Dear Office Of Professional Responsibility

Clarice Feldman follows up her Weekly Standard article about the Plame case by sending a letter to the Department of Justice's Office of Professional Responsibility questioning the conduct of Special Counsel Patrick Fitzgerald.

Ms. Feldman raises an interesting question with a fun backstory - was Ms. Plame actually covered by the Intelligence Identities Protection Act, and did Mr. Fitzgerald misrepresent her status under the IIPA to the court in his affidavit of Aug 27 2004?

First, Ms. Feldman:

At no time in the unredacted portions of the affidavit did Fitzgerald directly say that Plame met the test of the IIPA - which she clearly does not -but in various ways he deliberately left the Court with that impression in order to effect the rare contempt order and jailing of a reporter.

And for the backstory, let's cut to Jack Shafer, who pounded on the NY Times and their lead attorney. Floyd Abrams, for basing their argument on the First Amendment while attempting to have the subpoena against Time reporter Judy Miller quashed:

Maybe a First Amendment legend isn't what this case called for in the first place. Maybe Cooper and Miller would have been better served by having a criminal lawyer who knows how to bargain.

With New York Times Publisher Arthur Sulzberger Jr. promising to appeal this decision, perhaps both Cooper and Miller might want to rethink the utility of hanging their whole case on this First Amendment defense. If I were running their defense committee, I'd give the case to Bruce W. Sanford.

...

What could Sanford do for Cooper and Miller that Abrams can't? For one thing, he could tack away from the First Amendment argument. Even though I'm a First Amendment extremist, I found Abrams' oral argument before the D.C. Circuit to be wishful and flabby. I don't know of any court, let alone the Supreme Court, that is likely to hold that reporters possess a near automatic right to ignore grand jury subpoenas.

If I'm right, a fresh law jockey might be the ticket. In their op-ed, Sanford and Toensing called upon the special prosecutor Fitzgerald and the two reporters to ask Judge Thomas Hogan, who oversees the grand jury, "to conduct a hearing to require the CIA to identify all affirmative measures it was taking to shield Plame's identity." They conclude their piece, "Before we even think about sending reporters to prison for doing their jobs, the court should determine that all the elements of a crime are present."

Eventually a consortium of newspapers did hire Bruce Sanford to file an amicus brief making the "no crime" argument, without any apparent success.  But since I had been arguing that the courts would let this proceed for other reasons, I would hardly say that Mr. Sanford's apparent failure demonstrates that the IIPA does in fact cover Ms. Plame.

 

Comments

[cathyf]

JMH -- excellent points. I think that your letter to the OPR should focus around that.

[Sara (Squiggler)]

Cool Clarice. You're on a roll, girl!

[lurker]

"The Judge said that was contrary to Congressional meaning where the CIPA was not designed to preclude the defendant from moutning a defense .In other words, the Fed Rules of Evidence do not permit the govt to limit the defendant's right to defend himself."

Heh, and knowing the left so well, we *know* that the left will use this as an argument to defend the Gitmo detanees to have access to classified information to defend themselves!

GGGRRR!!!!

[clarice]

Exactly, JMH--isn't this circular? Wilson and pals leak stuff to the press and then Fitz puts them in to make his case. Emma peel tied to the railroad tracks by lying warmongers.

[sad]

It's possible that Fitz might use this to get out of this mess while allowing the left to claim greymail, but we won't let him do that, will we?

I have faith in our media to turn as soon as there is a hint of blood in the water and feel no shame in destroying that which they created. Your article is going to turn the tide. The pressure will continue to mount.

[verner]

After Corn tore away all of Valerie's seven veils, of course Judge Walton is going to let it in. It would be mighty silly if he didn't.

And now, maybe we'll get to see that damned referral letter.

YES!!!!!

Though, my prediction--case dismissed.

[Sara (Squiggler)]

Does this mean the defense will finally get the referral?

[totopsecretk9]

--Does this mean the defense will finally get the referral?--

My hunch? Fitz has tried to deep six that for some reason and strongly, I bet he takes the greymail option to avoid even more embarrassment.

[sad]

Wasn't the issue with the referral in relation to classified info? Clarice says the judge has given Fitz a way around that excuse. Perhaps I am remembering wrong.

[JM Hanes]

PatrickRS

Meant to say that I thought your introductory paragraph is also an excellent template for others who might choose to weigh in.

[JM Hanes]

Sara:

"Does this mean the defense will finally get the referral?"

