Tidbits From The Libby Filings

The Next Hurrah has the latest Libby filings.  When time permits I will pore through them, but three tidbits grabbed me:

(1) the Cooper-Libby phone call had two other participants (p. 8, footnote):

For example, regardless of whether Mr. Cooper chose to disclose the details of his conversation with Mr. Libby to the government, Mr. Libby could not have assumed that he could falsely represent the details of that conversation with abandon. This is because two other witnesses were present for that call: Cathie Martin, Assistant to the Vice President for Public Affairs, and Jenny Mayfield, Mr. Libby’s personal assistant. Obviously, Mr. Libby could not have expected that either Ms. Martin or Ms. Mayfield would refuse to cooperate with the investigation or testify falsely.

If their versions matched Libby's, presumably we would not be hearing this case.

(2) Unless Maureen Dowd handled the redactions (a possibility), Cheney did not tell Libby much about Plame's status - per the notes (page 6), she was described as "working in a 'functional office'[,] CP".

I have no idea what may have been redacted there, but my understanding was that Cheney told Libby that Ms. Plame was in the CPD.

(3) Confusion at the CIA, or, The Press Flack Is Always The Last To Know:  Bob Novak was adamant that CIA press spokesperson Bill Harlow had not been emphatic in warning him about Ms. Plame's status.  Now we learn this in a footnote also on page 6:

Notes from a July 2003 internal interview of William Harlow... indicate that, at the same time as he was confirming to Mr. Novak that Ms. Wilson worked at the CIA, Mr. Harlow "found out" that Ms. Wilson was "not under cover".

If Novak were on trial this would be great news.

One of the points of one of these filings is that, since Fitzgerald has offered no evidence that anyone actually was aware of Ms. Plame's covert status and has provided only a two page summary of her CIA career indicating that her status was classified, the whole topic should be barred from discussion by the prosecution as inflammatory and irrelevant.

That said - if Bill Harlow could not pin down her status after checking around (and despite a heads-up from Ms. Wilson following the sidewalk encounter between Novak and Wilson's friend in the street), it is easy to believe that Libby did not know her status either.

Comments

[Jane]

Well I can't say a lot for Libby's timing since we are having so much fun with John kerry.

[clarice]

Wish I could read those pdf files. I can't access them.

[Squiggler]

Is Libby calling out Cooper as having misrepresented the conversation where others can testify differently? Did we know there were others witnessing this conversation?

[MayBee]

This is what EW has on Kos right now, about Rove:

_____
Rove will not be charged with perjury. As I understand it the GJ voted to indict, but there were problems with both the primary witnesses against: Matt Cooper and Richard Armitage. So Fitz decided not to take a case he couldn't win.

So I think anything further would come at the trial (perhaps after Dick has to answer questions under oath?) or if, lacking a memory defense, Libby's lawyers opt to avoid an embarrassing loss and try to deal.
____
Where would she get that? And if Cooper is a problem witness, why indict Libby?

[Jane]

In a nutshell Clarice, Libby's lawyers are asking that Fitzy not be allowed to include any testimony of reporter's refusals to testify, litigation regarding same; Miller's jail time and the contempt proceedings attendant to that.

The lawyers suggest that it would require a trial within a trial and they would need Fitzy to testify.

They further suggest that fitzy would want to raise the issue to enhance motive, but since Libby freely signed all waivers to confidentiality that would be a red herring.

[verner]

"Notes from a July 2003 internal interview of William Harlow... indicate that, at the same time as he was confirming to Mr. Novak that Ms. Wilson worked at the CIA, Mr. Harlow "found out" that Ms. Wilson was "not under cover"."

OK, so he knew that a) Armitage was the leaker and b) Plame was not "undercover--but he indicted Libby anyway.

So now, for once and for all--can we agree, there should never have been an investigation in the first place because VALERIE PLAME WAS NOT COVERT.

[Jane]

Actually the link I read was a motion in limine and not what appears to be referenced in TM's piece, or I am very confused.

[Sue]

Me, too. There must be more than one filing.

There is. http://thenexthurrah.typepad.com/the_next_hurrah/files/103006_libby_exclude_info_on_plame.pdf>Motion in Limine to Exclude Evidence....Valerie Wilson's Employment.

Jane, your first analysis was correct as to what was filed regarding the reporters.

[verner]

Check the other link Jane.

Some good stuff in the other filing.

1. Fitz gives NO EVIDENCE in the summary that Val was covert.

2. They have never allowed Libby to see the referal from the CIA.

Sheesh. What total liars Val, Joe, Corn and Fitz have been all along. THEY KNEW FROM DAY ONE THAT THE BLEACH BLOND WHO DECORATES WITH A POTTERY BARN CATALOGUE WAS NOTHING BUT A WMD DESK JOCKEY!

And we've been right all along. Harlow would have never given the info to Novak if she had been undercover.

Also, the first time I've heard that Mayfield and Martin were privy to Libby's conversation with Cooper!

[Sue]

Clarice,

Are these standard motions? I ask that because when we go to trial in state civil court, the attorneys for both sides have motions in limine prepared and send them back and forth until they have hammered out what they do agree should be included and only those issues in contest are presented to the judge for consideration. A final order is prepared which includes those issues agreed upon and those the judge ruled on. Do these filings mean Fitzgerald will not agree to these issues? Or do they not have agreements like this in federal court?

[Sue]

I said that wrong. I meant

have hammered out what they do agree should be exlcuded

[Sue]

out out damn italics

[Jane]

Sue,

We don't have those agreements in state Court here. Motions in limine are generally presented for the first time on the day of (or even during) trial, and are ruled on immediately.

[Sue]

Okay. I just wondered if Fitz was balking at keeping stuff out he claimed was irrelevant to begin with.

[Patrick R. Sullivan]

The motion to keep out any reference to the actions by Russert, Miller and Cooper to avoid testifying to the Grand Jury makes perfect sense.

Fitz can't argue that Libby knew he could lie because they weren't going to testify to what he actually told them. The time line would be backwards. Libby testified, and gave waivers of confidentiality BEFORE the reporters fought against testifying.

The motion to keep out any mention of Val's CIA status also makes sense given the judge's prior rulings (as well as Fitz's arguments). I.e. the case isn't about whether she was covert or not, so let's not say ANYTHING AT ALL about it.

So, what does Fitz have left to argue if the judge agrees? As someone coined it; the Seinfeld Case.

The judge and Fitz handed that ball to the defense, and now they're running with it like Walter Payton.

[clarice]

Thanks, someone (don't know if she wants a mention) kindly sent them to me and I'll try to write them up.

From the first preliminary hearing Libby's lawyers had Fitz' game figured out:He said he wasn't putting on evidence of her status or harm to national security but for sure he planned to sneak them in without having to prove anything..This after poisoning the jury pool with that outrageous presser..He wanted a small case--not a big case about the war--and he will, if Libby succeeds in these motions , have the tiniest case possible.

[Cecil Turner]

. . . and he will, if Libby succeeds in these motions , have the tiniest case possible.

I am absolutely unqualified to assess the legal arguments, and the filings looked very internally consistent and clever, but it seemed strange to me that many of the arguments relied on what Fitz said in discovery. I'd have expected some reference to legal precedent (e.g., that in a similar case insufficient discovery provided to the defense and subsequent introduction of the related evidence at trial unfairly prejudiced the defendant), and didn't see much of it. Made me think the legal case might not be very strong. Any expert opinion?

