Ford Pardoned Nixon!

The Ford send-off, with all the (revisionist) talk of the wisdom of Ford's decision to pardon Nixon, must be music to the ears of I. Lewis Libby and his defense team.

Libby's defense presumably is hoping for an outright acquital or a hung jury (in which case I predict there will be no retrial).  However, their other goal is to convince the 13th Juror (aka, "The Decider") that the case against Libby was weak, that any convictions were politically motivated and that the heat associated with pardoning Libby will be minor.

DO I WANT THE TRUTH?  I CAN'T HANDLE THE TRUTH!:  The usual suspects don't favor examination of Fitzgerald's conduct in his subpoenas to reporters.

As an alternative to the theory on offer - that the AP and WSJ are staffed by ignoramuses - I propose that these two institutions have a deep interest in establishing whether Fitzgerald over-reached in his subpoenas to the press.

Just guessing, of course.

Comments

[clarice]

There's a closer example..his dad's pardon of Cap Weinberger.

[Don]

Libby is going to get convicted.

And Firedoglake has a press pass!

Can't wait.

[Patton]

Don,
Firedoglake has already shown she is a criminal, it was all documented in Connecticut while she repeatedly was caught speeding and using a cell phone while driving.

She's not one to talk about following the law.

[kate]

I don't think there would be public outrage if Bush pardons Libby. The media would be outraged, some anyway. They will try to get something going and will have to make the chanting crowd of 20 look larger, like they do with Cindy Sheehan's protests.

[JorgXMcKie]

Patton, we all know that only non-Lefties have to obey *all* the laws. Lefties get to pick and choose, because their hearts are in the right place and they really, really mean well.

[Javani]

Glad to see the Libby issue coming back to interest here.

There absolutely should be a trial. It will be a hoot. I want to see Russert on the stand. I want to see Fitzy try to get a conviction via Cooper's mistaken memories (thanks for writing about them Coop!) I want to see Miller say she agreed to testify because she could continue to keep her other sources secret (whiff of selective prosecution). I want to see Wilson admit he thought Iraq had WMD programs.

My biggest regret is Libby's memory expert was thrown out. I wish she was examined for the first time in trial. After Fitzy destroys her in cross-examination he brings out the big surprise, he asks her if she ever met him. Like in the pre-trial hearing she says "no" and Fitzy reveals indeed they had met, Fitzy proudly says "no more questions!" in smug self-satisfaction that he destroyed her then turns to a drop-jawed audience, not the reaction he expected, slowly he realizes he just proved the point, via a memory expert, that memory is fickle.

Too bad that didn't occur at trial.

[stu]

http://www.abovethelaw.com/2007/01/justice_john_paul_stevens_and_1.php

[stu]

http://www.abovethelaw.com/2007/01/justice_john_paul_stevens_and_1.php

[Other Tom]

I believe that if he is acquitted at trial, he can recover his attorneys' fees from the government. Is the same true if he is pardoned? Does it matter if the pardon comes before or after a trial?

[Jane]

I don't know but I'd bet that you can't recover attorney's fees with a pardon. A pardon pretty much assumes guilt I think regardless of whether that is true.

I really don't see Bush pardoning Libby. It just doesn't seem like him.

[lurker]

And I don't think it's a good political move for Bush to pardon Libby...just yet. Perhaps Bush, Rove, Cheney, et al, all believe that Libby will be acquitted. And he should be.

If Libby is acquitted, then how will this affect Joe Wilson's civil lawsuit? If Joe Wilson is required to testify and lost big time, then wouldn't he lose credibility in his own lawsuit?

[Other Tom]

An acquittal would have no effect on the civil suit, and in fact evidence of the acquittal would be inadmissible at the trial of the civil action.

The relevant portions of the transcript of any testimony Wilson gives during the criminal trial can be offered directly into evidence by the defendants in the civil case, but cannot be used by the plaintiffs.

At least, that's the way I recall it. Any current pracitioners have a different understanding?

[topsecretk9]

Cboldt posted Libby's response to Wilson's "I don't want to be under oath" motion

http://justoneminute.typepad.com/main/2006/12/holiday_libby_f.html#comment-27217699

[MJW]

I believe the question of whether Libby could recover attorney's fees was discussed awhile ago, and the general conclusion was that he couldn't.

[Terrye]

Don:

Beleive it or not being a member of a Republican administration is not a criminal offence and that is just about the only thing Libby seems to have been guilty of.

I hope it will not be necessary for a pardon because I think the whole trial is a travesty.

[MayBee]

I would hope Libby would be pardoned. There's a long (recent) history of such pardons, the last one being that silly Susan McDougal.

Sometimes Bush doesn't do such things, so I wouldn't be surprised if there's no pardon for Libby. If the trial isn't over, perhaps it would depend on who's coming into office.

If Hillary is taking the Oval Office, perhaps Bush will just pardon anyway. It isn't like she can make a big stink over Marc Rich's lawyer getting pardoned.

[PeterUK]

What exactly is Mr Libby going to be convicted of? If it is simply perjury and obstruction of a prosecutor who already knew the answers,this is the probably the biggest example of the misuse of the law in history.

[topsecretk9]

What exactly is Mr Libby going to be convicted of? If it is simply perjury and obstruction of a prosecutor who already knew the answers,this is the probably the biggest example of the misuse of the law in history

Hubris you mean?

[clarice]

Ah, yes--Just noticed that adendum about the "idiot" press--As I'd say to Duke:What took you so long to wipe the scales from your eyes?

