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October 06, 2006



Well I can't Libby's statement to load, but I don't see anything bombshell-like in the prosecution's brief. Libby wants to show how much he had on his place and Fitzy thinks that is a waste of the jury's time. I suspect the Judge will reserve on it, de bene, (which a judge did to me in one of my first trial and nearly gave me a heart attack.)

From the unreliable wiki:

De bene esse

In an American legal context, it means "conditionally," "provisionally," or "in anticipation of future need."


Not Libby's statement, Tenet's.

norm d'plume

Prosecutor: Libby Wants to Load Up Trial

Cecil Turner

Looks to me like Fitz wants another bite at the "classified information" privilege he lost on last time:

In light of the legitimate interests served by Rule 403, it is not surprising that district courts have applied the Rule to proposed evidence that contained classified information.
Further, having successfully excluded most of the evidence surrounding the actual leak, now wants to exclude any evidence supporting Libby's claims to honest memory lapses:
For the foregoing reasons, the government respectfully asks this Court to apply Federal Rule of Evidence 403 to exclude defendant’s portions of defendant’s proposed testimony and all of his proposed exhibits offered in support of the memory/preoccupation defense.
The defense's argument that the exhibits bolster Libby's credibility seemed persuasive to me (but I've consistently leaned a bit farther their way than Walton has). Another interesting ruling coming up.


As an experienced DC lawyer, if Libby was plotting to leak an agent's identity for political payback it makes all the sense in the world that he would avoid writing this down, as well as explaining his lying to the FBI and the grand jury to obstruct an investigation of the leak.

Same too for Rove of course.

Lovely to have more Plame news, it's been a desert out there.

Tom Grey - Liberty Dad

Since it's David Corn who is one of the most egg-faced "Evil Rove" did it -- isn't his List (w/ 141 comments!) just a distraction from his Libby - Plame SNAFU?


Jerry, if Libby were were planning to leak an agent's identity as political payback, would it make any sense for him to record in his notes that Cheney had mentioned said agent worked for the CIA?


I must say, I don't see why at this point Libby's lawyers are so intent on saying Libby will testify. Admirable bravura, perhaps, but why pin themselves down? Evidence that is arguably cumulative if Libby testifies might be the only evidence if he doesn't.



Of course! Just like sitting around waiting for journalists to call him so he could leak about her...! It all makes sense!

I mean, why get low-level operatives to do a job you can easily do yourself and get into a big mess resulting in having to resign, causing a media storm against your party and president?

Psh. Libby and Rove do their own dirty work! They figured that all their journalist "buddies" would never rat them out! Especially after they gave them the green light to do so!

Oh man, I can't believe anyone even fell for this acid trip of a scandal.


1) Libby is known to have discussed Wilson with (I believe) four reporters, including Novak (I think), and never mentioned the wife;

2) Fitzgerald introduced as evidence of Libby's preoccupation with media management of the Wilson story, an editorial in the WSJ that Libby encouraged to have written. That editorial makes no mention of the wife at all.

So this great conspiracy consisted of waiting around the phone for Cooper to call


"norm d'plume" links to an AP article by Pete Yost discussing court filings in the Libby case. However, they don't seem to be the filings mentioned if this post. Yost says, "in court documents, prosecutors argued that it would be 'unnecessarily wasteful of time' to allow Libby to present 'names of foreign leaders or government officials of other countries, or the names and histories of various terrorist groups.'" I see nothing that specific in the two filings this post links to. Now, Yost is not my favorite reporter (he's a transparently one-sided hack), but I doubt he got things that wrong, so I assume there are other ne cout paper available.



It is in Fitz's filing. Towards the middle.


That last phrase should read, "so I assume there are other court papers available."


*Blush* You're right (of course) Sue. Don't know how I missed it.


You are a skim reader, like me? I just happened to skim that part. ::grin::


My read of Walton's 9/21 opinion and order isn't so much that Fitz 'lost his "classified information" privilege,' but a question of -when- the privilege would be given up.

