Holiday Libby Filings

Here are some new filings in the Libby case - at a quick glance I didn't see any newsbreakers, but the Ghost of Christmas Present is distracting me.

1.  Judge Walton's opinion re substitutions for classified info (40 page .pdf).  On page 20 there is a mention that Libby's calendar for July 11, 2003 has him working on Tenet's statement regarding Niger and uranium.  IIRC, Tenet's side disputed White House involvement, which may be true - just because Libby proposed something, it does not follow that Tenet adopted it.

2.  Proposed jury instructions, round two: Fitzgerald's response to Libby's proposal (21 page .pdf); Libby's team's response to Fitzgerald's proposal (7 page .pdf)

3.  Libby's supplementation of his filing to exclude evidence on the reporters First Amendment litigation - this is stuff we have seen before, such as Libby's classic letter to Judy ("they turn in clusters, because their roots connect them"), articles about Judy Miller or a column by Robert Novak.  Cover filing (2 page .pdf), exhibits (21 page .pdf).

Happy hunting, and Happy Holidays.

Comments

[windansea]

Feliz Navidades Senor McGuire and all the JOMers too...

[Sara (Squiggler)]

Hope everyone has a happy holiday and a very Merry Christmas!

[cboldt]

Case 1:05-cr-00394-RBW Document 222 Filed 12/20/2006 Page 1 of 2

NOTICE OF SUPPLEMENTAL EXHIBITS IN CONNECTION WITH MOTION IN
LIMINE TO EXCLUDE EVIDENCE RELATING TO REPORTERS' FIRST
AMENDMENT LITIGATION, CONTEMPT PROCEEDINGS, AND JUDITH MILLER'S
INCARCERATION

I. Lewis Libby, by and through his counsel, hereby notices his
intent to supplement the record. On October 30, 2006, Mr. Libby
filed his Motion
in Limine
to Exclude Evidence Relating to reporters' First Amendment
Litigation, Contempt Proceedings, and Judith Miller's
Incarceration. Mr. Libby attached several articles and letters
to that motion as exhibits.

Mr. Libby now seeks to supplement the record for this motion with
his letter of September 15, 2005, to Judith Miller, a September
16, 2005 letter from his counsel, Joseph A. Tate, to Floyd
Abrams, then counsel to Ms. Miller, and October 16, 2005
New York Times
article written about Ms. Miller by Don van Natta, Jr., Adam
Liptak, and Clifford Levy, and a July 12, 2006 column written by
Robert Novak titled
My Leak Case Testimony so that the Court has a complete
record. These documents are attached as Exhibits A to D of this
notice.

Exhibits attached to Libby's October 30 Motion [Doc 167]:

• January 5, 2004 Statement and Waiver of Reporter Confidentiality by Libby
• June 22, 2004 Statement of Glenn Kessler
• August 9, 2004 Statement of NBC News
• October 30, 2005 Cooper article, What Scooter Libby and I Talked About
• September 16, 2005 Letter from Libby's counsel, Tate to Fitzgerald (re: Miller having a waiver)
• September 12, 2005 Letter from Fitzgerald to Tate (Miller says she needs Libby's waiver)
• October 16, 2005 Miller article, A Personal Account; My Four Hours Testifying in the Federal Grand Jury Room

Exhibits attached to Libby's November 21 Reply [Doc 203]:

• August 29, 2005 NYT Editorial, Free Judy Miller
• September 29, 2005 Letter from Miller's counsel, Floyd Abrams to Libby's counsel, Tate

Exhibits attached to Libby's December 20 Motion [Doc 222]:

• September 15, 2005 Personal Waiver Letter from Libby to Miller
• September 16, 2005 Letter from Tate to Miller's counsel, Floyd Abrams
• October 16, 2005 van Natta article, The Miller Case: A Notebook, a Cause, a Jail Cell, and a Deal
• July 12, 2006 Novak article, My Leak Case Testimony

[Uic]

The substitiution thing is unclear. They prosecuted MacViegh the same?

I think the CIA review thing has more to do with the move of the CIA analysts to DOD/DIA than the classification review of the ISG/CIA document created by the US Institute for Peace and being passed over for AEI, where there are leass CIA operations officers, not being more Congressional than Presidential.

Happy New Year. All humanity ends in 2012 or next year, depending on the five year calendar difference.

Why was everyone so upset about the five year informant law/Congressional ban on serving on committees - after being served by Plame?

[cboldt]

-- "The substitiution thing is unclear. They prosecuted MacViegh the same?" --

Any case that involves classified information as part of the evidence is most likely to invoke the Classified Information Procedures Act (CIPA), which is aimed at giving the defendant a fair trial, while protecting classified information at the same time. McVeigh's trial involved classified information. Libby's defense involves classified information. Many trials involve classified information.

[clarice]

Merry Christmas, Sara.Hope all is going well.

[Jane]

Merry Christmas everyone - in case I don't get a chance to log back in again. I'm so happy to have found all the great folks here this year!