[clarice]

**adDendum*******

[Bob from Ohio]

The Bush Family does not leave its "dead" on the political battlefield. If there is a conviction, a pardon is a 100% sure thing.

[topsecretk9]

I swear Rove is paying her

Emanuel, D-Ill., began outlining the Democrats' plans to ban lobbyist-funded travel and institute other ethics reforms. The press conference was held in the Cannon House Office Building in an area open to the public.

Emanuel finally gave up trying to be heard over the chants, and retreated to a caucus room where Democrats were meeting.

Before the chanting started, Sheehan got a hug from Rep. John Conyers (in spite of His taxpaid House Servants, D-Mich., the new chairman of the House Judiciary Turkey
(I mean Committee)

[Other Tom]

I got somewhat behind over the holidays, and have been unable to find whatever it was that cboldt posted concerning a motion by Wilson to avoid being placed under oath. Such a motion sounds very odd to me, and I have a hard time understanding the basis for it. If it is simply the motion to quash the subpoena, it still seems doomed to failure as far as I can see.

[clarice]

Here it is in a nutchell, OT:
http://www.americanthinker.com/blog/2007/01/libby_responds_to_wilsons_moti.html

[Soylent Red]

I swear Rove is paying her

Paying her? Not hardly.

Just think about it for a minute: Have you ever seen Karl Rove and Cindy Sheehan at the same place at the same time?

[clarice]

Oh.My.God. *smacking palm to forehead**

[topsecretk9]

OtherTom

Here are Hyperlinks

Clarice's: Libby Responds to Wilson's Motion to Quash Subpoena
----
DOCs

Supeona

Wilon motion to Quash

Libby's Response to Wilson's Motion to Quash Subpoena

[Soylent Red]

*smacking palm to forehead**

You know the saying: If Cindy Sheehan didn't exist, Karl Rove would have to invent her.

Actually, to be more accurate, Rove would have to weave her out of all-natural hemp fibers and moonbeams.

[clarice]

ts9--Congratulations--You've mastered my typing for typos class. *wink*

[MJW]

The usual suspects don't favor examination of Fitzgerald's conduct in his subpoenas to reporters.

I was more than a little surprised by the hostility expressed by the anti-Libby crowd toward the motion to unseal. I assumed all of us on both sides of the case wanted more, not less, information. Maybe they're still stinging from learning that the previously unsealed portion of Tatel's opinion contained only grand jury material, not the names of CIA operatives who were liquidated when Plame's occupation was revealed.

[clarice]

Good point. They clung like velcro to those Tatel pearls..

[topsecretk9]

--ts9--Congratulations--You've mastered my typing for typos class. *wink*--
Clarice
Don't bet on it.

Soylent
She moves on cue...I'll start looking for signs of a battery pack on the back side...eh...on second thought...Rove, you magnificent bastard NO ONE would look there

[topsecretk9]

I was more than a little surprised by the hostility expressed by the anti-Libby crowd toward the motion to unseal.

I was a few days ago when I read it, but realized who is whispering every thought she should think in her ear and the mystery wasn't so puzzling anymore.

[topsecretk9]

Also, keep in mind...EW can't vent about Wilson motion to Quash and his Lawyer's subsequent embarrassing admonishment out loud...something had to give.

[Jane]

She moves on cue.

And she never ever ever shuts up. I swear I have never seen footage of her where her lips weren't moving.

She will be the death of the democrats.

[MayBee]

And Firedoglake has a press pass!

OMG, and people are contributing money so she and EW can go live in DC and cover the story (they want a total of $12,000). There are actually people saying things like, "money's a little tight this month, but I can give you (movie producer and attorney) $50.07" People donated money for the book publishing company, they paid $3,000 for Mike Stark to stalk George Allen...

Man clarice, I think we could have gotten you that Bentley.

[Jeff]

The usual suspects don't favor examination of Fitzgerald's conduct in his subpoenas to reporters.

Fascinating. I guess I am not among the usual suspects, since in the relevant thread I said

I sure hope the effort to get all that stuff unsealed succeeds.

Come to think of it, I don't see anyone in that thread expressing the desire not to see the sealed portions unsealed (even though, frankly, the AP and Dow are, in my judgment, unlikely to succeed, mainly because Rove was not charged). There's no hostility, as MJW, to the motion in the sense of objecting to it and hoping it fails. It is a remarkably weak and ill-informed motion. But saying that is different from saying we hope it doesn't succeed.

Its fundamental ignorance is precisely the one emptywheel pointed out, the same thing Libby's defense has (understandably) be insisting on, and that some other people here and there cling to - that Fitzgerald's investigation was solely into who leaked to Novak. Fitzgerald on several occasions has been as clear and categorical as it is possible to be that that is not the case.

[topsecretk9]

OMG, and people are contributing money so she and EW can go live in DC and cover the story (they want a total of $12,000).

Brave aren't they? Meanwhile, they mock and pray for Michelle Malkin's demise for going to Iraq to "BLOG" since in this instance it's apparently bad to question the MSM reporting and real time blogging is is even worse. Hypocrites.

[Tom Maguire]

Fascinating. I guess I am not among the usual suspects, since in the relevant thread I said...

The usual suspects know who they are, and you aren't. But the role of unusual suspect is available...

It is a remarkably weak and ill-informed motion.

Has anyone actually linked to the motion, or are we relying on press summaries? I agree that the notion that Novak was, or ought to have been, the sole focus of the investigation is a bit light, but perhaps the summary is also inaccurate.