I had the impression the Judge Walton's decision on the referral did not rely solely on the fact that is was a classified document. IIRC, he implied that its revelation had actual national security implications. Kedian also asserted that it qualifies as a privileged client/lawyer communication which, as I learned on a previous thread, is not really the stretch that I had assumed it to be.

[verner]

Judge Walton has given Fitzgerald a birthday presant--and he'd better take it, and bow out gracefully.

His whole strategy was pre-Woodward.

Now his case is junk. Grossman and Grenier's testimonies are compromised, as are Miller's and Coopers.

And, if it does go forward, we'll get to see first hand how he manipulated classified info to make his case look better than it was.

I hope Judy Miller gets a lawyer and goes after them.

[Bob]

verner... it's more like a Fitzmas present!

[Sara (Squiggler)]

JMH - I remember that discussion about it being some kind of attorney/client thingy, but doesn't a defendant have a right to know what the accusation against him actually is. I could see keeping it from the public, but from the defendant. Seems like competing Constitutional issues.

[sad]

TM has a link to the ruling on a new thread.

[Enlightened]

Well, I took Specters copy/paste and unfortunately I could only send it to:

Dianne Feinstein
Barbara Boxer
Ellen Tauscher

Dear me. I just subjected myself to their propaganda machine...I can't wait for my first e-mail.

[maryrose]

Fitz has no excuse now not to drop the case. It's interesting the timing of all these new disclosures and rulings. It's almost as if everyone reporters included are paving the way for Fitz to call it quits. Perhaps justice for Libby is at hand. Thank you to all posters sending letters and to Clarice for getting the ball rolling.

[clarice]

Sara, the privilege is between the DoJ and its client, the CIA.
The accusation against Libby is the indictment.

Because of the special nature of this case and its genesis, one might reasonably argue that if the referral was based on false information, and it seems to have been, Libby should have a right to see and challenge some of it, but that's the way it goes. Perhaps if more evidence shows up that this was cooked up the Judge may change his mind.

[Sara (Squiggler)]

Enlightened -- I've written to Feinstein 3 times since she has been in office and each instance got back the identical form letter even though the subject of my inquiries were very different in all three. In the 3rd response from her, it wasn't even personally addressed, just said, Dear Fellow Californian. I gave up on her after that. Boxer I consider a lost cause and avoid like the plague.

[verner]

Part of me really wants to see this case proceed, just because of the good stuff the defense will bring out. Just imagine, if we have found out so much from the public record, what Wells must know. I would imagine all kinds of people have been whispering into his ear.

Still, for Libby's sake, I hope it goes away. That way, poor flat tire can publish her nutty conspiracy filled book, and sell it to all of her crazy blogfriends--and Joe can continue as an icon of the left--swindling to ever dwindling audiences. Unfortunately, Valerie won't be able to afford much more than an armani scarf, and I doubt there will be very many invites to all the good parties.

[sad]

Unfortunately, Valerie won't be able to afford much more than an armani scarf, and I doubt there will be very many invites to all the good parties.

I'm sure she won't mind since her privacy and anonimity mean so much to her and her family.

[verner]

Actually sad, I predict a very tasteful Playboy spread--you know, with soft lighting,satin sheets and not showing too much--along with an interview stating how being in Playboy has restored her self condfidence after all the trauma she has endured.

[clarice]

In about 30 minutes I'm going to be interviewed by WMAL in D.C. for the Sunday show Danger Zone which airs on Sunday evening. It's hard in a radio interview to convey the details of the case, Patrick, I think you have offered a simply told example which I will try to use , crediting it to you, of course.

[sad]

Best wishes to you.

[azredneck]

Clarice: My letters just sent to Kyl and McCain.
I was telling myself that there was no way I could bring myself to write McCain when it occurred to me that it was a perfect opportunity to take a big swipe at his new friend, Powell, which I proceeded to do.
I feel better all over! LOL!

[verner]

Great Clarice!

And they have a listen live link, so all of your fans can tune in this weekend!

[clarice]

Well, the call is late and I can't reach the booker except by phone message1 I hate this stuff.

[clarice]

Okay--they're just running late.

[cathyf]

Fitz has no excuse now not to drop the case. It's interesting the timing of all these new disclosures and rulings. It's almost as if everyone reporters included are paving the way for Fitz to call it quits. Perhaps justice for Libby is at hand. Thank you to all posters sending letters and to Clarice for getting the ball rolling.