[clarice]

I think these are largely case-specific. Rule 403 which allows the judge to foreclose presentation of evidence --even if relevant--if it is more prejudicial than probative calls for a balancing and is fact specific. So it is no surprise that the citations are largely to matters in this record.

[Cecil Turner]

. . . calls for a balancing and is fact specific.

Thanks. I suspected it was something like that. I was struck by this passage, which appears to me to be the main point:

To allow the government to tell the jury that Ms. Wilson's employment status was, in fact, classified or covert, without providing Mr. Libby any recourse to challenge that assertion, is tantamount to a forced stipulation, something this Court should not condone.

The implication, however, is that Walton could condone it if he thought it proper, and Walton has consistently been a bit more solicitous of Fitz's arguments than I would've predicted. (Though I suspect that might change with public perception of the case, even though it probably shouldn't.) So while I'd score this one comfortably for Libby, factoring in past rulings suggests it'll be a really close call.

[paulv]

I thought that Cooper's testimony and notes were inconsistent anyway. How much can Futz rely on him?

[cboldt]

Patrick R. Sullivan

Fitz can't argue that Libby knew he could lie because they weren't going to testify to what he actually told them. The time line would be backwards. Libby testified, and gave waivers of confidentiality BEFORE the reporters fought against testifying.

It's not a timeline issue - and certainly not the way you state it there.

Says Libby, "The government has indicated that it plans to argue at trial that Mr. Libby felt free to lie about his conversations with reporters because he expected they would not cooperate with the investigation."

What's suggested as being probed there is Libby's expectation as of October/November 2003, which expectation precedes BOTH his waivers of July 2004 and the even later resistance by reporters to cooperate with the investigation.

Does a person who gives off the record or unattributed information to reporters have a reasonable expectation that reporters will resist divulging that confidence? Did Libby have that expectation? Or did Libby think that reporters would turn into blabbering tattletales?

Whatever expectation Libby had on this point is relevant (I think highly relevant), because it is a significant factor in the "will I be caught?" calculus. It's to Libby's advantage to establish that he expected reporters to testify forthrightly (with no waivers, etc.), when he gave testimony to the FBI in October/November. This scenario makes Libby LEAST likely to lie to investigators.

At the opposite end of the spectrum, a person can confess to a priest, then lie to an investigator, fairly secure in the expectation that the confession given to the priest will not be given to an investigator. Whether right or wrong in fact, most people have this expectation.

[cboldt]

strike "waivers of July 2004," that should have been waivers of January 2004.

His GJ testimony followed his providing of those waivers to reporters.

[clarice]

Cecil--I think that point raises some 6th Amendment issues, and may be the least close call.

When it came to the broader issues of context, Fitz argued and the judge bought--that this should be the small case, not the big case. And for that reason I think Libby's arguments re the reporters is also on solid ground.

[Neo]

Mr. Harlow "found out" that Ms. Wilson was "not under cover".

Now how does one "find out" about Ms. Flame's status ? Does Mr. Harlow just login to SpookDB ?

[cboldt]

paulv

I thought that Cooper's testimony and notes were inconsistent anyway. How much can Futz rely on him?

Without looking at the various accounts, my general recollection is that both Cooper and Libby's recollection of the conversation itself ends up very similar - with neither version indicating any "official awareness" on the part of Libby, and with Libby's testimony to investigators (if believed as truthful) leading investigators to conclude that Libby had no "official awareness" at the time of his conversation with Cooper.

The question can be further probed by comparing this testimony of Libby with both Libby's recollection of the Cooper conversation, and with Cooper's recollection of the same conversation:

Q. And it's your specific recollection that when you told Cooper about Wilson's wife working at the CIA, you attributed that fact to what reporters

A. Yes.

Q. -- plural, were saying. Correct?

A. I was very clear to say reporters are telling us that because in my mind I still didn't know it as a fact. I thought I was -- all I had was this information that was coming in from the reporters.. . . .

Q. And at the same time you have a specific recollection of telling him, you don't know whether it's true or not, you're just telling him what reporters are saying?

A. Yes, that's correct, sir. And I said, reporters are telling us that, I don't know if it's true. I was careful about that because among other things, I wanted to be clear I didn't know Mr. Wilson. I don't know -- I think I said, I don't know if he has a wife, but this is what we're hearing.

Anyway, rather than the common (and I think incorrect) analytical comparison of Libby's vs. Cooper's version of the same conversation, the jury will be asked to compare either one of those two they find believable (or a hybrid of the two) with the testimony above, to decide whether either version of the Libby/Cooper conversation involves Libby "very clearly attributing the story that Wilson's wife worked at the CIA to reporters."

The case doesn't turn on the Libby/Cooper conversation - the Libby/Cooper conversation is cumulative of testimony that Fitz alleges has a tendency to lead investigators to the false conclusion that Libby had no "conscious official awareness" in mid-July - at the time he had contact with reporters.

[Pofarmer]

Obviously, Mr. Libby could not have expected that either Ms. Martin or Ms. Mayfield would refuse to cooperate with the investigation or testify falsely.

If their versions matched Libby's, presumably we would not be hearing this case.

Are we sure they ever testified? Or that statements were taken from them?

I seem to recall Fitz not sending to interview Val's neighbors untill, like, the week or the day of the Libby indictment. Wouldn't be the first missed lead in this case.

[clarice]

The judge ordered the prosecution to turn over Time's docs to Libby before trial on the ground that no matter how Cooper testified these notes would impeach him.

Further, we have learned in the pleadings and arguments so far that Cooper's simultaneous notes contain NOT A SINGLE REFERENCE to Wilson's wife.

Ms Martin did testify though I do not know about what. We do know that Harlow had told her that Plame worked at the agency.

As for Ms Mayfield, I don't recall seeing her name before.

[cboldt]

This is the version/gist of the Cooper/Libby conversation that Fitz alleges doesn't jive with Libby's additional testimony ...

33... b. LIBBY did not advise Matthew Cooper, on or about July 12, 2003, that LIBBY had heard other reporters were saying that Wilson's wife worked for the CIA, nor did LIBBY advise him that LIBBY did not know whether this assertion was true; rather, LIBBY confirmed to Cooper, without qualification, that LIBBY had heard that Wilson's wife worked at the CIA

IIRC, both Cooper and Libby have given nearly identical versions of direct recollection of this conversation, with the difference being between "Yeah, I heard that" and "Yeah, I heard that too" or similar triviality.

It doesn't make sense that a case would turn on such a trivial difference, which is why I figured (and suggest) a need to read further to figure out the nature of the misleading testimony that Fitz is charging.

[clarice]

Here's what I think--Cooper's story that 2 WH officials supplied him with that information was made up out of whole cloth..

[Pofarmer]

It doesn't make sense that a case would turn on such a trivial difference, which is why I figured (and suggest) a need to read further to figure out the nature of the misleading testimony that Fitz is charging.

How about just figuring out that there's no there, there?

Indicting Libby was an attempt to get him to roll over on somebody else. Problem is, the logical person to roll over on would be the leaker, Armitage, who had already testified!!!

[cboldt]

With regard to the CIA/covert issue, I think Walton has to grant the motion as phrased on page 1. Plame's status was NOT in fact classified or covert, therefore evidence that she WAS such, in fact, would be a fabrication. And since she was NOT classified or covert in fact, there can be no harm from "disclosing" that.

