Judge In Libby Case Keeps Graymail Alive

Judge Walton has rejected the substitutions proposed by the government and insisted that the government try again to accomodate Libby's desire to introduce classified information in his defense. [The AP coverage has arrived.]

Although they were invited to re-write the proposed substitutions and try again, this ruling leaves open the possibility that the government will walk away from this case rather than press forward and reveal secrets.  And yes, those secrets are important:

In examining the substitutions provided by the government with this framework in mind, this Court must conclude that as currently proposed, the substitutions do not provide the defendant with substantially the same ability to make his defense. That having been said, there can be no argument that the government has an important interest in protecting the classified information at issue from disclosure. And as set forth in the affidavit provided to this Court for its ex parte, in camera review on November 7, 2006, this interest is substantial. But that alone does not mandate that this Court accept any substitutions proposed by the government.

The problem - part of Libby's memory defense is that the Ms. Plame's CIA employment was a minor scrap of nothing compared to the hair-raising terror related material he was working on.  Judge Walton notes that it would be hard for the jury to assess that without some exposure to the material:

The defendant’s faulty memory defense has both quantitative and qualitative components.  In other words, he is alleging both that the volume of his work would have impacted his memory and that some of the information presented to him as the Vice President’s National Security Advisor was so potentially catastrophic to the well being of the country that the focus he had to devote to this information also impacted his memory. If the defendant’s defense was focused solely on the quantity of information that came to his attention and the volume of his work, the substitutions provided by the government would no doubt suffice.... However, volume is not the extent of the defendant’s defense.

Rather, he contends that at the time of various critical dates and thereafter during the time before he spoke to the FBI agents and testified before the grand jury, he was consumed with matters of such importance to the security of this nation that any mistakes he may have made in remembering his earlier conversations with the various news reporters were inadvertent and not the product of wilful disinformation. As to this aspect of the defense, other than the classified information the defendant seeks to introduce, he has no other evidence in his arsenal to present this proposition to the jury. Thus, to determine whether the government’s proposed substitutions are appropriate, the Court must examine whether those substitutions strike the right balance between the government’s national security interest and the defendant’s Sixth Amendment right to present his defense.

Balancing these factors, this Court concludes that the government’s proposed substitutions, as currently proposed, will not provide the defendant with substantially the same ability to make his defense... The proposed substitutions, which would exclude extremely significant items of classified information, goes too far and their collective omission would prevent the
defendant from being able to show the jury the true nature of his defense. Thus, to approve the substitutions now proposed by the government would amount to a grave error of constitutional proportion.

Judge Walton exhorts the prosecutor here:

The Court notes, however, that it firmly believes that what the government has provided [in related filings and substitutions] by and large demonstrates that with further effort it can develop substitutions that will overall protect the government’s national security interest and still afford the defendant with substantially the same ability to present his defense.

What does it mean?  Well, this trial was always likely to founder on the rocks of national security.  And the ball is not exclusively in Special Counsel Fitzgerald's hands - if the CIA insists  that some of Libby's material is too sensitive, the trial may be scrubbed. 

As to why the CIA might make that determination, political incentives can run the gamut - maybe Bush will encourage the new leadership to squash this case; maybe the same CIA folks who initiated the criminal referral that  launched this case will decide that fun's fun and it is time to move on.

MORE:  There are plenty of other new documents:

1.  A response response from Libby to the prosecution motion regarding discussion of the government's charging decisions (IIRC the Fitzgerald motion came out on Oct 30, but I have not yet re-found it).  From the intro:

The government argues that Mr. Libby should not be allowed to urge the jury to acquit him because the Special Counsel did not charge anyone else, or because Mr. Libby has not been charged with any crimes beyond those in the indictment. To the extent that is all the relief the government actually seeks here, its motion is not controversial. But the government does not stop there and, instead, seeks extraordinary relief that, if granted, will deprive Mr. Libby of his right to a fair trial.

This is the filing that is getting the headlines.  From the AP:

        Attorneys for former White House aide I. Lewis "Scooter" Libby dismissed the idea of a White House plot to leak a CIA operative's identity to the press and said Libby plans to tell jurors at his perjury trial that he had no reason to lie.

That is an old argument that was kicked around some months back, and I should dredge up the link.  I stand by my lead!  The graymail ruling is both new and more important.

2.  Libby's proposed jury instructions.

[DUE TO an unexplained tecnical glitch, TYPEPAD has swallowed links to two other recent filings: the government proposed jury instructions and voir dire- they will be restored sometime Friday, I hope.]

Comments

[BumperStickerist]

Well, this trial was always likely to founder on the rocks of national security. And the ball is not really in Special Counsel Fitzgerald's hands - if the CIA insists that some of Libby's material is too sensitive, the trial may be scrubbed.

Tom, did somebody slip you a dose of Metaphorizor-D in your morning coffee?