But you read Clarice's letter, and PatrickRS's letter, and other letters, and you know, Fitzgerald could drop the case against Libby but still not have it go away. That's what's always made me mad -- the idea that he could throw a woman in jail for 85 days, play the Supreme Court for fools, commit the canonical example of corrupting grand jury secrecy, cause Rove to spend $5 million and Libby to spend $7 million and still rising, and then all he has to do is an Emily-Litella "Never Mind" and drop the charges and everyone will forget.

No, if OPR really starts an investigation, it won't be stopped by Fitzgerald dropping the charges. Of course I don't have great confidence that they will really conduct an investigation, but it's nice to know that if they do it will not be in Fitzgerald's power to stop it or cover up.

[clarice]

All right. It's over and once again. It was far too short to get much in except a plug fir the WS, AT and this place (and Patrick Sullivan) and a demand that the SDPC release the minutes of its May 2, 2003 meeting on the Eastern Shore.

[clarice]

Heading out for my swim. Later.(Patrick I only got into about 2 minutes of your thesis, sorry. I talked as fast as I could.)

[sad]

It was far too short

Its more than before. Way to go.

[Sara (Squiggler)]

Clarice -- Someone at DOJ is interested. From a heads up from Specter who noticed an inbound DOJ link from my site, the following:

Domain Name usdoj.gov ? (United States Government)
IP Address 149.101.1.# (US Dept of Justice)
ISP US Dept of Justice
Location
Continent : North America
Country : United States (Facts)
State : Maryland
City : Potomac
Lat/Long : 39.023, -77.1993 (Map)
Language English (United States)
en-us
Operating System Microsoft WinXP
Browser Internet Explorer 6.0
Mozilla/4.0 (compatible; MSIE 6.0; Windows NT 5.1; SV1; DI60SP1001)
Javascript version 1.3
Monitor
Resolution : 1024 x 768
Color Depth : 16 bits
Time of Visit Sep 21 2006 11:14:01 am
Last Page View Sep 21 2006 11:28:05 am
Visit Length 14 minutes 4 seconds
Page Views 2
Referring URL http://www.google.co...essional&btnG=Search
Search Engine google.com
Search Words clarice feldman unprofessional
Visit Entry Page http://www.squiggler.com/
Visit Exit Page http://www.squiggler.com/
Out Click RE: Clarice Feldman019s letter of September 19th on Patrick Fitzgerald
http://www.typepad.c...mode=red&id=22724581
Time Zone UTC-6:00
Visitor's Time Sep 21 2006 1:14:01 pm
Visit Number 69,038

________________________

Note that they stayed for 14 minutes. I have both your letter, Patrick's letter and a link to Specter's site for his letter. So DoJ can't say they don't know.

BTW, they are inbound on a search of your name, so interesting!!!!!

[clarice]

I don't know what DoJ office is in Md, but it is interesting.

[Sara (Squiggler)]

Potomac, Maryland to be exact.

[Sara (Squiggler)]

They arrived at my site at 1:14 and stayed 14.4 minutes, but they didn't get to Specter until 2:17.

Maybe someone working at home. Or a sat. office in the burbs. But whoever spent over an hour's time on it, at the very least.

[Sara (Squiggler)]

I think the times can be confusing since the arrival time of 1:14 is PST. But the 11:14 is what? If it were EST it should say 4:14, I would think. Hard to say though since I posted at 10:57 PST.

[cathyf]

*grin* Hey, Sara -- big brother's little sister is watching, eh?

[Sara (Squiggler)]

cathf - given some of the things I write about or highlight sometimes on Squiggler, I expect I've been looked at before. I'm sure somebody's computer is busy doing keyword searches and anyone who covers politics probably has some of the "flag" words on their site.

[clarice]

Cstch this headline:

Fitzgerald given way out of Libby CIA leak case
MSNBC, by Joel Seidman WASHINGTON - The judge in the CIA leak case ruled Thursday that if Special Counsel Patrick Fitzgerald feels that admitting certain classified documents at the upcoming trial of I Lewis "Scooter" Libby can jeopardize national security, Fitzgerald can then move to dismiss the perjury charges against Libby.

[Sara (Squiggler)]

So if all the perjury charges are dismissed, what's left? Obstruction? How's he going to prove that at this stage?

[lurker]

Now that the talk is focused on whether this gives Fitz a way out, I wonder if Fitz or DOJ talked to Walton?

[clarice]

Sara, I think that's just sloppy reporting and means the whole case. Lurker, I'm sure it's just the reporter's slant on the ruling.

[cathyf]

Now that the talk is focused on whether this gives Fitz a way out, I wonder if Fitz or DOJ talked to Walton?

Nah, I think the newsies latched on to it as their way out. Given that the case started as journalists fantasizing a crime into a special prosecutor, it seems bizarrely appropriate that it end the same way.

