Yet More Libby Filings

The NY Sun reports on Fitzgerald's response (8 page .pdf) to Libby's proposed jury instructions.  Apparently Fitzgerald want to retain some latitude to discuss Libby's leaks of the NIE:

Attorneys for Mr. Libby have asked that the prosecution be precluded from arguing at trial that Mr. Libby acted improperly or illegally when he discussed a National Intelligence Estimate on Iraq with the press. The issue ties into the criminal case because in some of the conversations about the estimate, Mr. Libby is alleged to have mentioned Ms. Plame or answered a question about her.

In April, The New York Sun first reported that Mr. Libby said he disclosed the intelligence report on Iraq at the direction of Mr. Cheney, who said he had obtained the permission of Mr. Bush to release the findings of the closely held document.

In court papers filed Wednesday, Mr. Fitzgerald reaffirmed that he does not plan to argue that Mr. Libby was wrong to disclose the report's conclusions to journalists. However, the prosecutor said he wants the ability to attack Mr. Libby's credibility if he or his lawyers argue that all his disclosures from the Iraq report were clearly authorized by his superiors. "The timing of the declassification relative to defendant's disclosure of the NIE to reporters is unclear," Mr. Fitzgerald wrote, urging Judge Reggie Walton to reject the defense proposal. "The government should not be muzzled from raising any questions about the declassification's timing."

According to the prosecutor, Mr. Libby testified initially that he was told of the declassification just prior to a July 8, 2003, meeting he had with Judith Miller of the New York Times. However, Mr. Fitzgerald said Mr. Libby "was unsure" whether the declassification took place prior to meetings he had with a Washington Post reporter, Bob Woodward, on June 27 of that year, and with another Times journalist, David Sanger, on July 2.

"Defendant testified that he recalled a ‘go-stop-go' sequence in discussions concerning authorization to disclose the NIE, that is, he was authorized to disclose, then he was instructed to hold off, and then later told again to disclose," Mr. Fitzgerald wrote. He also said Mr. Libby testified that he may have "slipped" in discussing with Mr. Sanger the report's conclusion that Iraq was "vigorously trying to procure" uranium.

"The government simply wishes to make clear that it cannot affirmatively agree that each time defendant disclosed the NIE, he was authorized to do so," Mr. Fitzgerald said.

This ruling is madly significant to the arcane edifice constructed by The EmptyWheel, a link to which I don't have just now [but here is a summary, or plenty of detail here].  However, IIRC, a key part of her construction hinges on the timing of Libby's NIE disclosures vis a vis various Cheney exhortations, so for our friends on the left it is fantasy-critical that Fitzgerald pursue this line of inquiry.

Fitzgerald's filing suggests he is following a different tack - Libby's July 8 conversation with Judy Miller must have been memorable because the circumstances of the declassification of the NIE were memorable:

As discussed below, the government has no intention, and has never expressed an intention, of arguing that defendant’s disclosure of the previously-classified October 2002 NIE was illegal or improper. What the government does intend to establish is that the circumstances surrounding the disclosure – including the fact that the information disclosed was specially de-classified by the President, through the Vice President, and the fact that the Vice President specifically authorized disclosure of the information to a reporter – made the conversation in which the disclosure was made unique and memorable to defendant. That conversation was a meeting with New York Times reporter Judith Miller at St. Regis Hotel on July 8, 2003, in which defendant and Ms. Miller also discussed the fact that Valerie Wilson worked at the CIA as part of his response to criticisms of the White House’s assertions regarding purported Iraqi efforts to acquire uranium from Niger. Thus, rather than “fleeting” and “inconsequential,” the conversation between defendant and Miller was unique and memorable – but not illegal.

That said, this tibit from page 5 is interesting:

The government does not know what position the defense will advance at trial as to the timing of the relevant discussions authorizing the NIE’s disclosure, and the timing issue may be important because defendant did ask the Counsel to the Vice President, some time after July 6, questions about what paperwork would be involved when the spouse of a CIA employee traveled abroad (a reference to Ms. Wilson and to Mr. Wilson’s trip to Niger), together with a question about the President’s de-classification authority.

The paperwork issue clearly relates to the query Cheney jotted (p. 3 of 28) in his copy of Wilson's July 6 NY Times op-ed.  Well - if Libby asked Addington about the junket and the declassification at the same time, one might infer that Wilson's "junket" came up in a conversation with Dick Cheney following the Wilson op-ed but prior to July 10, when Libby talked to Russert.

Libby's version is that he remembered the declassification question but not the junket.  Good luck.

MORE:  Here is Fitzgerald's response on the topic of discussing the legal press wrangling (14 page .pdf).  In the comments ranger makes an excellent point:

Hmmm... It would seem to me that Fitz is playing a little fast and loose with the facts. He uses this quote to imply that Miller was in jail specificly because Libby refused to confirm his waiver:

"See, e.g., Reuters September 8, 2004 article (quoting Miller's attorney as commenting, "She is there (in jail) for a reason. At this time, the reason is still there. She made a promise and, unless properly released from her promise by her source, she has no choice but to continue to take the position that she's taking,")"

But he does not mention that Miller only agreed to testify after Fitz agreed to limit the scope of here testimony to converstaions with Libby. It is entirely possible that Miller never got a waiver from the source she was protecting, she simply was promissed she would never have to answer questions about that source, thus making a waiver unessessary. And since Miller has refused to deny that she may have had other sources about Plame, and has specificly said she doesn't think the notes related to Plame are from her meeting with Libby, this is a significant ommision on Fitz's part.

Yes, indeed - Ms. Miller was quite clear that Fitzgerald's agreement to limit his questioning to Libby was a key to her decision, and she suggested that she did have other sources.  Hey, maybe the defense can argue that Fitzgerald kept Miller in jail in order to impede the revelation of his own flawed investigation...

Let's excerpt Ms. Miller:

Equally central to my decision [to testify] was Mr. Fitzgerald, the prosecutor. He had declined to confine his questioning to the subject of Mr. Libby. This meant I would have been unable to protect other confidential sources who had provided information -- unrelated to Mr. Wilson or his wife -- for articles published in The Times. Last month, Mr. Fitzgerald agreed to limit his questioning.

...On one page of my interview notes, for example, I wrote the name ''Valerie Flame.'' Yet, as I told Mr. Fitzgerald, I simply could not recall where that came from, when I wrote it or why the name was misspelled. I testified that I did not believe the name came from Mr. Libby, in part because the notation does not appear in the same part of my notebook as the interview notes from him.

...

Mr. Fitzgerald asked me about another entry in my notebook, where I had written the words ''Valerie Flame,'' clearly a reference to Ms. Plame. Mr. Fitzgerald wanted to know whether the entry was based on my conversations with Mr. Libby. I said I didn't think so. I said I believed the information came from another source, whom I could not recall.