[PeterUK]

Merry Christmas to all.Time to think of those less fortunate than ourselves,poor Mr Libby who has spent enough money, thus far, for Santa to put a horses head in the beds of everyone at the Justice Department

[Sara (Squiggler)]

Thanks Clarice, hope this holiday season is turning out to be a good one for you. Merry Christmas Jane and PeterUK.

When you think about Sandy Berger getting nothing but a slap on the wrist for actually stealing classified documents and then hiding them under a trailer to be retrieved later as opposed to Scooter's "You heard that too," one has to wonder not who got the payoffs, but how much.

[maryrose]

Merry Christmas and Happy Hanukkah!
This blog has been a blessing this year and I enjoy all your posts immensely.
Sara' I hope you are enjoying your new home in Florida.
Jane, clarice and PeterUK- have a wonderful holiday season with your families and enjoy good cheer into the new year.

[MJW]

I just finished reading Walton's CIPA ruling and in my opinion Walton seems very fair to Libby except in one regard. Walton is considerably more restrictive on what Libby can say about the classified threats he learned about on June 11 and June 14, when he was allegedly told about or discussed Plame with other government officials, then he is on the days Libby talked to reporters or investigators. To me, the memory argument is more applicable to the first circumstance. If, say, his CIA briefer mentioned that Wilson's wife works for the CIA, and, oh, by the way, terrorists are planning to blow up Las Vegas, which would Libby be more likely to take note of and remember? But, more that that, I have a problem with Walton's justification. He basically says there are lots of other examples in the indictment where Libby heard about Plame from government officials, so rebutting these particular events isn't really helpful. What that means that Walton's dismissing the possibility Libby can claim he didn't recall learning about Plame from government officials. Now, perhaps that will prove to be true -- perhaps the evidence will be so overwhelming that denial is futile. That's not, however, apparently the position of the defense, and it's not up to Walton to decide at this point what is and isn't a valid defense argument.

[PeterUK]

For the Liberals.

CHRISTMAS DAY IN THE WORKHOUSE
(A Poem by George R. Sims, 1847-1922)

It is Christmas Day in the workhouse,
And the cold, bare walls are bright
With garlands of green and holly,
Ad the place is a pleasant sight;
For with clean-washed hands and faces,
In a long and hungry line
The paupers sit at the table,
For this is the hour they dine.

And the guardians and their ladies,
Although the wind is east,
Have come in their furs and wrappers,
To watch their charges feast;
To smile and be condescending,
Put pudding on pauper plates.
To be hosts at the workhouse banquet
They've paid for — with the rates.

Oh, the paupers are meek and lowly
With their "Thank'ee kindly, mum's!'"
So long as they fill their stomachs,
What matter it whence it comes!
But one of the old men mutters,
And pushes his plate aside:
"Great God!" he cries, "but it chokes me!
For this is the day she died!"

The guardians gazed in horror,
The master's face went white;
"Did a pauper refuse the pudding?"
"Could their ears believe aright?"
Then the ladies clutched their husbands,
Thinking the man would die,
Struck by a bolt, or something,
By the outraged One on high.

But the pauper sat for a moment,
Then rose 'mid silence grim,
For the others had ceased to chatter
And trembled in every limb.
He looked at the guardians' ladies,
Then, eyeing their lords, he said,
"I eat not the food of villains
Whose hands are foul and red:

"Whose victims cry for vengeance
From their dark, unhallowed graves."
"He's drunk!" said the workhouse master,
"Or else he's mad and raves."
"Not drunk or mad," cried the pauper,
"But only a haunted beast,
Who, torn by the hounds and mangled,
Declines the vulture's feast.

"I care not a curse for the guardians,
And I won't be dragged away;
Just let me have the fit out,
It's only on Christmas Day
That the black past comes to goad me,
And prey on my burning brain;
I'll tell you the rest in a whisper —
I swear I won't shout again.

"Keep your hands off me, curse you!
Hear me right out to the end.
You come here to see how paupers
The season of Christmas spend;.
You come here to watch us feeding,
As they watched the captured beast.
Here's why a penniless pauper
Spits on your paltry feast.

"Do you think I will take your bounty,
And let you smile and think
You're doing a noble action
With the parish's meat and drink?
Where is my wife, you traitors —
The poor old wife you slew?
Yes, by the God above me,
My Nance was killed by you!

'Last winter my wife lay dying,
Starved in a filthy den;
I had never been to the parish —
I came to the parish then.
I swallowed my pride in coming,
For ere the ruin came,
I held up my head as a trader,
And I bore a spotless name.

"I came to the parish, craving
Bread for a starving wife,
Bread for the woman who'd loved me
Through fifty years of life;
And what do you think they told me,
Mocking my awful grief,
That 'the House' was open to us,
But they wouldn't give 'out relief'.

"I slunk to the filthy alley —
'Twas a cold, raw Christmas Eve —
And the bakers' shops were open,
Tempting a man to thieve;
But I clenched my fists together,
Holding my head awry,
So I came to her empty-handed
And mournfully told her why.