Fitz asked that the privilege be recognized as part of the admissibility analysis under CIPA, and in particular, to be applied during the hearings. Walton said "no - the state secret privilege question comes after I rule on admissibility."

My narrow point being that we haven't yet the stage of the pre-trial process where the "interesting" decision is actually made.

If Walton rules certain evidence admissible, Fitz has the option of offering a summary or redacted version as a substitute (with the substitute being subjected to approval by the judge), or withdrawing the case, or filing an interlocutory appeal.

Caveat - this is my first exposure to CIPA practice, and I've spent a total of about 10 minutes reading the three papers. IOW, my impression may be entirely incorrect, but it's the impression I got. The disputes so far are more "process" than "decisively concluding how the facts of this case will be presented to the jury."


I agree, cboldt.


Karl "Turdblossom" Rove is going to be frog-marched out of the Whitehouse might soon.

WASHINGTON (Reuters) - An aide to top White House political adviser Karl Rove resigned in the fallout over a congressional report showing many White House contacts with ex-lobbyist Jack Abramoff, a spokeswoman said on Friday.

Ribbit! Ribbit!


Oh please. Get a life!

norm d'plume

Rove is going to be frog-marched out of the Whitehouse might soon.

Let me guess!

In 24 business hours?



I love BTW and Wilson's thought process which makes them assume Rove would ever become entangled with the likes of Plame or Abramoff in the first place. Wilson, Plame, and Abramoff are bottom feeders. Rove is too busy with Hardball politics to give them the time of day. He's the Rovemeister. My prediction Dems are big losers come Nov. 8th.



I'm with you,

House Republican +10

Senate Republicans +3

Foleygate a faux scandal.

Carol Herman

Yup. I'll join the chorus, MaryRose. The dems are losers. ANd, today, Drudge ran the Pelosi piece that looks like what her victory speech would say on November 8th. This should tag it that Pelosi now how enough information to know the Foley matter did not "jerk off" Hastert's head. And, the lesbians and gays who are not radical fascist freaks, banging at the GOP Closet's door; have figured out "fiasco."

Smells like Fitzmas.

Smells like Dan Bather's career after presenting fake but accurate news.

These events? I ain't a lawyer; but I'll venture a guess that Fitz-magoo gets to pull the case out of Walton's courtroom before the trial even starts.

What Fitzmas is looking for is someone else TO MAKE A MISTAKE! He's hoping not to look like a schmuck.

But if you'll notice, in this Foley matter, Fitzgerald's name never came up as the "suggested investigator." Freeh's did. And, the donks slammed it away.

I guess there's a party war going on? And, wars are generall chaotic. But we're being asked to see through smoke & mirrors.


My impressions are similar to Cecil's, with one caveat. IIRC, this is the third (fourth if you count the original argument) time that Fitzgerald has explicitly stated in filings that he believes that J. Walton is misapplying CIPA admissibility standards. (You're wrong, if you really meant it then please treat this filing as motion to reconsider, x, well, it's there under Rule 501 if you squint...)

At some point, it seems to me that it is self-defeating to remind the judge that you think he doesn't know how to apply the rule. After all, if he is certain that you cannot agree, he'll probably go with his own interpretation.

The point was preserved for appeal at oral argument. Sure, a belt and suspenders type might bring it up again in a filing, but this is ridiculous.

That said, the (new?) rule 501 (*button-fly*) approach doesn't seem likely to help Fitzgerald. The White House has not indicated that it will assert executive privilege; the CIA has redacted for national security at least once already; and contrary to Fitzgerald's intimations, I don't see any spousal privilege anywhere near these documents.

My read of the memos together:

Libby made the argument that, (primarily in the 9th Circuit, but with one binding DC Circuit precedent) it can be reversible error to deny contemporaneous documentary evidence that bolsters the credibility of a defendant when that defendant's credibily is determinative of guilt.