[Enlightened]

Hmmm. Not fair. I want Jason Leopold's take before I decide. AntiFitzmas just doesn't smell right without Jason there to (mis)inform the masses.

BTW - Where is he these days???? Seems like he's slipped down several rungs - bottom feeding again?

[sad]

Where is Waas?

[clarice]

Where is David Shuster?

Honestly..how long did Fitz think he could keep the fact that he knew of Armitage's disclosure bottled up? What was he thinking?

[cathyf]

Honestly..how long did Fitz think he could keep the fact that he knew of Armitage's disclosure bottled up? What was he thinking?

On the day of the indictment, the only Armitage disclosure that Fitzgerald knew about was to Novak in July, after Fitzgerald was convinced Libby had already spilled the beans.

Of course the same logic applies... If Armitage spilled the beans on June 13, and Valerie in her breakfast meeting on May 3rd, then that explains how Libby's statements to the FBI could be the truth.

[clarice]

cathy f, I don't think so. I think Armitage told Pincus before June 12 and Fitz knew that, too. Pincus never said publicly who his source was but he describes him very much as Novak described his source. And as Patrick Sullivan pointed out upthread, he took issue in his June 12 article with Kristof's claim that the v-p sent him.

PLUS, Woodward was not silent in the pressroom. Bradley knew--When? Woodward says he told Pincus on June 13 but Pincus says he never heard him.
How did Pincus know on June 12 Cheney did not send Wilson.

[clarice]

"Pincus gave a deposition Sept. 16 with an unnamed source’s permission, but refused to name the source who had already identified him or herself." http://www.rcfp.org/shields_and_subpoenas.html#plame

[Chants]

"Honestly..how long did Fitz think he could keep the fact that he knew of Armitage's disclosure bottled up? What was he thinking?"

It worked for 10 months. He bet on press collusion. It worked for much of the duration of his investigation.

Why would he think his allies would go wobbly on him? 10 years ago, it would have worked.

[clarice]

Woodward was the hero, I think. Don't you suppose if Armitage held out any longer, Woodward would have gone in hinself? I do. It's one thing to honor a confidentiality pledge and quite another to aid in the REAL obstruction of justice.

[cathyf]

The essence of what Libby told the FBI is that the information about Plame was being passed around the press and the reason that he knew this is that journalists told him. The essence of all of Fitzgerald's charges is that this is a lie, that there was no information trail except for the one that Libby was at the head of.

Clarice, you've been saying for a year now, "Fitzgerald, diagram your case." Is this what you mean? Maybe it's because I'm a math major and I look at his chain of logic and what I see as it's most prominent feature is the gigantic hole in the middle of it. I just can't believe that Fitzgerald can't see it. The only thing that I can think of is that he constructed his investigation such that the only Plame chatter he collected evidence of that happened before July 3rd was among government officials, and he just ignored the possibility that the horse was out of the barn long before June 23rd. I'm simply flabbergasted by the idea that he could know that there were reporters who knew weeks earlier and not think, "It's logically impossible to prove that Libby lied."

Didn't this guy go to college? Take a logic class? Argue religion? Argue with atheists? Clarice, you said a couple of days ago that JOM was like a bunch of scholars arguing the Talmud. It's an apt description. I can't believe that the Jesuit-educated Fitzgerald (Regis High School, NYC, one of the best schools in the US, maybe even THE best) can't figure out that it is is logically impossible to prove that Libby lied to the FBI when the facts say that Plame gossip was "in play" well before June 23rd. Impossible like either proving or disproving the existence of God is logically impossible. How could he have possibly gotten himself (and Libby!) into this situation if he really knew that Libby was not The First and that The First was well before June 23rd?

[clarice]

That's exactly what I've been saying cathyf. And it was a trap.
Let me explain. Reporters will not volunteer to Libby's counsel other sources who have not released them to talk to Libby. By deliberately not interviewing all those reporters for whom others--notably Wilson and Plame--were their sources, it is almost impossible for Libby to establish that a virtual stadium full of reporters, editors, friends, colleagues, political allies knew before June 23.

Look at Miller:She only had to testify about Libby. We will never know who the others were. When he breached the agreement and aske dher anyway, I think he was banking on her being flustered and saying she didn't recall who. As far as we know he did nothing to try to refresh her recollection or ask specifics about those notes. Where and how is Libby supposed to get that information?
Let's suppose for the sae of argument that Armitage was one of those sources. Or Powell. If they never disclosed those conversations or gave her a waiver. It will forever remain a dark secret, hard to get on cross examination. And impossible to get informally.
AND THEN, Armitage as "innocent accused" was not to be mentioned in court. How to call him to the stand and get from him all the reporters he may have told and when?
Or Mitchell. If she heard from him and Powell and has no waiver and they never told.
Well, you have the picture.