"Then I told her the house was open;
She had heard of the ways of that,
For her bloodless cheeks went crimson,
and up in her rags she sat,
Crying, 'Bide the Christmas here, John,
We've never had one apart;
I think I can bear the hunger —
The other would break my heart.'

"All through that eve I watched her,
Holding her hand in mine,
Praying the Lord and weeping,
Till my lips were salt as brine;
I asked her once if she hungered,
And as she answered 'No' ,
T'he moon shone in at the window,
Set in a wreath of snow.

"Then the room was bathed in glory,
And I saw in my darling's eyes
The faraway look of wonder
That comes when the spirit flies;
And her lips were parched and parted,
And her reason came and went.
For she raved of our home in Devon,
Where our happiest years were spent.

"And the accents, long forgotten,
Came back to the tongue once more.
For she talked like the country lassie
I woo'd by the Devon shore;
Then she rose to her feet and trembled,
And fell on the rags and moaned,
And, 'Give me a crust — I'm famished —
For the love of God!' she groaned.

"I rushed from the room like a madman
And flew to the workhouse gate,
Crying, 'Food for a dying woman!'
And the answer came, 'Too late.'
They drove me away with curses;
Then I fought with a dog in the street
And tore from the mongrel's clutches
A crust he was trying to eat.

"Back through the filthy byways!
Back through the trampled slush!
Up to the crazy garret,
Wrapped in an awful hush;
My heart sank down at the threshold,
And I paused with a sudden thrill.
For there, in the silv'ry moonlight,
My Nance lay, cold and still.

"Up to the blackened ceiling,
The sunken eyes were cast —
I knew on those lips, all bloodless,
My name had been the last;
She called for her absent husband —
O God! had I but known! —
Had called in vain, and, in anguish,
Had died in that den — alone.

"Yes, there, in a land of plenty,
Lay a loving woman dead,
Cruelly starved and murdered
for a loaf of the parish bread;
At yonder gate, last Christmas,
I craved for a human life,
You, who would feed us paupers,
What of my murdered wife!"

'There, get ye gone to your dinners,
Don't mind me in the least,
Think of the happy paupers
Eating your Christmas feast;
And when you recount their blessings
In your smug parochial way,
Say what you did for me, too,
Only last Christmas Day."

There's an election for 2008,"Happy Paupers"

[cboldt]

-- "I just finished reading Walton's CIPA ruling and in my opinion Walton seems very fair to Libby except in one regard." --

Yeah, but that "one regard" is the logical fallacy that Libby can use to blow the entire Opinion out of the water. Since nobody else was talking about the opinion, I didn't bother the board further on my observations.

Walton similarly agreed with substitutions (resulting in omission of defense-critical evidence) for July 7, 8, 10 and 11. The opinion and timelines correlate these dates with important matters, so I won't bother repeating them here. These exclusions are highly prejudicial to Libby. An absolutely essential part of his memory defense is that he didn't hear it from anybody in the government, except for Cheney. If he didn't hear it (retain it) he didn't have it "remembered" so he could later "forget" it.

The notion of "cumulative" for the memory defense is a logical fallacy - the government only needs to prove that Libby remembered ONE of these hearings - In order to have a fair trial, Libby needs to be able to rebut EVERY ONE, not an accumulation of more than one.

Walton assumes that the memory defense is limited to "I knew it and forgot it" (more than the admission of "heard it-forgot it" for the Cheney hearing), and completely disregards the "I never even knew it" aspect of memory. In order to explain the "I never even knew it" aspect, Libby needs to be able to show how preoccupied he was when not listening to Grenier, Grossman, and Martin. Rove too, if somehow Fitzgerald can bring that July 11 conversation into evidence. In other conversations (Schmall, Edelman, Fleischer and Addington), Libby is allegedly PROVIDING information. As if he could - sheesh, he didn't have it to provide it!

---===---

On a separate subject, while putting together timelines and case/filing cross-reference summaries for my own clarity (ha ha ha - as if I have any of THAT!), I came across an assertion by Fitzgerald that plays into the misattribution theory (misattributing to Russert a conversation with a different reporter). Does the misattribution theory require a time-shifting of hearing?

If Woodward is the "substitute" for Russert, then on the facts in hand, there is a necessary time shift from July 10, 11 or 12 (whatever date the Russert conversation happened on), and June 23 or 27 (the dates that Woodward said he was in contact with Libby).

What reporter conversations are in the mix that Libby could have misattributed a conversation to Russert, what he heard from some other reporter in the timeframe of July 10 to 12?

[clarice]

Thanks, maryrose. PUK, you are a very wicked boy.

[MJW]

cboldt, in his usual passive-aggressive style, mixes an inseparable brew of truth and mockery. I will comment on one aspect.

Walton assumes that the memory defense is limited to "I knew it and forgot it" (more than the admission of "heard it-forgot it" for the Cheney hearing), and completely disregards the "I never even knew it" aspect of memory.

