. Which again, leads me to believe his case on the actual evidence musts be pretty weak, otherwise why not just try the alleged false statements and leave it at that?



Moreover, WIlson seems not to have been close questioned about who may have known because we know he told Gen Vallely in the spring or summer of 2003 and we know that Libby claims he has at least 5 witnesses who say Wilson told them that his wife worked for the CIA.

Nor did Fitz consider how broad that universe became when Wilson started calling Senators in late spring to tell them about his Mission. Indeed, he seems to have been a central figure in the May 2, 2003 Senate Democratic Policy Committee now scrubbed from its website.


"...But it is precisely what that article is that causes the events of June 14 [sic - should be JULY 14]. On July 6 the article is printed."

Good move by the prosecutor. He needs to define the opening event as Wilson's July 6 article. If Libby gets to define the opening as Wilson's earlier leaks to the Independent, NYTimes, etc., that will allow a wider examination of Wilson's lies, such as the forgeries, hurting the prosecution. With the Judge's comments about stupid jurors who will cheat more by consulting TV than internet, it's looking good that the fix is in. Bye bye Libby.


MT--Exactly. I call that the Fitz "razzle dazzle", now you see it (indictment and presser) and now you don't.

But don't forget this is the judge determining the scope of the case per Libby's discovery requests..deciding only what Fitz must turn over prior to trial..and the hearing reflects only his preliminary look at the issue without further review of the pleadings.
He has to see what game Fitz is up to , and if he misses it, Wells will make that clear, I'm sure.

Monkey Trainer


Or, reversible error. If Fitz is allowed to do this bait and switch, I cannot imagine it not being overturned on appeal. And, frankly, I believe it is highly unethical on Fitzgerald's part if that is indeed what he is doing.


Wells argued in the previous hearing that if Fitz was not arguing classified and harm and therefore not being required to provide discovery he had to be barred from making those arguments to the jury--which he clearly planned to do. Wells will move heaven and earth to prevent Fitz from making unproven(and unprovable) assertions to the jury--something he clearly got away with before the gj.



You write, "Nor did Fitz consider how broad..."

With all due respect you are way off base here. Fitz does consider it. He's making a case for a prosecution. He's not a judge or jury. Prosecutorial ethical obligations to seek the truth is just Television deceptions to keep the little people complacent and talking to prosecutors without lawyers present, like I believe Libby did.

Fitz smells blood. He damn well knows he can't have context in this case, Wilson's lies and hedging will make Libby look like a saint in comparison. So far Fitz is doing a good job in excluding, or limiting Wilson. The judge is playing along, just giving Libby enough to avoid a slam dunk appeal reversal.

Both will get university/liberal speaking tour gigs and make good money. Libby is screwed because the right-wing gigs aren't available to him, he doesn't have the moral crusader edginess.


MT: Many remarks Fitz made at his presser (which TM has hyperlinked at right) were unethical.

His claims to the Miller Court were misleading and I think unethical.

This plan of his is just part of the pattern.


Your are right Polly, it's worse...someone that isn't identified as personally knowing Wilson -- knew the topsecret classified info his wife worked at the CIA,

Link 1
4) Bob Novak was indeed the first to put in the newspaper that Valerie Plame was a CIA "operative." Bob Novak — not a friend of mine — insists he did not know nor mean to suggest that she was an undercover operative. He thought she was just an analyst.

Link 2
When I learned that his wife worked for the CIA, it caused me to think better about him. In fact, one friend, a Democrat, cited his wife's occupation to me to suggest that Wilson was not as rabid a partisan as I believed (and as I had alleged in NRO).

Tom Maguire

Good move by the prosecutor. He needs to define the opening event as Wilson's July 6 article.

Fitzgerald was for the Kristof starting date of May 6 before he was against it.

Jeff - did Robert Grenier testify *after* Aug 2004?

As to the Aug 2004 statement by Fitzgerald, here we go:

To date, we have no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work.

I still don't know what "direct" evidence means. I am pretty sure (since he is seeking J Miller's testimony) that is Libby had said "Her status is classifed, do you have clearnace?", that would be direct evidence.

But if someone testifies that "I told Libby she was covert in a room with six other people, but maybe he was looking at his Blackberry", is that direct evidence of anything?


Actually, the OPR would be the place to file complaints of unethical behavior and would deal with these issues if a complaint were filed, but does it have jurisdiction under the weird terms of this appointment? I think it does and I wish someone would file one.