OTOH, since the real goal of the AP/WSJ is (IMHO) to catch Fitzgerald in a stretcher, the stated motives for wanting this to be unsealed are going to be invented anyway.

As to the possibility that Fitzgerald over-reached, here is a bit of the DoJ guidelines on subpoenaing reporters:

(a) “In criminal cases, there should be reasonable grounds to believe, based on information obtained from nonmedia sources, that a crime has occurred, and that the information sought is essential to a successful investigation–particularly with reference to establishing guilt or innocence.

Strictly speaking, Libby's alleged crime seems to have been to lie about non-criminal activity. One wonders just how Fitzgerald presented that to a court.

And yes, there was always the remote possibility that Libby stated every necessary element of the IIPA to Miller, or Rove did so to Cooper - again, one might wonder how Fitzgerald presented that unlikely scenario to the judges.

There's no hostility, as MJW, to the motion in the sense of objecting to it and hoping it fails.

Perhaps folks were misled by such passages as "here are some suggestions I've got for the AP and WSJ, in lieu of tying up our court system. And honest, the suggestions are a lot more constructive than the first one, which was basically that they get their head out of their collective arse."

Do I detect hostility there?

[maryrose]

I don't think a pardon will be needed for Libby because I am certain he will be acquitted. Look for a plea bargain deal from Fitz as he finally realizes how much trouble he is in. His situation is similar to NiFong's but because of his arrogance I don't see him folding his tent anytime soon.
If by some longshot chance Fitz succeeds because of clueless D.C. jurors Bush would pardon Libby out of fundamental fairness. Not so in tthe case of Armitage.

[cboldt]

-- "since the real goal of the AP/WSJ is (IMHO) to catch Fitzgerald in a stretcher
Their ultimate goal is a federal reporter privilege, or shield. The Libby case is one of very few venues where this issue can be played, outside of Congress. The "Holy Land leak" case is another. Various leaks to the press (NSA wiretapping, CIA secret prisons, interrogation techniques, etc.) aren't being litigated, but present the same issue - what must the government show in order to compel reporters to testify to a grand jury?

The CADC appeal in the Libby case, with Tatel's separate opinion, is a good window into the state of the legal debate. Catching Fitzgerald in a stretcher (of the truth) is a pipe-dream. If the entire opinion and supporting affidavits were to be redacted, it would show more of the same reasoning, on all sides, just with the evidence that pertains to Rove's activities relating to knowing about Plame and sharing that with reporters.

[cboldt]

italicsoff

[Jeff]

Tom

cboldt pretty much hit the main point. And this was part of emptywheel's point to begin with: we've already learned a lot of this stuff, and AP and Dow should know this.

Strictly speaking, Libby's alleged crime seems to have been to lie about non-criminal activity.

This is, of course, wrong. Strictly speaking, Libby's alleged crime seems to have been to lie about non-charged activity.

But anyway, surely you don't want to say it's perfectly okay to lie your ass off in a grand jury investigation, under oath, as long as it turns out there was no underlying criminal activity (and how anyone is supposed to know this in the wake of such lying is anyone's guess).

But again, we know how Fitzgerald presented all this to the judges already, pretty well anyway, from the partly unredacted affidavit from August 2004.

And I'm not saying emptywheel is not hostile to AP and Dow. But it's on the grounds that they're not doing their job very well, not on the grounds that Fitzgerald needs to be protected legally.

[Other Tom]

Thanks to those who steered me to the filings re the Wilson subpoena. I don't think Wilson's lawyers are in the first rank.

[clarice]

I think the Fitz pleadings in the reporters' case were very disingenuous. And Tate;s opinion reflects that he snared at least one judge by his clever wording respecting his need for this testimony.

I have little doubt that the court would have had a far harder time finding for the SP if the presentation noted Armitage's confession; the fact that the IIPA could not possibly have applied and that there was no other federal statute covering this conduct.

[Patrick R. Sullivan]

'Libby's alleged crime seems to have been to lie about non-charged activity.'

Non-charged because it wasn't criminal.

Just as Martha Stewart wasn't charged with any crime in regard to her sale of Imclone stock, because it wasn't a crime.

[boris]

okay to lie your ass off in a grand jury investigation, under oath, as long as it turns out there was no underlying criminal activity

If in fact it was already known there was no possible criminal activity, then certain aspects of the investigation look like perjury enticement to serve the interest of justice for what the "good" prosecutor believes the law should be.

[cboldt]

-- "Just as Martha Stewart wasn't charged with any crime in regard to her sale of Imclone" --

SEC hit her with a civil insider trading charge, separate from the criminal false statements charge. Martha and the SEC reached a settlement on the insider trading charge in August 2006.

[Tom Maguire]

Catching Fitzgerald in a stretcher (of the truth) is a pipe-dream.

Really? The documents in question include the passage about Ms. Plame's status which Tatel apprently misunderstood. Maybe that was wilfull on his part, but Fitzgerald did not exert himself for maximum clarity in the relevant passage. Kleiman">http://www.samefacts.com/archives/valerie_plame_/2006/02/not_so_fast.php">Kleiman and York addressed this.

As to other Fitzgerald fast ones, just off the top of my head there is the bit in the indictment where he pretends that a chat about national security matters may have been a chat about Ms. Plame:

13. Shortly after publication of the article in The New Republic, LIBBY spoke by telephone with his then Principal Deputy and discussed the article. That official asked LIBBY whether information about Wilson's trip could be shared with the press to rebut the allegations that the Vice President had sent Wilson. LIBBY responded that there would be complications at the CIA in disclosing that information publicly, and that he could not discuss the matter on a non-secure telephone line.

