Libby Quick Hits

Day One of the Libby trial has passed, and the sun did not stop in the sky - whew!

Let's go for some quick-ish hits.  The NY Times has a case overview from Monday that is absurdly misinformed.  Obviously, this trial is a bit awkward for them - Judy Miller will be a prosecution witness, and columnist Nick Kristof and reporter David Sanger may be called by the defense.  Still, the Times ought to do better than this:

Mr. Libby is charged with lying to a grand jury and the F.B.I. agents investigating the leak of the name of the C.I.A. officer, Valerie Wilson, who was known by her maiden name, Valerie Plame. Her name first appeared in a July 14, 2003, column by Robert D. Novak, saying that she worked at the C.I.A. and was married to Joseph C. Wilson IV, a former ambassador. Only days earlier, Mr. Wilson had written an article that was published on the Op-Ed page of The New York Times, charging that the administration twisted intelligence to build a case to invade Iraq.

Patrick J. Fitzgerald, the top federal prosecutor in Chicago, was assigned to investigate whether anyone violated a federal law that prohibits the disclosure of the names of C.I.A. officers, and whether Ms. Wilson’s name was leaked in an effort to discredit Mr. Wilson.

Mr. Libby told the grand jury and the Federal Bureau of Investigation that he had not disclosed information about Ms. Wilson to any journalists. But Judith Miller, then a reporter for The New York Times, and Matthew Cooper of Time magazine told the grand jury that Mr. Libby had indeed spoken to them about Ms. Wilson.

Groan.  First, the Intelligence Identities Protection Act does not "prohibit[] the disclosure of the names of C.I.A. officers" unless those agents have classified status *AND* other conditions are met - the leaker must know the agent has classified status, the CIA must be attempting to protect the agent's identity, and the agent must have served abroad within the previous five years.  It is clear only to a subset of partisans that Ms. Plame qualified for protection under the act.

Secondly, Libby testified that he learned about Ms. Plame from Dick Cheney, then promptly forgot it until he re-learned it a month later from reporters, specifically Tim Russert.  His testimony was that he provided information about Ms. Plame to Judy Miller, Matt Cooper of TIME, and Glenn Kessler of the Washington Post, in each case attributing his information to reporter gossip (Kessler testified that Libby told him no such thing; apparently, Libby over-confessed.)

Since the Times got that wrong, they naturally choked on this:

The defense case goes like this:

Mr. Libby may never even have mentioned Ms. Wilson’s name to Mr. Cooper and Ms. Miller, whose testimony to the contrary may be the result of their remembering their conversations incorrectly. But even if he did talk about her and later deny it, it was an innocent case of remembering inaccurately what was a trivial matter compared with his agenda in the summer of 2003.

Josh Gerstein of the NY Sun has a much more comprehensive case summary.  Here is his view of the defense:

What are the chief arguments of Mr. Libby's defense?

In court papers, Mr. Libby's team has suggested two lines of defense. The former White House aide may insist that he accurately described some of the conversations he had with reporters and that the journalists' recall of those discussions is incorrect. However, Mr. Libby's main defense is expected to be that he was so busy at the time of those conversations and when he was being questioned by the FBI and grand jury, that he misremembered some of the conversations. "He needs to simply convince this jury that these were busy and heady times and that his memory was not picture perfect," Mr. Turley said. "I think it's a winnable case for the defense."

Mr. Libby's lawyers could also argue that any misstatements he made were not material to the leak investigation because there was no legal basis to prosecute anyone in connection with leak that started the probe. The defense team has not signaled whether it will raise this in front of the jury, but has jockeyed with prosecutors over jury instructions on this point.

I think it is fair to say that Libby's team never took seriously my initial suggestion.

In other coverage - first, best wishes to Jane Hamsher, who is battling breast cancer.

Secondly, "pachutec", guest blogging at firedoglake, seems unable to distinguish between "problem" and "opportunity" as he recounts the efforts of Libby's lawyers to find some DC jurors who don't hate Bush and loathe Cheney:

Libby has a war problem, and though this case is narrowly about felony charges of obstruction of justice and perjury, wherein the case for war in Iraq provides only the setting, the unavoidable drama and context of this case is the case made for war in Iraq and the credibility of this administration, and in particular, the Office of the Vice President.