Mr. Fitzgerald asked if I could recall discussing the Wilson-Plame connection with other sources. I said I had, though I could not recall any by name or when those conversations occurred.

 

Comments

[anonymous]

Can't we just bypass this whole trial BS and simply get a rope like our fellow Democrats use to do in the KKK?

I mean if Robert Byrd can be our standard bearer in the Senate, who needs morals?

At least our friends (Mathews, Buchanan, Rangel, Dean) on the left recognize the Jewish problem in our government.

If Keith Olberman can do the Nazi salute to standing ovations, why can't the rest of the left come out of the closet?

[cboldt]

Fitzgerald Motions in HTML, for the PDF averse:

Motion relating to NIE evidence - Paper 185

Fitzgerald Motion relating to litigation against reporters - Paper 192

[trapper]

""""Thus rather than "fleeting" and "inconsequential," the conversation between defendant and Miller was
unique and memorable ­ but not illegal."""

No, Fitz, the conversation about the NIE maybe MORE memorable, but that is why the small part about Plame is not so memorable.

Are we still paying this guy?

[Ranger]

Hmmm... It would seem to me that Fitz is playing a little fast and loose with the facts. He uses this quote to imply that Miller was in jail specificly because Libby refused to confirm his waiver:

"See, e.g., Reuters September 8, 2004 article (quoting Miller's attorney as commenting, "She is there (in jail) for a reason. At this time, the reason is still there. She made a promise and, unless properly released from her promise by her source, she has no choice but to continue to take the position that she's taking,")"

But he does not mention that Miller only agreed to testify after Fitz agreed to limit the scope of here testimony to converstaions with Libby. It is entirely possible that Miller never got a waiver from the source she was protecting, she simply was promissed she would never have to answer questions about that source, thus making a waiver unessessary. And since Miller has refused to deny that she may have had other sources about Plame, and has specificly said she doesn't think the notes related to Plame are from her meeting with Libby, this is a significant ommision on Fitz's part.

[jerry]

I'd like to name Libby for this Administration's "Foolishly Bungled Cover-up" award, if he'd just taken time to construct a believable story (how silly of Rove and Novak to exclude him in their strategy sessions) and then stuck to just one story (at least he didn't say maccaca was a made up word... well hey, Armitage thought it was safe to say). Maybe with the Dems in control we won't have a long wait, through Fitzgerald's ethical silence, to finally learn more about what's the Administration in hiding in this case.

[Ranger]

This part is interesting too for a couple of reasons:

Defendant has indicated that he intends to elicit testimony regarding the fact that, during her first grand jury appearance, reporter Miller had no memory of discussing Wilson’s wife with defendant on June 23, 2003, and did not recall it until she found her notes of that conversation. See 5/16/06 Tr. 7. The government is entitled to offer in evidence information that bears on Ms. Wilson’s memory. Specifically, Miller’s first grand jury appearance occurred on the morning after being released from 85 days in jail, and the fact that Miller did not have the opportunity to review all of her notes before that appearance. Defendant has vociferously argued that he is entitled to
present an avalanche of evidence detailing events and issues with which he dealt, and evidence of his lack of opportunity to review notes, in order to persuade the jury that any errors in his testimony were the product of memory failure. Yet he seeks to exclude evidence of a lengthy and obviously
stressful experience suffered by a witness, and evidence of a witness’s lack of access to notes, as “irrelevant to any issue in the case.”

Kind of shows the box Fitz has put himself in regarding poor memory and his own witnesses. And what's with that typo Ms. Wilson? Has the SP been drafting motions regarding Val's testemony and memory too?

[cboldt]

-- "It would seem to me that Fitz is playing a little fast and loose with the facts. He uses this quote to imply that Miller was in jail specificly because Libby refused to confirm his waiver" --

This also paints Fitz as the vindictive partisan hack that he is, seeing as how it is in fact true that the only reason Fitz had Miller in jail was for her refusal to compromise her principles by testifying against Libby. The only evidence he wanted was anti-Libby evidence. Taken as true (that is, not fast and loose with the facts) Fitzgerald's statement proves the investigation was a witchhunt.

[lurker]

Looks like a final gasp for Fitz.

[Tom Maguire]

Thanks for the docs, cboldt.

Excellent point by ranger re he does not mention that Miller only agreed to testify after Fitz agreed to limit the scope of here testimony to conversations with Libby - that is steal-worthy.

Good point by jerry, who is as troubled by Libby's incompetent cover-up as I am. Much as I hate the "too stupid to be lies" defense, I can't get away from the fact that five minutes reflection by Libby would have left him with an air-tight story. That said, we are talking about one of the architects of the Iraq debacle, so let's not be in a hurry to rule out "arrogant AND stupid".

[Sue]

I can't remember but does the NIE discuss Plame?

[Cecil Turner]

I found the NIE filing particularly interesting, but it looks like Fitz is again conflating the NIE declassification effort with leaking Plame's name:

Rather, the government will argue that the circumstances surrounding defendant's disclosure of the 2002 NIE tend to show, see Fed. R. Evid. 401, that responding to Mr. Wilson's allegations and the criticism of the White House's statements about Iraq and uranium was a sufficiently high priority in defendant's mind to warrant declassification and dissemination of classified information to rebut that criticism, and that these events were sufficiently distinct to be memorable.

I don't think anyone disputes the NIE part was memorable . . . it's the add-on bit about Plame (which Libby claims wasn't part of the push-back, with no conflicting evidence I'm aware of). Further, the part Fitz notes as revealing is

. . . "specifically, the NIE's conclusion that Iraq was vigorously trying to procure uranium which was substantially less information than disclosed to Ms. Miller on July 8."

It's worth noting that verbiage was in Tenet's July 11th statement:

These paragraphs also cited reports that Iraq began “vigorously trying to procure” more uranium from Niger and two other African countries . . .

A week earlier than the full NIE declassification (and obviously staffed through White House channels earlier). In sum, it looks to me like Fitz is making Libby's argument for him: there were multiple efforts ongoing pertaining to the NIE declassification, it was complicated, and overshadowed the Plame detail. Further, it happened before and after the July 6th Wilson OpEd, and keeping the exact dates and conversations straight months later is a mental chore.

[boris]

I can't get away from the fact that five minutes reflection by Libby would have left him with an air-tight story.

Libby didn't think he needed one.

Libby didn't know until too late that the source of the leak was no longer the intent of the investigation.

Libby was winging it, trusting in his innocence for the leak and the fact that he knew the OVP had no vendetta against Wilson's wife.