Eventually, we had the May 5 hearing in which Fitzgerald admitted that to be misleading.

Other examples? In some filing Fitzgerald asserted that Libby had been warned about the perils of outing Ms. Plame. In an eventual clarification, we found out that he was "warned" following the Novak column, which is hardly relevant under IIPA (although arguably relevant as to Libby's motive to lie about his actions.)

And this was part of emptywheel's point to begin with: we've already learned a lot of this stuff, and AP and Dow should know this.

When "some" equals "all", that argument will fly.

This is, of course, wrong. Strictly speaking, Libby's alleged crime seems to have been to lie about non-charged activity.

Uh huh. They didn't get him for murder, either. In fact, there are so many things they did not charge Libby with, the mind boggles.

But I would still like to see more about how Fitzgerald characterized the crimes under investigation.

From what we have, this irked me a year ago:

Thus, given the compelling showing of need and exhaustion, plus the sharply tilted balance between harm and news value, the special counsel may overcome the reporters' qualified privilege, even if his only purpose--at least at this stage of his investigation--is to shore up perjury charges against leading suspects such as Libby *

This stage of the investigation? Where did they imagine it was headed? And "limited news value"? That contradicts Russert and Pincus (who claimed that he absolutely would have remembered Woodward's revelation about Plame).

[cboldt]

-- "Catching Fitzgerald in a stretcher (of the truth) is a pipe-dream." --

-- "Really?" --

Of course, it depends on one's definitions and perspective. As you pointed out, it was Tatel who read something into Fitz's affidavit - but others take the same words as deliberate misleading by Fitzgerald.

I just don't see a likelihood of catching Fitz in a overt stretcher. Again, I appreciate that clarice (and maybe TM) think Fitz has ALREADY committed overt stretching - so on this point, to them, I'm wrong already. So sue me. Pltpltpltplt ;-)

[clarice]

Excellent point, TOm. But there's more. Look at the quote again with my bold markings:
"Thus, [b]given the compelling showing of need and exhaustion[/b], plus the sharply tilted balance between harm and news value, the special counsel may overcome the reporters' qualified privilege, even if his only purpose--at least at this stage of his investigation--is to shore up perjury charges against leading suspects such as Libby *

Since it seems obvious that (a) he never explored with Armitage who else he'd told..and(b) certainly never subpoenaed his visitor's log to ascertain, had he been asked this, whether his recollection was complete,how could Fitz have established need and exhaustion[of other avenues of inquiry]?

[clarice]

cboldt, if it was only that Tatel misread the (in my view disingenuous)pleading, as a federal prosecutor Fitz had an obligation to write a letter of clarification which he never did to anyone's knowledge.

[Jeff]

The documents in question include the passage about Ms. Plame's status which Tatel apprently misunderstood.

Incorrect, and you should know that from reading the Kleiman, who says

So it seems to me that Isikoff gets closer to the truth than does right-wing flack-posing-as-a-lawyer Clarice Feldman — in polite circles we don't accuse prosecutors of deceiving judges, which is a disbarrable offense, without some better basis than malicious speculation, or assume that appellate judges are so gullible they can be taken in by transparently deceptive language — but that he goes beyond the actual evidence.

As Kleiman also explains, that is probably because Fitzgerald was legally barred from outright asserting Plame's status at the CIA at that point; and I would add that he couldn't just assert that she was covert under IIPA since that would have to be the subject of proof.

Eventually, we had the May 5 hearing in which Fitzgerald admitted that to be misleading.

Completely wrong. He admitted it's ambiguous what they were talking about. Perfectly consistent with what's in the indictment, and idneed it will be something he argues about in court.

The same goes for your other example. That's not Fitzgerald arguing about an IIPA charge. It's Fitzgerald arguing about Libby's motive to lie.

And again, the point is that a number of the questions you've raised have in fact been addressed by Fitzgerald. I'm all for seeing all of it. But as cboldt said, the arguments aren't going to change.

In fact, there are so many things they did not charge Libby with, the mind boggles.

Duh. The point is, Libby's lying screwed up an investigation of specific potential crimes in relation to which he is accused of lying. And again, even if the ultimate determination is that a crime didn't take place, I don't see how that makes it okay for Libby to lie under oath about the very activity being investigated in the course of the investigation. If you can show that investigators knew very well there was no crime before they ever talked to Libby, then there's a problem. But we know that's not the case. The fact is that it remained a real possibility that Miller would come in and testify that Libby told her Plame worked in CPD, or had said something like, "You know that aluminum tubes thing we sorta screwed up - well, Plame was one of the first people to land in Jordan to check it out the other year."

[Don]

Wow. It's just like when I told you folks Dems were going to take Congress and was roundly mocked.

Libby is going to get convicted of perjury because he lied. All the evidence therefor is already in the open...just like it was quite clear to any reasonable person the Dems were going to take Congress.

You didn't believe the polls then, you reject the evidence now.

[clarice]

Kleiman said that about me? Whoo whoo..

Jeff:"As Kleiman also explains, that is probably because Fitzgerald was legally barred from outright asserting Plame's status at the CIA at that point; and I would add that he couldn't just assert that she was covert under IIPA since that would have to be the subject of proof"

How could he be legally barred from making that assertion to the court in sealed filings?And if he hadn't that evidence at the time he started his quest to make the reporter's testify (a point far into the proceedings), how could he have met the "delicate balance" required in cases involving reporters' testimony?