[rarango]

For those experts on this ugly mess (Clarice, Syl and others): any insights into what happens if Brother Waxman decides to have hearings on this matter when he assumes his role as govt oversight committee chair in the house? Wouldnt that have the effect of clearing Libby? or not?

[Walter]

For some unknown reason, I've always thought of it as "grey" -mail.

Just another point upon which reasonable people must agree to disagree...

[cboldt]

-- "And the ball is not really in Special Counsel Fitzgerald's hands" --

I think it still is, at this point. The opinion reads as though Fitz tried to broad brush a number of specific Libby/CIA/government encounters into one bin, and Walton is rejecting that approach. All of the evidence being discussed has already been cleared by the CIA and WH for review by opposing parties as a matter of developing the contours of the presentation at trial.

I agree in principle that the CIA or the WH can scotch the trial by objecting to an item that Walton insists be presented at trial; but I don't see that issue between the lines of this opinion.

[Walter]

rarango,

Congress will not hold hearings on Plame until after Libby's trial, if at all.

The testimony elicited at Congressional hearings contaminated the Iran-Contra trials (&thus allowed Ollie to overturn his conviction (without selling out his convictions)).

[rarango]

Walter-certainly true; on the other hand, if one were into conspiracy theories, perhaps a democratic congress can use hearings to smear Libby, contaminate the trial, and never let the administration be vindicated--but in our new era of bipartisanship, they wouldnt do that.

[lurker]

This makes some of us wonder if Carl Levin is going to contaminate the Gitmo hearings.

Check free republic for Carl Levin's letter to Clinton presenting his "pro-Iraq invation" opinion back in 1998 as opposed to today.

[lurker]

So...if this is the so-called "No plot, no crime in CIA leak", then would that throw out the Wilson's lawsuit against Cheney, Libby, and Rove?

HHHmmm....

[Walter]

From Libby's response:

"Third, the government apparently wants to suggest to the jury that Mr. Libby’s conduct prevented it from “discovering whether the underlying crime was in fact illegal.” Id. at 12. Such an argument would be disingenuous. The government has known for years that Mr. Libby had no involvement whatsoever in the act it set out to investigate – the disclosure of Valerie Wilson’s affiliation with the CIA by Robert Novak."

Dare we hope that J. Walton will prohibit references to sand, umpires and beanballs?

And also, haven't we thought that Libby's conduct may have inhibited rather than prohibited the process of determining whether a crime was committed?

Does the quote (originally from Fitzgerald) mean that he is still unsure? Or just that he would like the jury to believe that he is currently unsure?

[cboldt]

-- "with the facts as presented Libby could not be convicted for "lying" about whether it was raining on one of the days in question, or for misinforming the grand jury about the color of the tie he wore on a particular day. Odd that Fitzgerald missed that." --

I disagree that Fitz "missed" reciting the materiality requirement. He didn't "repeat" it (materiality) in a paragraph that limits a finding of guilt to the case where the jury unanimously agrees as to which Libby statement was false, fictitious or fraudulent.

The flow of instructions on pages 11 and 12 is: 1. listing of four elements of the charge (materiality is mentioned), 2. the need for jury unanimity as to which statement was false, in order to satisfy the first of the four elements, and 3. definitions of key words used in each of the elements. One of the words defined "material."

[Tom Maguire]

Tom, did somebody slip you a dose of Metaphorizor-D in your morning coffee?

Oh, wow, it must be the free access to Tom Friedman or something. I guess a lightbulb went off over my head and I brought down the thunder.

-- "And the ball is not really in Special Counsel Fitzgerald's hands" --

Good point - I will change that to "not exclusively", or some such.

"For some unknown reason, I've always thought of it as "grey" -mail.

There is no black and white here.

I disagree that Fitz "missed" reciting the materiality requirement. He didn't "repeat" it (materiality) in a paragraph that limits a finding of guilt to the case where the jury unanimously agrees as to which Libby statement was false, fictitious or fraudulent.

Fitzgerald included "material" everywhere he had to and dropped it everywhere he could, which is roughly what I said a few sentences earlier in the post. For example, I stand by my belief that this, from Fitzgerald, has the potential to confuse and mislead:

Counts 2 and 3 each contain multiple alleged false, fictitious or fraudulent statements allegedly made by Defendant Libby. To find the defendant guilty of these counts, the government must prove beyond a reasonable doubt that at least one of the alleged statements contained in each count was false, fictitious or fraudulent.

Some juror may forget that "material" ought to be on that list.

[Walter]

Clarice,

Aren't the neighborhoods Fitzgerald specifies in his Voir Dire ("Shaw, Adams, Morgan, Georgetown") a bit skewed to the upscale when viewed against DC as a whole?

[cboldt]

-- "Some juror may forget that "material" ought to be on that list." --

True. They may forget the element of "willfully" too, for that matter, or the element of the alleged criminal act needing to have occurred "within the jurisdiction."

The whole thing needs to be rewritten. I bet Judge Walton will reject the instructions for being prejudicial to the defendant.