Earlier in pleadings Libby argued about the presser that if Fitz had been under supervision he could have complained to his superior but as he had none their was nothing he could do about it.

Carol Herman

Excuse me. But does fitz bring in his witnesses with paper bags over their heads? Will the MSM cooperate and then use techniques, so it's sounds like the witnesses are talking from under water?

And, the judge wants illiterate jurors? Oy.

What has our justice system come to? It's not bad enough that lawyers are thought of as sub-humans. And, our Supreme Court is referred to as "The Supreme's" ... But this circus is still in play. And, the judge is a black man.

Perhaps, when this charade is over PC will be dead. And, we can shove out the door those whose incompetencies brought them to seats of power.

Walton is a DISGRACE!


Monkey Trainer:

"The only reason I can see for him to do this..."

add c. "He knows he's got a problem with Wilson"

He's signaled that more than once. If the prosecutor says "oh, I don't care if the central figure in this case was right or not" trust me, he knows he's got a bigger problem than the flippant tone would indicate on the surface.

Prosecutors are salesmen. Judge knows too. Don't watch this soap opera as if the prosecutor and judge are on a voyage to the Valhalla of truth, learning as we day after day. They already know 95% of the case and why it can fail. The acting is just "for the record."


From TS source:"5) The first to reveal specifically that Plame was a NOC was David Corn in the Nation a few days after Novak's column appeared. Corn provided specific details about her work and her cover. I am convinced Corn's source was Joe Wilson. Who else could it have been?"

That is true. Indeed there is public record evidence that Corn and Wilson had a relationship of some standing. I recall reading a Corn reference to an email earlier he'd had from Wilson on something. And yet again to establish how skewed the investigation was or how false Fitz' assertion that Plames's id and employment were not generally known, is this:They never interviewed or questioned Corn.


Libby has said he is calling Wilson to the stand even if Fitz doesn't. And in furtherance of his claim that he heard it from reporters and was simply trying to beat pack a serial liar, that examination will be something to see.(Remember Libby says 5 or more witnesses that Wilson told them and I'd put my money on MORE).


So what is the consensus on the annotated press article?


Tom Maguire: "I still don't know what "direct" evidence means."

I believe it means that there is no evidence, either testimony from Libby (such as "I thought Mrs/ Wilson's function was classified"), or from others who could have known (e.g, hypo: Fleisher testimony "Libby said 'I think she;s a classified/covert (whatever) agent'") would constitute direct evidence. The evidence goes to Libby's state of mind, so your example of him being present when it was discussed would not be direct evidence to his state of mind, but might be used to infer his state of mind. I would add, "preoccupation with Blackberry" would militate against a conclusion that this event could possibly have contributed to Libby's state of mind on that point.

Tom Maguire

We'll Always Have Paris - in his second column (June 13), Kristof mentions that Wilson stayed over in France on the way back from Niger.

Now, Binus Spin time - here is what Fitzgerald said about Plame and damage:

In a different conversation that Mr. Libby was present for, a witness did describe to Mr. Libby and another person the damage that can be caused specifically by the outing of Ms. Wilson. It was before the grand jury. It was back in July of 2003.

July of 2003 and "it was before the grand jury". What does "before the grand jury" mean? Just about everything of relevance *ocurred* prior to the grand jury investigation, and a lot of it was presented to the GJ.

But my notion is this - what if Fitzgerald means, "prior to the investigation", e.g., July 2003 - Sept 2003 (or July 203-Dec 2003)?

Maybe he is hinting at a cover-up. And certainly, Libby may have blanched and decided to lie even if he learned *after* July 14 that he had stepped in it. (Well, if he were lawyered up he could have argued details of the IIPA, but maybe he let political concerns take priority.)

I keep repeating this, but - if Libby testified that he did not know Plame was classified, and Fitzgerald can prove otherwise, why not indict on that? It looks a lot more on-point than this other stuff.

Carol Herman

Another piece of skullduggery that "could" be out there. Ambassador Munchausen may have been careless about the "extra money" he could have wasted on a fancy life-style.

How so? Well, what if ... his connections with the french (wifey #2) ... and his current wife's connections with the CIA ... put him in line for some illegal UNDER THE TABLE sales of Yellow Cake.

Was he in Niger for 8 days? Someone here made a good point in saying that's a LONG trip for a short talk.