Libby made the mistake of thinking his first obligation was to the country at war and not to some State-CIA foodfight over turf.

Libby let his view of the big picture guide his detailed testimony by mixing speculation with inaccurate memory. Too much "you should be looking elsewhere" and not enough "don't recall".

Gotta ask, what does Fitz believe Libby did to deserve all this? To serve the interest of justice? Seems like the NIE disclosure might be part of it.

[clarice]

Yes. And Ranger's point is right on.
As for the misreference to Mrs. Wilson--the pleadings are in general not well done. The Court will be unhappy with the misstatement about why Miller held out. Prosecutors are expected to correctly state the facts.

The NY Sun reports a third action :It says the judge withdrew his order that Fitz provide more out of the classified docs to Libby on the ground that the Court misstated the law. I have no idea what that's about.

[clarice]

Interestingly, on the reporters filing, Fitz cites as proof that Miller didn't testify because she wanted more assurances from Libby that his waiver was voluntary a letter from Conyers asking Libby to do more.
PHEH

[clarice]

Yes, Boris. If you're busy on more important matters and know you didn't talk to Novak, why wouldn't you just go on your best recollection--you feel you have nothing to hide. And of course we had people like Andy McCarthy assuring everyone that Fitz was an okay guy who'd never pull a stunt like this.

[lurker]

Funny how Fitz got the memory witness to admit errors when he, himself, erred based on his mamory.

[Semanticleo]

"Fitzgerald's filing suggests he is following a different tack - Libby's July 8 conversation with Judy Miller must have been memorable because the circumstances of the declassification of the NIE were memorable:"

Being a lawyer, and all, you'd think Libby would know that a prosecutor needs to get testimony on the record so that prevarication can be rooted out. But then hubris leaves little room for CYA because such audacity believes it will not be necessary.

[Ranger]

I do find it funny (if it weren't so serious for Libby) that Fitz is reduced to arguing that, on the one hand, this conversation was so important that Libby was lieing when he denied to the GJ that he told Miller about Plame, but, on the other hand, it was understandable that Miller forgot about it when she testified before the GJ the morning after she got out of jail (where she had been for the last 80 plus days for supposedly refusing to talk about the conversation they had). If Miller could forget about it then Libby could have too. How does Fitz get himself out of this box?

[Semanticleo]

"Taken as true (that is, not fast and loose with the facts) Fitzgerald's statement proves the investigation was a witchhunt."

BUSHIT!

He smelled a rat and following his instinct,
still smells one. Partisan hack, indeed.

[boris]

Sarcasm detector broke?

Oh that's right, you lack the irony gene.

[Semanticleo]

>putz>

[sbw]

Define please. "BUSHIT!" I'm not familiar with the word.

[anonymous]

Semanticleo snorts : "He smelled a rat and following his instinct""

We know, we just wish he would look at the evidence, rather then looking for rats. being a rat is not illegal, last I checked.
Otherwise Murtha would be in prison bending over for Alcee Hastings.

[Semanticleo]

Rats aren't illegal, but they are vermin and no one objects when they are externminated.
Since you agree Libby is a rat; what's your problem?

[anonymous]

And the rats jewish...extermination is normally the Democrat solution for such a 'situation'.

[anonymous]

Semanticleo spurts off: ""Since you agree Libby is a rat; what's your problem?""

Sorry, I thought you meant Armitage. My bad. Didn't think you were one of those...'the jew did it' from MSNBC.

[vnjagvet]

Back to the memory issue:

As TM's latest addendum attests, Judith Miller's memory was not real good on the details of her conversation with Libby on matters not covered by her notes.

She could not remember who she got the "Valerie Flame" stuff from, but she thought it was not Libby because of where the name was in her notes.

Why would Libby's memory of these details be any better than this skilled reporter's?

[cboldt]

-- "BUSHIT!" --

Geshundheit!

[topsecretk9]

--And what's with that typo Ms. Wilson? Has the SP been drafting motions regarding Val's testemony and memory too?--

Ranger

IIRC Fitz caused problems with his misstating the facts/details with the NIE and had to correct the record, so his own peeps have memory problems as well!

[Sue]

(a reference to Ms. Wilson and to Mr. Wilson’s trip to Niger)

They always word that where you can take it either way. He referenced Ms. Wilson...period...He referenced Mr. Wilson's trip...period. Or it could be a reference to Ms. Wilson and to Mr. Wilson' trip to Niger.

[Sue]

And what's up with the Ms. Wilson. She is either Ms. Plame or Mrs. Wilson. Sheesh! PC gone mad!

[cathyf]

Gotta ask, what does Fitz believe Libby did to deserve all this? To serve the interest of justice? Seems like the NIE disclosure might be part of it.

That's my theory. Fitzgerald was just sure that if he kept Judy in jail long enough she would come out and spill the whole thing. How Libby gave her all sorts of stilled-classified NIE info that he wasn't supposed to. Then Fitzgerald would "flip" Libby to testify against Rove and Cheney and their dastardly plan to punish the noble Joe Wilson by twirling their mustaches and tying the Damsel Plame to the railroad tracks.

(Now sensible people would have to wonder about the judgment of a prosecutor who would horsetrade away prosecuting an actual criminal offense -- leaking properly classified information -- for the opportunity to cause the administration political embarrassment over something not a crime. I have only 3 words for you sensible people: "pizza in oven.")

Remember that the entire investigation was essentially over by the fall of 2004 except for the all-the-way-to-the-Supreme-Court tussle over getting Cooper and Miller to testify. Then finally Miller was forced to testify and then 4 weeks later Fitzgerald had an indictment.

Fitzgerald keeps making the argument that he wants to try the "small case" about "Libby lying" about 4 conversations with 3 journalists. And there's lots of us (including Libby's legal team) screeching bloody murder about how grossly prejudicial and misleading this is. But I'm making a different objection -- which is that Fitzgerald in fact conducted only the most cursory and appallingly incomplete "investigation" of the "small case" that he has brought. And by bringing the indictment before the investigation, and releasing all sorts of information, he has irrevocably destroyed any ability to conduct such an investigation.

The only thing that I can think is that Fitzgerald had some other plan for bringing some other charges which he just knew were true because he could just feeeeeeel it. You know, like Columbo always knows in the first five minutes who committed the murder, and it's just a matter of goading the bad guy into a mistake. And then after he precipitated a constitutional crisis, and sent an innocent woman to jail for 86 days, he realized that he had nuthin. Cooper and Miller didn't contradict Libby in any material way, and are clearly unreliable witnesses anyway. The investigation of Libby's "I heard it from a journalist as if for the first time" story was more a fetish than an investigation, obsessing foolishly on just the last week of the relevant month-long time period and ignoring the other three weeks. And completely ignoring the possibility that only the first week or two weeks of that month might in fact be relevant.