[JM Hanes]

Actally, I think Judge Walton placed the ball squarely, so to speak, and exclusively in Fitzgerald's hands:

The Court notes, however, that it firmly believes that what the government has provided [in related filings and substitutions] by and large demonstrates that with further effort it can develop substitutions that will overall protect the government’s national security interest and still afford the defendant with substantially the same ability to present his defense.

This Judge is not going to give the Fitzgerald an easy out! He might as well have flat out said: Forget about that press conference where you imply that Libby was guilty and claim you dropped the charges in the interest of national security. There's no gray mail defense here; you've already proved that you could provide the necessary summaries if you thought it would help your case.

[JM Hanes]

TM:

Did you see my suggestions here?

[Walter]

A relevant question missing from the voir dire questionaire:

Do you (&tc.) now hold or have you (&tc.) ever held a security clearance or worked with classified material?

Given how often it's come up here, I'd be surprised if a juror's experience handling classified information wouldn't be relevant in the jury room.

[clarice]

I haven't read all these pleadings..but it does seem we are coming to crunch time, doesn't it?

As for neighborhoods--let me check the voir dire references, but Shaw is not a good neighborhood; Adams Morgan is a mix of mostly Hispanic immigrants and yuppies and Georgetown is pricey and precious.

[Walter]

Thanks, Clarice.

I thought it was unlikely that I would be familiar with a random cross-section of the District's districts.

But then again, it's as unlikely that Mr. Fitzgerald would be very knowledgeable either.

It's not particularly relevant; it just struck me that an ethnic local resident might have picked different names by example.

[clarice]

Aside from the Armitage quote, I think this is the second most important thing in these pleadings (that razzle dazzler may have met his match):
"The government concedes that evidence concerning its charging decisions is relevant in certain circumstances. Specifically, the government admits that “information relating to its discussions with prospective witnesses, for example, an agreement to provide immunity, is relevant on the issue of the witnesses’ motivationI~sI.” Mot. at 6 n.1. The government is absolutely correct. But the relevance of that information is not limited to situations involving an immunity agreement. In situations where a witness faced potential criminal liability, the government’s decision not to charge that witness may be just as relevant as the government’s

-6-
Case 1:05-cr-00394-RBW Document 179 Filed 11/13/2006 Page 7 of 12

discussions with that witness. In the same manner, the fact that a witness has not been charged, but has reason to fear he or she could be charged, is also relevant. The defense should be permitted to cross-examine witnesses at trial about whether, for example, they testified in the grand jury or gave other information to the government in a manner calculated to curry favor with prosecutors and avoid prosecution. In such circumstances, it is undoubtedly pertinent that the witness in question was never charged by the government. Such information goes to the potential bias of a witness, which is always relevant. See United States v. Leonard, 494 F.2d 955, 963 (D.C. Cir. 1974) (“The permissible scope of exploration on cross-examination is not curtailed by the absence of explicit government promises of leniency, for the defense may attempt to show government conduct which might have led a witness to believe that his prospects for lenient treatment by the government depended on the degree of his cooperation.”) (citations and quotations omitted).

Further, even though the defense has not yet received any Jencks material, we are aware that certain potential witnesses have admitted they gave inaccurate information to the grand jury. We are also aware, based on information provided by the government in discovery, that potential witnesses gave testimony that directly conflicts with the testimony of other potential witnesses. The fact that these witnesses have not been charged, but have reason to fear charges, is undoubtedly admissible evidence because it bears on their motives to please the prosecution, which in turn reflects possible bias.

At this point in the case, before the government has provided Jencks material to the defense, and before the government’s witnesses have testified, it is premature to conclude that any reference at trial to the government’s decisions not to charge other individuals would be irrelevant or unduly prejudicial. "

There are a lot of people whose shoes I would not want to be in if this case ever goes to trial.

[Sue]

we are aware that certain potential witnesses have admitted they gave inaccurate information to the grand jury

Holy cow, Clarice!

[Walter]

cboldt,

It's my considered belief that Libby's team will not put Fitzgerald to the proof that the acts occurred "within the jurisdiction".

As the functional equivalent of the Attorney General, Fitzgerald has no effective limits to his jurisdiction.

Of course, I reserve the rights to amend my opinion should the "referral letter" finally surface and provide some much needed clarity in this area.

[clarice]

Can we guess?

[Walter]

Clarice,

We know (via Luskin) that Rove provided amended and improved answers. We also know (through those infamous "leaks" and via Corn/Issikof) that Armigage amended answers.

I'm more struck by "potential witnesses gave testimony that directly conflicts with the testimony of other potential witnesses.", as those statements have apparently not been corrected in a timely fashion.

[clarice]

Let me put Mr. Cooper at the top of the list..and I'd subtract Rove because from what I can tell of the shadow play of the gj proceedings, he proved he had no recollection whatsoever of the call from Cooper so if he denied it he was hardly lying. Cooper otoh, gave testimony utterly inconsistent with his contemporaneous notes and did so only after he knew that Rove had no recollection of the conversation--i.e., after Cooper knew there would be no way Rove himself could contradict whatever shit he flung out.

