Little Details The Memory Expert Forgot

Per the WaPo, Libby's memory expert had a long day in court during a pre-trial hearing about the possible admissibility of her testimony at trial:

Fitzgerald's target in the witness box was Elizabeth F. Loftus, a professor of criminology and psychology at the University of California at Irvine. For more than an hour of the pretrial hearing, Loftus calmly explained to Judge Reggie B. Walton her three decades of expertise in human memory and witness testimony. Loftus asserted that, after copious scientific research, she has found that many potential jurors do not understand the limits of memory and that Libby should be allowed to call an expert to make that clear to them.

But when Fitzgerald got his chance to cross-examine Loftus about her findings, he had her stuttering to explain her own writings and backpedaling from her earlier assertions. Citing several of her publications, footnotes and the work of her peers, Fitzgerald got Loftus to acknowledge that the methodology she had used at times in her long academic career was not that scientific, that her conclusions about memory were conflicting, and that she had exaggerated a figure and a statement from her survey of D.C. jurors that favored the defense.

...

When Fitzgerald found a line in one of her books that raised doubts about research she had cited on the stand as proof that Libby needs an expert to educate jurors, Loftus said, "I don't know how I let that line slip by."

"I'd need to see that again," Loftus said when Fitzgerald cited a line in her book that overstated her research by saying that "most jurors" consider memory to be equivalent to playing a videotape. Her research, however, found that to be true for traumatic events, and even then, only 46 percent of potential jurors thought memory could be similar to a videotape.

There were several moments when Loftus was completely caught off guard by Fitzgerald, creating some very awkward silences in the courtroom.

One of those moments came when Loftus insisted that she had never met Fitzgerald. He then reminded her that he had cross-examined her before, when she was an expert defense witness and he was a prosecutor in the U.S. attorney's office in New York.

Well, the goal of the defense is not to convince a jury that Ms. Loftus is entirely credible, or even that she has earned her expert fee.

Since the goal of the defense is eventually to persuade the jury that even well-prepared experts can have memory lapses, it sounds like she was aces high.

Now we have to hope that Fitzgerald does not indict her for perjury - was she under oath when she failed to acknowledge their previous meeting?

Comments

[Bob]

You would have thought that Fitz was smart enough not to let his own badgering prove the exact same point he's trying to accuse Libby of. It seems to me that all who are put under such stressful interrogation, can forget the "exact" details of events.

No wonder he never could deliver the goods on Fitzmas morning!

[kaz]

I'm thinking the irony meter got pegged and broken from the swings.

How could you better prove the need for a memory expert than by having her forget she ever met her questioner?

Does Rove have Fitz on some sort of secret double probation retainer? Or is it more of a Jedi mind trick type thing? :-)

[Sara (Squiggler)]

Well, I said this earlier, but I still like Sweetness & Light's suggestion than if Fitz starts talking about how people don't forget important things to ask him how he conveniently forgot that Libby WAS NOT the original leaker in this case.

[MayBee]

Well.
Suddenly Libby's baffled-gab makes sense.

[Patrick R. Sullivan]

So, it's not 'most' it's only 46%!

Well, no need for a memory expert in a case where the jury has to agree unanimously.

[danking70]

Just because she's a memory expert doesn't mean she has a good memory. LOL!

[Other Tom]

To paraphrase George S. Patton, "When you put your hand into that pile of goo that a moment before was your expert witness..."

[jerry]

Roll out the grey mail, roll out the grey mail today......

[Semanticleo]

Maguire;

You simultaneously imply praise to Fitz for his cross which disembowels the 'expert', and conclude the corrupt nature of Fitz, will be to indict her for perjury. It's your blog so I guess you can have it both ways, but don't you think you should address Libby's key defense as part of your commentary? How about Rove's memory? Does either man suffer from any less than 'perfect pitch' as to recall? I don't think so. But Libby has no other alternative, and endless cash to sow jury confusion.

[Martin]

The point is any defendant can go and say "I forgot."

Everyone forgets. No one needs an expert to testify memory is fallible. The relevant issue is is that forgetting credible?

With Libby...not so much.

P.S. When the opposing attorney is making a fool of your expert-it's generally not a good sign.

[Jane]

TM,

You know your writing is really a joy to wake up to. It's entries like this that just keep coming back at me and make me smile (I think for the precisely same reason they make semanticleo cringe).

[Specter]

Tic,

Please tell us, word-for-word every discussion you had with every person on January 12, 2006. Don't leave out a single word. And then we will check with all of the people to make sure you did not "lie" to us - because if one or two words are off that obviously is lying, right?

[Paul]

I've had the pleasure of meeting Loftus. She makes a compelling case but she is not invulnerable, not even particularly tough, on a personal level. She feels it when she is harshly criticized. The courageous thing about her is that she has continued her work in spite of the tremendous amount of opposition gathered against her.

So the most brilliant prosecutor Fitzgerald managed to score a point or two against a 60+ year old grandmother. Well, la-dee-da.

If Fitzgerald would submit to serious questions himself, instead of those offered at a press conference by fawning reporters whose main interest was why wasn't Rove indicted, then we'd see what he is made of.

I believe Fitzgerald is vain, a gullible bumpkin, and an unscrupulous coward.

[cathyf]

A classic Fitzgerald overreach. He appears to have this neurotic need to constantly prove that he is the smartest guy in the room. But somehow The Smartest Guy in America hasn't noticed that the very essence of his case is his claim that Libby is only pretending to be dumber than The Smartest Guy in America.

[ed]

Hmmmm.

I'd write a short comment mocking how ridiculous this whole trial is/has been but the reality is a far better parody.

[clarice]

Posting from airport on unfamiliar blackberry.Impossible to say much more than I am in total agreement with Jane.

[topsecretk9]

Didn't someone suggest this entire exercise was not so much to have the memory expert, but influence the jury instructions ultimately?

[Other Tom]

Cleo, you really think Maguire is serious about a perjury indictment? And who told you Libby has "endless cash?" (Bet he'd be delighted to learn about it.) If you've ver litigated against the US Government, you have some idea of what endless cash really means. The gov't lawyers stay in crummy hotel rooms and wear cheap suits and scuffed shoes, but they can put platoon after platoon of people on the case, and they can go on forever. And guess who pays.

[Seixon]

Memory expert doesn't remember something she should have. Brilliant! Well played!

Man, if I'm supposed to remember exactly what someone said to me, or something I said to them, months or years afterwards, it would have to be something pretty dramatic and important.

I have a much easier time remembering things I have read than things people have told me.

[cboldt]

The point of this expert is to have a professional opinion on the ultimate conclusion of the case. The opinion, and a conclusion that determines "false statements" and "perjury" is whether the person charged knew they were misleading the inquisitor.

Being a defense witness, her opinion must be that, if the witnesses are to be believed, it is possible, probable, likely, or highly likely that Libby forgot that he knew for a fact that Wilson's wife worked at the CIA, at the time he was questioned by the FBI. As an expert, she would be applying her expertise to the "facts" (testimony) of this case.

As a defense expert, she won't opine that it was unlikely for Libby to have forgotten. If that was her opinion, defense counsel would not name her as its expert.

Fitz is attempting to disqualify her as an expert, on various grounds. He memory isn't one of those grounds ;-). One ground is that her testimony is not required for the jury to judge Libby's credibility on memory. Another is that the expert's methodology isn't accepted science. Another attack seems to be her credibility - which illustrates why an answer "I am quite sure I have never met you" is inferior to the answer "I don't presently recall ever having met you." Anyway, if she's not credible (to the jury), it will impact the credibility of her ultimate conclusion.