[Chants]

He is the real hero, Woodward is. It is good to isolate praise for him, Clarice.

He was faced with two options, the easy one was to be quiet. The hard one was to confront his source, a very powerful man, to say, "this cannot stand".

Was it his private conscience or his public duty which compelled his coming forth? I do not know the man, so I can't answer that question.

I would like to think that he came forward because an innocent man was going down. But he could have come forward because he feared, or was concerned about, being part of further obstruction of justice. The former is far more heroic.

It does not seem to me that Fitz counted on any heroes but himself.

[clarice]

I' glad you agree, Chants.I value your opinion. I think that the fact that he tried twice before to get a waiver shows he was acting out of moral conviction. And if you don't know how rare that is in this town you are living a blessed existence.

[cathyf]

Can Libby's lawyers file a motion at this time, saying that with the facts that Fitzgerald has, given the most favorable interpretation to the prosecution which is logically possible, that it is logically impossible to prove beyond a reasonable doubt that the things that Libby said to the FBI and grand jury are materially false? And ask for a dismissal on those grounds?

[clarice]

My gut tells me they will wait until they have all the discovery issues resolved before filinf anothe motion to dismiss and that when it comes it will be written on asbestos.

[totopsecretk9]

If they never disclosed those conversations or gave her a waiver.<

To my reading, Armitgae did not issue ANY waivers, to Novak even or at all...why? Was he precluded from the Presidents request?

When Fitz interviewed Novak and Pincus it was just a wink, I know who your source is and I know he has given you no waiver (so therby the questioning is already narrowed)

Also, if when Armitage went to DOJ, and then ultimately to Fitz. why was there no discussion to whether Armitage would/should issue a blanket waiver too?

[clarice]

Really? I don't recall that. I assumed Novak and Pincus did not testify without a waiver. I know Woodward didn't. And my recollection is that whenever anyone in the Administration indicated a meeting with a reporter which which he'd had a conversation about the Niger trip, upon request of the SP, he was to issue a waiver.
In Woodward's case he recalled the conversation and asked for the waiver which leads me to suggest Armitage had not disclosed it to the SP.

I don't doubt your recollection, ts. I'm just expressing my own.

[totopsecretk9]

Clarice

IIRC, the only reason Pincus worked out a deal was that his source outed himself to Fitz, but there was no "waiver" and so the questions were a wink -- the reporter never had to acknowledge by name the source - which is no waiver...

...same with Novak.

[JM Hanes]

I believe Novak said that when he was interviewed they already knew about Armitage (can't remember his specific words, but assume he knew that Armitage himself had spoken to the investigation about their conversation), which would mean that Novak was therefore free to discuss it -- especially given the fact that there never actually was any explicit confidentiality agreement between them, only Novak's so-called "tacit" assumptions.

[totopsecretk9]

... National editor, The Washingtonian

How Washington Post’s Legal Strategy Avoided a Judy Miller/New York Times Disaster

Among the outstanding questions in the Plamegate investigation:

Did Robert Novak cooperate with the prosecutors or the grand jury?

What is the meaning of “entanglement” as it relates to former New York Times reporter Judy Miller’s relationship with Lewis “Scooter” Libby?

How did the Washington Post avoid the legal problems that cost Miller her job and the Times some of its credibility?

The first two questions are up for speculation, but the Washington Post’s legal strategy is becoming clearer. Few at the Post are speaking on the record, but based on the two-source rule, here are some essential pieces.

From the outset, the Post took the position that special prosecutor Patrick Fitzgerald’s inquiries should be treated as a criminal matter rather than simply a First Amendment issue. The paper’s approach was to deal with Fitzgerald on the nuts-and-bolts level of a criminal case, where lawyers tussle over depositions, rather than send reporters before a grand jury where there are fewer rules and limits.

“Our core principle was not to break promises to our sources and try to reach agreements with the special prosecutor,” says Post general counsel Mary Ann Werner.

At least two Post reporters—Walter Pincus and Glenn Kessler...

...Both Pincus and Kessler had phone conversations during which a crime could have been committed. Both received subpoenas from the special prosecutor....