[SunnyDay]

If anyone wants these docs in Word or richtext format, send me an email.

[Walter]

Clarice,

I'm with you on the Cooper thing, and maybe I'm parsing too closely, but it appears to me that Cooper has yet to "admit" in an admissible form that he provided "inaccurate information".

Contrariwise, Rove admitted that his information was incorrect, without admitting to lying while providing it.

[topsecretk9]

JMH

I love you and your idea!

[Cecil Turner]

This is the part that leapt out at me, which seemed largely to reiterate points made in the last defense motion to suppress:

For example, even if granted, the motion would not preclude the defense from introducing evidence or argument that Mr. Libby did not fear criminal liability for “leaking” classified information about Valerie Wilson, for at least two primary reasons. First, Mr. Libby was not a source for Mr. Novak’s July 14, 2003 column disclosing Ms. Wilson’s affiliation with the CIA. Second, at the time when Mr. Libby had fleeting, inconsequential conversations with reporters regarding Ms. Wilson, he did not know or have any reason to believe that her employment status was classified or covert – if indeed it actually was at the time. (Notably, the government has never claimed that Mr. Libby knew or believed Ms. Wilson was a covert employee.) The defense is also entitled to demonstrate to the jury that Mr. Libby believed he had not done anything wrong when he spoke to reporters, and that Mr. Libby was not aware of wrongdoing by anyone else in the administration with respect to the disclosure of Ms. Wilson’s CIA employment. Such evidence will support the argument that Mr. Libby had no motive to lie, either to cover up his own conduct or the actions of someone else.

They go on to point out Fitz's implications and arguments to the contrary, persuasively, I thought. It seems to me this will be the biggest issue at trial, and the discrepancies amongst witness testimony more of an indication that nobody can remember the details precisely.

[clarice]

Libby's reference to the admissions is from material he received during discovery..that was not necessarily from gj testimony. It may well have been in the Time documents themselves.

As for Time, do not miss this dazzler from LGF:http://littlegreenfootballs.com/weblog/

[clarice]

I agree, Cecil--Fitz wanted a small case, and he'll get it just not one so minuscule that he will get away with his razzle dazzle.

[Tom Maguire]

Let me put Mr. Cooper at the top of the list.

Could be, but - the passage is in the context of folks who mayhave had reason to fear prosecution and curry favor, which shouldn't include Cooper.

Fleischer leads that list (I still pick him for the Pincus leak in order to explain that fear factor).

As to the JMH idea of turning the Bolton re-confirmation into Plame hearings - FWIW, our friends on the left would be thrilled, since there was allegedly some Bolton-Cheney-Plame connection (Bolton knew her professionally at CIA, or might have, IIRC).

That said - I am enthused about the idea of Plame hearings. Either 9a) the Dems limit it to the little case and only call White House witnesses, which will bore the press since Fitzgerald covered all that, or (b) the Congressional staffers actually do Fitzgerald's job and start grilling the State Dept for leaks in June, grilling the CIA about the referral, and so on.

The Dems will opt for show trial (a), and it will be so clearly a vindictive farce that it will hurt them.

Or on a lucky day we get (b), which should be great.

[topsecretk9]

TM - Clarice - anyone...

Cheney et al's motion to dismiss Plames civil suit just in...would you like it emailed?

[clarice]

Shut yo mouf, TM--Let them go for it.(Don't forget, we could get Battlin Joe and the little woman under oath, too,)

[clarice]

Yes. Thanks. TS

[topsecretk9]

OK...Clarice. Just sent Cheney's and then Libby's...large multiple page pdf's

[Sara (Squiggler)]

Sounds like the judge is inclined to let Libby demonstrate a pretty good picture of what a day as the VPs Chief of Staff is like. I sure would like to see his telephone logs for the relevant time. Who was he speaking to just prior to and just after his conversations with the various reporters could be as important as what he was speaking about.

Has anyone done a cross check of what the news was reporting for the days in question? What were the big stories breaking? What crisis was boiling over, etc.?

[Sue]

Totally off topic, but is this not the funniest picture?

http://news.yahoo.com/news?tmpl=story&u=/061114/ids_photos_ts/r212117622.jpg>What about me?

[Dwilkers]

This strikes me as yet another opportunity for Fitz to Do the Right Thing and it even gives him cover. "Wanted to prosecute. Judge squirreled the thing. National Security and all, doncha know. Good of the country."

I'm not holding my breath though...

[clarice]

OT But good news:
[quote]All of the hostages seized in a raid by gunmen on a Baghdad higher education facility have been released, Iraqi officials say. A government spokesman told the BBC that the hostages were freed in a number of police raids across the city. Gunmen dressed in uniforms similar to those worn by Iraqi police abducted dozens of people. Five top officers were later arrested - including the police chief of Karrada district where the abductions occurred. [/quote]

http://news.bbc.co.uk/2/hi/middle_east/6149110.stm

[cathyf]

It seems to me this will be the biggest issue at trial, and the discrepancies amongst witness testimony more of an indication that nobody can remember the details precisely.