My theory is that Fitzgerald got to Oct, 2005, and realized that he was like the schmuck who borrowed $100,000 from the mafia that he has no way of paying back, and bet it all on a "sure thing" horse. Which is now limping into the finish line in last place. So the guy goes off on a witch hunt to prove that the race was fixed, the horse was drugged, the other horses were dopped, yada yada yada...

[Pat]

Anti-Semanticleo: "BUSHIT!"

I think you meant BUCRAP

[anonymous]

Doesn't Armitage have a book coming out?

IF I DID IT ??

[clarice]

HEH!

[topsecretk9]

I think Fitz looks like a dork for wanting to include the NIE in order to show how memorable it was to Libby yet has done his damnedest to bar Libby from including all the other sensitive info at the time as unimportant. God complex? Or desperate?

[cboldt]

Another snarky legal filing from Fitzgerald, the partisan hack.

Government's Reply in Support of its Motion in limine to Preclude Evidence, Comment, and Argument Regarding the Government's Charging Decisions (Paper 198)

Libby has filed a paper today too (No. 199) on the matter of how the NIE will be handled in the trial. It's a scanned in version and can't be easily converted to text.

Walton's November 13 order (Paper 178) was VACATED. It, and the text of the order that VACATED the opinion (Paper 193)

are available here (again, for the PDF averse).

Fitzgerald's case is melting before his very eyes.

[cboldt]

The CIPA process and Walton's reversal (what an incompetent Judge this Walton is - why doens't he just blast Fitz to the moon?) is fleshed out in another incoherent paper by Fitz. In basic, this paper address the legal standard the Court is to apply is assessing governement substitutions for classified information.

[roanoke]

Tom-

You've been reading Drum's faulty premise of you must choose A or B-and both are bad.

Even in math in the most confined problems there can be more than two variables.

Drum's thesis is a faulty premise built on "there are only two choices".

That's why architects don't "do" wars. Hell architects can barely get things built-on deadline-in the best of environments.

You can get the sniff that Rozen has a subconsious thought that it's a false choice in her last paragraph when she does the choice will be made and and you will be kept out and won't know-cya.

Sorry but war is a real life scenario, the variables are incalculable , war is messy-name a clean one-and the enemy ain't gonna follow your blueprints-especially when they see it past a life and death situation but also have an after-life motivation.

The Liberals had a message -it was a failure to commit-that emobldened the enemy a thousand times. The Conservatives bailed like a bunch of ninnies- a thousand times more the enemy has been emboldened.

Ya no one could predict the stuff in the underwear of Frum would burn it's way through the efeminate right wing punditry like kryptonite.

On top of that Malkin took the right wing's testicles and out tough talked them on a threat way down the road and since she had them by their second smallest organ they had to follow.

[clarice]

cboldt..Thanks you so much for putting these into html format. It's so hard to work with not copyable pdf..

[cboldt]

Here's another one that I don't recall having surfaced here, or being discussed. In paper 184, Fitz claims that he wants to be able to indroduce evidence of Mrs. Wilson's employment status at the CIA!

Government Opposition to Libby's Motion to Preclude Evidence Relating to Valerie Wilson's Employment Status (Paper 184)

[Sue]

cboldt,

Doesn't it seem like Fitzgerald is trying to try the larger case while arguing it is only the smaller case that is relevant?

[cboldt]

-- "Doesn't it seem like Fitzgerald is trying to try the larger case while arguing it is only the smaller case that is relevant?" --

Exactly! Here he is arguing that Plame's status at the CIA is relevant and material, and wanting to bring that up. Walton will shoot down the request. I posted a link to the paper because it's entertaining to mock Fitz's bumbling and foolishness. His partisan and vindictive nature isn't so fun, on the other hand.

I bet he plans to reprise his indictment presser in front of the jury, and Walton will shoot that idea down, pronto.

[clarice]

It seems to me this is the key part of the last filing:
[quote]II. Direct Evidence of the Classified Status of Ms. Wilson's Employment

In deciding whether the government has met its burden of proving the charges beyond a

reasonable doubt, the jury will be required to determine whether the charged false statements related

to matters within the jurisdiction of the Federal Bureau of Investigation and were material to the

grand jury's investigation, and whether defendant innocently erred or, instead, deliberately lied when

he made them. In doing so, the jury necessarily will consider the nature and scope of the

investigation, as well as defendant's motives for lying to investigating agents and to the grand jury.

Information regarding the possible crimes being investigated by the FBI and the grand jury, and the

information known to defendant before he made the charged statements, is therefore directly relevant

to the issues the jury must decide in this case.

The government agrees that evidence establishing the facts that "Valerie Wilson's

employment status with the Central Intelligence Agency (the "CIA") was . . . classified or covert"

and that "any damage to the national security, the CIA, or Ms. Wilson herself was . . . or could have

been, caused by the disclosure of that status" (Mtn. at 1) is not strictly necessary to prove that the

charged false statements were material to the grand jury's investigation and within the jurisdiction

of the executive branch. Nor is evidence of these facts necessary to a determination that defendant

had a motive to lie during his FBI interviews and grand jury testimony. Therefore, the government

agrees not to offer a declaration from the CIA or any other direct evidence of the facts that Ms.

Wilson's CIA employment actually was classified or that the public disclosure of that employment

actually damaged the national security, the CIA, or Ms. Wilson, or had the potential of doing so.

This agreement is not intended to confer upon defendant a license to mislead the jury, however.

Thus, if defendant were to open the door by attempting to challenge the classified status of Ms.

6

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Case 1:05-cr-00394-RBW Document 184 Filed 11/14/2006 Page 7 of 10

Wilson's employment or the potential risks of publicly disclosing that employment, or if the defense

disputed the materiality of the statements or sought nullification, the government would be entitled

to, and would, seek to offer this evidence. In any event, government counsel would not consider,

and need not be ordered to avoid, an improper attempt to "manufacture a wrongful conviction" by

offering evidence for the purpose of "arousing the passions or prejudices" of this, or any other, jury.

II. Information Regarding Ms. Wilson's Status that Defendant Received Prior to Being
Questioned.

As defendant acknowledges, information regarding Ms. Wilson's status that defendant

received is relevant to defendant's state of mind. Inexplicably, however, defendant seeks to restrict

the government's proof to information regarding Ms. Wilson's status which defendant received prior

to July 14, 2003 (the date Ms. Wilson's status was publicly disclosed in a column written by Robert

Novak).