This motion aims to attack the legitimacy of 1. the CIA referral, 2. discovery and gathering of evidence, including testimonial evidence taken by the FBI, and 3. the DoJ referral of "the leak case" to Fitz.

I think Fitz is going to have to content himself with asserting that "legitimate" or not (meaning that Plame WAS covert), the investigation was official, and that upon review of Libby's testimony (taken before Fitz was named), Fitz suspected Libby had made false statements and provided the witness with an opportunity to clarify or rectify.

[cboldt]

Pofarmer

Indicting Libby was an attempt to get him to roll over on somebody else. Problem is, the logical person to roll over on would be the leaker, Armitage, who had already testified!

I don't think that indicting Libby was an attempt to get him to roll over on somebody else. And as you point out, the evidence points out the opposite.

This apparent quandary/conflict is resolved by dividing the false statements case from the leak case. In the case at hand (Libby's) the question is whether or not Libby gave materially false statements to investigators. The question is not "was Libby a leaker."

[SunnyDay]

The thing that makes me think Libby was indicted so that Fitz could pressure him into rolling over is the statements and implied (but untrue/theoretical) "facts" in the presser. That's what libby's lawyers are after in this, isn't it?

Kind of "he did it in the presser, he did it in the indictment, we think he'll do it in the trial."

Fitz has no case, so he needs to confuse the jury into thinking the trial is for leaking and then lying about it, instead of just disagreeing with a reporter, which seems to be about all Libby has done.

Fitz wanted Rove, or Cheney, or maybe even Bush, but all he could get was libby, who sounded confused.

I dunno, legal stuff gives me a headache, but from the ordinary person POV, why else would he indict Libby, when he already knew the leaker and that there was nothing to leak.

He must have thought Armitage was only one part of the story - that there was also a WH plot to get Wilson at the same time.

I don't believe for a minute, that he got an indictment against Rove, but had problems with a witness - phooey. If he got an indictment against Rove, he wouldn't be able to stand it. He would do it anyway. Look at what he's doing now - it's insane, but that doesn't stop him.

[Syl]

This apparent quandary/conflict is resolved by dividing the false statements case from the leak case. In the case at hand (Libby's) the question is whether or not Libby gave materially false statements to investigators. The question is not "was Libby a leaker."

Okay, material to what? And what was Libby obstructing?

[Syl]

FBI doesn't know Val is not covert. Thinks Libby knows Val is covert from something Cheney told him. FBI felt Libby gave false statements about state of mind during conversations with reporters to throw them off the trail.

The investigation was purportedly an investigation of a leak. That's what Libby would be thinking when he answered the FBI questions.

So I guess the FBI thought he was lying so they couldn't possibly think he was a leaker.

Fitz comes along, knows who the leaker is, and probably already knows that val wasn't covert. But he's on a mission so is going to find anyone who leaked classified information----except the New York Times, of course.

Fitz gets the stuff from the FBI. Do they share their suspicions?

Fitz gets Libby to testify in front of the GJ. He tells basically the same story.

Fitz is suspicious. Even though fitz knows val isn't covert, he thinks Libby THINKS she was and thus is lying. In fact fitz is so supicious of Libby that he wants testimony from the reporters as to what Libby actually told them.

So the following legal hoopla goes on with the reporters and fitz gets their testimony.

The testimony doesn't exactly confirm Libby's bafflegab, but an interesting thing showed up in the testimony from the reporters----Libby HAD NO REASON TO LIE because he said squat to the reporters, didn't leak, and therefore had no motive to lie.

Fitz was definitely looking for Libby to roll someone else--Rove. Because it supposedly was Rove who told Cooper, then Cooper said Libby confirmed with 'I heard that too'. So Fitz was trying to prove a conspiracy between Rove and Libby to out Val who wasn't covert.

Fitz couldn't pull that off, and I simply do not see what he has on Libby without that.

If someone is murdered and a suspect thinks he might have done it and fibs to the authorities but it turns out he has an alibi and wasn't even at the murder scene, what can he be charged with?

[Ranger]

Fitz did not know who "the leaker was" when he took over the job, he only knew who "a leaker" was. He took as his mission discovering who the "First Leaker" was. He believed that he had uncovered a plot by the administration to leak VPs info for revenge and the means of leaking was via Libby. It is clear to me that he indicted Libby in a standard patern to his conspiracy investigations. Fitz often brings shaky indictments against lower level people who then fold and roll over on higher level people. It works in most cases because:

a) There really is a plot to do illegal things.

b) Lower level people do not have the resources to hire good legal help to fight the shaky indictments, so it is easier and cheaper for them to just fold.

In this case niether a or b applied, so Fitz is stuck with what he has. I now think that part of the reason that he won't back down is because, even though by now he probably realizes his case really stinks, he has to make it last as long as possible and be as painful as possible on Libby so he can still use this standard course of action in future corruption investigations. He wants to be able to shoot back at any lower level target who points to this case as an example that Fitz can be bested: 'True, Libby beat me, but it took him three years and 10s of millions of dollars to do it. Do you really think you have that kind of time and money?'

[clarice]

The minute Woodward came forward--if that is what Fitz thought--he should have dismissed the case.
I am not sure what his motive was, though I suspect he had been led to believe by Comey (who was kissing up to Schumer) Armitage and the FBI that the leak was from Cheney , Rove and Libby.And he did not do the kind of investigation that would have disabused him of that.

I also think the idiot Szady of the FBI played a role in this. Szady has fucked up every major CI operation in the US in the last 15 years, regularly going after the wrong people.

[Cecil Turner]

Plame's status was NOT in fact classified or covert, therefore evidence that she WAS such, in fact, would be a fabrication.

There's ample evidence to suggest she wasn't really "covert" (at least in any meaningful sense), but "classified" would seem to be a very basic administrative determination on whether or not her name and affiliation should be public knowledge. And any operational officer would normally remain on that list until it was certain no cover was needed. Regardless of what's in Harlow's notes, seems to me most likely Plame's name is on a list of officers that's classified, at least at the "confidential" level. And that that's the most pertinent definition of classified as it pertains to this case:

(i) whose identity as such an officer, employee, or member is classified information

I'd love to be able to claim her identity wasn't classified (and thus the investigation was a sham from the beginning), but I don't think it scans.

[cboldt]

Syl -- "Okay, material to what? And what was Libby obstructing?" --
The answer to both question is "the leak investigation." The indictment says so, in so many words. I'm not going to waste space here re-asserting what I've said before. I see both, materiality and motive, many readers and posters here think I'm wrong on that point, and I'm content to have said my piece on the subject (here), oh back in March, April or May.

[cboldt]

SunnyDay -- "I dunno, legal stuff gives me a headache, but from the ordinary person POV, why else would he indict Libby, when he already knew the leaker and that there was nothing to leak." --

He indicted because he believed Libby had deliberately attempted to mislead the leak investigation.

Success or absence of success in misleading, does not change Fitz's impression that "Libby lied to investigators."

It's common for jurors and observers to conflate the "leak" case with the "false statements" case. The result being to find no wrongdoing if there is no leak, even if a suspect deliberately mislead investigators. For example, you see no reason to indict Libby, let alone convict him. The logic appears to be that "if Fitz knows there is no leak, and therefore no illegal leaker, no witness can have been a material liar." You aren't alone in that logic. Fitz will have an uphill battle.

Syl

If someone is murdered and a suspect thinks he might have done it and fibs to the authorities but it turns out he has an alibi and wasn't even at the murder scene, what can he be charged with?