...On the First Amendment side, the Post realized that it would be fighting an uphill battle to argue a reporter’s privilege to protect sources in this case. Wanting to avoid taking a stand on privilege, the Post entered prolonged negotiations with Fitzgerald on limits to questions Pincus and Kessler would answer in depositions.

The Post figured that Fitzgerald already knew which sources had spoken to its reporters. Fitzgerald had already questioned those sources and knew their versions of the conversations. Fitzgerald needed the Post reporters to confirm certain aspects of those conversations.

Negotiations between Fitzgerald and the Post resulted in a three-page agreement that listed questions the prosecutor could not ask. In short, the agreement walled off questions about the actual conversations and allowed the reporters to keep their notes—and their promises to not reveal their sources. By September 2004, the Post had reached an agreement with the special prosecutor, and its reporters had complied with Fitzgerald’s requests without revealing sources or violating confidentiality.

In his indictment of Libby, Fitzgerald never mentioned Kessler. A conversation Pincus had with a source was mentioned in the narrative.

Otherwise, thanks to its lawyers, the Post has been a spectator rather than a player in the Plamegate affair.

http://www.washingtonian.com/buzz/2005/1111.html

[totopsecretk9]

Negotiations between Fitzgerald and the Post resulted in a three-page agreement that listed questions the prosecutor could not ask. In short, the agreement walled off questions about the actual conversations and allowed the reporters to keep their notes—and their promises to not reveal their sources. By September 2004, the Post had reached an agreement with the special prosecutor, and its reporters had complied with Fitzgerald’s requests without revealing sources or violating confidentiality.

If they had a "waiver" this would not happen.

[clarice]

Amazing. Still, Armitage must have somehow confirmed to them --perhaps by phone--it was okay to do so. That would have left the discoverable matter virtually zilch:

Reporter says Mr X told him on June 10, 2003 but it was passing and inadvertent.
How outrageous! That would leave the defense in the following position:It cannot get the name of the source or explore who else that person told AND , of course, since that would limit the defense ability to establish how many reporters knew by the critical date, to refresh his recollection whether he had talked to any of those reporters in that period.

[clarice]

Thanks, ts, I had forgotten that completely.

[totopsecretk9]

--Amazing. Still, Armitage must have somehow confirmed to them --perhaps by phone--it was okay to do so.--

IIRC, Not according to Novak.

[totopsecretk9]

And Clarice

The Post ffigured that Fitzgerald already knew which sources had spoken to its reporters.

[totopsecretk9]

fffffigured...sorry. I look up what Novak said.

[Chants]

Floyd Abrams is an excellent attorney.

He was the wrong attorney for the case.

If and when this investigation resulted in a criminal charge, all that priv goes out the window when balanced against the need to defend against the deprivation of liberty.

You have converted me, Clarice.

Fitz should have seen this. But man, his three part test was a good game.

[clarice]

Thanks again. You are a living treasure.

[Syl]

Cathyf

I think the newsies latched on to it as their way out. Given that the case started as journalists fantasizing a crime into a special prosecutor, it seems bizarrely appropriate that it end the same way.

And the newsies are now answering Fitz' ongoing oversight question, "How'm I doin'?", in the negative.

Live by the newsies, die by the newsies.

[JM Hanes]

Clarice:

"That would leave the defense in the following position...."

Yet another example of the kind of thing I was discribing in re the newspaper articles earlier. It seems that wherever reporters are concerned, Fitzgerald managed to stack the deck.

[totopsecretk9]

I stand corrected on Novak...he had signed waivers, BUT it appears that Armitage signed waivers to the source(s) he fessed to, NOT blanket...and to my reading no Waiver to the Post. (Unless they just don't ever say)

And so NOT blanket, protected him, which is antithesis to Rove's situation

[totopsecretk9]

-And so NOT blanket, protected him, which is antithesis to Rove's situation--

And so, I think my point still stands...for had Armitgage issued a blanket waiver in like of the WH, Woodward would not have been constricted or having to badger a source...come to think of it...could this be a source of his drumbeat troubles? Well, no I guess, cuz Fitz told him to zip it, ignored the 3 party witness tampering call and ...doesn't this look more and more like entrapment?

[totopsecretk9]

BTW...JMH

I saw a report, I think the MSNBC that had boosted the tab to 1.5mil. don't know if that is an indication of some new budget report of a guesstimate by the journo.

My gawd, does the man buy his office supplies at Wal-Mart? ::sue grin::

[clarice]

It looks like a conspiracy to obstruct to me. Don't ask, don't tell..

[quote]You have converted me, Clarice.