[anonymous]

If they had just "waterboarded" all the witnesses that appeared before the grand jury we'd have the truth by now.

Isn't it about time that all law enforcement agencies in this country use "coercive techniques" in questioning suspects?

[boris]

"most jurors" consider memory to be equivalent to playing a videotape. Her research, however, found that to be true for traumatic events, and even then, only 46 percent ...

Wait a minute here !

Did not BJ Clinton win the "most votes" in 1992? But wasn't the percentage only 48%?

Does Fitz not know the difference between "most" and "majority"? Maybe 46% thought memory was like a video, 32% thought is was like a comic book and 22% thought it was like being on acid.

Wouldn't the "most jurors" statement be valid?

[Pal2Pal (Sara)]

Her memory has nothing to do with her testimony. It isn't her memory at issue, it is Libby's and whether someone as busy as he was 15 hours or more a day, could forget some uninteresting factoid or whether he could parrot back and exact conversation months later. Her memory does not have anything to do with her study or her research. She can present the results of that memory, she can refer to her notes as she does so and needing her notes does not invalidate her study. Now, if her methodology is junk science, that is a different story. But, is there anyone alive who can perform to the standard that Fitz seems to think Libby should perform to. He obviously doesn't apply the same standard to himself, or he wouldn't have "forgotten" that Libby wasn't the first leaker.

[Geek, Esq.]

Unfortunately for Libby, there was no jury in the room. The hearing was whether this memory expert was fit to testify.

[Geek, Esq.]

Did not BJ Clinton win the "most votes" in 1992? But wasn't the percentage only 48%?

Does Fitz not know the difference between "most" and "majority"? Maybe 46% thought memory was like a video, 32% thought is was like a comic book and 22% thought it was like being on acid.

"Most" can have (at least) two different meanings:

1) "the most" means as compared to all others. Bill Clinton got "the most" votes for President in 1992 and 1996. Bill Gates made "the most" money of any human being between 1980 and 2000.

2) "Most" can also mean "majority." "Most" Republican voters voted for George W. Bush in 2000.

[Don]

Libby's forgetting is like an embezzler saying he just "forgot" to put the money back in the company till.

Jesus Karma Vishnu-"I forgot" is a punch line from the old Steve Martin movie "The Jerk"

It wasn't even that funny the first time.

[topsecretk9]

I think defense was aiming at jury instructions and such, more so than actually getting the expert.

[clazy]

lovely, geek.

[cboldt]

In general, the jury doesn't require the assistance of a memory expert in order to appreciate and account for the fallibility of memory. I'm wondering though, how bringing an expert forward, but not having the expert's testimony admitted at trial, could possibly play into the crafting of jury instructions. To make sense to the jury, the various parts of the instructions have to introduced during the trial.

The expert takes the evidence of the case in combination with specialized knowledge to come up with an opinion - was it more likely than not that Libby forgot (at the time he gave testimony to the FBI) that he knew for a fact that Wilson's wife worked at the CIA? If you believe Libby, you believe he forgot. His credibility and his memory sort of merge - which is the case in all false statements and perjury cases.

[Sara (Squiggler)]

Don keeps trying to put a there there when there is no there there at all.

[Bob]

Well it's gotta suck to be Don, sara. The Dems are starting to get that sinking feeling, with less than 2 weeks to go. They misunderestimated Rove once again... he is omnipresent!

[Don]

It would suck worse to be Libby-he's going to jail.

[hit and run]

Bob:
They misunderestimated Rove once again... he is omnipresent!

Well, actually - I'm not so sure they misunderestimated him. In many cases, beyond omnipresence, they ascribe omnipotence to him. Electorally, that is.

There was a reason that there was so much irrational exuberance over the prospect of him being indicted on the Plame stuff.

They believe if they could just take him down, they would sweep the elections.

[Sara (Squiggler)]

Althouse in a post about Allan & Webb and the excerpts from Webb's book, makes this comment at the tailend of her comment:

Maybe there's a shred of information in there with all the salaciousness. And it does provide the occasion to remind us of other bad sex written by politicians, like that dreadful thing Scooter Libby wrote about bears.

This is before my Libby time, could someone tell me what "dreadful thing about bears" is she talking about? Just curious.

[Don]

It was about a bear trained to copulate with children and the little girl-prostitutes kept in the cage to harden them. Sometimes, per the author, the bear had to be jabbed with a stick to start the act.

Nice guy, Libby.

[Don]

From Lauren Collin's great review of Libby's magisterial "The Apprentice":

"Where his Republican predecessors can seem embarrassingly awkward—the written equivalent of trying to cop a feel while pinning on a corsage—Libby is unabashed:

'At age ten the madam put the child in a cage with a bear trained to couple with young girls so the girls would be frigid and not fall in love with their patrons. They fed her through the bars and aroused the bear with a stick when it seemed to lose interest.'

And, finally:

'He asked if they should fuck the deer.'

The answer, reader, is yes."

Libby better hope George Allen's not on his jury!

[cathyf]

...was it more likely than not that Libby forgot (at the time he gave testimony to the FBI) that he knew for a fact that Wilson's wife worked at the CIA? If you believe Libby, you believe he forgot...

Um, cboldt, is this just a typographical error? We were talking about the Scooter Libby who testified (the testimony starting in the fall of 2003) that, according to his notes, he was first told that Wilson's wife worked at the CIA in early June 2003, but he did not retain that information until the time that it was repeated to him by a journalist weeks later.

The assertion that Libby didn't recall in Oct 2003 that Wilson's wife worked for the CIA is just silly. Of course he didn't say that, and of course the indictment doesn't accuse him of saying that.

[Bob]

Boy Don, it sure seems to have made you hard! Libby isn't running for public office as is Webb, therefore I don't think anyone here really cares what Libby has done as a writer... at least I don't.

hit and run... no matter how much they think they do, it's never enough when it comes to Rove. He's always two steps ahead of them. But I agree they wanted him "frog marched" out across the WH lawn just to give them some hope... and all they got was Libby.

[Don]

What does it say about Libby as a person Bob?

Myself-I think it means nothing. Allen, however, seems to think you can indict a person's character based on excerpts from their fiction.

I suppose I have to spell out Republican idiocy for you to (possibly) see it, but still...

[Bob]

Uh donny boy, once again I think it's the Democrats who seem to have double standards here. I've never defended Libby's writings.

But let me do some spelling for you... My point is this simple. If Libby were running for office, I would neither support him nor condone his idea of creative writing. But as far as Webb goes, I do think it's important for the voters of VA to see what kind of pervert they could potentially elect. Therefore the outing of this information by Allen is very pertinent. If there are enough folks like you in VA, then like you said it shouldn't matter... right? Apparently you seem to be worried that this might hurt Webb... well so do I, and thus the reason why it must suck to be a liberal!

[Sara (Squiggler)]

I don't care what a fiction writer writes. If he makes a habit of writing things I find offensive, then I don't buy the books he writes. I have a favorite writer of fiction who is an outstanding writer and doesn't need gratuitous smut to sell his books. Yet, he succumbed on one novel and it made me mad because it was so obviously gratuitous. I took the time to write to him and tell him that he was a much better writer than that. It is like trying to read a nutroots site. Who can tell if they have anything important to say when their vocabulary is so limited to body parts, scatological references, and really foul language?