Here's a hint - as long as the defense can make it plain that the deck was stacked against Libby from the outset, they will have no problem getting the support of the 13th Juror - if Bush can be convinced that this trial was unfair, a Libby pardon is even more of a sure thing.

The defense would love to have some impartial jurors, but they would love almost as much to watch the jurors make a show of their partiality.

And this, from an earlier post, was offered by "looseheadprop" without any apparent irony:

...part of Irving’s “memory” defense has involved saying that he was preoccupied with much more important matters.

The best I can glean from the heavily redacted documents available publicly, is that whatever these other matters were, they must sound really scary and the concern is that the jury will get freaked out about some scary near miss and forget all about the issues at hand.

Well, yes, the defense is arguing that that is pretty much what happened to Libby; if it happens to some jurors, too, that is sort of making the point, not distracting from it.  put another way, the defense contends that Ms. Plame was never the critical issue at hand.

Finally, the EmptyWheel has a list of people who may be called as witnesses or mentioned in the trial.  My fellow righties will thrill to see General Paul Vallely on the list, but were is Cliff May?

Victoria Toensing added this to the Cliff May story last September:

During the investigation Mr. Fitzgerald learned that a former New York Times reporter, Cliff May, twice told the FBI that, prior to Mr. Novak's column, he had heard in an offhand way from a nongovernment employee that Mr. Wilson's wife worked for the CIA, a clear indication that her employment was known on the street.

Yet the defense does not want to hear from him?

CHEAP SHOT:  Are there any lefties scratching their heads over the absence of Jeff Gannon/Guckert?  Please don't.

I NEED SOME HELP:  There are two mysterious names on the list of witnesses/gossipees - Richard Hohlt, a big Republican donor and lobbyist described in the filing as a "consultant", and Donald Fierce, a former member of the RNC (1993-95) turned "Government relations consultant". 

Neither of these two have any obvious connection to the case, which puts then in a similar category to Gen. Paul Vallely, in my fevered imagination, anyway.  Props to MayBee for her very cogent suggestion as to a Cliff May connection, and I welcome other ideas.

WORTH KEEPING HANDY:  Here are the fateful 11 questions that would comprise a typical criminal referral.  A key point - the CIA referral related to a leak of classified information, not the exposure of an agent covered by the IIPA.  Determining the applicability of the IIPA would have been the responsibility of the Justice Dept.

Comments

[Javani]

"Mr. Libby may never even have mentioned Ms. Wilson’s name to Mr. Cooper and Ms. Miller, whose testimony to the contrary may be the result of their remembering their conversations incorrectly."

Isn't this wrong? He doesn't deny talking about the wife, but didn't use her name, a la Plame. Jduy's notes have "Plame" but from another source.

[clarice]

I'd not put too much on May's not being mentioned. As best I can tell from the post, it was a list of names potential jurors were told might be witnesses or mentioned--just to see if any might be prejdiced by some connection or view of them.

I doubt that Libby has decided to play poker with all his cards facing up.

[MayBee]

But May would have told the FBI the names of the people that told him about Wilson/Plame. It is their names that would then be mentioned, or them that would be called as witnesses. May's info was second-hand, he isn't going to be called in to report that. It's hearsay.

[MayBee]

So Tom, did you decide to give poor Murray a pass and not smite him?

[MayBee]

looseheadprop:
The best I can glean from the heavily redacted documents available publicly, is that whatever these other matters were, they must sound really scary and the concern is that the jury will get freaked out about some scary near miss and forget all about the issues at hand.

Perhaps the defense would do better to say they were busy *making up* threats and ways to get people freaked out.
It seems too difficult for our leftish friends to imagine there might have been real frightening issues occupying Libby's mind.

I swear they picture Scooter sitting alone in his office, drumming his fingers on his desk, and biding his time until he can next discuss his sole concern- Joe Wilson.