Fibbing to authorities. I'd hate to have the chore of investigation if the legal rule became "suspects (even suspects who think they may have dunnit) may lie with the intention of removing suspicion from themselves, as long as it turns out that the prosecutor can't make the underlying case against the suspect."

[verner]

Here's the key phrase:

As the government is aware,the summary comprises just over two double spaced pages. It presents general assertions, without providing any explanitory or corroborating detail. In the end, it raises more questions than it answers. As noted above, Mr. Libby's attempts to obtain answers to those questions have been summarily denied.

In other words, Fitz pulled a David Corn.

I think that's why they will not disclose the referral letter. Wells, et. al will rip it to shreads, and the public will know once and for all what a sham this has been from the beginning.

Valerie's camp admits that she was on her way out the door, and was "transitioning" to state. And, let us repeat, if she was "covert" etc., Harlow would have never told Novak anything--and her name etc. would not have appeared in the DOS memo.

The referral was nothing unusual. According to Toensing, the CIA sends dozens to JD a month, and most of them go absolutely nowhere. Half the people in the building are "classified." The only reason this one did was because the info was leaked to the press, and Schumer saw a chance to get the Bush administration.

[Jane]

What bothers me most about all this, and what I keep going back to, is Fitzy's press conference. Given what we know now, and what he knew then, it really was the height of irresponsibility.

[sad]

So it isn't Val who is covert and undercover-- it is her home furnishings and decorating. Fitz was confused by the super secret sofa.

[cboldt]

SunnyDay -- "Fitz has no case, so he needs to confuse the jury into thinking the trial is for leaking and then lying about it, instead of just disagreeing with a reporter" --

The short version of Fitz' chore is to show the jury that the investigation was about leaking, but the trial is about a suspect that lied to investigators with the intention of causing them to conclude (in error) that he had no recollection of obtaining official reports that Wilson's wife worked at the CIA.

Fitz does not want to be put in the position of trying to show that Libby was a leaker, i.e., he doesn't want to confuse the jury into thinking the trial is for leaking and then lying about it, because the evidence doesn't well support that story line.

[cboldt]

I meant to add in my recent, but forgot, to distinguish "lied that he DID leak" (my choice of words, meaning to imply making an admission that he could have leaked), with "lied that he COULD HAVE leaked."

The story he painted to investigators (says they) was that he lacked the recollection of official reports that is necessary for him to even provide a leak. IOW, he wanted investigators to conclude that it was impossible for him to be a leaker.

This is different from painting a story "I knew Wilson's wife worked at the CIA, but no way Jose did I ever say anything like that to reporters." In the second case, it's a he-said she-said between Libby and the reporters. But Libby asserted to investigators "I didn't know," which makes the he-said she-said shift from between Libby and reporters, to be between Libby and investigators, and Libby and other evidence, e.g., notes.

[SunnyDay]

he doesn't want to confuse the jury into thinking the trial is for leaking and then lying about it, because the evidence doesn't well support that story line.

But that's why he wants to be able to insert it without having to prove it.

[SunnyDay]

Seems to me that what Fitz is trying to keep out would tend to back up Libby's story, not Fitz's.

[SunnyDay]

I better stop I'll drive you legal types nuts with my lay-person drivel. hahaha

[cboldt]

Cboldt: he doesn't want to confuse the jury into thinking the trial is for leaking and then lying about it, because the evidence doesn't well support that story line.

SunnyDay: But that's why he wants to be able to insert it without having to prove it.

My contention is that Fitz does NOT want to insert any hint or suggestion that the trial is about lying about (actually) having leaked. He wants to steer away from that because it has a tendency to convert the false statements (to investigators) trial into a leak (to reporters) trial.

[verner]

Sunny, but in keeping out what would help Libby, doesn't it seem that Fitz is gutting his own case?

At this point, what does he have?

Cooper and Miller are impeached.

We have a "he said he said" between Russert and Libby.

And half a dozen rather nebulous mentions of Valerie Wilson more than a month before the Novak column that are somehow suppose to prove that Libby lied.

And why did he lie? Fitz can't show any motive at this point. His grand theory only works if there is some evidence of a conspiracy--and there is not any. All the "covert" stuff has proven to be nothing but a media confection initiated by David Corn.

I don't understand why Walton doesn't just pull the plug.

[cboldt]

-- "Seems to me that what Fitz is trying to keep out would tend to back up Libby's story, not Fitz's." --

What is meant by the phrase, "Libby's story?"

Quite a bit of the argument and discussion here seems to bottom out on "Libby's story" resembling "I didn't tell any reporters that Wilson's wife worked at the CIA." That story line doesn't get to the point of the charges in the indictment.

A different "Libby's story," the one that the investigators say they were told, resembles "I COULDN'T possibly have told any reporters that Wilson's wife worked at the CIA, because at the time of the conversations with reporters, I didn't recall that Wilson's wife worked at the CIA."

Evidence that backs up the first story (I didn't leak to reporters) doesn't dispose of the second (I didn't lie to investigators).

[Jane]

I better stop I'll drive you legal types nuts with my lay-person drivel. hahaha

Sunnyday,

As a lawyer I love lay-person drivel - it is so easy to miss the forest for the trees when you are ensconced in legal minutia.

[maryrose]

verner: Walton should pull the plug on this Seinfeld case.
Syl: Your explanation seems to make the most sense to me as to how we arrived at the place we are at today. I am most interested in what Mayfield and Martin testified to in their interviews. If they overheard something said in passing that would reflect negatively on Libby they may have said something detrimental to him.
Ranger: Your analysis is very good and gets to the heart of this kerfuffle. At some point I believe Gonzalez needs to come in and call this tiny case for what it is-a waste of taxpayer money and call it quits for Fitz and company. I await that development after the successful midterm elections. The only ones who would scream and holler would be the netroots and who cares about them.

[SunnyDay]

cbolt - I think Fitz is planning to sneak stuff in, because that's what he did in the presser and the indictment. Libby's lawyers obviously think so.

LIbby's story - "I didn't have a reason to lie - period."

Verner - Yes, it totally guts his case - unless he sneaks it in, which is what Libby's lawyers say they think he's going to do.

Jane - LOL, thanks. I have a lot of expertise in insurance - there's nothing more annoying than

-someone who keeps on stating the obvious (because it isn't obvious to them, of course).

-someone who goes off on a tangent that really has nothing to do with the reality of the situation from a technical standpoint, and doesn't "get" the technicalities.

On the other hand, it clarifies things, sometimes, to restate them so that a 7 year old could understand them. ;)

[maryrose]

verner: walton should close this down
Ranger : Excellent analysis of this kerfuffle.
Syl:
Your explanation is the clearest example of what got us to the place we currently find ourselves in regarding this case.
Gonzalez needs to shut this down after the misterms because this really hasbecome a Senfeld case about nothing.

[SunnyDay]

cbolt (and maybe Cecil), the only way I can see this from your perspective (I think) is to assume two things:

1. Fitz has a tidbit absolutely no one has even guessed at yet.

2. Libby is as likely to have lied as not.

How likely is this??

[Cecil Turner]

How likely is this??

I think both are fairly close to a coin-flip, but since I think I disagree with cboldt on both, probably better directed at him. I also don't think Walton will rule entirely for Libby on either motion. I suspect he'll get some variant of the "forced stipulation" he obviously doesn't want. OTOH, I'm not a lawyer, and cboldt is, so a smart man taking bets . . .