But back to Webb, I happen to agree with him that women shouldn't be in combat. Not because I don't think they can handle themselves, I think they can, and at least emotionally, probably better than men. But, women in a combat unit puts that whole unit at risk because if she gets hurt or captured, American men can't help themselves, they are going to want to rescue the damsel in distress putting everyone at risk. Also, from a reproduction point of view, we can kill off nearly all the men and still the species will survive. We can not kill of nearly all the women and have that be true. The survival of the species depends on more than one or two breeding females. So I agree with Webb about women in combat, but in listening to him, he just plain doesn't think women are capable and he doesn't have respect for women, and he isn't the kind of man I'd want to spend any time around. I don't think he is a nice man under the skin.

As to this current flap, his novels have been on the shelves for years. This isn't new and it is no big revelation on Allen's part. The double standard is at work here. Foley writes salacious material and is forced to resign and called every name in the book, Webb writes even more salacious material and the call is, "it's fiction." Well, Foley didn't act on his IMs, so they are technically fiction/role playing too.

[windansea]

It would suck worse to be Libby-he's going to jail.

gee...conviction and jail before the trial huh Don?

[Sara (Squiggler)]

And before you jump all over me about the breeding female remark, I would say FRANCE. France lost two generations of young men between WWI and WWII. They are still recovering from the loss. Could a nation surviive at all if they lost two successive female generations. Who would be around to have the babies and repopulate?

France didn't open its doors to the Muslim world because they wanted a diverse population, they needed an infusion of men under seventy to do the labor, and all the things 2 generations of lost men would have been doing.

Russia saw this happen to them both from their astronomical losses in the Great Wars, but also because during the Russian Revolution in the 19teens, they killed off all the educated and the nobility, leaving them with a population of illiterate peasants and a few socialist dictator types who then had easy pickings. It took them 75 years or 3 1/2 generations to recover and they aren't all the way there yet.

[cboldt]

cathyf: The assertion that Libby didn't recall in Oct 2003 that Wilson's wife worked for the CIA is just silly. Of course he didn't say that, and of course the indictment doesn't accuse him of saying that.

I agree wholeheartedly. By October 2003, EVERYBODY (well, not literally) knew that Wilson's wife worked at the CIA, so probing the question "who knew as of October 2003?" would be trivial and pointless. The question investigators were probing in October was "who knew as of June/July 2003?"

My summary was sloppy shorthand, omissions more grave than a mere typo. It becomes a chore to parse, but a more correct summary would have been ...

...was it more likely than not that Libby forgot ([both] at the time he gave testimony to the FBI [and as of June July 2003]) that he knew for a fact [as of June/July 2003] that Wilson's wife worked at the CIA? If you believe Libby, you believe he forgot...

I had my full say (and then some) back in March-May about what I think the indictment stands for, as well as about other angles of argument such as Libby's motive, Fitz's prosecutorial ethics, etc. I'd post links to those JOM posts if anybody cares (and sends the requisite fees ;-)

[Sara (Squiggler)]

OT -- Just announced that Joe Negron is distributing signs all over the District in Florida to take advantage of voters desire to punch out Mark Foley and still vote for him so that the vote goes to Negron. Short and simple.

"PUNCH FOLEY FOR JOE"

BTW, this is a county that still uses punch cards for voting.

[kate]

I read this article in the Post this morning and at first thought it was a parody.

The "reporter" -Carol D. Leonnig- sounds like one of those posters on the far left websites who claimed to be in love with Fitzgerald. Her adulation for Fitzgerald is so 2005. Fitzgerald is no longer the smartest man in the room, he the goofball who botched the investigation. Our gal Carol didn't get the memo.

I agree with TM that the story was unintentionally funny about the memory expert. Ah ha, Fitz caught her!

I notice that whenever the media tries to make a hero of someone, you can bet they are mediocre leftists.

[cboldt]

cathyf -- We were talking about the Scooter Libby who testified (the testimony starting in the fall of 2003) that, according to his notes, he was first told that Wilson's wife worked at the CIA in early June 2003, but he did not retain that information until the time that it was repeated to him by a journalist weeks later. --

My read of the indictment is that Scooter asserted to the FBI and Grand Jury that he did NOT retain or recall that he was well aware that Wilson's wife worked at the CIA, at any point during his June/July 2003 conversations with reporters. The indictment has statements in the nature of "at that time I did NOT recall," but none that describe Libby's moment of recollection.

[Sara (Squiggler)]

Hey everyone -- I don't want to take traffic away from our King TM, but I could use alittle help for a few minutes. I'm doing my best to hold my own, but I'm being bombarded with total insanity. Could a few of you used to the "down and dirty" with the Kiddie Korps come and chime in. Where is PeterUK when you really need him. Specter was holding down the fort this morning, but right now I'm on my own and need HELP!

http://www.squiggler.com/2006/10/listen_to_presi.html

Here is the comment at issue, please note his sources:

SARA: He may not listen to the people you want him to listen to, like the far left looney toons, but he has surrounded himself with advisers who all say that he welcomes their advice, welcomes discussion, welcomes divergent views and welcomes hashing it out as adults do when dealing with important matters.

METASAILOR: I understand that's what you want to believe, and that it's comforting to believe that. I'm just telling you that has no basis in factual reality.

It is DOCUMENTED that Bush didn't listen to Richard Clarke. Who, I may add, served with distinction in both the Reagan and BUsh 41 administrations before he served with Clinton.

http://www.cbsnews.com/stories/2004/03/19/60minutes/main607356.shtml

It is DOCUMENTED that Bush didn't listen to Colin Powell. Who told him before, during and after the invastion that it was going to be more difficult than Bush wanted to believe.

http://travel2.nytimes.com/2006/10/01/washington/01powell.html?adxnnl=1&adxnnlx=1161990399-lR18AEYGLFa8LBibzYdWFg

It is DOCUMENTED that Bush didn't listen to the generals who said, with experience and fact behind them, that we needed more soldiers in Iraq.

http://www.guardian.co.uk/international/story/0,3604,925140,00.html

http://www.latimes.com/news/nationworld/nation/la-na-iraqpol26sep26,1,617751.story?coll=la-headlines-nation
"Adding to criticism of the Bush administration's prosecution of the war in Iraq, a retired senior general who commanded an infantry division in the conflict said Monday that requests by commanders for more soldiers were repeatedly turned down.

"Many of us routinely asked for more troops," retired Maj. Gen. John R.S. Batiste said, contradicting statements by President Bush and his senior aides that the administration had given the military all the resources it had asked for.

"There simply aren't enough troops there to accomplish the task," said Batiste, who has previously called for Defense Secretary Donald H. Rumsfeld to resign. "It's a shell game we're playing in Iraq, and we've been doing it since day one. And we're still doing it today.""

It is DOCUMENTED that Bush didn't listen to the UN experts who said that Iraq didn't have WMD worth invading for.

All of these people Bush ignored have turned out to be correct.

Furthermore Bush didn't even listen to his own staff, when they told him he needed to do something about Katrina!! They had to make a DVD of the news coverage and play it for him, to get him to move his butt and *do anything* besides eat cake with John McCain, play guitar in photo ops, and the other tasks he found more important to perform on his vacation. I'm not kidding, this is DOCUMENTED TOO!

http://www.msnbc.msn.com/id/9287434/

Bush can be petulant about dissent; he equates disagreement with disloyalty. After five years in office, he is surrounded largely by people who agree with him. Bush can ask tough questions, but it's mostly a one-way street. Most presidents keep a devil's advocate around. Lyndon Johnson had George Ball on Vietnam; President Ronald Reagan and Bush's father, George H.W. Bush, grudgingly listened to the arguments of Budget Director Richard Darman, who told them what they didn't wish to hear: that they would have to raise taxes. When Hurricane Katrina struck, it appears there was no one to tell President Bush the plain truth...