[Bob]

"A Complex Greeting"

I haven't sent mine back yet!

second story down!

[Jeff]

How could he be legally barred from making that assertion to the court in sealed filings?

To begin with, are you quite sure everyone who would be handling the sealed filing would have the necessary clearance?

And if he hadn't that evidence at the time he started his quest to make the reporter's testify (a point far into the proceedings), how could he have met the "delicate balance" required in cases involving reporters' testimony?

What evidence are you talking about here?

Look, I'll be perfectly happy if Fitzgerald is found to have overreached and so on - it will delegitimize other efforts, by less scrupulous prosecutors, to go after journalists. I just don't think it's going to happen. And inaccurate and prejudicial presentations of what Fitzgerald has in fact said and done aren't going to make the case.

[cboldt]

Fitzgerald, on the admissibility of Libby's entire grand jury transcript:

Admission of the complete transcript of defendant's grand jury testimony, however, is essential in this case. First, admission of the complete transcript is necessary to demonstrate the scope of the grand jury's investigation and the materiality of the charged declarations. The government has the burden of proving materiality beyond a reasonable doubt. Moreover, the defense has indicated that it intends to contest the materiality of the charged false declarations by arguing that the focus of the grand jury's investigation was the leak of information regarding Valerie Wilson's employment to Robert Novak, rather than leaks to other reporters (or that the defendant believed the scope of the investigation to be so limited), and that defendant's testimony could not have been material given that the grand jury had identified the individuals who leaked to Novak prior to defendant's grand jury appearance (or that defendant believed that such was the case). The government is entitled to demonstrate through all of the questions asked of defendant that the scope of the grand jury investigation included: (a) identifying all individuals involved in leaking information concerning Ms. Wilson's employment to any reporters; (b) determining the circumstances under which information regarding Ms. Wilson's employment was learned and leaked by such individuals; and (c) determining whether false information was provided to the FBI or the grand jury. If only the charged false declarations and the testimony immediately preceding and following them were admitted in evidence, the jury would be given the false impression that the scope of questioning of the defendant, and the scope of the grand jury's overall investigation, were more limited than they were. ...

[maryrose]

Jeff;
Clarice is an actual lawyer so your use of the phrase"so-called" is erroneous. Fitz has been playing fast and lose with the truth from the get-go. His backdoor testifying deals with Russert et al have been suspect. The fact that he calls something "ambiguous undercuts his original presser. Fitz speaks with forked tongue and at some point in these proceedings the defense is going to call him on it and he will be hard-pressed to defend himself. I finally figured out your problem Jeff-you are jealous of clarice.

[cboldt]

-- "as a federal prosecutor Fitz had an obligation to write a letter of clarification which he never did to anyone's knowledge." --

I doubt it, for the stage of proceeding and the effect Tatel's misconstruction had on the ruling issuing from the appeal.

I believe it in the general sense (although I don't have the same first hand information that you haven't cited) that a prosecutor is abusing his discretion if he does not correct an error of a judge that "turns the case" the wrong way.

[clarice]

If only, Fitz had been as thorough in his questioning of Armitage, cboldt. He quite obviously wasn't, was he?

JEFF:"To begin with, are you quite sure everyone who would be handling the sealed filing would have the necessary clearance?"

Certainly this is a concern with all court proceedings in which classified information is involved, and procedures are in place to keep them secure.
In the instant case, Fitz has had no problem with the court's handling of classified information.

Jeff:"What evidence are you talking about here?Evidence that the disclosure of Plame's identity would violate some law..

[clarice]

cboldt, you may have a point about Tatel's opinion not being determinative. OTOH one could argue that the fact that the appellate decision having been unanimous there was a smaller chance of it being reversed..moreover, we do not know to what extent the misrepresentation/ambiguity affected the other judges.

Let us suppose he'd said.."We do not have any reason to believe the leak itself violated federal law; we have the name of the official who revealed Plam's id to Novak, we haven't subpoenaed his visitor's log nor fully questioned him about who else he may have told, as you know we are limited in questioning of reporters and haven't interviewed a passle of them even though it is clear they may have relevant information, but we think Libby may have lied about what he said to Cooper and Miller and we want you to force them to divulge that to us."
Do you suppose they'd have held Miller in contempt and subject to three months in the hoosegow? I seriously doubt that.

[Tom Maguire]

I just don't see a likelihood of catching Fitz in a overt stretcher.

Ahh, but what are the odds of catching him if the AP and WSJ don't even ask for this stuff? I am opining as to their motive for filing, and I am guessing that they have a vast legal budget.

Incorrect, and you should know that from reading the Kleiman, who says...

I'll post it prominently the day I decide to believe everything Kleiman writes. For myself, I don't see how Fitzgerald's recitation of a statute could ever lead to disbarment ore even be considered to be bad form; if it misled a judge, well, maybe the judge wanted to be misled.

As to the idea that Fitzgerald was legally barred from asserting Ms. Plame's classified status in a court filing, please - her status was declassified for purposes of these proceedings [hmm - having checked the subsequent comments, I probably ought to back that up -I'm right on substance, hazy on timing. Developing...]

The point is, Libby's lying screwed up an investigation of specific potential crimes in relation to which he is accused of lying.