Obviously, everything defendant knew about the classified status of Ms. Wilson's

employment, and everything he knew about the potential ramifications of disclosing information

regarding her employment ­ both to her and to himself ­ is directly relevant to defendant's state of

mind and motive to lie at the time of his FBI interviews and grand jury appearances. Defendant's

effort to restrict the government's presentation of relevant evidence is ironic in light of his extensive

efforts to present to the jury hundreds of details regarding wholly unrelated events occurring well

after July 14, 2003 in support of his memory defense. In short, defendant seeks to preclude the

government from presenting evidence of motive and then argue that there is none. This he must not

be permitted to do.

Instead, the government is entitled to present evidence of all the information that defendant

7

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Case 1:05-cr-00394-RBW Document 184 Filed 11/14/2006 Page 8 of 10

received regarding Ms. Wilson's status, the risks of public disclosure, and the risks faced by those

who made the disclosures if their identities were revealed, at the time he was interviewed or testified.

Thus, the government is entitled to present evidence of conversations, news reports or other means

by which such information was disclosed to him at any time prior to the FBI interviews or

defendant's grand jury appearances. All of this evidence is directly relevant to show that, far from

being unremarkable "snippets" of conversation, defendant's conversations with reporters and others

regarding former Ambassador Wilson, his 2002 trip to Niger, and his wife's possible role in

arranging that trip, were unique and memorable events that took on more, rather than less,

importance prior to the time defendant was questioned concerning them.

III. Evidence Concerning Information Known to Other Government Officials But Not
Communicated to Defendant

Defendant argues that information regarding the Ms. Wilson's employment known to other

government officials with whom defendant spoke about Ms. Wilson is relevant to the case. (Mot.

1). However, as this Court previously held in the context of discovery, information known to other

government officials regarding Ms. Wilson's employment is relevant only if such knowledge was

shared with defendant, or with reporters Miller, Russert or Cooper. ^2 See June 2, 2006 Order at 6.

The government has no intention of straying from the limits previously set by this Court for purposes

of discovery, and will confine its evidence concerning Ms. Wilson's classified status to information

of which defendant was made aware. It is the government's expectation that the defense will do the

same.[/quote]

It seems to me it misses a key point--what is NOT material is in the small case--whether Libby heard it from Russert or some other reporter or some other official telling him he'd heard it from reporters.

As to this:"
In any event, government counsel would not consider,

and need not be ordered to avoid, an improper attempt to "manufacture a wrongful conviction" by

offering evidence for the purpose of "arousing the passions or prejudices" of this, or any other, jury."

The SP already aroused the "passions or prejudices" of the jury pool in his outrageous press conference, didn't he?

I think the SP is bound to anger the Court with these filings.

[Sue]

I get the feeling you are mocking someone.

I don't think Fitzgerald is bumbling. I think he is doing what any prosecutor would try to do. Get as much of his case in front of a jury as he can. If it gets in great, if it doesn't, at least he tried.

[Sue]

I get the feeling you are mocking someone.

Intended for cboldt...

[Pofarmer]

I gotta wonder, how in the world is a jury gonna dig through all this minutae? I don't know how you're gonna keep the poor folks awake.

[cboldt]

That Mrs. Wilson employment thing-a-ma-bob isn't the latest filing, FWIW.

And Walton's order of November 15 (paper 190) is a doozy. "ORDERED that the defendant's use of classified information and documents at trial shall be limited as set forth in the accompanying Memorandum Opinion."

The accompanying opinion is not published. However, in a separate order (Paper 189), Judge Walton order Fitz to undertake a declassification review of the Opinion, and to have that completed by December 1.

[cboldt]

Walton also ordered Fitz to undertake a declassification review of a number of pleadings that have been heretofore sealed.

The new and improved cboldt does not mock, and will not be affectd by being mocked. Bwahahahahahaha.

[Sue]

I didn't know the old and unimproved cboldt.

[cboldt]

-- "I don't think Fitzgerald is bumbling." --

Bumbling only explains some of his errors. Like putting the name "Wilson" in where he meant to say "Miller." Clarice has pointed out some more serious bumbling, like giving classified information away in the Holy Land case in Dallas, etc.

It's his partisan vindictiveness that has to come into play to explain why this case is even in court at all.

[cboldt]

Check out FN1 in Paper 184 ...

The government reserves the right to offer proof of the classified status of Ms. Wilson's employment if the defendant contends that the questions and answers at issue were not material to the grand jury investigation or seeks jury nullification based on the absence of such evidence. To the government's knowledge, the defense intends to contend that defendant's answers were accurate but if they were not accurate they were misremembered and does not intend that any intentionally false statement was not material.

Libby is going to show what a farce this whole case is - Mrs. Wilson wasn't covert, and therefore the case is nothing but a sham. IF the jury goes along with Fitz, they'll forever be known as facilitating a kangaroo court.

That Fitz thinks Libby has no argument about materiality shows how far gone the boy (Fitz) is.

[clarice]

It's his lack of understanding of Washington, I think. He makes much, for example, of the fact that Libby asked Miller to i.d. him as a "former hill staffer" when he gave her authroized leaks about the NIE. Yet as we know most of the press who covered the early story offered up multiple, often deceptive, descriptions of their anonymous sources.

[boris]

the schmuck who borrowed $100,000 from the mafia that he has no way of paying back, and bet it all on a "sure thing" horse. Which is now limping into the finish line in last place. So the guy goes off on a witch hunt to prove that the race was fixed, the horse was drugged, the other horses were doped

She's not talking about you cboldt.

I get the feeling you are mocking someone.

Intended for cboldt...

He's not mocking me. He's just supporting my POV so I keep sending him wine and not be so impolite to him when he's here.

[cathyf]

All of this evidence is directly relevant to show that, far from being unremarkable "snippets" of conversation, defendant's conversations with reporters and others regarding former Ambassador Wilson, his 2002 trip to Niger, and his wife's possible role in arranging that trip, were unique and memorable events that took on more, rather than less, importance prior to the time defendant was questioned concerning them.

I had to read this three times. It is Fitzgerald completely conceding his case.

Libby testifies that in June, 2003, these events were not nearly as memorable as they became later. Fitzgerald has indicted Libby because he says that this is a lie.

In the boldfaced sentence, Fitzgerald is claiming exactly the same thing -- that Libby did not have a reason to retain the information when it was presented to him in June, 2003, because the information had to "take on more importance" which it didn't do until later on, "prior to the time defendant was questioned concerning [it]."

[Pat]

Does this say that if Libby questions whether Plame was classified and/or covert, the Fitz wants to put such information into evidence to prove his investigation was necessary?

I didn't think Fitz was tasked with that, I thought Coffey letter told Fitz to look into how the disclosure of a CIA employees identity occurred by being published by Bob Novak.