Fitz should have seen this. But man, his three part test was a good game.[/quote]
Used it on Tatel. Why not try again.Remember,weigh the seriousness of the (alleged) crime against any privilege..

[totopsecretk9]

--It looks like a conspiracy to obstruct to me.--

It absolutely does, and I just have to think it was someone (ahem Grossman ahem) that led him/FBI on this (ahem Grosman ahem) wild goose chase with such confidence.

BTW, is there is any indication why Grossman would not be apprised of the happenings of State and DOJ those early days?

Also, my guess is Fitz never did find out the source of 1x2x6 (gave up on it like NewDay people)...THAT's why I think that truth-out filing was so intrinsically educational - to Fitz

[clarice]

Niters.

[totopsecretk9]

Clarice

Now that I think about it...Pincus, Kessler, Novak and Russert all testified in a kabuki sort of way, add Cooper to the list for Libby.

Cooper.

Waged a drama queen battle to protect a "source" that had provided the same "blanket" waiver another source, Libby - that he already testified to (so was familiar that waivers were "B L A N K E T ") provided - then called it waiver "confusion" never assured by it, or in liberal bastions "brave"

But, what up?

Now that we know Armitage was the early blabber, it seems to me, that Fitz almost encouraged Coopers drama (because didn't Rove actually testify about Coop >before Coop?) and/or Cooper waged his heroic battle to protect his notes and another source.

I guess what I am trying to say is, looking back --something doesn't make sense about the Cooper spectacle...maybe Time was not all that forthcoming (Cooper wasn't !) with what was happening and took a cheap shot at Rove, but Cooper was trying to protect other sources too (and finally struck a deal with firz like Judy) or Mat Cooper was not being honest and well, where has he been...

[totopsecretk9]

DIShonest, I meant

Cooper behavior, in hindsight, look to have been Clintonian consulted (wife) spin - abetted by Fitz? not sure.

[MayBee]

Look at Miller:She only had to testify about Libby. We will never know who the others were. When he breached the agreement and aske dher anyway, I think he was banking on her being flustered and saying she didn't recall who.

But wait!
He asked her in front of the Grand Jury and she said of course she didn't recall. Would the Grand Jury have known about her deal with Fitzgerald, that he had already told her she didn't have to talk about it?

If the GJ *didn't* know the terms of her testimony, I think he threw this question in to make it appear to them that he was being thorough. He asked, she answered, she didn't remember-- in the Grand Jury's eyes.
What the Grand Jurors wouldn't have known is that he had told her she didn't have to remember and *in fact* was protected from having to answer.

I think he asked that to fool the grand jury.

[cathyf]

TSK9 -- I agree with you about Cooper. But I go further. Everybody else says that the whole Viveca Novak drama was about Novak gossiping with Luskin and giving him enough clues that Luskin could tell the IT nerds how to narrow the search parameters to find the Rove-Hadley email. I've maintained that it was about information that went in the other direction -- Luskin told Novak who told Cooper that Rove had no memory of the conversation and so, after a 1 year delay, Cooper could walk into the grand jury room and tell a story that would frame Rove and nobody would be able to dispute him.

Remember how Cooper got into this situation: Libby told the FBI that Libby told Cooper about Plame. (Thereby demonstrating that Libby's Plame memories are not reliable beyond a certain level of specificity, but I digress.) Cooper came in, and what Fitzgerald wanted is for him to say was, "yep, he told me." But instead he said, "No, no, I told him, I already knew." When Fitzgerald asked "how did you know?" Cooper said, "you'll have to get a separate subpeona for that." And getting him to honor that second subpeona took another year (and a threat of jail.)

Cooper knew from experience that there was one way to get out of Fitzgerald's gunsights: tell him that someone in the white house was your source. Which is what he did when he gave up Rove. It is the totally uncorroborated word of a single person with significant motive to lie, but heck, it might be true.

[Sue]

Really? I don't recall that. I assumed Novak and Pincus did not testify without a waiver.

I thought Armitage gave Novak a waiver to discuss with Fitzgerald only (not the public) their conversation. That was how I remember it.

[Sue]

In short, the agreement walled off questions about the actual conversations and allowed the reporters to keep their notes—and their promises to not reveal their sources.

Well okay then. I bow to the memory of a younger and brighter person. ::grin::

[Sue]

I stand corrected on Novak...he had signed waivers,

Nevermind my 6:23 AM post. ::grin::

[MayBee]

cathyf-
Good thinking. After Libby was indicted, Cooper made the talk-show rounds telling anyone who would listen that Rove was the bad guy, not Libby.