Well, that is the crux of the discussion, isn't it? I think I can find folks willing to argue that Fitzgerald never had any realistic hope of getting anything other than support for a perjury charge out of Miller and Cooper. Hence, barring miraculous testimony in which Libby tells Miller that he knows Plame is covert and fulfills the requirements of the IIPA, Fitzgerald was no longer engaged in "an investigation of specific potential crimes".

And if the judges think that is a good enough reason to throw a reporter in jail, fine, let them say so. But Tatel seemed to think there was some ongoing investigation - maybe he believed the whole "Libby flips, gives up Cheney, Bush is impeached" dream.

If you can show that investigators knew very well there was no crime before they ever talked to Libby, then there's a problem.

It's not hard to guess that the grand jury testimony was all about perjury. I think by then Fitzgerald had a clear idea of what had happened and what he expected to prosecute. Obvious evidence is Fitzgerald's clarification of authority, and the fact that he never invited Libby back to correct his testimony.

[Don]

Hey he sure invited Rove back enough times!

[Sue]

And inaccurate and prejudicial presentations of what Fitzgerald has in fact said and done aren't going to make the case.

How about accurate and non-prejudicial presentations of what Fitzgerald has in fact said? You always skip them or poo-poo them as no biggy. In light of Nifong's recent statements, I wonder if Fitz wishes for a do-over too? In his public statements, that is.

[cboldt]

-- "Do you suppose they'd have held Miller in contempt and subject to three months in the hoosegow? I seriously doubt that." --

Do you suppose we've had "this conversation" before? Why yes indeed, we have, more than once. So at this juncture, I'm going to "post and run" (as they say), knowing that you will thoroughly rebut my baseless accusations and misstatements of fact.

You cited Tatel, above, saying "the special counsel may overcome the reporters' qualified privilege, even if his only purpose--at least at this stage of his investigation--is to shore up perjury charges against leading suspects such as Libby." Yet it is misleading to take that out of context of his complete opinion, which describes numerous showings he would require the government to put on, before he would compel reporters' testimony.

You seem to assign the same meaning to "the investigation," every time that phrase comes up. It's a great tool for advocacy, but sidesteps discussions of "the bigger picture."

[clarice]

Yes. I see the bigger picture as a long standing prohibition against compelling reporters' testimony unless there is reason to believe a crime has been committed and that every avenue of obtaining the relevant evidence has been exhausted and you have reason only they can provide the missing proof.

And, yes, I believe the "crime" at the outset has to be an independent crime not the "crime" of recalling a conversation differently than a reporter might have--especially a reporter like Miller who has been promised she will not be asked about other sources.

Of course we disagree. But I am certain if the affidavit had been written as I suggest, I am certain the court would not have okayed the lower court ruling.In fact, I venture to say that one very important reason why Fitz directed Armitage and Novak not to talk earlier, is that because it would have been impossible for him to get court approval for the contempt ruling had they known.

[Jeff]

Look, like Tatel said, Fitzgerald's strongest case had to do with perjury and so on, and that was enough for him, but there were also real possibilities (not just outside possibilities, real possibilites) of charges on underlying crimes, depending in part on what Fitzgerald learned from the reporters.

Of course you can

find folks willing to argue that Fitzgerald never had any realistic hope of getting anything other than support for a perjury charge out of Miller and Cooper.

They're right here. You can even find clarice to say all sorts of ridiculous things about Fitzgerald, such as that he had no evidence that the disclosure of Plame's identity would violate some law, whereas what she really means is that she doesn't believe the disclosure would violate some law because she doesn't believe that Plame was even potentially covered by IIPA. I think Fitzgerald had a different belief (which is different from saying he had direct evidence that Libby met all the criteria for violating IIPA, which in August 2004 he did not have).

Fitzgerald in the footnote in that affidavit from August 2004 is not merely reciting the statute. The clear implication of what he says is that it is possible for someone to have violated IIPA with regard to Plame - the very inference Tatel drew! - and the implication of that, of course, is that his belief was that Plame was covered by IIPA, and she met the definition of covertness in the statute.

And Tom, you might want to get less hazy on the timing of when Fitzgerald starts saying he can openly say that Plame's classified status has now been declassified.

[cboldt]

-- "I am opining as to their motive for filing" --

As was I, obviously. I figure they would like to find a clear admission in the nature of "all I have, and all I can ever hope to have, are charges of false statements, perjury, and obstruction. Plame is not covert, the referral from the CIA was a 'false alarm.'"

Armed with this hypothetical admission, the press would be more likely to obtain a modification to the current law of qualified privilege - and Tatel (as well as the amicus brief of 36 news organizations) describes the contours of the present law and the modification.

My point has been that finding this hypothetical admission (or something resembling it) is a pipe dream.

[Jeff]

One other thing. I fail to see how Armitage has anything to do with how the judges would rule on Libby. This seems to be laboring under the basic misconception I've already pointed to - and Tom seems to agree with me on this - which is that the investigation was solely about uncovering who leaked to Novak. Even if Fitzgerald discovered earlier that Armitage had also leaked to Woodward, he would have continued to pursue the leaks from Libby and Rove as well.

cboldt just gave one key quote from Fitzgerald's filing from last night where he makes clear that the investigation had to do with every leak to reporters of Plame's identity.

[PeterUK]

"Have you ever seen Karl Rove and Cindy Sheehan at the same place at the same time?".

Think smooching Hugo Chavez,there are some things that even Rove won't do for the Party.