I think cboldt and Walton assume that each instance will be addressed in the same way, which I doubt. For examble, I suspect that in the case of Grossman and Fleischer, Libby's team will deny that Plame was even mentioned. In any case, cboldt's implication that there's so much evidence that Libby would be crazy to deny it is beside the point. As I acknowledged in my original comment: "perhaps the evidence will be so overwhelming that denial is futile." Even so, it's up to Libby's lawyers, not Walton, to decide what to argue to the jury.

[cboldt]

-- "cboldt, in his usual passive-aggressive style, mixes an inseparable brew of truth and mockery." --

I was going to comment, and changed my mind. Sorry to have addressed your post. Really sorry. It won't happen again.

[PeterUK]

Oh come on cboldt,it's Christmas,kick'em in the groin.

[boris]

Yeah cboldt you don't have to take that from anybody!

[MJW]

No offense intended, cboldt; you're more than welcome to respond to my posts. I hope you do. I'm not sure how you can deny that a style that expresses disagreement by feigning enthusiastic agreement doesn't qualify as passive-aggressive. It's practically the definition. As far as my comment on the "inseparable brew," that's also undeniable, and, at least to me, a bit frustrating because I'm never quite sure how much is to be taken at face-value and how much is sarcasm.

Speaking of face-value, not everything in the indictment should be viewed that way. cboltd's comment included Edelman as someone Libby mentioned Plame to. This is presumably a reference to the "non-secure" telephone conversation. Yet the indictment never actually claims Plame was being discussed at the time -- only Wilson's trip. We also know that Fitzgerald presented Miller's testimony as more definite than Miller indicated it was.

Merry Christmas, Happy Hanukkah, etc. to Tom Maguire and everyone commenting on JOM!

[PeterUK]

There is no need to be like that MJW,just because it is the Season of Good Will to All Men(Women,children and transgendered).

[SunnyDay]

a reference to the "non-secure" telephone conversation. Yet the indictment never actually claims Plame was being discussed at the time

It did! If it wasn't plainly stated it was definitely implied. That's one of the things that stunned me. There are several things like that in the long version of the indictment - not in the part Fitz read at the press conf.

[MJW]

SunnyDay, not only does Fitz imply in the indictment that Libby's "non-secure telephone" comment was in reference to Plame, but he's done so many other times as well. A revealing example occurs in the May 5, 2006 hearing:

FITZ: I will say this. We will not offer any proof of actual damage specific to Valerie Plame Wilson. We are not getting into the fact specifics of her. The issue of potential damage, the harm that causes from people being outed will come up indirectly several times and I can point, for example, one of the things that Mr. Wells actually looked to was the articles. One of the articles that came out in the New Republic
in June of 2003. There was some discussion in there. After that article a witness spoke to Mr. Libby by telephone who was describing what it is that some of the problems were about Mr. Wilson's trip and the person said, can you make some information public, and Mr. Libby said, we can't because there
25 are complications at the CIA which he didn't further explain, and he said, we can't talk about it on an open telephone line.
* * *
WELLS: Your Honor, that article he referred to is discussed in paragraph 13 and it doesn't discuss the wife at all.
* * *
FITZ: I agree with Mr. Wells the New Republic article does not discuss the wife. There is an ambiguity about what Mr. Libby and this person are discussing on the phone afterward as to what the complication is.

While it's possible Fitz is holding back information, and Plame was discussed in the conversation (thus making the supposed link between Libby's caution and Plame more plausible), I think it's unlikely. First, because of Fitz's admission that there was "ambiquity," and second, because the conversation occurred shortly after the article was published on June 19, 2003. I'm very skeptical that Libby mentioned Plame to someone in that time-frame, and it wasn't included in the indictment.

[MJW]

A bit of news from Fitz's response to Libby's proposed Jury instructions:

As the Court is aware, the parties have agreed that no evidence will be presented with respect to whether Valerie Wilson’s CIA employment actually was classified, or whether the disclosure of her employment actually caused, or had the potential to cause, damage.

Fitz goes on to object to Libby's proposed jury instruction on this subject, which was, I take it, offered in a hearing. (I sure wish the hearing transcripts we're available sooner. They seem to contain lots of interesting tidbits besides the "VP to testify!" headline material.)

[MJW]

...were available sooner. I seldom correct typos, but I don't want to be thought of as one of those people who throws in an extra apostrophe here and there.

[MJW]

Though I don't see any way to avoid having an instruction on Plame's classified status and potential or actual damage, I suspect any such instruction works against Libby. It's similar to telling the jury, "don't think about a white elephant."

[cboldt]

-- "Libby's proposed jury instruction on this subject, which was, I take it, offered in a hearing." --

Libby Reply to Gov't Response re: CIA Status (Nov 17)

[MJW]

I see from reading cboldt's versions of the recent court papers that what I thought was news is actually old news. In any case, it's interesting news, though there seem to be a fair number of disagreements on how the agreement should be interpreted.