Fitzgerald made the Evidence 101 case that the judge has broad discretion to limit duplicative evidence in the form of documents and testimony making the same point. As far as I can tell, his reading of the cases does not address whether limits on the judge's discretion are appropriate when the defendant's credibility is the touchstone of the case.

I'd suspect that he'd highlight any such cases if he had found them. But perhaps it wasn't at issue in the brief from which he borrowed his boilerplate analysis.


Oh, and Jane's right. He will not definitively exclude the evidence at this point. But he will only definitively allow portions. The rest will be decided later (perhaps after the government's case concludes).


Fitz needs to fold his Flying Circus. by noe even he must know there is no there, there and that he indicted the wrong man and gave a free pass to gossip Armitage. Olly Olly in Free.


noe should be now. Not quite time for after midnight rule.



Regarding Libby's intention to testify:

As I understand the documents under discussion, they relate to the work that Libby was doing at the time. Without Libby's testimony to provide a foundation ("I remember seeing this document. It was very important. This is what I was thinking when I read this and made this comment in my notes...", &tc.), most of the documents would probably not be admissible at all. Lacking that, there would be no independant verification that Libby had read them--only that they had been presented to him by briefers.


"I love BTW and Wilson's thought process which makes them assume Rove would ever become entangled with the likes of Plame or Abramoff in the first place."

Wow. Are you illiterate? Learning disabled? A cave dweller in Bora Bora?

Only a seriously disturbed individaul could use the names Plame and Abramoff in the same sentence.

Maybe we should call it the freedom march instaed of the frog march (freedom fries anyone?).

Lew Clark

I'm still not sure what the over/under is on this making it to trial, but the last few filings, I get the impression that Team Libby is taking everything seriously because they must do so as if it were certain they were going to trial. That's what good defense lawyers do. But Team Fitz seems to just be going through the motions, with limited zeal. I may be reading too much into this, but I believe that Team Fitz wants this to all go away, but would rather it be on someone else's shoulders to save some face.


NYT 10/6/06: In House Races, More G.O.P. Seats Are Seen at Risk

"There are signs that the furor over the Congressional page scandal is sapping the enthusiasm of religious conservatives."

Blub blub ribbit.


A cave dweller in Bora Bora?

Is that some place in the Pacific, like Okinawa? Perhaps Murtha was right after all and that's where we'll find Osama!


Walter, though that's a good point about Libby providing foundation to admit some of the evidence he wants, I don't see why he needs to claim he will testify at this point. The fact that he might testify seems to prevent Walton from excluding any evidence at this point due the necessity of Libby's testimony establishing foundation. I think that by not saying whether he will or won't testify, Libby has the broadest range of arguments on why evidence shouldn't be excluded.


But Team Fitz seems to just be going through the motions, with limited zeal.


That was my impression too when I read the pleadings, but then I thought I might be projecting, so who knows?


"many White House contacts with ex-lobbyist Jack Abramoff,"

WTF do you think lobbyists do? They are like door to door salesmen,they turn up,they make contact.

Other Tom

Libby's team need not, and will not, make the decision about whether to testify until the prosecution rests. In the meantime, it needs to argue for the admissibility of various documents and possible testimony in case they do conclude at that time that it will be to his tactical advantage to take the stand.

I was in Bora Bora eighteen months ago. Didn't see any caves. There is, however, a nice gin mill called Bloody Mary's.

I don't see the GOP making any gains, and I assume it will lose control of the House. Makes no difference at all. Unlike Clinton, Bush will not be distracted by congressional noise-making, and of course we've already made great strides in packing the federal judiciary with a marvelous coterie of distinguised right-wing ideologues.


"Wow. Are you illiterate? Learning disabled? A cave dweller in Bora Bora?"

It is Tora Bora,illiterate.

"Only a seriously disturbed individaul could use the names Plame and Abramoff in the same sentence."

Which you just did.

Shouldn't you be hog calling round about now?