Well, the core of Fitzgerald's case is that Libby did remember the details precisely, and lied about them. Fitzgerald claiming that his witnesses messed up the details hardly seems to make his case real compelling, eh?

[JM Hanes]

cboldt has kindly made an html version of the Walton ruling available here. Saw the link for it in another thread, but not on this one. Thanks cb!

[lurker]

OT:

Jim Leach pushed for UN position

[PeterUK]

All the defence needs to say is,glasses,keys,anniversaries.

[clarice]

I know and like Leach personally. He'd be a disaster for the UN position. I think the Presient will --if he loses on confirmation--appoint Bolton to a non confirmable position at DoS and appoint him to the UN.

[lurker]

Appoint him to the UN as the ambassador?

[clarice]

As the US representative...I don't know that he can give him the title but he can give him the job.

[lurker]

Will Bolton have the voting power?

And Bush wouldn't be required to appoint someone as a UN ambassador?

[Sara (Squiggler)]

OT -- Rockefeller for Senate Intelligence Chairman. Someone better send the paramedics to Mac's house. Seixon too. I know my own Gag Reflex is suddenly on overdrive. And John Kerry for Small Business. A man who has never held a real job in his life. Yikes!

[topsecretk9]

Poor Deborah Howell...remember the left's comment jihad on the WAPO for having said that Dems. were connected to Abramoff too?

...Sources close to the investigation say Abramoff has provided information on his dealings with and campaign contributions and gifts to "dozens of members of Congress and staff," including what Abramoff has reportedly described as "six to eight seriously corrupt Democratic senators."

And SHOCK, and CREW apparently missed the existence "six to eight seriously corrupt Democratic senators." too!

[Bruce Hayden]

In the government's proposed voir dire questions, I found question 44 interesting:

44. Do you have any difficulty reading, speaking or understanding the written or spoken English language? If YES, please explain.

I understand that this is typical. It is just that it comes after 43 other, somewhat complex, questions. I would think that anyone who got down this far in the questions most likely at least read and understood English reasonably well.

[clarice]

Very shrewd, Bruce.

[MayBee]

All the defence needs to say is,glasses,keys,anniversaries.

Pizza in oven.

[maryrose]

When will we know who these 6 to 8 senators are and are any of them from red states with repub governors? In addition are any up for re-election in 08.?
topsecret9; I'm counting on you to get the skinny on this.

[SunnyDay]

I second the nomination. :)

[JM Hanes]

Vice versa, tops! Now we just have to convince Tom. And oh, yeah, I third the nomination. :)

More later, am digging into the Libby docs, and it feels like back to the future.

[Semanticleo]

"The defendant’s faulty memory defense has both quantitative and qualitative components. In other words,"............A load of crap
of immeasurable quality.

[Larry]

Az memba in gut shtandink of ze shpellink geshtapo, I inzizt ve call it ze graymail (one word), zo?

Please excuse my wiseassedness. Just here soaking it all in, trying to keep it straight. Thank you all for your untiring research, reason and conjecture. This is the best board I read, especially regarding Plame. Besides, all the hot women hang out here.

[Sue]

All the guys are wild for our ear muffs.

[lurker]

Ahmadinejad - Hostage Taker?

Netanyahu: It's 1938 and Iran is Germany; Ahmadinejad is preparing another Holocaust

The difference between 1938 and today is that there were no nuclear bombs back then.

Our World: The second-worst option

[clarice]

I'm digging thru the Motions to Dismiss the Civil Case filed by Libby and Cheney--they will certainly prevail but they are so boring, I can't imagine how to write this up in a way that would be interesting.

In such proeedings, the defendants have to assume for the sake of argument that the factual assertions of the plaintiffs are correct and are confined to arguing that even if all these claims were true as a matter of law the case must be dismissed, so there is not a single juicy tidbit a non-lawyer would be interested in.

[lurker]

And Larry. I take it that only the hot women that hang around are are conservative females?

[Larry]

Lurker, I'm no political sexist, but the mind is by far the most important sex organ. Maybe that's why these ladies seem so hot to me. Trying hard to think of a liberal woman hanging here, but only recall a few drive-bys.

[Syl]

A load of crap of immeasurable quality.

I think you may mean quantity.

Unless perhaps you think quantity and quality are the same thing.

[Syl]

Larry

Trying hard to think of a liberal woman hanging here, but only recall a few drive-bys.

::waving hand::

I'm disgusted by the left and those snooty little progressive things. America needs conservatives to keep us sane and safe. Anyway the folks around here are more intelligent and interesting to be with than the groups I used to hang out with.