[clarice]

http://americanthinker.com/articles.php?article_id=5999

[clarice]

http://americanthinker.com/articles.php?article_id=5999

[cboldt]

SunnyDay -- "LIbby's story - "I didn't have a reason to lie - period."" --

I think that's a species of the general "I didn't leak to reporters," recast in the form of "One who does not leak to reporters has no motive to lie about having official notice that Wilson's wife worked at the CIA."

A variation on that theme is absence of knowledge that Wilson's wife was "legally covert." Some have argued that if Libby doesn't KNOW Wilson's wife has a covert position, then he CAN leak, comfortable that it isn't breaking the law, and if he hasn't broken the law, he has no motive to lie to investigators.

The "utter absence of motive" argument [which I find unpersuasive] is not responsive to the distinction between whether or not he leaked to reporters vs. whether or not he had the requisite official knowledge to leak to reporters.

[cboldt]

-- "OTOH, I'm not a lawyer, and cboldt is ..." --

Cboldt has a law degree, but has not taken any bar exam except the one offered by the US Patent and Trademark Office.

I don't think Fitz has some hidden evidentiary tidbit. The court frowns on surprises at trial.

Most of what comes off as my opinion is actually my paraphrasing of the indictment and other pieces of evidence. Sometimes I am careful to point out "Fitz says" or "the indictment stands for" ... but more often I don't.

Taking the indictment, the facts as disclosed since then in filings, and the legal arguments aimed at excluding certain pieces of evidence, my opinion is that the case has merit and is not a matter of a prosecutor gone wild. I don't think either side has an easy job at trial, if the case gets that far. I personally think that Libby intentionally misled investigators as charged in the indictment.

[clarice]

Cecil, I do not see how the government could ever have made the Plame was "classified" argument when it cannot show that it did everything in its power to preclude disclosure of her employment. And since Harlow freely told Novak she was employed at the Agency and said the same thing to Ms Martin and Armitage clearly had the information and others most certainly did per Joe's big mouth that is a dead issue.

I find the argument that where the government never even assessed actual damage and has provided no evidence of such, it should be allowed to prejudice the case by making vague references to "potential" damage under the circumstances of this case.

I find the contrary arguments technical pettifogging of the worst sort, the sort the ignores the practical consequences and lack of due process to the defendant.

And having watched Fitz in action, his sharp practices smack of prosecutorial overreach to me.

That's my opinion. And I'm sticking to it.

OTOH if Fitz determines that it was really important to national security to ascertain who leaked this information, his insistence on keeping Armitage's role a secret to the jury is preposterous.

[clarice]

***correction***I find RIDICULOUS the argument that where the government never even assessed actual damage and has provided no evidence of such, it should be allowed to prejudice the case by making vague references to "potential" damage under the circumstances of this case.

[SunnyDay]

I personally think that Libby intentionally misled investigators as charged in the indictment.

I think Libby is smarter than that, no matter how much pressure he might have been under at the time. He could have resigned and walked away, unscathed.

[Cecil Turner]

Cecil, I do not see how the government could ever have made the Plame was "classified" argument when it cannot show that it did everything in its power to preclude disclosure of her employment.

I think that'd be a good argument for "covert." "Classified" is a far lower, administrative, standard. And I suspect her identity was still classified (primarily because of bureaucratic inertia), because as far as I can tell, that's how it's generally done in the Ops Directorate.

And having watched Fitz in action, his sharp practices smack of prosecutorial overreach to me.

To me as well. That presser put my nose severely out-of-joint, and subsequent developments just reinforced the view.

[Neo]

The more I learn about Fitz's investigation, the more I believe that Fitz knew he had been given the booby prize just weeks into the appointment. At that point he knew he had to show at least one scalp, so he switched from "leak" investigator to "conspiracy" investigator.

From here there are two different scenarios of the possible truth:

1) Fitz bought into the Wilsonian story about a grand conspiracy within the White House, that was completely aside from the Armitage leak. This is why he told Armitage to stay quiet so as not to confuse, what he believed were two different leaks of Ms. Flame's status. The grand conspiracy looked to go from Libby to Rove and/or Cheney, which the memo with the Cheney hand scribbles gave some hope to the theory. Fitz finds this virtually ridiculous mismatch of statements between Libby and others, and thus the Libby indictment Sprang Fully-Grown From the Head of Zeus. But the plan required Libby to flip on the others and no flipping was forthcoming.

2) Fitz knows the truth won't be politically satisfying, so instead Fitz finds this virtually ridiculous mismatch of statements between Libby and others, and thus the Libby indictment. Fitz's hope is that an indictment, any indictment, will get him off the hook politically. Then if the case falls apart months down the road, interest would have waned to the point that no one would care. Fitz is off the hook. Libby is where ever the judicial process has left him into with prejudice.

I used to buy into scenario 1) but scenario 2) is looking more and more like the truth.

[cboldt]

SunnyDay -- "I think Libby is smarter than that, no matter how much pressure he might have been under at the time. He could have resigned and walked away, unscathed." --

There are many alternative paths of action, not stated in the papers. He could have refused to testify (as you say, by resigning), he could have said "Yeah, I recall having official knowledge that Wilson's wife worked at the CIA." All that would have made his was a "suspected leaker," and as Fitz has stated in briefs, Libby could not have been convicted of outing the agent, because Libby didn't KNOW that Wilson's wife was covert.

But now, under the case as it stands, there are only two options. Did Libby mislead investigators as the indictment charges, or does the indictment fall? The arguments for why the indictment should fall tend to color the case as a leak case, or as Libby v. reporters, or as absence of motive - or yours, "he's too smart and honest to be a liar."

At any rate, I've approached the case with an open mind and good faith. The tracks I've left here and elsewhere are evidence for and against that, and others are free to conclude whatever they want about my sensibilities.

[clarice]

I suspect something more sinister in his appointment and my finger points to Schumer and Comey who played into the anti-administration folks in the DoS, DoJ and FBI but I can't prove it.But Comey had a nice long chat with Schumer before his confirmation and emerged with his hair tussled and his beard burn on his cheeks. And I think he promised to appoint Fitz if confirmed.
Once they learned that Fitz could not be statutorily appointed Comey made up that super special appointment.

After all that, Fitz was rather bound to his pal to indict someone and to continue to sit on the most important evidence--that Armitage, not anyone in the WH, had disclosed Plame's identity.
Call me cynical if you will..I've lived here for about 4 decades.

[clarice]

This case should have been dismissed on the appointment issue but Judge Walton hadn't the guts to act on it.

Libby's defense will cost about $15 million dollars or more. I predict he will win and when he does we the taxpayers will pay for this political witch hunt.

[cboldt]

clarice -- "This case should have been dismissed on the appointment issue but Judge Walton hadn't the guts to act on it." --

Is the "Motion to Dismiss based on Defective Appointment" the one where we probed interlocutory appellate practice? If this is a winning argument, team Libby also lacks guts if it fails to appeal.

-- "I predict he will win ..." --

I'm really bad with predictions. But it's a no brainer, whichever way the case resolves, all sides will claim victory, and decry the other (political) side for failure.

I think a plea deal is more likely than a trial. I don't think either side wants to risk a trial, even though both sides appear to be completely resolved to conducting one.

[cboldt]

clarice:

Yeah - the question of Defective Appointment is where we probed interlocutory appeal, back on April 27, 2006.