[clarice]

Maybee and cathy, I am in substantial agreement.I think that asking Miller that in the full context of her situation (unless there was far more follow up than we know of) suggests he was certain to get an "I don't recall" response, a response that diminished the significance of (in fact, buried) the fact that she had other earlier sources than Libby.

Sue, that is how I recall the Novak agreement--he had permission to tell the SP but not the public.

[totopsecretk9]

--TSK9 -- I agree with you about Cooper. But I go further.--

And Fitz knows Cooper had other sources.

[cathyf]

Oh, and another thing, TS -- either you've developed a nasty stutter, or leaked that your K9 moniker is "Toto". ("We're not in Kansas any more!" "Woof!")

[totopsecretk9]

CacacacathyF

--Luskin told Novak who told Cooper that Rove had no memory of the conversation and so, after a 1 year delay, Cooper could walk into the grand jury room and tell a story that would frame Rove and nobody would be able to dispute him.--

I'm not following, the "public report" is different than what really went on?

[boris]

heavens forfend!

[cathyf]

I'm not following, the "public report" is different than what really went on?

Well, I'm just using the logic here. Suppose Viveca said to Luskin, "Everybody knows that Cooper's source for Plame is Rove. He says he called him and Rove spilled the beans." Ok, so far, that's the conventional wisdom. I'm speculating about what happened next, which is that the normally poker-faced Luskin was totally surprised by this and blurted out, "He is?!?!? Karl certainly doesn't remember any such thing happening!!!"

I'm simply trying to emphasize that Cooper's grand jury testimony about Rove is the uncorroborated testimony of a single witness with motive to lie who may have entered the grand jury room knowing that there was no one on earth who could contradict any lie that he told. Far from proof beyond a reasonable doubt that Cooper lied, instead I'm making that far weaker claim that it is logically impossible to prove beyond a reasonable doubt that he told the truth.

I'm not saying he lied, I'm not saying he told the truth. I'm saying that if you claim you know that he told the truth, then you are full of s***. (Unless you are Cooper. Well, ok, if you are Cooper you are full of s*** but for other reasons.)

[totopsecretk9]

AH...thank you...Cooper knew he was in the position of the perfect he said - she said.

Hmmm...makes Coopers "drafts" problems curiouser.

[clarice]

Yes, it does.
TS, I got your email. Thanks. Unable to respond because my mail is acting hincky--probably a sh**t load of spam coming it.

[cathyf]

Cooper knew he was in the position of the perfect he said - she said.

Nah, he was in way better shape than that. He said vs. nobody else on the planet is in any position to say otherwise.

[JM Hanes]

tops:

The $1.5 million probably includes the expenses from Oct.'05-March '06 which would have come out this month. I'll have to check the GAO site, because assuming that's the case, it would mean the SP's office added a whopping (in relative terms) $600K during that period, which would make it the most expensive 6 mos. so far!

In re the waivers:

Novak didn't actually need a waiver, since he and Armitage never had an official confidentiality agreement of any kind in the first place. While Novak chose not to identify that source publicly, he said that the investigators already knew about Armitage when they interviewed him, so he felt free to confirm it to them himself. Afterwards, I expect he was asked to keep his mouth shut in public just like everybody else. As I recall, just before the Armitage info hit the news, Novak said he'd been released (or informed he was not a target? can't remember the exact wording) by Fitzgerald himself. Novak followed that by saying he thought it was high time his source came forward which certainly must have upped the pressure on Armitage.

It was Woodward who got the conditional waiver from Armitage to speak to investigators but not the public.

[clarice]

Maybee:I think he asked that to fool the grand jury.
To fool the grand jury AND lock up the possibility of her later coming forth and remembering other sources.He can use that statement to try to discredit any later recollection .
For example, now that Armitage has come forth, if Libby asks her specifically about Armitage and she says she remembers he was one of those pre-June 23 sources, Fitz will remind the jury that earlier in time she said she had some but didn't recall them and that surely her memory had to be fresher then than it is now.

[AMac]

In the post, TM wrote:

Eventually a consortium of newspapers did hire Bruce Sanford to file an amicus brief making the "no crime" argument, without any apparent success.

That amicus brief was posted as a scanned PDF file, but was then removed after a couple of months. I don't know if the Wayback Machine (etc.) has archived it.

Here (Winds of Change 7/24/05) are some quotes from the brief, and reflections on the dishonesty of news organizations that signed on to it, while studiously ignoring its existence or its implications in their own coverage of the Plame case.

[fiesta Gold]

I think fiesta Gold changes my life.