Besides, I'm a warmongering chickenhawk so I have to be here :)

[Larry]

Aww, Syl. I never thought of you as progressive. You're way too smart.
::waving back::

[clarice]

Dan Riehl keeps digging up stuff on Pelosi..He could use some help if there's anyone in S.F. Here's today's.
http://www.riehlworldview.com/carnivorous_conservative/2006/11/a_little_blogge.html

He has more posted a day or so ago.

[lurker]

Larry, :)!

Powerline isn't jumping on the Abramoff bandwagon just yet, btw.

[cathyf]

I have a legal question for youse experts...

Suppose Team Libby were to argue that the evidence that Fitzgerald collected seems to suggest that Libby innocently confused being told "all the reporters know it" as being in the July 10 Joe Wilson Niger conversation with Tim Russert when it had really been in a June 22nd Joe Wilson Niger conversation with Bob Woodward.

In order for the prosecuation to prevail, then Fitzgerald must successfully argue that there is a material difference between the two stories. So, first question -- is this something that the judge decides (and presumably it is appealable), or is this something that the jury decides, and as a finding of fact is not something that an appeals court can reverse?

In the indictment, Fitzgerald puts the charges about the "all the reporters know" conversation as an either/or -- either the conversation never happened at all, or it did happen, but Libby already knew about Plame at the time that the conversation took place. So either Libby invented the conversation entirely, or while the conversation did happen he lied when he claimed that he didn't pay attention to the factoid before the conversation. The problem I see here is that if there is a reasonable doubt about the possible date of the conversation, Fitzgerald's investigation is irrepairably flawed. Fitzgerald collected (weak) evidence that Libby exhibited Plame knowledge during the first week of July, which would be inconsistent with him entering a Jul 10th conversation not yet knowing about Plame. But apparently Fitzgerald never considered that the Jul 10th date was in doubt, and so never conducted any sort of investigation of Libby's state of Plame knowledge before Jul 2nd. And since he prematurely ejaculated an indictment and made all of this information public, he has forever made it impossible to conduct such an investigation. So, again, my question -- judge or jury? Does the judge rule that Fitzgerald's lack of investigation makes it logically impossible to prove beyond a reasonable doubt that Woodward did not tell Libby that "all the reporters know about Plame" on Jun 22nd, or is this something that the jurors get to decide?

Ok, next question... The next step would be that Fitzgerald must successfully argue that Libby knew that the conversation happened on Jun 22nd and lied about it being on Jul 10th, as opposed to being innocently confused about it. So we are now into motive -- wouldn't a logical person notice that a Jun 22nd date on the "all the reporters know" story is way more exculpatory than a Jul 10th date (which is just a couple of days before David Corn made sure that every single solitary reporter did know.) I think this one is a question for the jury, right? The judge can't just rule that the prosecution's argument is logically silly, and hence it is impossible to prove beyond a reasonable doubt that Libby lied as opposed to making an innocent mistake, right?

[Walter]

Clarice,

[Walter]

never mind.

[clarice]

Cathy--way too complicated for me to answer all--let me start with the 1st point:
Suppose Team Libby were to argue that the evidence that Fitzgerald collected seems to suggest that Libby innocently confused being told "all the reporters know it" as being in the July 10 Joe Wilson Niger conversation with Tim Russert when it had really been in a June 22nd Joe Wilson Niger conversation with Bob Woodward

Here's how this will probably come in. Woodward will be called as a witness. He will be asked about his conversation with Armitage and his phone call and meeting with Libby.

He has publicly stated and I expect him to repeat that when he had the call with Libby setting up the meeting and at the meeting itself he had in his notes the info about Plame and intended to broach it with him, that he cannot recall specifically having done so but may well have. He does not believe Libby told him anything about Plame because had he it would be in his notes and it isn't.

Others will be called--like Mays and Vallely and others unnamed who will testify that Wilson himself told them about Plame well before the Miller interview with Libby.

Miller, too, will be asked about other sources--not to name them but whether she had that information before June 23.

When Libby takes the stand he may well say that to the bestof his knowledge and recollection the first reporter he heard it from was Russert. He will be asked if it's possible that he confused the conversation--and actually heard it from other reporters or other officials who told him they'd heard it from reporters. He'll concede that's possible.

At closing argument, his lawyer will note how many reporters knew before Libby did. In fact how many people did, and emphasize it's not material whether Libby's recollection was correct, but rather whether he deliberately lied about which reporter he heard it from first. (He had already testified hearing about it in June from Cheney but said when he heard it from a reporter "it was as if for the very first time" so he was not trying to hide having heard it from Cheney which after all is perfectly legal.)

[topsecretk9]

PeteUK and Maybee

--All the defence needs to say is,glasses,keys,anniversaries.

Pizza in oven.

Posted by: MayBee | November 14, 2006 at 05:38 PM--

OH, you two! Stop! ::grin snicker grin again::

[clarice]

Yeah and that, too.