[MJW]

I'm pleased to see that Fitz seems to have abandoned his quite egregious attempt to (as Libby's response says) "permit[] the jury to convict Mr. Libby on conduct outside the scope of the indictment," by claiming that for the obstruction charge the government must prove "Libby misled or deceived the Grand Jury as to when or how he acquired or subsequently disclosed to the media information concerning the employment of Valerie Wilson by the CIA." I've mentioned previously how Fitz seemed intent on adding to the indictment the charge that Libby lied about not mentioning Plame to Miller in the July 8 meeting. In his response to Libby's proposed instructions, Fitz essentially accepts Libby's accurate representation of the three charges included in the obstruction count.

[SunnyDay]

It does seem like Libby's lawyers expect Fitz to try to color outside the lines during the trial. All it would take is a word or two. I don't trust Fitz, I think he'll try.

[clarice]

I'm certain he'll try.

[topsecretk9]

Hasn't he already?

[SunnyDay]

LOL, yeah tops. Like whenever he opens his mouth. Seems it would have more ramifications in the trial itself.

FNC just now Gerald Ford just died. May be rest in peace.

[MayBee]

I'm sad about Ford. He was a truly honorable man, personally and professionally.

[SunnyDay]

Lots of rehashing the fall of Saigon this morning. Congress is about to do it again, too. grrrrrrr

[maryrose]

SunnyDay:
Never fear-Congress will not do it again.They want to win in 08 and by losing in Iraq they become a losing party in 08. Bush will veto any goofy legislation they come up with anyway. Only piece of legislation that passes is a minimum wage increase which President Bush can get credit for just like Clinton got credit for welfare reform which he always opposed.

[topsecretk9]

No longer the media darling I guess

Two news organizations are asking a federal judge to unseal documents in the CIA leak case, arguing that Special Prosecutor Patrick Fitzgerald never needed the testimony of reporters because he knew the source of the leak all along.

The Associated Press and Dow Jones, in court papers filed this week, asked for the release of the sworn statements Fitzgerald gave to justify subpoenas for New York Times reporter Judith Miller and Time magazine reporter Matthew Cooper...

...“Recently the public learned that the special counsel’s pursuit of those reporters was entirely unnecessary for him to determine who leaked Ms. Plame’s name to Mr. Novak,” lawyers for the news services wrote...

...Lawyers for the news organizations said the public has the right to know why, despite that knowledge, Fitzgerald testified that he needed the testimony of reporters to continue the investigation. The only way to know that, the lawyers argued, is to unseal Fitzgerald’s affidavits and the court’s full legal opinion on the issue.

http://www.mediainfo.com/eandp/news/article_display.jsp?vnu_content_id=1003524857

[Sara (Squiggler)]

Two news organizations are asking a federal judge to unseal documents in the CIA leak case, arguing that Special Prosecutor Patrick Fitzgerald never needed the testimony of reporters because he knew the source of the leak all along.

This seems like a positive for Libby.

[MJW]

While they're at it, I wish the press would ask the court to consider releasing a less redacted version of Fitz's affidavit to the court that considered the Miller appeal.

[MJW]

I took a quick look at the Fitz's affidaivt in the Miller appeal and noticed a quote that Libby's lawyers should have included in the motion in limine concerning the reporters resistance to testifying:

Libby has also described his version of his conversations with reporter Miller under oath before the grand jury on two occasions. And, as discussed above, Libby has apparently provided express consent (through his lawyer) for Cooper to testify. Cooper testified at his deposition that he agreed to testify because he was convinced based upon his attorney's conversation with Libby's attorney that Libby voluntarily released Libby from any promise of confidentiality. Thus, to the extent that Judith Miller calls into question the voluntariness of Libby's waiver, she need look no further than to her own attorney {who represents Cooper as well) who, according to Cooper, has assessed that Libby's waiver of confidentiality has been voluntary.

[clarice]

That's great news! I have long maintained that there was no reason to force Miller's testimony and that the affidavit Fitz filed in support of his appeal was disingenuous and miseading.

[SunnyDay]

maryrose,
Congress will not do it again. You don't think they'll cut off the money? That's come up recently.

[MJW]

I sure wish we could see the court papers for the Dow Jones suit. From the original story, I assumed they were just seeking the statements Fitz filed in district court to get the subpoenas. In searching for the actual filings, I read an article that seemed to indicate that a number of things, including a nonredacted court opinion, are included. I hope Fitz's appeal affidavit is one of the items, and we finally find out what he told the appeals court about Novak's source.

[clarice]

If the opinion is not redacted, why do they have to sue to see it? Surely it is public.

[MJW]

Clarice, what I meant was they're suing to get a nonredacted version of an opinion of a currently redacted opinion.

[MJW]

Let me try that again...
Clarice, what I meant was they're suing to get a nonredacted version of a currently redacted opinion

[clarice]

Got it. Thanks.
All we have IIRC is a couple of unredacted graphs from his affidavit on this to the Court of Appeals.