There was nothing in that stating anything about her being an agent, being convert or even being classified, all it says is investigate it because she was a CIA employee.

[clarice]

Cathyf--good point. In Fitzworld because long after the fact the info was more significant, Libby should have remembered what he forgot because when he learned it he thought it was insignificant..

[cathyf]

Usually I can figure out what things are trying to say even if there are typos and/or OCR errors. But I'm stumped with what this sentence is trying to say, cboldt:

To the government's knowledge, the defense intends to contend that defendant's answers were accurate but if they were not accurate they were misremembered and does not intend that any intentionally false statement was not material.

You highlighted it -- do you have any idea what Fitzgerald is getting at with "...does not intend that any intentionally false statement was not material."? Is there a word or words missing, do you think? If so, which ones and where?

[Pat]

It doesn't appear Fitz addresses the real point and that is that sure his investigation may have been legitimate, but that chould have ended when he found out Armitage was the leak he was tasked to find.

How does providing the jury the Plame status information change the simply fact that his task was over when Armitage came forward.

[Pat]

cathyf,

I think Fitz was saying that Libby will not argue that his supposed false statements were not material to Fitzs investigation.

But I thought Fitz had the task up front of proving that they were material???

[boris]

To the government's knowledge, the defense ... does not intend that any intentionally false statement was not material.

Fitz does not believe the defense case is going to be based on materiality. IOW Libby's devense is not going to say his lies were not material.

Double negative confusion.

[cathyf]

...his task was over when Armitage came forward...

Well, I'll certainly defend Fitzgerald and the FBI here. Armitage only told about his leak to Novak, and Novak established a chain of custody of the information between the Armitage-Novak leak and the Novak publication. And the FBI clearly had collected evidence that the information was "in play" days before the Armitage-Novak leak.

My defense of the investigation, of course, goes only so far as to say that, no, Armitage coming forward with his part-truth didn't clear up all of the material issues. The apparent fact that neither Fitzgerald nor the FBI actually conducted an investigation of those remaining material questions is indefensible.

[clarice]

Yes. Also , however, given the restrictions on questioning reporters, the very notion of finding who was the first to leak was a fool's task and certainly why no one but Fearless Fitz attempted it--though the attempt as you note was very half hearted and under the good leak bad leak theory doomed to fail.

[cboldt]

-- "Usually I can figure out what things are trying to say even if there are typos and/or OCR errors." --

FWIW, there won't be OCR errors in the HTML conversions that I post. The text of the legal papers is more or less "plain" embedded in the PDF files. BUt, as one might surmise, the conversion will faithfully reproduce typographical errors. Sometimes I transpose the scanned stuff by hand, if I see a part that is particularly interesting and manageably short - that transposition can have typos too.

But none of it is OCR error.

[Pat]

cathyf,

Nice try, but your argument means only that Fitz should have charged Armitage with obstruction, not Libby.

I have no idea what the FBI had information that the Plame information was 'in play' means?? They either found out who disclosed it to Novak or they didn't.

[Pat]

Armitage was the leak to Novak

Armitage was the first leaker to Woodward.

Armitage misled the investigation.

Libby was neither the first leak, nor was the information ever publicly disclosed pointing to Libby's side of the argument. If Libby was out there leaking such memorable information why didn't anyone publish it?

[clarice]

Worse, Pat, they never even questioned all the reporters for whom Wilson was the obvious source ..and from what we know of Woodward (who says he told Pincus ) and who was the obvious source to Bradley--every reporter who knows tells someone else until the "secret" is no longer secret but common knowledge in the press corps and salons of Georgetown.

[cboldt]

-- "You highlighted it -- do you have any idea what Fitzgerald is getting at ..." --

That Fitz thinks Libby has no argument about materiality.

That Fitz thinks Libby has no defense grounded in absence of materiality.

Or something like that.

Yeah, and that Armitage isn't in the same boat as Libby just proves that Fitz's charge against Libby is totally bogus. A guy who admits leaking isn't in trouble, but a guy who didn't leak is?

[Pat]

Libby should certainly be able to argue that he had nothing to do with Fitzs actual investigation.

Armitage was the leaker to Woodward and Novak, and Armitage misled the invesigation.

The prosecution should answer a very simple questions:

1. Why if you believe this should have been so memorable to Libby, why do you not also believe it would be as memorable by Armitage, and thus Armitage must have lied because you have said this information was absolutely memorable.

2. At the same time you are letting Armitage off because he claimed it was an off hand remark and didn't know she was classified, you are trying to convict Libby based on your argument that this couldn't possible be an off hand remark and had to be memorable. In addition, certainly Armitage having realized his mistake had MORE reason to lie to the investigatiors to cover up then Libby did. Yet what you are claiming as motive to lie for Libby, you excuse in Armitage's case.

Libby ought to have the chance to demonstrate to the jury that Fitz case is disengenious because he set an entire different standard for the actual guilty party.

[cathyf]

Nice try, but your argument means only that Fitz should have charged Armitage with obstruction, not Libby.

Well, while I would agree that the evidence that Armitage obstructed justice is stronger than the evidence that Libby obstructed justice, the evidence is pretty thin gruel to either assertion. There is no evidence that, for example, Armitage remembered telling Woodward until Woodward jogged his memory.

As to why Libby should have remembered all of the times he heard about Plame, while at the same time Armitage shouldn't be expected to remember the times that he talked about Plame, well, them's the rules in FitzWorld. And it's obviously a question that Fitzgerald is working incredibly hard to try to keep Judge Walton or the potential jurors from asking.

[cboldt]

-- "Libby should certainly be able to argue that he had nothing to do with Fitzs actual investigation." --

I think that would be impossible to win, because Libby was in fact questioned by the FBI and the Grand Jury. He can't very well say now "No, I wasn't questioned."

But if you mean that Libby wasn't out looking for the leaker (had nothing to do with the investigation), he has a slam dunk winner. He's too busy with important business to be out looking for leakers of irrelevant trivia.

[clarice]

Cathy, you forget..According to Woodward he twice tried to persuade Armitage to give him a waiver to tell Fitz about their conversation and Armitage relented only after Libby had been indicted.

He may have fogotten , but he rejected two timely offers to set the record straight.
OTOH Miller seems to have forgotten the same conversation Libby did.

[Pat]

""There is no evidence that, for example, Armitage remembered telling Woodward until Woodward jogged his memory.""

Yes, but Armitage still didn't tell Fitz.
So that is actual PROOF that Armitage was intentionally obstructing.

It wasn't until Woodward threaten to come forward after Libby was charged that Armitage was left with no choice.