And, the only thing that could show up on the radar screen ... now that a lot of hands are turning over the evidence ... And, who knows what leaks out? Is that there was a real increase from illegal funds that came into the CIA. How so? Well, they wanted to run less-than-Kosher operations. And, they wanted BIG money from other sources ... other than Congress?

Fitz is throwing up a lot of DUST. He should know what the evidence laws are. Because it's CODIFIED. You can't just toss out a defendent's rights, without having to deal with the Supreme Court "eventually."

Even though it is true, most Appellate judges just won't blast a fellow bench warmer. This case is BIG.

Even if Fitz tries to make it little by covering it with lots of cat litter.

At some point, ahead, (since Libby has found a way to pay for his lawyers. And, he seems "set to the course.") All the CIA has left is to either BUMP LIBBY OFF; hoping they can do it to MOOT the case. Seems like Fitzgerald "loves" the word "moot." Or, at some point in time the whole lid blows off.

And, under all this crap is how the money flowed from Niger into at least french pockets; on the illegal sales of yellow cake. Niger's got nothing else to sell.

And, when you're looking for hooks, what better bait than to know the public is staying tuned? And, once, Bob Woodward became a millionnaire on his story on how he took down President Nixon. (Foretting then to mention the #2 guy at the FBI.)

Lincoln said you just can't fool all of the People all of the time.

Fitz between the devil and the deep blue sea. He "must" indict Rove to make his scheme worth it. But this "impeachment" of Bush schtick is not really upping the donk's chances in November. Which comes before January 2007.

While the People watch.

And, I'm betting the French Connection is even bigger than the one with drugs. Remember the movie?


Your analysis and comments on this thread are excellent. I too find it very troubling that Fitz continues to fight to withhold information from Libby and his lawyers. Is this tactic permissible in our system or will the Judge call Fitz on it? I remain concerned about the fairness principle here and I didn't like the crack about a potential D.C. jury-I think Fitz would try to poison their minds against Libby with his fairytale version of what went down. Lastly: I agree with Cecil- I'm more nervous about the possibility of a fair trial if Fitz is known for using largely circumstantial evidence to win the day. Why isn't Woodward info relevant to Fitz?


cboldt writes:

"Judge Walton's phrasing and thought process is difficult to follow - I'm finding the transcript to be tough slogging."

Making a record impenetrable to appeal. Walton wants all Wilson statements out, and I think he was a little surprised Fitz wanted to introduce the July 6 NYTimes article. Walton would have given him a trial without any context, though early in the case he wanted all context, as did Fitz. Why change? Because they're MSM-driven assumptions about the Wilson and the War were eventually overthrown. I bet the judge early in the case thought to himself, "why on earth does the defense want the honorable Wilson on the stand and talk about the lies about WMDs?"

Libby's case will be tried in the media. Everyday during trial his lawyer will make a new presentation to the tv media outside complaining why he can't talk about Wilson's lies about the forgeries, why the judge won't let UGO into the open. Then Armitage is put on the stand and asked if he spoke to Novak. Fitzgerald will jump up objecting, the judge will sanction the defense because the judge will have several times instructed the defense not to ask that pertinent question. Even the New York Times will have to comment on it deeply burying the lede!

...Well, if I were a TV drama writer it would work out that way!


Nor did Fitz consider how broad that universe became when Wilson started calling Senators in late spring to tell them about his Mission. Indeed, he seems to have been a central figure in the May 2, 2003 Senate Democratic Policy Committee now scrubbed from its website.

Yes, but Wilson called a good buddy at State first! A good buddy who may have ordered up an memo, a *memo* he didn't share but did warn certain people important details about CIA employment status that he divined(?) because those details were not in the INR memo?


I just caution to remember the context of this discussion is discovery . Among other things it is like the game "Battleship" where the parties are jockeying to find out what they can of the other's case. At this point we know even Fitz doesn't believe Wilson; He has no strong evidence re motivation of Libby to lie though he will keep trying to get such a claim before the jury (though I doubt ultimately he'll get away with that); and a key witness for the prosecution, Grossman, seems to someone who will easily be impeached.(a) he's a long time friend of Wilson (b) he was less than open in telling Libby what he knew (c) he lied when he told the press there had been a deliberate concerted attempt to out Plame in revenge and (d) his boss was the leaker and he had every motive to protect him.

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