[MJW]

I went looking for where I read the stuff about the non-redacted opinion, and after considerable effort, was embarrassed to realize it was right there in the originally mentioned AP article:

Lawyers for the news organizations said the public has the right to know why, despite that knowledge, Fitzgerald testified that he needed the testimony of reporters to continue the investigation. The only way to know that, the lawyers argued, is to unseal Fitzgerald’s affidavits and the court’s full legal opinion on the issue.

(Admittedly, I may have jumped to the conclusion that "the court's full legal opinion" refers to a non-redacted version of a previously redacted opinion, but I think it's a likely interpretation.)

[MJW]

Even more embarrassing than realizing the information I was looking for was in the originally mentioned AP article, is discovering that TSK9 quoted that exact passage in her initial post. I've got to start reading more carefully.

[cboldt]

-- "This seems like a positive for Libby." --

Probably not, for various reasons. Movants Dow Jones and AP have selfish motives for again filing a Motion to Unseal.

[SunnyDay]

A positive for me - curiosity. Why why why is this stuff so secret?

[clarice]

If what's redacted is anything like what was unredacted in the affidavit to the Ct of Appeals, it will further expose the disingenuousness of the special prosecutor's assertions.

[cboldt]

-- "Why why why is this stuff so secret?" --

It's not so secret. The fact of Dow Jones and Associated Press filing of a Motion to Unseal was published by several media outlets (AP feed) on December 22, and the Court's docket sheet shows the filing occurring on December 20.

I think the media keeps the contents of its filings "off the web" in order to enhance readership of and dependency on its news articles, as well as a desire to retain the power to shape and form public opinion.

[clarice]

I assumed her question went to the material redacted, not this case.

[cboldt]

-- "I assumed her question went to the material redacted, not this case." --

Good point. The Court expressed "grand jury secrecy" and it's ramifications as the rationale for redactions.

[topsecretk9]

OT, but...

Re: Specter and Ahmadinejad [Michael Rubin]
Give Specter credit, though. There’s not even a Four Seasons for him to stay in, in Tehran. Nor is there a U.S. embassy whose staff he can task to arrange squash games for him. One of these days, some U.S. Embassy is going to leak or an enterprising journalist is going to FOIA a Specter visit cable so taxpayers can see his, um, unique requirements.

Posted at 1:33 PM

[MJW]

I'll ask "why the secrecy?" in regard to the court papers. Well, I don't think there's necessarily any "secrecy," but I do wonder why it's taking so long to get a look at them. Wilson's motion to quash was available very soon after it was filed.

On the blog No Easy Answers, cboldt does offer a few more details about the motion. In particular, that "the December 20, 2006 Motion to Unseal requests unsealing the entire opinion as well as Fitzgerald's (multiple - two filed in the Court below, and additional affidavits filed at the Circuit Court of Appeals) sealed affidavits." I note that in its opinion earlier this year, the appeals court more or less invited the news organizations to seek further information in the future: "This order is without prejudice to Dow Jones's right to move to unseal additional materials at a later date."

[SunnyDay]

about my question - Clarice is right.

[MJW]

As far as I know, the original Dow Jones motion hasn't been made available on the internet, which may not be a hopeful sign for us that that want to read the new motion. Fitz did post his response to the original motion on the Special Counsel website. His response to the new motion should be interesting, since unlike what I assume was the rather neutral "people's right to know" justification for the first motion, the new motion questions the propriety of Fitzgerald's actions.

I do wonder if a perhaps less confrontational approach might have been wiser. For example, pointing out that a number of facts, such as the identity of Novak's source, have become publicly known since the previous versions were released, making many of the redactions unnecessary. I believe the same judges that decided the Miller appeal will decide the Dow Jones motion. I'm not sure they'll relish admitting they were "had" by Fitz, even if they were.

[MJW]

Very likely, Libby's trial will be complete before the the Dow Jones motion is decided. If so, much of the original rationale for grand jury secrecy will no longer apply.

[MJW]

On No Easy Answers, cboldt has posted the original motion filed by Dow Jones. I must say, it's certainly terse and to the point. I assume that since the motion itself includes an argument, there wasn't a separate memorandum in support of the motion.

According to cboldt, the new motion is, curiously enough, under seal. Cboldt opines:

I find more than a hint of irony that a Motion to Unseal is itself sealed, where the movant is asking for relief on the grounds of making more information available to the public. The movants (Dow Jones and Associated Press), who could make the material public, I find more than a hint of irony that a Motion to Unseal is itself sealed, where the movant is asking for relief on the grounds of making more information available to the public. The movants (Dow Jones and Associated Press), who could make the material public, aren't making the material public.

That tells me that Dow Jones' December 2006 motion contains information pertinent to subpoenas to Miller, Cooper and Time other than what is relevant in the Libby case, and the Court, in an exercise of prudent judgment, is unwilling to be used as a publication tool for Dow Jones.

I'm not sure I follow the logic. Why are Dow Jones and the AP intent on using the courts as a publishing tool while at the same time endeavoring to not make the material public. And why would DJ and the AP, of all organizations, need publishing tools?