[clarice]

If you are trying to find the first to leak-- and Fitz said at his presser that was his goal didn't he?---he needed to question Armitage more closely and subpoena HIS records which he did not. Had he done so, he would have uncovered Woodward. Then, he would have to question all those Woodward told and all those people they told.

Of course that was a fool's errand..and in some declassified records there is even a hint that Fitz was aware that Wilson (and an unnamed person certainly Plame) had had conversations with reporters which Fitz ("good leak, bad leak") never pursued.

No way, I say, to discover the first to leak.

[cboldt]

-- "I am certain if the affidavit had been written as I suggest, I am certain the court would not have okayed the lower court ruling." --

The affidavits were addressed to District Court Judge Hogan in the first place. If they had been crafted as you describe, perhaps Miller and Cooper would have had the subpoena quashed by the District Court.

-- "In fact, I venture to say that one very important reason why Fitz directed Armitage and Novak not to talk earlier" --

AFAIK, Fitz does not have the power to compel a witness to remain mute. He may ask, and they may comply, but they are under no duty to comply. It's interesting to speculate on the outcome had Novak specifically pointed to the Court that Armitage was his source (either the District Court or the Circuit Court), although both Courts had access to the grand jury transcripts where this information appears. Perhaps, had the Courts focused on this, the current state of reporter shield law as expressed in In re: Grand Jury Subpoena, Miller would be as the reporters wish - greater immunity. There's a bit of a Gordian Knot between the greater object of immunity, and a present promise to not publicly disclose Armitage's association with the outing events.

[clarice]

Fitz had no authority to compel their silense--that is true. But it is equally true, both Armitage and Novak had reason to fear further prosecution had they not complied with this "request" for the very reason that Fitz left open the possibility in Novak's case of an IIPA prosecution and Armitage surely must have feared a perjury indictment.

But I appreciate your candor in the admission that had the District Court been faced with my proposed more candid affidavit it would not have entered the order Fitz sought and received.

[cboldt]

-- "But I appreciate your candor in the admission" --

Hahahah. You lie like a rug.

[clarice]

No. I do appreciate that. Just as I appreciate the fact that though we disagree, you are always a gentleman and always advance well-reasoned and supported arguments.
Honest.

[maryrose]

Fitz's investigation was weak and directed at the wrong person.{Libby}. Based on all of Fitz's actions I believe he really felt he could flip Libby and catch a big fish{Cheney}. In this belief , he was hopelessly wrong and now he has the Seinfeld case to bring to trial.

[cboldt]

-- "Armitage and Novak had reason to fear further prosecution had they not complied with this "request" for the very reason that Fitz left open the possibility in Novak's case of an IIPA prosecution and Armitage surely must have feared a perjury indictment." --

Huh? If IIPA is impossible because: Plame isn't covert; Novak doesn't know she's covert; and therefore Novak can't deliberately out her as such (same attributes applied to Libby as absence of motive to lie, no risk of prosecution), then Fitz's threat is hollow. I happen to think it was hollow.

And likewise Armitage is in the clear on IIPA, so he may as well tell about his conversation with Woodward - although the point can be probed completely by taking the Armitage/Novak connection, which investigators had, and the Courts had access to.

I mean the threat of "I'll indict you for perjury if you tell the public what you told investigators" seems, well, stupid, to be blunt about it. The risk of perjury and false statements turns on something other than making public statements. Or are you saying that Fitz told Armitage "I know you're lying, but I'll cut you a break in exchange for your promise of public silence." Now THAT would get Fitz in trouble, for sure!

[cboldt]

-- "No. I do appreciate that." --

You lie like a rug. I didn't make the "admission" you ascribe to me. So, it's back to agreeable act for me.

[clarice]

Well, then cboldt I misread this exchange:

"I am certain if the affidavit had been written as I suggest, I am certain the court would not have okayed the lower court ruling." --

The affidavits were addressed to District Court Judge Hogan in the first place. If they had been crafted as you describe, perhaps Miller and Cooper would have had the subpoena quashed by the District Court.

_______
Novak and Armitage's fear didn't depend on their belief about the facts or the law. How'd you like to be dragged thru years of expensive litigation? I am sure they didn't. (Armitage, of course, had other motives to shut up as well, including the reveleation would have exposed his perfidy to the Administration which appointed him.

[Tom Maguire]

As to when Ms. Plame's status was declassified for procedural purposes, I am still stuck - my source was this, a letter from Fitzgerald to Libby's team on Jan 23, 2006. Naturally, the copy-paste has not been activated, but on the bottom of p. 14 of the .pdf we see this:

I note that Ms. Wilson's status was classified but has since been declassified so that we may now confirm such status...

So is it the opposing theory that the judges were not to be allowed a glimpse of her actual status back in 2004? Even under seal? Wow. Given all the attendant publicity and hoopla surrounding her, as well as Fitzgerald's job of talking to witnesses, lawyers, and judges, one wonders why her status would not have been declassified back in early 2004. Sure would have made life around the old investigative unit a lot simpler.

BTW, that letter got a lot of attention for other reasons - it cites the reporters who had been tipped to Plame and mentions John Dickerson (but not Cliff May).

[clarice]

For what it's worth Wilson famously said she was not classified at the time of the Novak story.

[Other Tom]

My recollection is that Wilson said she was no longer covert once the Novak story appeared. I think his stament was widely misinterpreted; I believe he was simply saying that Novak's story blew her cover. To be sure, I believe the guy is a shameless liar, but on this one I think he's been misconstrued.