[boris]

...was it more likely than not that Libby forgot ([both] at the time he gave testimony to the FBI [and as of June July 2003]) that he knew for a fact [as of June/July 2003] that Wilson's wife worked at the CIA? If you believe Libby, you believe he forgot...

Dispute! Libby never knew for a fact that Wilson's wife worked at the CIA until confirmed at some later date. He testified that his notes confirm the information was presented to him on at least one occasion, which he never did recall or ratain. The only recollection he testified to having was being informed of the gossip by a reporter, Russert. He never claimed that constituted "knowing for a fact" however.

[cboldt]

boris -- Dispute! Libby never knew for a fact that Wilson's wife worked at the CIA until confirmed at some later date. He testified that his notes confirm the information was presented to him on at least one occasion, which he never did recall or retain. The only recollection he testified to having was being informed of the gossip by a reporter, Russert. He never claimed that constituted "knowing for a fact" however. --

I'll make a minor adjustment away from "knew for a fact." FWIW, the phrasing in the indictment is "was well aware." I don't think the case turns on the differences between my shorthand "knew for a fact," the indictment's "was well aware" and your "information was presented to him." All three phrases are meant to convey nominally the same notion, that Libby had some awareness, sourced from official channels, that Wilson's wife worked at the CIA

...was it more likely than not that Libby forgot ([both] at the time he gave testimony to the FBI [and as of June July 2003]) that information was presented to him [as of June/July 2003] that Wilson's wife worked at the CIA? If you believe Libby, you believe he forgot...

My sense is the same as yours on the other point, that the only June/July recollection Libby testified to having was being informed of the gossip by a reporter. I also agree that Libby never claimed being informed by a reporter constituted "knowing for a fact." FWIW, my use of the phrase "knowing for a fact" is meant to obviously distinguish official channels from "being told by a reporter."

I don't know of any source for cathyf's comment that Libby did not retain/recall that Wilson's wife worked at the CIA until the time that it was repeated to him by a journalist weeks after early June 2003 - implying that Libby DID retain/recall it when it was repeated to him by a journalist weeks after early June 2003.

From the indictment ...

• early June 2003: LIBBY learned from the Vice President that Wilson's wife worked for the CIA
  
• June 11, 2003: LIBBY was informed by a senior CIA officer that Wilson's wife was employed by the CIA and that the idea of sending him to Niger originated with her
  
• June 12, 2003: LIBBY was informed by the Under Secretary of State that Wilson's wife worked for the CIA
  
• June 14, 2003: LIBBY discussed Joe and Valerie Wilson with his CIA briefer
  
• July 7, 2003, LIBBY advised the White House Press Secretary that Wilson's wife worked for the CIA
  
• July 10, 2003: LIBBY speaks with Russert [he says he didn't then recall that Wilson's wife worked at the CIA]
  
• July 12, 2003: Libby speaks with Cooper [he says his only awareness of the Wilson's wife/CIA connection is from reporters]
  

[boris]

All three phrases are meant to convey nominally the same notion, that Libby had some awareness ...

But this is the core of my dispute. Semantics aside, having confirmation that the info was presented is not the same as having some awareness.

Suppose I ask my wife what we need at the store, and she lists several items which I write down on a note. I put on my jacket and head for the store, leaving the note behind. I remember to get all the items except one, which I am not "aware" that I ever knew, though when I return home and look at the note, sure enough that item is on the list in my handwriting.

If Fitz would claim that I was "well aware" of that item when I was in the store, I simply adjust my opinion of his humanity one more notch lower.

[boris]

June 12, 2003: LIBBY was informed by the Under Secretary of State that Wilson's wife worked for the CIA

So says Grossman, with a vested interest in shifting suspicion from Armitage. Was the subject of the conversation Valerie Plame or Joe Wilson? Wasn't this supposedly the verbal communicaion of the memo contents? Which was about what? Valerie Plame? Not. A passing mention is all she got in the memo. Why would anybody assume a verbal presentation would even cover that detail, or that it would be retained unless presented with significantly more intensity than the memo gave it.

Ah but in hindisght, OH YEAH THE BIG BAD SECRET WAS IN THE MEMO SO OF COURSE WE DISCUSSED IT AT LENGTH.

[maryrose]

Let's call Webb's writings what they really are and will be -offensive to conservative Virginians. That coupled with his comments about women in the military prompts me to say as I've said about Neddie Lamont-put a fork in him -he's done.

[cboldt]

boris -- But this is the core of my dispute. Semantics aside, having confirmation that the info was presented is not the same as having some awareness. --

You demolish your own "semantics aside" comment by arguing semantics. To wit, by saying that making the three phrases equivalent is error because "confirmation that the info was presented" is not the same as "having some awareness."

I welcome the so-called semantic argument. A thoughtful debate necessarily involves first settling on semantics, and I'm more than happy to settle on phrases and terms that suit your frame of reference.

But what you aim to make a point of difference between us -- my drawing the three phrases as equivalent and your saying they aren't -- is merely the two of us engaged in different arguments. My object was to recapitulate what the indictment says without passing judgment on Libby's state of mind when he testified, and your object is to assert that a conclusion that Libby deliberately mislead investigators is incorrect.

IOW, your statement above, and your shopping list parallel, go past the discussion of what the indictment charges, and get to the question of whether or not what it charges is true. You seem to be using the difference between "confirmation that the info was presented" and "having some awareness" as representing the contention that "Libby forgot." I meant to use all three phrases to stand for Fitz's assertion that Libby remembered what was on the shopping list.

I'm with you on the shopping list - I forget things all the time. It'll be for the jury to decide if "Wilson's wife works for the CIA" was forgettable to Libby (beyond a reasonable doubt) in the indicated timeframe.

[cathyf]

cboldt, you are still pulling a semantic sleight of hand. You are distinguishing

being told by an official equals knowing as a fact

while

being told by a journalist equals knowing as a piece of gossip

But the sleight of hand that you are trying to slide by with unnoticed is the assertion that

being told equals knowing

To me, this is clearly a laughably unwarranted assertion. But nonetheless the FBI seems to have spent some large amount of the taxpayers' money proving that Libby was told when Libby never claimed he wasn't. Fitzgerald spent more money and wasted more government employee's time and money having them come in and testify to a couple of times that Libby was told when he never claimed that he wasn't.

Which brings us full circle to the topic at hand. Fitzgerald's argument is that jurors are not so stupid that they should need an expert to explain something which ought to be trivially obvious to the most complete moron -- but of course reading the indictment shows that this trivially obvious commonsensical fact is beyond the comprehension of FBI agents and federal prosecutors. So, in other words, Fitzgerald's argument is that the expert is not needed because it's impossible for the jurors to be even close to as stupid as Fitzgerald.

[Sara (Squiggler)]

See that is my problem with taking the indictment as gospel. We don't know what is interpretation of an FBI investigator or one of Fitz's assistant prosecutors, or even Fitz. We only have paraphrases for the most part of Libby's side of the conversation and we don't know how accurate or reliable these statements are compared to the verbatim words. A police report isn't an indictment, but it serves a similar purpose for a criminal case as it lays out the crime. I have a police report here that has 22 outright lies in it and 12 half-truths. The lies are easy to prove, the half-truths are a combination of out of context statements and plain ol' mistakes of ::drumroll:: memory.