[topsecretk9]

MaryRose
--opsecret9; I'm counting on you to get the skinny on this.--

Don't count on me...but the media and lefty blogs really, really did NOT think? or like? Abramoff and Democrat in the same sentence, even if it were TRUE... a "narrative" they will convieniently ignore...I did see that DogSwamp was a little peeved with Obama and Reid - OOPs - No mention of Murtha's AbSCAM, Hasting's bribness or Robert Menendez's stepped up FBI probe. Funny that...it's sorta fakey concern.

[topsecretk9]

Beegeezmus

Clarice

I looked at your Dan Riehl link, then via instapundit went to linked Gateway Pundit on Abramoff and (cue scary music) Democrats...and he has this graphic and um...3rd to Dorgan and Baucus to Abramoff-ness was none other than San Fran Dem Icon Barbara Boxer...HMMMMM.

[clarice]

Well, it'll be fun to watch as the world blows up.

[topsecretk9]

sorry for the "I" tag...

But UN-flipping-Believabe in light of the hand-wringing on corruption and OH the best corruption detectors of all time CREW!!!!

...Where was this part of the investigation going?
“six to eight seriously corrupt Democratic senators.”
Who is the Federal Judge?

U.S. District Judge Paul Huck

Who appointed him? President William Jefferson Clinton

Well, at least this Clinton appointee had the decency to wait a week after the election to “shut down” the investigation. Shutting it down on November 8, 2006 would have been too obvious

Mind you Democrats tripping over themselves to allege "corruption"...NEVER made not that Bush's administration was actually, unlike Reno, pursuing corruption whether or not it knocked on a Rep. door OR DESPITE ELECTION

Democrats are corrupt. AND they never, EVER PRESUE THEIR OWN...which is worse.

[topsecretk9]

Which come to think of it...is rovian-tatical (in light of Rove's concession that CoC played a role)....Bush did not intercede in any DOJ investigation at his own parties peril...so know that the party in power is being investigated in the same fashion (as they called for - CoC) ...not much wiggle room for "it's political", is there?

But the question is...whose Dime is the so-called clean-up on for 2008 on?

[hit and run]

Larry:
Besides, all the hot women hang out here.

So, yesterday I had to stop by the post office on the way home. Small town, everyone friendly. Short line, just a couple of nice ladies in front of me - but everyone just shootin' the breeze, taking their time.

As the first person turns to leave and is saying goodbye, the mail clerk waves an envelope in front of her face and says, "It's hot in here". The blog voice in my head comes up with, "Well, of course it is, I mean, this isn't a very big room and just look at you ladies."

But then the real world voice in my head told the blog voice in my head to keep it to himself.

[lurker]

This morning I wake up to the news that the democrats are going to approach the military and convince them to pull out of Iraq.

And probably be deployed to Afghanistan and/or Okinawa. What a waste of money.

Then I read this from Captain's Quarters.

Zinni and Batiste are becoming alarmed at the democrats' efforts for phased deployment. These two faced entities went after Rumsfeld before the election; yet, after the elections, they did not want pullouts of any kind!

Now the NYT is hearing from the military that pullouts of any kind is not a good thing.

Hhhmmm....Carl Levin and Jack Reed are going to propose a retreat without making it sound like a retreat. The conservative bloggers better make sure that a retreat is a retreat.

How do Carl Levin and Jack Reed KNOW that their retreat will "galvanize" the Iraqi government in assuming more responsibilities? How can they guarantee that it will work? Retreating, then find out that their theories failed miserably? Then what? They'll continue to say it's still a victory.

[Pete]

Finding that their theories failed miserably....

And then continuing to say that it is still a victory....

That describes perfectly the Iraq war cheerleaders including Bush and Cheney.

[boris]

How do Carl Levin and Jack Reed KNOW that their retreat will "galvanize" the Iraqi government in assuming more responsibilities?

That's an easy one.

Before the election any crack down would be "crimes against humanity" under "Rumsfeld's orders". Now that the dimorats have some power, anything goes, nobody is going to denounce it for political gain.

Carl Levin: "Hey Iraq government, get down! Torture, death squads, mass disappearances are ALL OKAY NOW !!!!

Nobody will say a thing, mums the word, not one peep. GO FOR IT !"

Assuming of course the "more responsibilities" is the dimorat equivalent of oppression. Based on their historical affection for totalitarian socialism that would seem to be the case.

[lurker]

Pete, the only victory claimed was the war [b]AGAINST[/b] Iraq. The goals established for the war [b]AGAINST[/b] Iraq were met.

The war [b]IN[/b] Iraq is part of the Global war on Terrorism. We are NOT fighting against the people of Iraq. We are helping the Iraqi people fight against the terrorists. Victory has NOT been claimed for this war.

The only cheerleaders were those cheering the victory on the war [b]AGAINST[b] Iraq.

If the democrats are successful in pulling or phasing the troops out, they will never be able to declare the REAL victory on the war [b]IN [/b] Iraq AND the GWOT. Never again in the future.

[MayBee]

Bush's great crime was, supposedly, overriding the advice of the military. So Levin wants to solve that by....overiding the advice of the military. In the world where patriotism = dissent, this makes perfect sense.