[Don]

Wow. Negroponte being demoted (for now) to Rice's deputy can only mean Rice is moving up, and since Bush is going nowhere, that means Cheney's moving out.

[clarice]

That's altogether possible. He is both a liar and a muddled speaker apparently since he claims both Pincus and Kristof also misconstrued and misreported his original sensational charges.

[clarice]

Don, that's one possibilty. The other is that he's doing a lousy job in the new position--or--Rice is overworked and the plan being hatched will require another strong hand for a very intensive diplomatic initiative. I have no idea which notion is correct.

I do consider him a dope.

[windansea]

one key quote from Fitzgerald's filing from last night where he makes clear that the investigation had to do with every leak to reporters of Plame's identity.

Fitz's filing might have made that clear but his investigation seems to have missed a lot of Plame identity leaking

[lurker]

I read elsewhere that the reason Negroponte is going to the State is to root out the remaining rats.

[maryrose]

windansea:
I agree. Fitz's investigation left a lot to be desired and he also bought the whistleblower theory ;hook line and sinker.

[Walter]

cboldt,

I guess I can throw in the towel on our materiality discussion:

"The government is entitled to demonstrate through all of the questions asked of defendant that the scope of the grand jury investigation included: (a) ... ; (b) ... ; and (c) determining whether false information was provided to the FBI or the grand jury."

If the grand jury was convened to determine whether false information would be provided to the grand jury, there is no possible way for me to make the case that any statement* is immaterial.

*"Baby, it's cold outside." Aha! At 65 degrees**, it's actually fairly comfortable. Here's a perjury indictment...

**Shut your trap, PeterUK--I'm talking US temperatures.

[PeterUK]

Nothing like grappling with Cindy to warm you up Walter.

[Jeff]

clarice has a knack of unique intensity in my experience for twisting what someone has said in a completely wishful direction as she recalls it. Twice in the course of recent comments alone!

and Fitz said at his presser that was his goal didn't he?

No he did not. He did say that Libby was the first to leak, having previously qualified it by saying Libby was the first known leaker. That turned out to be incorrect. But nothing whatsoever has emerged to suggest that Fitzgerald was specifically investigating who was the unique first leaker, and only interested in that. I submit, on the contrary, that had Fitzgerald never encountered evidence of Libby's leak to Miller on June 23, he still would have indicted Libby - and although Libby then would have been the first leaker by a few hours on July 8, to Fitzgerald's knowledge, I do not think that would have been decisive. As Fitzgerald has said a number of times now, but as clarice continues to ignore, the investigation concerned all leaks to reporters of Plame's CIA affiliation. (And the fact that he did not find Armitage's leak to Woodward until after the indictment does not affect that point.)

For what it's worth Wilson famously said she was not classified at the time of the Novak story.

Famously but, unfortunately for clarice, not in reality. What Wilson was saying was that Novak blew her cover publicly.

BTW, that letter got a lot of attention for other reasons - it cites the reporters who had been tipped to Plame and mentions John Dickerson (but not Cliff May).

One of my weak spots. It's become pretty clear that Fitzgerald rightly doesn't consider May a journalist, and it appears - I believe from clarice's article - that May is sticking by his story that he was told about Plame, though he refuses to tell us by whom, even though it was just cocktail chat or what have you, he considered it casual info. I presume he may be testifying for Libby - I hope so, he always looks to me like one of those people who is about to emit steam out of his ears, he's so wound up.

[boris]

looks to me like one of those people who is about to emit steam out of his ears, he's so wound up.

Self parody alert.

You started out pretty good today. Didn't last long.

[PeterUK]

Jeff,A bit of a Freudian slip here,you keep omitting to capitalise the C in Clarice.

[maryrose]

Jeff:
stop bashing respected commenters at this blog whose INTERPRETATION of events differs from yours. Everyone is entitled to their own opinion of how they view this case and how it has played out so far. The purpose of this blog is information and opinion sharing. Please respect both the persons on this thread and their take on the issues that stem from this case.

[maryrose]

Jeff:
Fitz was charged with finding the leaker of Plame to Novak. Though he may have known privately he did not reveal this information publicly and asked those who knew to keep silent under threat of prosecution. Sounds like Fitz has a NiFong problem.

[Jeff]

Jeff,A bit of a Freudian slip here,you keep omitting to capitalise the C in Clarice.

Nope. Look at how she signs her name.

Freudian slip on your part here, it's a z in capitalize, not an s. (kidding.)

[cboldt]

-- "Novak and Armitage's fear didn't depend on their belief about the facts or the law." --

It's as though Fitz is a mugger with a gun. "Cooperate or I'll make up some charges on you, and your little dog too."

[clarice]

So, Jeff, in introductory remarks about the nature of his investigation when he said the following, Fitz was not NOT explaining the course he chose to take:
FITZGERALD: The fact that she was a CIA officer was not well- known, for her protection or for the benefit of all us. It's important that a CIA officer's identity be protected, that it be protected not just for the officer, but for the nation's security.

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 14th, 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.

In other words, if the investigation had been otherwise conducted and Fitz had learned that Armitage had told someone before Libby and Miller met, the reason why Fitz focused in on this was...........?

What would the introductory remarks have been in that instance?" Hey, Armitage told Novak earlier and then told Novak, specifially telling him this would be a good story for him to write up, but we decided to continue on because..........."

[PeterUK]

"Freudian slip on your part here, it's a z in capitalize, not an s."
Not in English.