And there are several others surrounding this case that have serious credibility problems, like Grossman, and have reason to misremember something, or more likely, give it the spin best suited to their needs not Libby's or anyone else's. We don't know if Libby has a half a dozen people who can come forward and say, that isn't exactly how it went, or something like that.

Thanks Boris and cbolt.

[boris]

I meant to use all three phrases to stand for Fitz's assertion that Libby remembered what was on the shopping list.

And it is the Fitz conflation I address, which is why I added ...

If Fitz would claim that I was "well aware" of that item

[cboldt]

I see I reversed the burden of persuasion there - the jury has to conclude beyond a resonable doubt that the relevant "fact" was remembered by Libby - not that the relevant "fact" was forgettable.

And I want to point out that my rephrasing of the memory question uses boris's prefereed terminology "Libby forgot ... that information was presented to him."

[hit and run]

Sara:
I have a favorite writer of fiction who is an outstanding writer and doesn't need gratuitous smut to sell his books.

Me too!

But I am perhaps an anomoly. My favorite is Tolstoy. Oh wait. Maybe Austen. Oh no, maybe Bronte (Emily - or- Charlotte)???!?!?!?!?!?!?!?!!!!!!

[cathyf]

It'll be for the jury to decide if "Wilson's wife works for the CIA" was forgettable to Libby (beyond a reasonable doubt) in the indicated timeframe.

Maybe under a different system of justice that is what the jury would decide. Under a system of justice which has a presumption of innocence, the jury must decide if the prosecution has proven (beyond a reasonable doubt) that "Wilson's wife works for the CIA" was unforgettable to Libby in the indicated timeframe.

Which simply on it's face is absurd. The fundamental logic of the indictment is the notion if someone tells the FBI that he ignored something that the person must be lying because nobody ever ignores anything. When every human being ignores most of the stuff that happens to him/her and every human being gets ignored a gazillion times every day.

[cboldt]

cathyf -- But nonetheless the FBI seems to have spent some large amount of the taxpayers' money proving that Libby was told when Libby never claimed he wasn't. --

And you pull a sleight of hand by not qualifying "was told" with "by whom?" Libby says he forgot he was told by an authoritative source, and testified that he was told only by reporters.

Further, you pull sleight of hand by setting up a straw man that aims to make a material difference between "knowing for a fact" and "being told by an authoritative source."

It's coming back to me that this subject invites waste of time via arguing for the sake of arguing. You (and boris) get the last shots.

[MayBee]

Fitzgerald proved that he can get witnesses stuttering and backpeddaling.
Forget the memory problem. This seems the perfect defense for Libby: Who doesn't sound incoherent when answering this guy's questions?

[cathyf]

And you pull a sleight of hand by not qualifying "was told" with "by whom?" Libby says he forgot he was told by an authoritative source, and testified that he was told only by reporters.

No, Libby's characterizations of his reaction to being told by the authoritative source was not "forgot" but "ignored." And he did NOT tell the FBI that he was only told by reporters. He testified in his very first meeting with the FBI that according to his notes he was told by the vice president, but that he ignored this particular piece of information that the vice president told him.

And "by whom" is precisely my point as well. Libby characterized the various paper-pushing-boring-bureaucrats' tellings as being too uninteresting to remember. While he characterized the professional-communicator-who-makes-things-interesting-for-an-audience-for-a-living's telling as being memorable enough that he was momentarily struck speechless and then remembered it after that. This is a guy intimately involved with vast numbers of vitally important pieces of information about many many many national security issues. And it took a professional journalist to present the Plame factoid as interesting enough to notice. So what's unreasonable, surprising or implausible about the notion that a professional journalist is a better communicator than people who are not professional communicators? After all, isn't that what "rock star" journalists like Russert and Woodward get paid the big bucks for?

[Walter]

TSK9,

I made the argument that, while Libby would like to have the memory expert, he is happy to have Fitzgerald's agreement that many of her conclusions are "common" sense.

Does this mean we're friends again?

[topsecretk9]

--It was about a bear trained to copulate with children and the little girl-prostitutes kept in the cage to harden them. Sometimes, per the author, the bear had to be jabbed with a stick to start the act.

Nice guy, Libby.

Posted by: Don | October 27, 2006 at 12:21 PM--

Seriously. Democrats are fundamentally insane when it comes to campaign tactics. This is the issue.

Subscribe no deviance to Webb but recoil at Libby. GOP gays are pedophiles, however actual Gay Dem pedophiles are heros, reelected and their lovers deserve benifits. HOWEVER this just in...BREAKINGDems have NO PLAN!

[cboldt]

cathyf -- No, Libby's characterizations of his reaction to being told by the authoritative source was not "forgot" but "ignored." --

"Ignored" as in "never even heard it?"

-- He testified in his very first meeting with the FBI that according to his notes he was told by the vice president, but that he ignored this particular piece of information that the vice president told him. --

Color me dumb/stupid/whatever. I don't get your point. How does "ignore" relate to "recollection"? Perhaps you aim to be illustrating a continuum of "memorable," with "ignored" representing material that doesn't enter conscious awareness, anniversary date being remembered, but often after the anniversary date, etc. In any event, you are arguing the case (a good and fair argument) and taking the side that "Libby forgot."

-- While he characterized the professional-communicator-who-makes-things-interesting-for-an-audience-for-a-living's telling as being memorable enough that he was momentarily struck speechless and then remembered it after that. --

This is where you were going to provide a citation for the details of Libby's recollection of being told by the dull bureaucrats.

[Walter]

Me,">http://justoneminute.typepad.com/main/2006/09/latest_libby_fi.html#comment-22503271">Me, September 16:

"I will say, however, that I'm impressed by their tactic of seeding the record by having the academic who conducted the studies upon which their expert relies come in to testify at the motion hearing. Maybe I don't get out enough, but that's new to me. I've submitted affidavits from the expert, but I guess I'll have to spring for the transcripts to see if bringing in the original author adds or detracts (After all, can she give much guidance to the court as to the use to which others will put her work?)."

Me, today:

Well, if you have someone other than your designated expert testify at the preliminary hearing, you get two bites at the apple.

You get to hear the questions that the other side will pose to your expert. You can use them to prep your expert for testimony.

Also, any credibility issues that arise wrt your academic's testimony do not impact your trial expert's credibility in front of the jury.

Still looking forward to the transcritps.

I'd like to see the context in which Dr. Loftus agreed that her studies were not "scientific" (&thus do not qualify under Daubert).

[topsecretk9]

--Does this mean we're friends again?

Posted by: Walter | October 27, 2006 at 08:44 PM==

Walter

I am so friendly it would make you toes curl, are you kidding again?...::grin::

[cboldt]

Just thinking in written public prose, "ignored" generally implies not responding, without any reference to awareness. I "ignore" trolls, but am aware (sometimes in great detail) of their presence.

Come to think of it, some of the personalities that I "ignore" are personalities that I recall very well.

Then there are the incidents that are so common as to pass by without conscious awareness, where absence of response coincides with absence of awareness.

Damn - that semantic argument might be useful after all.

[cathyf]

How does "ignore" relate to "recollection"?

The neurologic process of "recollection" is to take something stored in some of the brain cells which make up memory and to copy them into the brain cells which make up current attention. It is the inverse process of forming memories, where you copy something from current attention into memory. If you "ignore" something, it means that you never form the memories, so of course it is impossible to recall them.