[Cecil Turner]

Well, thanks for posting this filing. And this was the part I found interesting:

(a) establishing that the FBI and grand jury investigations defendant sought to obstruct concerned the possible unauthorized disclosure of classified information and the possible unlawful disclosure of a covert agent, and that the false information defendant is charged with providing to investigators and the grand jury was therefore material; and (b) establishing that, before defendant was interviewed by the FBI or testified in the grand jury, defendant received information indicating that Ms. Wilson's employment could be classified and that disclosure could be damaging, and that this information made defendant's conversations regarding Ms. Wilson even more memorable to him, and provided defendant with a motive to lie.

Seems to me the only way Libby could be in any legal jeopardy was if he knew Ms Wilson's employment could be classified at the time when he discussed it with reporters, and Fitz is doing his utmost to obscure that fact. My admittedly amateur analysis is that he apparently doesn't want to go with the "political embarassment" angle alone, and can't prove any legal jeopardy, but wants to imply it anyway. Looking forward to the ruling.

[topsecretk9]

--He may have fogotten , but he rejected two timely offers to set the record straight.--

Also, Armitage either asked a surrogate or a surrogate used ESP took upon himself to inform Novak AFTER AN INVESTIGATION WAS ANNOUNCED - Armitage's BLAB was...um...inadvertent...which is pretty red flaggish and sounds like witness tampering to me...that Fitz is oddly not offended by.

Also, when taken with

...Taft, the State Department lawyer, also felt obligated to inform White House counsel Alberto Gonzales. Powell and his aides feared the White House would then leak that Armitage had been Novak's source--possibly to embarrass State Department officials who had been unenthusiastic about Bush's Iraq policy. So Taft told Gonzales the bare minimum: that the State Department had passed some information about the case to Justice. He didn't mention Armitage. Taft asked if Gonzales wanted to know the details. The president's lawyer, playing the case by the book, said no, and Taft told him nothing more.

Armitage is really an A-hole.

[cathyf]

According to Woodward he twice tried to persuade Armitage to give him a waiver to tell Fitz about their conversation and Armitage relented only after Libby had been indicted.

I read Woodward's story differently. Woodward says that when he brought up the subject Armitage shushed him up immediately. Suppose Armitage clean forgot about telling Woodward. Then when Woodward brought "it" up, Armitage thought that the "it" that Woodward wanted to talk about the Armitage-Novak leak, and Armitage's testimony, etc. Completely reasonable and expected thing for a journalist to want to talk about.

We've argued passionately that just because person X says something, or intends to say something to person Y, that does not mean that person Y actually knows the information 15 minutes after the conversation is over. When you say, "Woodward meant it so Armitage must have known" you are making the same logical error as saying "Official X meant to mention Plame when Libby was in the room so Libby must have known."

[Anonymous]

Yes, Armitage was in all ways a rat..but he was retiring and how better to get yourself a Kennedy Center lifetime membership.

[clarice]

Cathy, that may indeed be what Armitage told the GJ and how he got off the hook (and it may even be true), but Woodward's version as reported given all the skullduggery Armitage employed to keep the President from knowing provides far more compelling evidence against him than Fitz has been able to cobble together to establish Libby lied IMO.

[topsecretk9]

Memories...

...Then, the day of the indictment I read the charges against Libby and looked at the press conference by the special counsel and he said the first disclosure of all of this was on June 23rd, 2003 by Scooter Libby, the vice president's chief of staff to "New York Times" reporter Judy Miller.

I went, whoa, because I knew I had learned about this in mid- June, a week, ten days before, so then I say something is up. There's a piece that the special counsel does not have in all of this.

I then went into incredibly aggressive reporting mode and called the source the beginning of the next week and said "Do you realize when we talked about this and exactly what was said?"

And the source in this case at this moment, it's a very interesting moment in all of this, said "I have to go to the prosecutor. I have to go to the prosecutor. I have to tell the truth."

and

...I made efforts to get the source, this year, earlier, and last year, to give me some information about this so I could put something in the newspaper or a book. So, I could get information out, and totally failed.

I love to bring this up because I can not understand why Armitage says "I have to tell the truth" unless he KNOWS he has not been telling the truth in some way.

http://transcripts.cnn.com/TRANSCRIPTS/0511/21/lkl.01.html

[cboldt]

-- "It wasn't until Woodward threaten to come forward after Libby was charged that Armitage was left with no choice." --

Sez Woodward on November 14:

I was first contacted by Fitzgerald's office on Nov. 3 after one of these officials went to Fitzgerald to discuss an interview with me in mid-June 2003 during which the person told me Wilson's wife worked for the CIA on weapons of mass destruction as a WMD analyst."

[clarice]

cboldt, read ts9's preface..

[cboldt]

-- "cboldt, read ts9's preface." --

I did. Especially the part that went ...

[I] looked at the press conference by the special counsel and he said the first disclosure of all of this was on June 23rd, 2003 by Scooter Libby ...

That idiot Fitz - his stupid presser was the spark that lead to the outing of Armitage! Now he's hoist on his own petard, with Armitage as the source of Novak's leak, Libby is obviously innocent.

Malicious prosecution, here we come!!

[topsecretk9]

...Well the irony is the next day I learned that he was missing a significant piece that -- or it might be a significant piece and it involved me so I'm one of the rocks he never turned over in an interesting way. And, as people have rightly written, so, you know, what do we know about this? It went on for two years. A piece was missed.

Fitz forgot to file the FOIA request for Armitage's appointment book like the AP did (because after years of prodding, even Woodward failed at getting that out)

[clarice]

Fitz didn't need a FOIA request. He had subpoena power and never used it.

[clarice]

Further, since Armitage knew he was the source and came forward to say so--is it reasonable to suppose he didn't look at his notes and diaries, including the appointment calendar , before he testified?

[topsecretk9]

--Fitz didn't need a FOIA request. He had subpoena power and never used it.--

I know Clarice, I was being silly. ::grin::

[topsecretk9]

That idiot Fitz - his stupid presser was the spark that lead to the outing of Armitage! Now he's hoist on his own petard, with Armitage as the source of Novak's leak, Libby is obviously innocent.

He also said in the press conference:

...Valerie Wilson's cover was blown in July, 2003. The first sign of that cover being blown was when Mr. Novak published a column on July 14, 2003 but Mr. Novak was not the first reporter to be told that Wilson's wife, Valerie Wilson, Ambassador Wilson's wife Valerie, worked at the CIA.

Several other reporters were told. In fact,Mr. Libby was the first official known to have told a reporter when he talked to Judith Miller in June of 2003 about Valerie Wilson...

Question: If during the course of the public trial information comes out with regard to other people who have leaked, the source of the leak or other people who have disclosed Ms. Plame's identity, would this then reverberate back to you since you have been studying this if new information is forthcoming during the course of the trial?