[Florence Schmieg]

Bush is commander-in-chief. The other guys are just pygmies in this. With the Democrats' favorite generals saying they are wrong and naive (per today's NY Times article), Bush has backup for his decision to ignore the pygmies. How could they criticize the sainted generals? As for the Baker commission, there are virtually only one or two who have any foreign policy experience. What a joke!

[lurker]

Increasing US troops mean more money appropriated towards the Pentagon...

With Murtha heading the appropriation committee, how will Bush get the money to the Pentagon to increase US troops?

Redeployment, pullout, or phased, then change their minds to beef up military-wise is going to be costly. Will the democrats ever admit their errors and beef up their troops later on? No.

Austin Bey says that this ISG is a political facade.

[lurker]

Drat!

http://article.nationalreview.com/?q=YWI0NmRjODg4Zjg1MTgwNjI1YjAzMDRlZTY1MDA2MmI=

[Walter]

Clarice,

My earlier comment was eaten by gremlins, which, come to think of it, should happen more often.

I had noted Pelosi family and cronies taking jobs with developers, but never paid it much attention. Compared to Willie "I have no ex- girlfriends" Brown's habit of steering public jobs and contracts to friends and family, it seemed petty-ante stuff.

A fairly good resource for looking at SF politics is the San Francisco Chronicle's political gossip column written by Phil Matier and Andrew Ross.

It's a lively read. The most disturbing part is that the corruption continues unabated even after being vividly exposed.

The search engine on the site works well and archives are free.

Full disclosure: I did a short stint at the SFNA (publisher of the Chronicle and Examiner prior to expiration of the Joint Operating Agreement) back in the mid-90's.

[Walter]

Italics!

[Bob]

OT But this needs a judge too!

http://www.canadafreepress.com/2006/ans-cover-news111506.htmNancy Pelosi: One of Mikhail Gorbachev’s most useful idiots

By Judi McLeod

<blockquote> Roll Call has stated that in early 2004, John Murtha “reportedly leaned on U.S. Navy officials to sign a contract to transfer the Hunters Point Shipyard to the City of San Francisco” and that “Laurence Pelosi, nephew of House Minority Leader Nancy Pelosi, at the time was an executive of the company which owned the rights of the land.”

But that’s only the most recent chapter of Nancy Pelosi, John Murtha and San Francisco’s largest tract of undeveloped land.

Even critics clamoring that Pelosi is reneging on her pledge to clean up corruption by endorsing Murtha’s bid for House Majority leader don’t paint the whole picture.

In her own words on March 31, 2004: “I have been working on this agreement for more than a decade, and I am proud we are near our goal. I thank Senators Feinstein and Boxer, Mayor Newsom, and former Mayor Willie Brown for their work on the Bayview Hunters Point Shipyard agreement. I also thank my good friend Congressman Jack Murtha for assisting us in this last round of negotiation.”

Boy she really knows how to clean house... almost as good as Hillary can bake cookies!

[Bob]

sorry...

http://www.canadafreepress.com/2006/ans-cover-news111506.htm>Nancy Pelosi: One of Mikhail Gorbachev’s most useful idiots

[Walter]

Should read Willie "I have no ex- girlfriends" Brown.

And it wouldn't be complete without a reference to this article.

[azredneck]

A good source for Dem corruption is:

http://www.noagenda.org/connections/jack_abramoff/

Follow the links to other corruption/70 dems

[hit and run]

Unexpectedly my arse. The Dems won! Of course factories are humming along in this wonderful economy.

NY Fed Nov manufacturing index rises unexpectedly
Wed Nov 15, 2006 8:48am ET

NEW YORK (Reuters) - Manufacturing activity in New York State factories rose unexpectedly in November to its highest level since June, the New York Federal Reserve said on Wednesday.

[maryrose]

Well if we can tie Boxer to Abramoff then Arnold gets to name her replacement. To show there is some good in every person, Boxer did campaign for Joe Lieberman unlike Hillary who didn't want to buck the dem party.

[hit and run]

Well if we can tie Boxer to Abramoff then Arnold gets to name her replacement.

Yeah, and if we can find $90,000 in bribe money in Jefferson's freezer we can.....uh, what are the consequences of democrat corruption again?

[clarice]

Thanks Walter..And everyone. I'm trying to write up something on the Motions to Dismiss in the Plame civil suit which is tedious and long. I'll try to get back to the Pelosi-Brown-Murtha-Newsom-Boxer stuff when I can. The thing about highly regulated sociseties--and land use in SF is highly regulated--is that it gives a big economic advantage to the pols and their friends, doesn't it?

[Sue]

what are the consequences of democrat corruption again?

Re-election? ::grin::

[lurker]

Clarice, John Fund seems to have done some research on this Pelosi-Brown-Murtha-Newsom-Boxer-Feinstein scandal story as did Crile, who sadly passed away not too long ago.

http://www.opinionjournal.com/diary/?id=110009248