"Forgetting" is something else. To "forget" means that first you form the memory, and then at some later point you erase the memory.

...citation for the details of Libby's recollection of being told by the dull bureaucrats.

Your statement is logically absurd. If Libby ignored this tiny little part of the conversations with the official sources, then by definition it is physically impossible for him to "recall" a memory which he never formed. The only way that anyone (including Libby) knows about the actions of the dull bureaucrats is that the FBI and Fitzgerald and the grand jury collected the recollections of the dull bureaucrats. Libby's testimony about the conversations with official sources is that he possesses no memories to either confirm or contradict their recollections -- although he does have something else, which is ample evidence that they all had motive, means and opportunity to lie and/or simply misremember the conversations.

Fitzgerald's indictment claims that he can prove beyond a reasonable doubt that if one party claims to have formed memories of a conversation while another party claims to have not formed identical memories of the same conversation, then the not-forming-memories party must be lying. Which is somehow too dumb to be funny.

[Walter]

Cathyf,

Without addressing the semantics issue, here is my understanding of Libby's approach to the seven conversations:

Admit that they occurred, but deny recalling at the time of conversations with reporters:

Cheney

Deny that they occurred as alleged:

Fleisher (that I recall. There may be more. Grossman?)

State that it is unlikely that they occurred as alleged because his (Libby's) memory is inconsistent with them having occurred as alleged:

The remainder.

Remember that Fitzgerald has three pages of grand jury testimony in which he claims that he put the allegations by other administration officials to Libby and received the third response.

Libby has put forward the second category only after receiving (via discovery) the exact questions and answers from those officials.

As I mentioned before, he was apparently too smart to get into a "he said"/"she said" without having sworn testimony and legal representation to aid him.

Would that he avoided that specificity with the reporters as well. But given that he and Rove were the only ones to have forgotten any detail relating to the ever-fascinating Ms. Plame, that might not have kept him out of trouble in any event.

[Sara (Squiggler)]

I don't know cathyf -- I have the type of memory where I store whole pages of material without really processing what is on the page at the time of storage. I do this in particular when I'm trying to study for an exam or when I know that I might need some of the information in the future. When I need the information, I don't recollect the facts on the page, I recollect the whole page and then scan it back in my mind until I come to whatever it is that I need, the answer to a test question, or a fact to support an argument, etc. I don't store the material I scan, because I know that if I need any of it at a later date, I can call up the page again in my mind, and repeat the process.

A subset of this type of memory would be going through something, extracting what you plan to remember and storing it and throwing some things on the ignore list. They are gone, forgotten, until and unless, something clicks and you suddenly need to retrieve from your ignore list. I can hear something and not click at all, and then during the course of a conversation someone else connects to a factoid that I had stored and not ignored, which will then remind me that that fact relates to something on the ignore list and suddenly the ignored something has a whole new meaning (you have a V-8 moment) as if hearing it for the very first time and you have to stop and think where you heard it the first time that was so unimportant you dumped it on your ignore list. It isn't something remembered, it is a new fact, reinterpreted from the new context.

[cboldt]

cathyf @ 12:45 PM -- We were talking about the Scooter Libby who testified (the testimony starting in the fall of 2003) that, according to his notes, he was first told that Wilson's wife worked at the CIA in early June 2003, but he did not ** retain ** that information until the time that it was repeated to him by a journalist weeks later. --

cathyf @ 09:23 PM -- ... Libby's testimony about the conversations with official sources is that he possesses no memories to either confirm or contradict their recollections --

Ahhh - I see the misunderstanding. My error. In cathyf's parlance, "Retain" is not synonymous with "recollect." "Retain" is synonymous with "obtain." The argument being that Libby's brain did not process (make an effort to commit to memory) authoritative reports that "Wilson's wife works at the CIA." "Ignored" as in "never even heard it!"

The results of that hypothesis seem unhelpful to Libby. How would a journalist posses the requisite knowledge to inform Libby that Libby learned of Wilson's wife's employment through authoritative sources? How to reconcile the testimony of the WH press secretary, who said that Libby told him that Wilson's wife worked for the CIA. How can Libby get to that knowledge by ignoring (never becoming aware of) it?

[topsecretk9]

So...If I am Fitzgerald ...I wonder why so many people are wondering about the "ever-fascinating Ms. Plame"..the media phone logs indicate there was prescience,

and so progressively we find there was a self-preservation or CYA need for Wilson and Valerie in her Vanity Fair interview - revealing more than anyone should hope ( I mean the CIA does not like for their trained to admit - blown or not - they were farmed trained)-- WHY did Wilson and Plame NEED to go public?

[cboldt]

A substantial rephrasing ...

How would a journalist posses the requisite knowledge to inform Libby that Libby learned was exposed to (while being unaware of) authoritative reports of Wilson's wife's employment at the CIA?

No disrespect intended, but the proposition that Libby "ignored" (didn't listen to) authoritative reports of Wilson's wife's employment status with the CIA needs substantial work in order to be reconciled with quite a bit of other testimony.

For example, if Libby had enough interest to inquire as to "who sent Wilson," it seems incongruous to conclude that he ignored (did not process to memory) the answer to his own inquiry.

[Walter]

CBoldt,

"How to reconcile the testimony of the WH press secretary, who said that Libby told him that Wilson's wife worked for the CIA."

Perhaps by attacking Fleischer's credibility and denying that the conversation occurred as alleged?

That 2-3 day window is most damaging.

But, remember the joke circulating around DC that Ari would be indicted because "there's no way he could answer questions for four hours without telling a lie..."?

[cathyf]

How would a journalist posses the requisite knowledge to inform Libby that Libby learned of Wilson's wife's employment through authoritative sources?

Which journalist has described a conversation like this? Where did Libby say that this happened? Your construction is non-sensical -- how could a (journalist) conversational partner of Libby know about some other conversation that Libby didn't even remember and that the other party to that earlier conversation has no reason to share anything about it with the journalist? Are you somehow claiming that Cooper told Libby that Libby learned about Plame through official channels? I have seen no evidence of any such claim on Cooper's part or Libby's part or any other journalist's part, and for such a claim to be possible the journalist would have to have particularly powerful magical powers.

How to reconcile the testimony of the WH press secretary, who said that Libby told him that Wilson's wife worked for the CIA.

Maybe Fleischer simply misremembered? He "analyzed in" a Plame comment into a memory about a Joe Wilson conversation, and was not consciously aware that this analytical addition to the memory was caused by Plame's subsequent notoriety? He heard from a journalist and forgot the source of the knowlege, then later when David Corn told everyone that reporters didn't know until Rove and Libby told them, he convinced himself that he must have acquired the knowledge from Libby rather than the reporter? Do you think it's bizarre that a press secretary might talk to reporters? If Libby made the (quite small) memory error of conflating a June 23rd phone call with Woodward and a June 7th phone call with Russert, then Libby's telling Fleischer on July 5th could have come from reporter gossip. Or maybe Fleischer is simply lying -- he was afraid that he might get blamed for the Plame shitstorm so he made up a story to blame it on Libby.

How can Libby get to that knowledge by ignoring (never becoming aware of) it?

But Libby vigorously denies having the knowledge and denies that he told Fleischer that Wilson's wife worked for the CIA. You are "proving" that he is lying about not having the knowledge by assuming that he is lying about not having the knowledge. If you are going to engage in circular reasoning with a straight face you've got to make the circle a little bigger.