[clarice]

I answered the Hohlt question TM:
http://justoneminute.typepad.com/main/2007/01/libby_trial_nea.html#comment-27838077 and here
http://72.14.203.104/search?q=cache:G9ta1aTpHCYJ:thenexthurrah.typepad.com/the_next_hurrah/2006/02/how_many_times_.html+Walter+Kansteiner+resigns+2003&hl=en&gl=us&ct=clnk&cd=9>Kansteiner

He was the guy who Wilson reportedly talked to at DoS to get "permission" for the Mission. He resigned to spend time with his family on Oct 1 the same day Armitage went to the FBI.

He now works with Scowcroft.

[JJ]

Best "live" coverage? Robert Cox? All the above... C-span?

[topsecretk9]

May said in a post on the corner many years back his friend was a democrat -- friend said May was being a little hard on Wilson (paraphrase) "his wife does work at the CIA" - suggesting Wilson did know what he was talking about and Cliff did consider this to be a positive to Wilson's credibility.

[Tom Maguire]

So Tom, did you decide to give poor Murray a pass and not smite him?

My time management collapsed, but tomorrow is another day!

[MayBee]

Paul Wolfowitz

Does he have something to do with this case? Or do they just want to see if the potential jurors froth when they hear his name?

[clarice]

Could be either or both..

[Other Tom]

Clarice: don't both sides have to include on their witness list everyone they could possibly call (except in rebuttal), and can't a party be precluded from calling an unlisted witness? Why wouldn't Cliff May be on the defense list?

[TimS]

My guess about missing witnesses is that either the defense or prosecution found particular problems with their testimony and or their knowledge that are not generally known by media/blogs etc.

[clarice]

OT--Yes I you're right..But parties can--and often do--list names of persons they don't really expect to call. Sometimes they do that to force the other side to waste a lot of time researching and preparing for cross of witnesses they don't really intend to call..

[MayBee]

Why wouldn't Cliff May be on the defense list?

I'm not seeing what Cliff adds. If they can't get the people that he was talking about to testify, I can't imagine his story would be allowed. And if they can get those people to testify, they don't need Cliff.

[clarice]

msnbc has a story on the jury selection--even noting two potential jurors were supportinve of the Administration !

A bit of information that might be useful about the processs:
"Twelve jurors along with four alternates will be chosen from the pool of 100 possible jurors. Once the jury pool has been narrowed to 36, Judge Walton will check the criminal backgrounds of those potential jurors before lawyers make their final selections"

http://www.msnbc.msn.com/id/16651765/page/2/

It's not altogether clear but it seems we have not yet had any preemptory challenges..only challenges for cause or juros excused by the court for personal reasons--
First day therefore we have only 6 potential jurors.

[topsecretk9]

Yeah Clarice...this is what brother said...he was not vexed that 3 - 1 for personal reasons - out of 9 were excused - or he was thinking that was pretty good even under normal circumstances.

I look forward to the under current of all EW or parachutes posts to include a visceral resentment that Libby is even allowed a defense.

[clarice]

Don Surber picked up on the same point you did about Parachute's post--Is he upset that his political opponents are entitled to the 6th Amendment provisions of a fair trial by an impartial jury. Would it make his hateful view seem justified if no impartial jury could be found?

[paladin2]

Are there any potential witnesses who will testify that Russert knew about Wilson's wife before he talked to Libby? The key issue in the case is Russert's credibility. He has yet to relate the full conversation. If he choses to lie-and this is the likely scenerio- he must be discredited

[r m flanagan]

Glad to see your comment on Jane's cancer.
It was what I'd expect of you.

[Clyde]

What a fargin' farce!

Free Scooter!

[Other Tom]

I think that if May were to testify that he knew Plame worked at the CIA because he had heard if from X, Y and Z, the testimony would be allowed regardless of whether the other three testified. It is not hearsay, because it is not offered to prove that Plame was at the CIA, it is offered to show knowledge on the part of May.

Clarice: that's the way we always did it, i.e. load the witness list up with every name that has ever been mentioned. First time I encountered this practice I thought it was sort of sleazy, but in the California state system if you didn't do it it was borderline malpractice.

[Pete]

It is clear only to a subset of partisans that Ms. Plame qualified for protection under the act.