I certainly do find it strange that a motion filed by an amicus party would be under seal.

[Walter]

cboldt,

Thanks for hosting the motion.

Great analysis.

MJW,

Do you suppose that the surfeit of irony displayed by CboldT at JoM is related to the distinct lack thereof at Senate and NEA?

Either way, CboldT, your comments and commentary are appreciated. As I mentioned above, it's just hard sometimes for we 'of very little brains' to tell when a partiularly insightful comment is meant as abjuration or approbation. And it blows my model completely when a single comment includes both and neither.

Maybe the appropriate tags will be available in web 3.0 {YML?}.

I wish you and yours (and all of JoM™, esp. Tom himself) a happy and healthy New Year.

[clarice]

MJW..Perhaps the motion contains portions of the GJ testimony or subpoenaed materials which the parties are privy to but still have not been made public. It would be MORE ironic to reveal publicly in pleadings material you maintain is privileged and should never have been forced to produce in the first place.

[Walter]

Clarice,

I suspect that the parties (or at least their attorneys) have access to much of the originally sealed affidavits and opinions.

How else to appeal?

But, being officers of the court subject to contempt procedings, this remains their sole outlet for revealing the information.

And I am quite certain that our friend Fitzgerald would not cringe at filing a motion for sanctions were the sealing order to be violated within a public motion to reveal.

[clarice]

That's possible,too.

[Walter]

Not to mention the newly muscular DoJ approach (cited by TSK9 above) of throwing journalists (&their sources if found) in jail for publishing sealed material.

[Walter]

It's a bit off-topic, but I recently read a piece wherein a DoJ spokeswomen said that only 20 subpoenas for sources had been approved by the Attorney General in the past twenty years.

Seems as though that would mean that almost half of them came in the last 3 years: 2 in the Islamic charities cases, 4+ in Libbyland (Miller, Cooper (x2) Russert), 2 for Bonds, 1 in roasted cop car in SF.

[MJW]

Never let it be said I'm not a "take charge" kind of guy. I just fired off an e-mail to the AP, requesting they make the text of the new motion public in the interest of the "peoples right to know." I expect action! (In this case, the action will likely be a return e-mail similar to: "Thank you for your interest in the Associated Press. Your comments and suggestions are important to us. Please do not reply, as this is an automatically generated response.")

[Walter]

Keep us updated MJW! Clarice has gotten more response from her note to the DoJ castigating Fitzgerald than many thought possible.

Going even further off-topic, I noticed that Mr. Milne was particularly prescient. A new year's resolution found for Mr. Fitzgerald:

“Before beginning a Hunt, it is wise to ask someone what you are looking for before you begin looking for it.”

Or perhaps that was his error-in-chief?

[cboldt]

The clerk of the court, and the document retrieval service, were in error. The December 20, 2006 Motion to Unseal is NOT filed under seal. I now have a copy of it.

[clarice]

Great cboldt. Very witty, Walter.

[Walter]

CboldT,

With all due credit to your follow-up, I'm going to credit this "discovery" to MJW's strongly worded call to action.

::grin::

[cboldt]

-- "With all due credit to your follow-up" --

Heh.

[topsecretk9]

When you are a Bear of Very Little Brain, and you Think of Things, you find sometimes that a Thing which seemed very Thingish inside you is quite different when it gets out into the open and has other people looking at it.

I am just going with it...(although I DO NOT imply the little brain completely devilishly opposite. In fact, I think you could substitute BIG brain for that and Pooh would agree!) (Pooh is a Libra you know - scales - weighing)

BTW...sure do miss JM Hanes and Dwilkers ::sad::

[MJW]

Well, now, for complaining that their motion is sealed, AP is going to think me the fool! No doubt they're bad-mouthing me to Reuters at this very moment.

(But seriously, thanks to Walter and Clarice for their comments, and especially to cboldt for posting and commenting on the latest Libby-related filings.)

[topsecretk9]

<>AP is going to think me the fool!

MJW
Who cares? It's not like they would've answered anyways!

FREE Capt. Jamil Hussein!

(Stealing a phrase from Ari's party)

[topsecretk9]

I miss Sue too...and I am sure more, just can't think of the handles right now.

[clarice]

What happened to them? I especially valued JMH's contributions.

[topsecretk9]

What happened to them? I especially valued JMH's contributions.

Don't know Clarice...but sometime life overtakes this...and that is a good thing.

I wanted to say to you especially, I hope you had a great time with your family for the holidays...Happy Hanukkah!

[clarice]

Thanks, honey. We had some days with my son, his wife and my darling grand daughter and I'm still recuperating..*wink* The little one is the most active creature on earth. (She's tiny and gorgeous but my son's friends have nicknamed her the wolverine so you get the picture.)

[MayBee]

JMH and Dwilkers haven't been around for way too long. I was thinking about JMH just the other day, and miss her much. I'm guessing Sue and Cathyf are busy with the holidays? lurker and verner haven't been around much either.
Happy Holidays, everyone!
We are heading into the year of the boar, you know.