FITZGERALD: If I can take it with -- answer your question with a bucket of cold water and say let's not read too much into it. Any new information that would ever come to light while the investigation open -- is open would be handled by our investigative team concerning these facts.

So, if there's anything that we haven't learned yet that we learn that should be addressed we will address it but I don't want to create any great expectations out there by giving sort of a general answer.

[Cecil Turner]

In fact,Mr. Libby was the first official known to have told a reporter when he talked to Judith Miller in June of 2003 . . .

I'd also like to point out Valerie Plame was a US official. And the reporting suggests she may well have outed herself . . . and there's little evidence to suggest Fitz&Co even looked into it.

[Ranger]

My issue with Armitage is that at some point someone has to explain to me why, before the Libby indictment he closes down any conversation with Woodward about their previous chat about Val, but after the Libby indictment, he lets the conversation progress to the point of "oh, that's right, we did talk about that." Very convienient, almost as if he knew where the conversation was going, and didn't want it to get there until he suspected there was no stopping it.

[cboldt]

-- "If Libby was out there leaking such memorable information why didn't anyone publish it?" --

Because it wasn't "memorable" in the sense of being news - all the reporters on the beat already knew it. But more importantly, if the public found out that Wilson's wife was behind sending Wilson to Niger, it might have a slight tendency to help the administration -and reporters NEVER, EVER, NEVER report things that might benefit the administration.

Who knows what Novak was smoking the day he wrote his op ed, it must have been good.

[clarice]

Yes, Cecil, that's what I meant when I referenced Fitz' good leak, bad leak reference. He made it clear that he had no intention or obligation to question those reporters for whom Wilson was the certain source.
Libby has said in pretrial pleadings he intends to bring forth at least 5 people to whom Wilson said his wife worked for the CIA on proliferation issues.

[clarice]

Indeed. Ranger.
I could make a far better case that Armitage obstructed the investigation than that anyone else in the universe did.
Go figure.

[Cecil Turner]

Who knows what Novak was smoking the day he wrote his op ed, it must have been good.

Not sure it qualifies as "help" . . . especially in the concluding paragraphs:

During the run-up to the invasion of Iraq, Wilson had taken a measured public position -- viewing weapons of mass destruction as a danger but considering military action as a last resort. He has seemed much more critical of the administration since revealing his role in Niger. In the Washington Post July 6, he talked about the Bush team "misrepresenting the facts," asking: "What else are they lying about?"

After the White House admitted error, Wilson declined all television and radio interviews. "The story was never me," he told me, "it was always the statement in (Bush's) speech." The story, actually, is whether the administration deliberately ignored Wilson's advice, and that requires scrutinizing the CIA summary of what their envoy reported. The Agency never before has declassified that kind of information, but the White House would like it to do just that now -- in its and in the public's interest. [emphasis added]

[topsecretk9]

least 5 people to whom Wilson said his wife worked for the CIA on proliferation issues.

I wonder if one of these 5 knew from Wilson and had talked to Russett, Mitchell, Cooper or Miller about it too.

Yikes.

[Ranger]

Well, there are only two ways to look at it. Either Armitage is telling the truth, and the information was so trivial that he really didn't remember, or he deliberately "forgot" until he was out of legal jepardy. Either of those torpedos Fitz's arguments about Libby.

[clarice]

Let me suggest that Armitage was not indicted because had he been, the Libby case would have been over and the one-sided caliber of the investigation would have been even more public than it is to wee small band of watchers.
(I do so hope the DoJ lurkers are lurking today.)

[topsecretk9]

...more filings in.

[cathyf]

...given all the skullduggery Armitage employed to keep the President from knowing provides far more compelling evidence against him than Fitz has been able to cobble together to establish Libby lied IMO.

Yeah, I totally agree that evidence of Libby's "obstruction" is thinner than for Armitage -- it's just that I think that the evidence is really really thin vs. really really really thin.

Perhaps if the FBI had believed Libby and, ya know, like conducted an investigation they would have found evidence that all sorts of reporters knew and would have traced that back to Armitage. Or maybe not. But Plame wasn't covert or classified according to the law, and Armitage had a first amendment right to gossip about her.

(You want to talk about a let's-impeach-Bush argument, try the executive abusing its law-enforcement powers to pretend that a non-crime is a crime in order to force citizens to disclose who did something that embarrassed the administration. Maybe making that argument might shed a little light on this whole issue of just who Fitzgerald's supervisor was and is...)

[cathyf]

My issue with Armitage is that at some point someone has to explain to me why, before the Libby indictment he closes down any conversation with Woodward about their previous chat about Val, but after the Libby indictment, he lets the conversation progress to the point of "oh, that's right, we did talk about that."

Well, the other party to the Armitage-Novak conversation (Novak) acted in just this way when asked about the Armitage-Novak conversation in the years before the indictment. And he explained his tight-lipped-ness by saying that Fitzgerald told him not to talk. Ok, I'm willing to grant that Armitage was given the same instructions. And also, Armitage was busy covering up his insubordination to the president's direct order to disclose any role anybody had had in leaking to Novak.

All-in-all, Armitage's behvior is consistent with someone who is a rat, who did have something to hide, but it was just a different something than the Jun 13th conversation with Woodward. And of course Ranger's point is right on -- Armitage clean forgetting leaking to Woodward is just as damaging to Fitzgerald's case as him being guilty of obstruction of justice.

[clarice]

Libby has filed a new doc which TS sent me in pdf form.Cathy's argument plays prominently in it.1. He notes that while the govt concedes that Plame's status and the damage issues are not relevant it is wrong in asserting that Libby's effort to keep this out of the trial is moot.He asks for a jury instruction that it may not speculate on her status or the damage question.As to the govt's claim that it should be allowed to put in what Libby learned after the conversations with reporters about Plame's status,he contends that this is not terribly relevant--this info could not retroactively make any of his conduct improper--and that its probative value is outweighed by its clear tendency to distract and unfairly prejudice the jury. This is, he argues a backdoor route to get in evidence that the prosecutor denied Libby in discovery and at a minimum the govt should proffer what evidence it intends to use to make its case. He notes another misstatement of fact--the Govt originally said the conversation with the CIA was in Libby's "presence" and now claims he "was a party to this conversation".
He says what most of us have said--that the govt is seeking free rein in proving ITS theory of motive and asks the Court to constrict evidence Libby may use to shoe that in the relevant period (BEFORE his conversation with reporters) he did not know or have any reason to believe her status was classified or covert. In particular he notes he wants to bring in Armitage's statements that HE didn;t know she held any such status, that he learned her name from the DoS memo, and that he's never heard of a covert agent's name being in such a memo.