[cboldt]

Walter --Perhaps by attacking Fleischer's credibility and denying that the conversation occurred as alleged? --

In Libby's shoes, that's the only attack that I see, to deny that I ever brought up Wilson's wife and to paint Fleisher somewhere between confused and hallucinating.

Without going through the testimony recapitulated in the indictment, my knee-jerk reaction to cathyf's theory of Libby's defense is incredulity. It certainly doesn't resemble the "faulty memory" defense in any shape or form. It's a "no awareness, no memory" assertion. I have to admit I have never played that one through the testimonial evidence.

-- That 2-3 day window is most damaging. --

There is a cumulative effect too. A number of alleged meetings, a number of alleged specific inquiries. A number of alleged disclosures to Miller.

As a matter of moral principle, the "I didn't hear it" defense would be most satisfying if it was believable.

What is really frustrating in hindsight is that Libby could have confessed to being a leaker, and the inquisition would have had no option but to seek a different victim.

[cboldt]

cboldt: How would a journalist posses the requisite knowledge to inform Libby that Libby learned of Wilson's wife's employment through authoritative sources?

cathyf: Which journalist has described a conversation like this?

I know of none. I was probing the accuracy of your ...

Um, cboldt, is this just a typographical error? We were talking about the Scooter Libby who testified (the testimony starting in the fall of 2003) that, according to his notes, he was first told that Wilson's wife worked at the CIA in early June 2003, but he did not retain [obtain] that information until the time that it was repeated [stated] to him by a journalist weeks later.

[cboldt]

cathyf -- You are "proving" that he is lying about not having the knowledge by assuming that he is lying about not having the knowledge. If you are going to engage in circular reasoning with a straight face you've got to make the circle a little bigger. --

It's not "circular" to adopt a hypothesis as a matter of testing it.

It is you who is postulating that Libby is innocent on account of never (in the relevant timeframe) having the knowledge. I am pointing at testimony that contradicts your hypothesis.

[Bob]

Looks like Don "cut and ran" must be true with everything these liberals creatures do.

[Cecil Turner]

In Libby's shoes, that's the only attack that I see, to deny that I ever brought up Wilson's wife and to paint Fleisher somewhere between confused and hallucinating.

Seems to me the main point in contention is Fleischer's version of Libby asserting Plame's employment as hush-hush. It's fairly obvious from hindsight that the main topic of conversation was the NIE declassification, not Plame, and that Fleischer has apparently conflated the two.

There is a cumulative effect too. A number of alleged meetings, a number of alleged specific inquiries. A number of alleged disclosures to Miller.

None of which centered on Plame. It seems to me that if the prosecution is allowed to frame the question as whether Libby in fact discussed Plame between July 6th and 12th, Libby must lose. But that's not the question. If Libby misattributed the source of the information after the fact, then he's not guilty. And factors that would tend to make that more believable include:

• elapsed time from the conversations to his testimony;
• the perceived unimportance of the fact being recalled; and,
• relative commonality of misattribution error.

The prosecution is doing its utmost to elide the first two points, and the latter two are apparently not well understood as a function in memory. Which would tend to make one think this was a no-brainer, regardless of how much Walton wants to avoid drawn-out expert testimony.

[boris]

cboldt: How would a journalist posses the requisite knowledge to inform Libby that Libby learned of Wilson's wife's employment through authoritative sources?

Cboldt, WTF ???

Um, cboldt, is this just a typographical error? We were talking about the Scooter Libby who testified (the testimony starting in the fall of 2003) that, according to his notes, he was first told that Wilson's wife worked at the CIA in early June 2003, but he did not retain [obtain] that information until the time that it was repeated [stated] to him by a journalist weeks later.

The information refered to here is where Wilson's wife worked, not the official notification of same.

[boris]

As a matter of moral principle, the "I didn't hear it" defense would be most satisfying if it was believable.

Seems believable to me. The infamous memo only gave Val=CIA a passing mention. Before the scandal it seems rather forgettable or unnoticible.

My example of actually writing something down and immediately forgetting it is all too common. Since the Cheney note is by far the strongest evidence of Libby's "crime" this looks like over rationalizing normal human nature.

[cboldt]

boris -- Cboldt, WTF ??? --

cathyf: Um, cboldt, is this just a typographical error? We were talking about the Scooter Libby who testified (the testimony starting in the fall of 2003) that, according to his notes, he was first told that Wilson's wife worked at the CIA in early June 2003, but he did not retain [obtain] that information until the time that it was repeated [stated] to him by a journalist weeks later.

-- The information refered to here is where Wilson's wife worked, not the official notification of same. --

I think I mistook cathyf's statement - that makes the second time in this thread that I did so. The first one taking the word "retain" to mean "recall."

I took the phrase "according to his notes, he was first told that Wilson's wife worked at the CIA in early June 2003" as meaning official notification that Wilson's wife worked at the CIA.

I don't think cathyf meant the phrase "first told that Wilson's wife worked at the CIA" to convey being first told by a reporter, rumor mill or unofficial source, because her ultimate points in that post were that Libby (and everybody else) "knew for a fact" in October 2003, that Wilson's wife worked at the CIA, and second, that any official notification delivered to Libby in early June 2003 was "ignored", "not processed", or "not [mentally] retained by Libby."

But reading further, I see and accept your point. The "that information" and "it" in cathyf's phrase "until the time that it was repeated" is "Wilson's wife works at the CIA," not "he was officially notified [in early June - exact time not important] that Wilson's wife worked at the CIA."

I simply read too much into cathyf's comment - it boils down to the contention that Libby didn't "process the official notification to memory" in June, but heard and remembered the rumor.

I get the sense that we're over-complicating and over-analyzing a fairly simple defense by Libby. He was told in June, he forgot by July. For whatever reason, says Libby, the fact that Wilson's wife worked at the CIA and sent Wilson to Niger was a forgettable and trivial detail during that June/July timeframe.

cathyf's point is that Libby didn't forget the official notification - it's more as if he slept through getting it, never had it, and you can't forget what you never had.

An "I slept through the official notification" defense (not literally sleeping - anything that creates 'in one ear and out the other') isn't credible to me. There are too many bits of evidence that indicate June and early July recollection of having obtained official notification. And if he never had it, he can't recall it.

[Cecil Turner]

I get the sense that we're over-complicating and over-analyzing a fairly simple defense by Libby. He was told in June, he forgot by July.

I think that one is a loser. "He was told in June, it was reinforced in July, and he mistakenly recalled the sequence in October" is quite a bit better, and the argument I suspect they'll make.

An "I slept through the official notification" defense (not literally sleeping - anything that creates 'in one ear and out the other') isn't credible to me.

Concur. That one's a worse loser.

[cboldt]

Cecil Turner --"He was told in June, it was reinforced in July, and he mistakenly recalled the sequence in October" is quite a bit better, and the argument I suspect they'll make. --

I think a "mistaken sequence" memory failure mode doesn't address the charge. The charge amounts to Libby leading investigators away from the thought that Libby had recollection of official sources at the time he spoke with reporters. The nature of the indictment is total failure to disclose, in October, that he'd had recollect-able contact with official sources somewhere around the same time he had contact with reporters.

He forgot in between July and October - not he mixed up two sources.

There can be no argument of mix-up between official and rumor sources, be it mix-up of sequence or a mix-up of attribution, unless there is an admission of recollection of official sources.

I presume that if Libby's testimony to investigators included an admission that he'd had recollect-able contact with official sources somewhere around the same time he had contact with reporters, Fitz would not have indicted.