That was a lengthy thread, that included discussions of materiality and motive.

[SunnyDay]

cbolt - I wasn't arguing, just saying what I think. Can't argue presuppositions - they just are...

On day one, before I ever read anything here, I heard Fitz's presser, then later, read the indictment = all prior to finding JOM - and I thought "that's insane. Libby spent all those years in DC as a lawyer, and he would risk it on this? No way." - just my thinking, my presuppositions, and it's not based on an assumption of honesty on Libby's part, it's based on an assumption of "street smarts" on Libby's part.

When I found JOM, I was really very relieved to find lawyers and DC long-tmers who validated what I thought. But I know not everyone agrees, and that you have your reasons.

We'll see...

[clarice]

Libby will not accept a plea deal. It would cost him millions he can't afford. If he wins the govt must pay the cost of his defense.

[clarice]

Yes, cboldt, we've been around these issues for a while. And while I respect the fact that yours are defensible and honestly held views, I can't agree with them.

[Jane]

I don't think there will be a plea either, altho my guess is the case will end with a whimper not a scream.

I also think it is probable that both sides misremembered a bit. That would be a lot more typical than anything else.

Fitzy needs a saving face way out. It's the only way it will happen.

[verner]

I find RIDICULOUS the argument that where the government never even assessed actual damage and has provided no evidence of such, it should be allowed to prejudice the case by making vague references to "potential" damage under the circumstances of this case.

Clarice, one of the reasons I feel sure that Fitz doesn't want to go there is because if he does, that will open the doors for Wells to bring in his five witnesses who will say that Joe told them Valerie worked for the CIA. And should we remember that Fitz has never deposed the Wilsons under oath? Can we say if that happens, the whole stupid CIA referral looks like a complete joke meant to ignite a political witch hunt?

Yep.

So, Fitz better hope it doesn't get in. If it does, he'll look even worse than he does now.

[KI]

Plame and Wilson were worried that she was the investigation when a criminal conspiracy investigator, Fitz, was assigned. This is how bad OOs or in Plame's case, OOps, are prosecuted for treason. This is why they wer concerned about their neighbors. Aimes was prosecuted this way and that is who originally leaked her and she followed this pattern in Iraq(operations offecers assassinated by Iraqi police and Spain bombing by 'Basks.' Notice the Madrid investigation is over and they are going to trial as the Iraqi police are being assassinated or fired(Plame's revealing who she was at 'Vanity Fair'and Wilson's history with his dad there and how he was used).

Plame and Wilson see Fitz as vindiction, but he simply passed on his job and no one knows how to prsecute a bad agent-Fitz has a thing for policitians and no one knew how far he would go, unless that was planned and the pass to protect his fellow union dems in Federal government service.

Wells? There was a guy named Wells, but I'm not sure if he is in prison or playing the denial game in operations.

The damage assesssment is not being done because it is a crminal conspiracy by Plame, WMD, and CIA. Fitz did not prosecute, so it's seen as DOJ passing on the bad CIA operations officer.

[Cecil Turner]

I personally think that Libby intentionally misled investigators as charged in the indictment.

I personally think he tried to talk around the subject and minimize his own involvement. I also think he remembered the details far less well than he thought. But I also think it's clear the ponderous Administration pushback against Wilson started in early June, focused on the NIE, and had little or nothing to do with Plame's employment. I think Libby viewed his actions as righteous, and though he wanted to limit political fallout, had no criminal intent to mislead. Moreover, his alleged lies don't make much objective sense, and the last bit in the one cited above appears to me to be a conflation of the VP's then current: "I don’t know Joe Wilson. I’ve never met Joe Wilson" talking point. It's my sense that most people's thought processes tend to mirror speech patterns, and if so, Libby's a bit drifty.

Libby will not accept a plea deal. It would cost him millions he can't afford.

He also has the prospect of a pardon if he's convicted (more likely if it's widely viewed as unfair), which reduces his downside risk considerably. I agree he won't plead.

[cboldt]

SunnyDay -- "On day one, before I ever read anything here, I heard Fitz's presser, then later, read the indictment = all prior to finding JOM - and I thought "that's insane. Libby spent all those years in DC as a lawyer, and he would risk it on this? No way." - just my thinking, my presuppositions, and it's not based on an assumption of honesty on Libby's part, it's based on an assumption of "street smarts" on Libby's part." --

I scanned the indictment and listened to the presser near simultaneously. My opinion is formed more or less independently, from source documents. Both entrenched sides of the case make significant misrepresentations, and both sides have their own versions of conspiracy.

My first comments on the subject are at at Free Republic, back in October 2005. At the time I was attempting to correct the impression (left by the presser) that Libby was charged with leaking, or that Plame was covert, or some similar. My first post here at JOM was in March of this year with an admonition to not change a "liar" case into a "leak" case.

The fact that I am raising the same leaker vs. liar distinction today illustrates that I see (maybe my imagination) persistence of arguing Fitz's charge / Libby's defense as some flavor of leak case.

FWIW, "street smarts" includes some connotation of knowing what one can get away with. And I agree he is street smart.

[cboldt]

clarice -- "If he wins the govt must pay the cost of his defense." --

You may be right, but I don't believe that the government must pay the cost of his defense if Libby wins.

[Walter]

Clarice,

I remember the provisions of the old independant counsel statute calling for attorney's fees if a prosecution was not attempted or if attempted, it failed.

I have been wondering for some time whether any similar provisions exist in this case, given that the old statute expired without renewal. The Justice Department has expressly rejected what little guidance exists under the Regulations.

Wouldn't they argue that this should be treated as a normal investigation and prosecution and therefore each party bears its own costs regardless of outcome?

Not contesting...just uninformed.

[Syl]

cboldt

The "utter absence of motive" argument [which I find unpersuasive] is not responsive to the distinction between whether or not he leaked to reporters vs. whether or not he had the requisite official knowledge to leak to reporters.

But it makes a difference what the requisite official knowledge was...

(1)Mrs. wilson works at the CIA
(2)Mrs. Wilson works at the CIA and that fact is classified
(3)Mrs. Wilson works at the CIA and is covert therefore nobody should know she is employed by CIA.

Did Libby indeed have the 'requisite official knowledge' to make leaking a crime?

The knowledge Libby had could not possibly be requisite official knowledge to commit a crime because she was not covert thus there's no way Libby could have had the 'requisite official knowledge'. In fact, the knowledge he had was so minor (to him) from Cheney that he forgot it.

If later he was also told she was CIA by other people that she was CIA and it registered, he would still be surprised if he heard it from reporters.

He would also be careful not to reveal it, not because he knew he shouldn't, but JUST IN CASE because you don't go blabbing about CIA affiliation...not that it's against the law. Even revealing the CIA affiliation of an employee whose status is classified is an administrative matter, not a criminal one.

Libby's lawyers said in an earlier filing that they have another reporter who told Libby. It's possible Judy brought it up.

In Libby's memory, he didn't say anything to a reporter until he had actually heard it from a reporter.

Libby either forgot which reporter(s) he heard it from, or Russert is misremembering.

Libby was not lying about not possibly knowing because, in fact, he did not have the requisite knowledge to make leaking a crime.

[clarice]

Walter, I recall reading that the attorneys fees provisions still is part of the Special counsel provision. I have not been able to find it yet, but when I do I'll post it.

[cboldt]

Syl -- " But it makes a difference what the requisite official knowledge was...