Wilson's a liar

Maybe Rove wasn't leaking about Val because he was too busy taking care of Jack Abramoff? ;-)

Patrick R. Sullivan

I see two possibilities for Fitz continuing to harp on the admissability of the classified documents. One, he knows he'll lose if Libby can establish how unimportant Plame was to Libby at the time. Two, there are things in the documents that can't see the light of day, and he'll have to drop the case if the judge allows Libby to use them.

Either explanation would fit the seeming desperation in Fitz's argument.


Not sure if TM or others posted this but in a review of the Corn/Isikoff book by Novak in the Weekly Standard, the following is noted (re the 1x2x6 theory):

The book also identifies the "senior administration official" quoted in a Washington Post story as the source of the six-journalists story, and as saying that the White House was out for "purely and simply revenge" against Wilson. He turns out to be Adam Levine, an obscure, middle-level communications aide who soon left the White House.

Link to Novak Review



Another reason why you can't track anything based on descriptions by journos of anonymous sources. Let's call this the "Adam Levine" rule.

JM Hanes


I think you've nailed it. If the documents come in, this goose is cooked. Per the AP's Pete Yost:

Prosecutors say there is no dispute that Libby was busy, but that he should not be allowed at the trial to describe so much classified information _ "as if each particular item overwhelmed his ability to remember and to not fabricate other conversations."

Fitzgerald wrote that Libby's proposals for introducing classified information are "so extraordinary both in breadth ... and in depth" that the evidence takes on "a misleading aura, is confusing" if presented to a jury.

I don't know about anybody else, I found these last paragraphs unaccountably amusing. No duh, eh? Fitzgerald sounds like some sort of flabbergasted ingenue.


Just throwin' in a bit of fun before I finish all these darned messages in two threads. I guess I shouldn't be takin' time to sleep, eat, errands, and stuff.

Anyway, I photoshopped my way to a photo for the next issue of Vanity Unfair. Here!

If anyone wants it, save it to your harddrive. I'm not keeping it up longer than a day or so.



Wrong thread...nevermind.

JM Hanes

Lew: "But Team Fitz seems to just be going through the motions, with limited zeal.

Jane: "That was my impression too when I read the pleadings, but then I thought I might be projecting, so who knows?"

Ditto that here, Jane. This all suddenly feels like denoument. Even the revelation of Adam Levine pointed out by SteveMG just seems like a perfect anti-climax.


Of course, the Times today, headlined Jim Marcincowski, the ex CIA man, in El Salvador turned prosecutor, and fledgling
candidate; the preferred quagmire of the
1980s;( re Didion, Anthony Lewis, E. F.
Sheehan, Danner, Raymond Bonner , the NYRB
I repeat myself) along with Larry Johnson, and I recall Mary McCarthy, was branch chief. Was there anyone on our side, over there. Except for Terry Ward, who was raked
over the coals six years ago, when he was recognized for doing his job, with a medal.
Back then, it was another clueless
Lawrence, Walsh, who tried but did not succeed in mucking up the works, specially
after the urban paramilitaries of the day;
reacted aggresively, to a sudden FMLN offensive in 1989. Walsh, true legerdemain
only slightly less convoluted than this;
tried to bench the Company's chief middle
east operators, Claridge, George, Fiers,
et al; coincidentally the ones who knew
first hand Ames was not cut out for operations work. Bush did parry back with
the pardons: we all know the stink that caused. George, the former station chief in
Beirut,Ankara, et al; was reduced to being
a PI for Ringling, Claridge, formerly posted to India, Turkey and Italy, the founder of the CTC, did go to work
with the I.N.C., along with Gen. Dowling,
the architect of the mostly special forces
"Jedburgh" style operation for Iraq, along
with working for General Dynamics. Fier, the former station chief in Riyadh, who ended up Latin American div. chief?, essentially rolled over, in order for Walsh
to get his indictments. Well, I tell you straight, no one's rolling over now.

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