While that is true, the partisans who claim Ms. Plame did not qualify have yet to offer anything substantial about why they make the claim.

If Plame did not qualify, the CIA could not have referred the case. And Ashcroft (who insisted on being briefed on all details of the case) would have easily killed the investigation citing that the IIPA requirements were not met.

[maryrose]

Any potential list of witnesses that causes Fitz's team to scramble is ok with me. It's time for them to backup their inconclusive evidence with the truth and cold hard facts not suppositions.

[clarice]

Dear Pete: With the amendation in bold, your statement is true--
"If Plame did not qualify, the CIA could not have referred the case EXCEPT ON THE BASIS OF FALSE STATEMENTS. And Ashcroft (who insisted on being briefed on all details of the case) would have easily killed the investigation citing that the IIPA requirements were not met IF HE HAD NOT LET THE DOJ CAREERISTS YANK HIM ABOUT BY THE NOSE WHICH HE APPARENTLY REGULARLY DID."

[TallDave]

How's the Sandy Berger criminal trial going? You know, the incident that actually involved real breaches of national security for partisan purposes?

Oh, right.

[TallDave]

If Plame did not qualify, the CIA could not have referred the case.

Right, and if there were no WMD in Iraq, the CIA couldn't have said it was a slam-dunk case.

That's the CIA: absolutely infallible.

[TallDave]

OK, my last thought:

Anyone else wondering if Libby ever played lacrosse at Duke?

[Pete]

Right, and if there were no WMD in Iraq, the CIA couldn't have said it was a slam-dunk case.

The record clearly states that the CIA twice warned the Bush administration that the Niger information was unreliable, yet the Bush administration kept putting it back in its speeches.

IMO, Tenet ultimately succumbed to the pressure. Bush gave him a presidential medal for enabling him.

[Pete]

The theory that the CIA, Ashcroft, and the DOJ careerists somehow all conspired against the Bush administration sounds pretty looney to me.

[topsecretk9]

IMO, Tenet ultimately succumbed to the pressure.

No actually, Tenet was a big curveball pusher. Go figure. It's almost like the bowels were stovepiping on purpose. They even threw their DCI under the bus. Wonder why?

[Pete]

The problem with the Libby defense outlined by TM is twofold:
1) Libby did not just talk with Cheney about Plame. There are several other chats as well which involved Plame. There was a chat with the Press Secretary. There was another chat with the VP's counsel where Libby asked what paperwork there would be at the CIA if an employee's spouse undertook an overseas trip. There are other cases mentioned in the indictment. Libby did not mention any of these, but hid behind reporters.
2) Libby was a lawyer and should have known to consult his notes and testify truthfully when even Bush said that this was a serious matter and that he wanted to get to the bottom of this.

[SunnyDay]

Well, that's it. Libby's guilty. Stop the trial, no need. Rethuglicans are guilty until proven innocent. And if proven innocent, it's a conspiracy masterminded by evil Rove and carried out by the devil Cheney. Haliburtonbushchimpwarforoilhitler.

[clarice]

Dear Pete:
If you think the notion of a beltway war against Bush is whacky, pay more attention to yesterday's jury selection process stories. Most DC residents live in a bubble and it's 9-1 Democrat, and most of them never believed that Bush would win a second term so it was in their interest to curry favor with the Dems in Congress and their media running dogs.
Look at the Berger case , for example, which involved many of the same players. It turns out that though the plea agreement which was astonishingly generous required Berger submit to a polygraph so the DoJ could learn exactly what he destroyed, the DoJ never gave him one.To this day we have no proof of what he destroyed,only his spin that he did this to make it easier to prepare for his Congressional testimony. The disparate treatment accorded Berger and Libby is not consistent with a notion that the DoJ apparatchniki played it straight.

As to Libby's converations with others in the WH about the Wilson trip, I have some credibility problems with those statements and even yet there is little evidence that Plame was the focus rather than the Wilson report itself.

I have always thought that there was a lot of projection going on--we know the Clintonistas savagely attacked in evey way possible their opponents. I do not see that was the case with this administration.