(1)Mrs. wilson works at the CIA ..." --

That's the one recited in the indictment, ad nauseum. There is no "and that fact is classified" nor any "and is covert therefore nobody should know she is employed by CIA." Libby is charged with misleading investigators as to your fact pattern "(1)".

-- "In Libby's memory, he didn't say anything to a reporter until he had actually heard it from a reporter." --

That's a leak defense.

-- "Libby's lawyers said in an earlier filing that they have another reporter who told Libby. It's possible Judy brought it up. " --

So what if there are 6 reporters who told Libby? Libby wants investigators to conclude that he is just another player in the rumor mill. The charge is that while his testimony to investigators admitted he played in the rumor mill, he "conveniently forgot" that he knew Mrs. wilson works at the CIA. IOW, he wanted the investigators to conclude that his EXCLUSIVE basis for knowledge was the rumor-mill playground.

-- "Libby was not lying about not possibly knowing because, in fact, he did not have the requisite knowledge to make leaking a crime." --

"It's not possible for me to lie about recalling contact with the CIA on the matter of Mrs. Wilson's employment, either because Mrs. Wilson is not covert, or because even if she was covert, I didn't know she was covert."

Looked at yet another way, Fitz said that Libby lacked the requisite knowledge to make leaking a crime - and he said that before the indictment was handed down. Ergo, what you propound can't be Fitz's theory of the case. It's just another example of the leak inquiry invading the question of false statements.

[Syl]

IOW, he wanted the investigators to conclude that his EXCLUSIVE basis for knowledge was the rumor-mill playground.

And why would he claim this? Because he believed it to be true!

Libby forgot the little detail Cheney had mentioned to him in early June among other stuff. It seems Cheney forgot it also, if you look at Cheney's margin scribblings on the op-ed later. My goodness even Cheney forgot he knew mrs wilson was CIA!

And who official did Libby also learn that fact from? There was only one CIA guy who claims he told Libby, Libby claims he did not.

Everything else can be considered gossip. Both inside and outside the administration.

[cboldt]

clarice -- "I recall reading that the attorneys fees provisions still is part of the Special counsel provision." --

Title 28, Chapter 40 -- INDEPENDENT COUNSEL.

More particularly
28 USC 593(f), which says in part ...

... the division of the court may, if no indictment is brought against such individual pursuant to that investigation, award reimbursement for those reasonable attorneys' fees incurred by that individual during that investigation which would not have been incurred but for the requirements of this chapter

So, the provision that you have in mind to support your assertion that the taxpayer is on the hook for Libby's defense, if Libby wins, is elsewhere. I looked for it and can't find it, and still think your assertion is in error.

[maryrose]

There really is nothing here to prosecute.
As far as the theory that Fitz has something really important he is holding back doesn't discovery by Libby's lawyers cover that.? I just don't want Libby et al to be blindsided by some facts that have yet to come to light.

[Sue]

Who is here from the DOJ?

[cboldt]

cboldt: IOW, he wanted the investigators to conclude that his EXCLUSIVE basis for knowledge was the rumor-mill playground.

Syl: And why would he claim this? Because he believed it to be true!

Well then, maybe we agree on the basic theory of the case and the fundamental difference between prosecution and defense.

Fitz saying that Libby did not believe that the rumor-mill playground was the EXCLUSIVE basis for his knowledge, and Libby sticking to his testimony as delivered in October being either truthful (i.e., he in fact had no recollectable knowledge in July, at the time of conversations with reporters), or was a memory lapse between July and October.

[Cecil Turner]

That's the one recited in the indictment, ad nauseum. There is no "and that fact is classified" nor any "and is covert therefore nobody should know she is employed by CIA." Libby is charged with misleading investigators as to your fact pattern "(1)".

The indictment says (p. 3):

At all relevant times from January 1, 2002 through July 2003, Valerie Wilson was employed by the CIA, and her employment status was classified.

Moreover, there is nothing illegal about divulging a CIA officer's identity if it wasn't classified, so in that case there would be no investigation to obstruct. Seems to me (2) is the ticket.

[cboldt]

Cecil Turner -- "The indictment says (p. 3): At all relevant times ... Valerie Wilson ... employment status was classified" --

By golly it does, and there is a bunch of other background material too, with varying degrees of relevancy and "smoke."

But none of the charging paragraphs include a requirement that Libby know Valerie Wilson's employment status was classified.

An example charging paragraph reads ...

In truth and fact, as LIBBY well knew when he gave this testimony, it was false in that: ... At the time of this conversation, LIBBY was well aware that Wilson's wife worked at the CIA;

I don't see any "Libby well knew when he gave his testimony, it was false in that LIBBY was well aware that Wilson's wife worked at the CIA and her employment status was classified" in a charging paragraph. Not a single occurrence of anything that resembles that "limitation" in a charge.

[clarice]

It's illegal only if you knew it was classified.

So far, only the Hyde Amendment re attorneys fees:

The Hyde Amendment, Pub.L. 105-119, Title VI, § 617, 111 Stat. 2519 (1997), set out as a note to 18 U.S.C. 3006A, provides in relevant part:

[T]he court, in any criminal case * * * may award to a prevailing party, other than the United States, a reasonable attorney's fee and other litigation expenses, where the court finds that the position of the United States was vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust.

[cboldt]

-- "Moreover, there is nothing illegal about divulging a CIA officer's identity if it wasn't classified, so in that case there would be no investigation to obstruct." --

That's basically a defense based on illegitimacy of the investigation, or, if he was charged with leaking (he isn't) failure to meet the "covert" ("classified") status that forms an absolutely necessary prerequisite for knowing the outed agent was covert (classified).

I well know that the word "classified" here is pure bullshit. It has zero legal significance, beyond lending the aura of legitimacy to the investigation. Perhaps Fitz was stiffed by the CIA too - asking if they had evidence the Plame was covert, they said "buzz off, your job is to find the leaker, we sent a referral, didn't we?"

[clarice]

Or she remained over or mis classified to compensate her for the CIA's inadvertent leaking of her id to Cuba; or further investigation showed she wasn't; or that a quick check persuaded them that Joe's big mouth, her thin cover, and/or Harlow's blabbing made the claim impossible to sustain.

If someone at the agency with authority to disclose tells me my neighbor is employed at the CIA, or her husband tells me that and neither says but that's classified info, I have no reason to believe repeating that info is illegal or the law is an ass.

[cathyf]

In various postings yesterday, cboldt says a whole bunch of things that make lots of sense:

...that Fitz alleges has a tendency to lead investigators to the false conclusion that Libby had no "conscious official awareness" in mid-July - at the time he had contact with reporters.

...

It doesn't make sense that a case would turn on such a trivial difference, which is why I figured (and suggest) a need to read further to figure out the nature of the misleading testimony that Fitz is charging.

...

In the case at hand (Libby's) the question is whether or not Libby gave materially false statements to investigators.

Ok, here's what I "read further to figure out the nature of the misleading testimony that Fitz is charging."

Libby told the FBI about his MOMENT OF DRAMA which he claimed he had a journalist (not a government official) on the phone, and the journalist said something along the lines of, "Oh, Wilson's wife works for the CIA and all the reporters know that she's the one who sent her husband not Cheney." Libby told them that the reporter on the other end of the line during the MOMENT OF DRAMA was Russert, and that this happened in the context of a conversation where Libby called to complain about a particularly over-the-top anti-semitic, anti-neocon Chris Matthews broadcast.