Cecil Turner -- If Libby misattributed the source of the information after the fact, then he's not guilty. And factors that would tend to make that more believable include:

• elapsed time from the conversations to his testimony;
• the perceived unimportance of the fact being recalled; and,
• relative commonality of misattribution error. --

A "mistaken source" or "mistaken attribution" failure mode is misplaced (to me), in this case, as it indicates failure to mentally distinguish between rumor sources and official sources, where the mental impact of the fact pattern (Wilson's wife works at the CIA and had a hand in sending Wilson to Niger) is driven almost entirely by having an official source.

I do agree that misattribution is common when all sources have similar weight or credibility. But, to pick an unrelated example, I would easily remember getting an authoritative opinion letter from the IRS, vs. getting one from a tax attorney vs. hearing/reading advice in/on the radio/paper.

[Cecil Turner]

The nature of the indictment is total failure to disclose, in October, that he'd had recollect-able contact with official sources somewhere around the same time he had contact with reporters.

I don't see it. He apparently disclosed in October that he'd heard it from the VP in June. His claim to've subsequently forgotten it is certainly plausible, it's only the claimed recall sequence (Matthews, then others) that isn't.

. . . the mental impact of the fact pattern (Wilson's wife works at the CIA and had a hand in sending Wilson to Niger) is driven almost entirely by having an official source.

I don't see why. That may have been the interpretation by reporters (who seized on the juicy tidbit), but it does not appear to've been a key part (any part?) of the Administration's campaign to get the word out, which relied primarily on the disparity between Wilson's story and the actual intel in the NIE. And since team Libby is making precisely that argument . . .

I do agree that misattribution is common when all sources have similar weight or credibility.

Based on my own experience, I think it's more common than you believe (and hence the memory expert . . .).

[boris]

the mental impact of the fact pattern (Wilson's wife works at the CIA and had a hand in sending Wilson to Niger) is driven almost entirely by having an official source.

I have disputed and seen this point disputed. In fact the passing status of that bit of info in the memo supports the idea that it was reporter's gossip sense that gave the detail it's scandalous quality, now obvious in hindsight.

Reporters focused on that as a juicy bit of irony that official "discussion" was blind too untill it was pointed out.

[boris]

reporters who seized on the juicy tidbit

lol Cecil

[cboldt]

-- He was told in June, he forgot by July. --

This conclusion is essential to support Libby's testimony as truthful. One example ...

And I said, no, I don't know that. And I said, no, I don't know that intentionally because I didn't want him to take anything I was saying as in any way confirming what he said, because at that point in time I did not recall that I had ever known, and I thought this is something that he was telling me that I was first learning.

[cboldt]

Cecil Turner -- He apparently disclosed in October that he'd heard it from the VP in June. His claim to've subsequently forgotten it is certainly plausible, it's only the claimed recall sequence (Matthews, then others) that isn't. --

"Disclosed in October that he'd heard it from the VP in June" isn't the issue. The issue is whether or not he should have disclosed in October that he had recollection in July of earlier hearing from official sources. He is of course excused from making this disclosure if he didn't have any recollection of hearing from any official source.

I maintain that the sequence of recall per your postulate isn't relevant. The charge depends on "whether or not", not "what order."

[cathyf]

The most plausible misattribution error is not between official and journalist source, but between 2 journalists. Namely that the dramatic memory that he had of hearing it from a journalist was not the conversation with Russert on July 7th but with Woodward 2 weeks before. Both Fitzgerald and the FBI spent a huge amount of investigatorial resources proving that the timeline for that dramatic July 7th phone call didn't work. But if Woodward, not Russert, told Libby that Wilson's wife working for the CIA was common knowledge, and that conversation happened on June 22nd, then all that testimony about first week of July conversations becomes pointless.

And by your logic, cboldt, confusing a phone conversation with one journalist with a phone conversation with another journalist is not implausible. And you are quite correct that if Libby made this mistake which caused the investigation to assume a radically incorrect timeline, then it substantially misled the investigators. But in this hypothetical, in order for the investigators to have been misled it requires more than Libby confusing one big-shot prima dona journalist for another. In order to mislead the investigation, it was ALSO necessary that the investigators not consider any simple, straightforward, plausible, easy-to-make memory errors -- like "right conversation, wrong journalist." It is Team Libby's contention that people don't commonly understand or appreciate how an innocent slight failure of memory could cause a 2-week screw up in the investigatorial timeline. It is Fitzgerald's contention that everyone knows how this could happen and it is common knowledge, and that the only explanation for the FBI and Fitzgerald not considering the possibility and investigating it is that they are stupid and lacking in very basic commonsense knowledge.

[cboldt]

cboldt -- the mental impact of the fact pattern (Wilson's wife works at the CIA and had a hand in sending Wilson to Niger) is driven almost entirely by having an official source. --

boris --I have disputed and seen this point disputed. --

I wasn't arguing the magnitude of mental impact of the alleged fact pattern. My point was comparative. The magnitude of impact is greater (still maybe near zero) coming from an official source, than coming from a rumor mill.

I maintain that the mental impact of "Wilson's wife works at the CIA ..." is greater if the source of the assertion is official, even if unnamed, than if the source of the assertion is an outside rumor-monger.

[boris]

Not if official sources were unaware of the gossipy tabloid aspect. Available evidence indicates they were blind to it.

[Rick Ballard]

Man. I sure hope we get to the bottom of this soon. Will Arius win? Does Eusebius have a chance? Is consubstantialism the right road or are we headed for damnation?

What is the appropriate color for the drapes in the faculty lounge? Can reason bring us to agreement?

[cboldt]

boris -- Not if official sources were unaware of the gossipy tabloid aspect. --

You're blowing smoke.

A rumor that cboldt works in CIA counterproliferation, and greased the skids so Kahn could buy klystrons is interesting. But the same, as an admission sourced to an anonymous (or better yet, named) official, carries greater impact.

"Wilson's wife works for the CIA and had a hand in sending Wilson to Niger" is a fantasy or a lie, unless it is sourced to an official.

The awareness of official sources is irrelevant to the comparative impact of a given assertion supported by official vs. rumor sources.

[Cecil Turner]

This conclusion is essential to support Libby's testimony as truthful.

No, it's not. If he misremembered in October what he knew in July . . .

He is of course excused from making this disclosure if he didn't have any recollection of hearing from any official source.

He disclosed having official conversations, he just thought they happened much later (September, IIRC).

I maintain that the mental impact of "Wilson's wife works at the CIA ..." is greater if the source of the assertion is official . . .

Again, I don't see why. It's not the sort of detail one is likely to get wrong. (And once asserted, is easily checked just by asking.)

[cboldt]

Me: -- This conclusion [he was told in June, he forgot by July] is essential to support Libby's testimony, "at that point in time [July] I did not recall that I had ever known." --

Cecil Turner: -- No, it's not. If he misremembered in October what he knew in July ... --

Changing Libby's testimony, to say that "on reflection, at that point in time [July] I did recall that I had ever known," would be a reversal in testimony.

A reversal in that particular testimony does not cause the charge of false statements to be met, which is the point I think you are asserting.

[Cecil Turner]

A reversal in that particular testimony does not cause the charge of false statements to be met, which is the point I think you are asserting.

I'm not sure what you mean by the above. My point is that he could honestly have misremembered in October, and believed (incorrectly) that Plame had not been in those July conversations at all. Or that he'd had those conversations later. Or forgotten about them completely. Proving he had a conversation about something in July (and hence knew it then) does not prove he lied about it if he'd claimed to've forgotten in October.