[topsecretk9]

Clarice

Glad for you..

My Mom was the lampshade wearer this year, and um...she provided us all with healthy belly laughs...poor dear!

[topsecretk9]

MayBee

I did see a rouge JMH comment on Hot Air recently ( on the Wilson is a Pussy and is afraid to testify post ) and then no more...it's sad...and I miss her MOST astute observations,,,like really SICK good stuff.

[cboldt]

-- "With all due credit to your follow-up" --

Preceded by my screw-up that necessitated my follow-up ....

Long story short, my "report" (better characterized as me privately talking to myself) deserves tar for sending people on wild-goose complaints. In the case of the Dow Jones December 20, 2006 Motion to Unseal, my "aw-shit" came ahead of (and wipes out a hundred of) the related/corrective attaboy.

[MJW]

cboldt, given the effort you've put into transcribing and posting the Libby court papers, it would be extremely ungrateful to even think about tarring you for a minor error. (Also, if the court clerks said the motion was under seal, then it's not even your error.)

[MJW]

I just read the AP/Dow Jones motion, and I'm convinced. (Of course, I may not be too tough an audience.)

One thing that wasn't mentioned is that even though the motion was filed before Libby's trial has commenced, unless the circuit court really puts the gas pedal down (which seems doubtful), any release of information won't occur until after the trial's over.

Off the top of my head, some questions I'd like to see answered are:
1) (with a bullet) What did Fitz say about Armitage?
2) What did Fitz say about Cathie Martin's testimony regarding the Libby-Cooper conversation? Libby refers to the fact in a motion, and the lefties are convinced her testimony will nail Libby.
3) What did Fitz say about the Libby-Kessler's conversation. Fitz claims Libby's version was "contradicted in many respects by the testimony" of Kessler, but as far as I know, Libby said he mentioned Plame to Kessler, while Kessler denies it -- an inconsistancy that's hard to pass off as a cover-up by Libby.
4) What was redacted from the page 4 sentence: "Wilson, who was not a government official at the time and REDACTED spoke to several reporters..."?
5) What does footnote 6 on page 11 say. It's at the end of the sentence: "As indicated above, Libby now admits being told by the Vice President about Wilson's wife's employment in early June 2003." As I recall, Libby has stated in court papers that he told the FBI in his first interview that Cheney mentioned Plame. If so, "now admits" seems inapplicable -- perhaps the note explains it.

I'm sure there are a lot more.

[Jane]

year of the boar

Let's name a "boar of the week", in honor. I nominate sam for the first one.

[Walter]

Many moons ago, in that time referred to as 'B.C.'*, the light of my life (a lifelong Democrat) and myself (Republican with Libertarian leanings) held a "Loon of the Week" contest.

The winner would be featured for the following week with a picture and the offending quote on our refrigerator door.** As this occurred during the Clinton years, the competition was fiercely partisan, yet fairly conducted. Charlie Rangel and Bob Barr made regular appearances.

That said, I'd go for a 'boor' or 'bore'*** of the week contest. Perhaps one of us could volunteer to tabulate nominations and we could prevail upon Mr. Maguire to host a quiz.

*Before Children

**Yet another advantage of true stainless steel--It won't hold magnets displaying that endless supply of childhood art.

***I'd accept either common meaning.

[MJW]

My prediction (which I hope is wrong): Fitz will ask the circuit court to put the Dow Jones motion on hold until Libby's trial is over, and the court will do so.

[SunnyDay]

Where's a good leaker when you need one?

[MayBee]

Let's name a "boar of the week", in honor. I nominate sam for the first one.

That said, I'd go for a 'boor' or 'bore'

Oh yes! Boar/pig, boor, or bore- our nominees could fit in any of the 3 categories!

[MayBee]

Oh Terrye-
Terrye hasn't been around for a while, either.

[Walter]

I miss Kim.
===========

[boris]

Auld Lang Syne

[topsecretk9]

I miss Kim.
===========

Me too, wonder why she/he doesn't comment here, but at Seixon's place?

[Sara (Squiggler)]

I miss Verner and Larwyn.

This has certainly been an incredible end to this year. I couldn't help comparing the sad end with secret burial of the tyrant Saddam Hussein with the majesty of President Ford's funeral procession and the celebration for the great James Brown.

Happy New Year to everyone.

[clarice]

I miss Rick Ballard.

[Sara (Squiggler)]

Can't say he is one I care to see come back.

Clarice, I see references to a response you got to your letter, but I must have missed the details. Could you give me a quickie version?

[clarice]

Yhe Office of Public Responsibility sent me a letter dated Nov 28 acknowledging my letter,Indicating they are reviewing my complaint and that they will notify me of the results of the review when it is complete.

[MJW]

cboldt's No Easy Answer's blog has a new Libby filing: a response to Wilson's motion to quash the subpoena. I hope we're in for a deluge of motions and opinions in the next few days.

[MJW]

(I don't know how an apostrophe ended up in the word "Answers".)