1) I can't imagine that Libby's testimony is that he specifically remembers that the MOMENT OF DRAMA conversation happened on a particular date. The reason that investigators put the MOMENT OF DRAMA on July 10 is that they had specific documentary evidence (phone logs, Russert sent an email to his boss, they knew when Matthews broadcast, etc.) that the conversation about Matthews happened on July 10.

2) The investigators seemed to have focused their investigation on noticing that in the week-and-a-half or so leading up to July 10th, Libby sure wasn't acting like he was in the state of mind that he described himself as how he entered the MOMENT OF DRAMA. The FBI questioned people about the first 2 weeks of July, and the subpoenas of reporters were quite explicitly about the first 2 weeks of July.

3) Armitage and Novak both told the FBI that Armitage told Novak about Plame on July 8. If the FBI had decided that the "magic" date was a week earlier, and they already decided that Libby was covering up a conspiracy to "out" Plame that started at least a week earlier, then they would have quite logically ruled out Armitage early on -- he was a leaker, but he wasn't the first leaker. It's completely reasonable to say that Armitage's leak to Novak was too late to have mattered.

Vitally important timeline points:

Before Judy Miller testified in Oct, 2004, there was no evidence that the first leak came before the first week of July,

Before Woodward testified, WHICH WAS AFTER THE INDICTMENT, there was no evidence that anyone had leaked from outside the White House before the White House, or that anyone had leaked before June 23rd.

I think that the essence of the misleading statements that Fitzgerald is charging is that Libby told this MOMENT OF DRAMA story to the FBI, and that the story wasn't true. There are two reasons that Fitzgerald "knows" that the story isn't true:

a) The investigation proved that the MOMENT OF DRAMA could not have happened on July 10th; and

b) The investigation did not find evidence that anybody was leaking far enough back in time to have created a situation where there was any journalist in the position to say the thing that Libby claimed to have heard in his MOMENT OF DRAMA.

Take these two things separately... First of all, so the MOMENT OF DRAMA didn't happen as part of the July 10 Russert-Libby conversation about Matthews. So what? This is the essence of what Team Libby wants to introduce with the memory expert -- if Libby made the mistake of confusing the true MOMENT OF DRAMA conversation with the Russert conversation, then this would be a very slight, easy-to-make, trivial, completely innocent confusion. If Team Libby can show that it's reasonable and plausible that the MOMENT OF DRAMA actually happened during some other conversation before all those incongruous first-week-of-July conversations that the investigators invested so many resources in collecting, then none of those conversations are particularly incongruous anymore. Your basic Emily Litella "never mind" moment. (And the completely reasonable and plausible best candidate for a conversation, which removes all of the incongruities between Libby's story and everybody else's testimony, is if the MOMENT OF DRAMA conversation happened with Bob Woodward on July 22nd.)

Now we already know from events last spring that Fitzgerald has the ability to cause other people to confuse "absence of evidence" with "evidence of absence." If you look at point b) it appears that he can confuse himself this way, too. In the spring of 2005 Fitzgerald told the Court that he was finished with his investigation except for testimony from Cooper and Miller. His behavior after Cooper and Miller were finally forced to testify shows that this was no hopeful guess, it was instead a confession of investigative incompetence. His conclusions were pre set, and it didn't matter that Judy Miller's testimony suggested that there was at least one reporter (Judy Miller) who knew that Wilson's wife was significant before June 23rd. What should have happened is that when Judy brought her notes in and testified about them, then a competent practitioner of logic should have realized that they had spent 2 years investigating the wrong 2-week time frame, and that virtually all of the evidence that they collected was irrelevant. What instead happened is that Fitzgerald went ahead with the indictment. His "absence of evidence" (evidence that was absent because no one ever looked for it) became rock-solid "evidence of absence" strong enough to cause you to throw out Miller's thin, not-sure, maybe evidence. But, of course, Miller's thin, not-sure, maybe evidence was the only thing he had. Not only did Fitzgerald bring an indictment after all but the flimsiest of evidence had been shown to be irrelevant, but the indictment is contradicted by the only relevant evidence that he has.

Which brings us to the most damning "absence of evidence" not equal to "evidence of absence" moment. Right there in the presser, Fitzgerald tells us that a fundamental foundation of his case that Libby lied is that the MOMENT OF DRAMA with a journalist was impossible because nobody but Libby told journalists about Plame so there weren't any journalists who had the requisite knowledge to be the other player in the DRAMA. This is because the investigators apparently didn't investigate whether or not it was true that journalists knew about Plame in the correct time period. We are talking about a fundamental logical predicate of Fitzgerald's prosecutorial theory, and to all appearances neither Fitzgerald nor any other DoJ or FBI investigators has made the slightest attempt to fix the "absence of evidence" problem by going out and, you know, collecting some relevant evidence.

The only reason that Fitzgerald has any evidence on the matter is that Woodward came forward and forced the evidence of Armitage's mid-June gossiping upon him.

[Cecil Turner]

But none of the charging paragraphs include a requirement that Libby know Valerie Wilson's employment status was classified.

Not sure what your point is. Obviously the investigation was into the leaked identity of an officer with *classified* status. That wasn't charged, because the leak wasn't charged. But that's what the investigation had to be about, and thus the one Libby allegedly misled.

I don't see any "Libby well knew when he gave his testimony, it was false in that LIBBY was well aware that Wilson's wife worked at the CIA and her employment status was classified" in a charging paragraph.

It'd only be an element in a leak case, which, as you correctly noted, this isn't. But that's still what the investigation had to be.

I well know that the word "classified" here is pure bullshit. It has zero legal significance, beyond lending the aura of legitimacy to the investigation.

Not just the "aura" . . . the investigation requires the classified bit in order to be legitimate. And it's a required part of any leak charge (IIPA or Espionage Act). Further, it's the subject matter of the investigation (p. 8):

On or about September 26, 2003, the Department of Justice authorized the Federal Bureau of Investigation (“FBI”) to commence a criminal investigation into the possible unauthorized disclosure of classified information regarding the disclosure of Valerie Wilson’s affiliation with the CIA to various reporters in the spring of 2003.

(And sorry if this is beating a dead horse, but I'm interested in your opinion, and think you need to factor in this narrow point . . . or perhaps I need to adjust my view.)

[clarice]

Exactly, cathy. And what better evidence of a preset view is there than Fitz' apparent failure to probe Armitage about who else he told and when. Fitz was simply looking for anything he could find which predated the Armitage-Novak conversation and involved Rove or Libby.

[cboldt]

Wow, a whole new theory, this one involving Russert, on my suggestion to read farther than the difference between Cooper's and Libby's versions of the their conversation, to find the significance of the Cooper conversation!

And I provided the "read on" material in my comment of October 31, 2006 at 08:45 PM.

As for evidence whether or not Libby intentionally withheld his true knowledge from investigators, the evidence is cumulative - the story with Cooper, the story with Russert, the story with Miller are examples where Libby tends to deny having knowledge; but testimony of CIA and others in the same July timeframe are evidence that Libby did have knowledge.

If it was a slam dunk, there would not be a trial.

[Syl]

Cathyf

Bravo!

[Syl]

cboldt

Cathy has laid out similar in the past. You must have missed it. (I don't have links).

And for all that cumulative knowledge that Libby had from the days before Russert/Cooper, that really does not matter if he had heard the gossip prior to that time and confused Russert with an earlier conversation.