President's Day And Away

- I have only caught the television out of the corner of my eye but I am still reeling from the news that Britney Spears shaved Anna Nicole Smith's head.  End of days?

Comments

[Walter]

I remember seeing pictures of something Britney shaved, but for some reason it didn't resemble a person's head.

But that was weeks ago, when Ms. Smith was an heiress rather than a heirloom.

[Dwilkers]

Being a glass-half-full kinda guy, I'm trying to look at the bright side of this; every picture of Britney's shaved head is *not* a picture of her shaved...uhm..er, oh never mind.

[Sam]

I was surprised, Tom, that you didn't address Kleiman's Espionage Act claim .

[Jane]

Sam,

I think some people tried, but unfortunately the email address given didn't work. Maybe he really wasn't looking for an answer, eh?

[hit and run]

Well.

Specter said on the previous thread:

Well...my mother always told me not to talk about religion or politics....

And, according to my mother, sex should be included in that list as well.

And here we are.

[Charlie]

I blame Christianty.
If Britney and Anna never met a Christian, imagine how much better their lives would be....

[Pofarmer]

I just love how the left wants some dignified response to every half baked theory they come up with. If she was so super secret, why not tell Novak---Do not print? Why confirm her employment? Course, if they'd outed a secret program to catch terrorrists trasfering funds(which was just shut down in Europe, BTW, they'd all be hero's).

[Other Tom]

I just heard that the latest claimant to the paternity of Anna Nicole's kid is Ted Williams's frozen head.

[Patrick R. Sullivan]

Actually, Tom has answered Kleiman. And undressed him: 'So frankly, I think your challenge is to get up to speed on the arguments.'

Kleiman is now pretending not to notice what happened to his argument.

[sbw]

My goodness! A tabloid topic. TM has jumped the shark.

[Patrick R. Sullivan]

Looks like Jeralyn isn't up to speed either:

'Former prosecutor Victoria Toensing has an op-ed in the Washington Post today (debunked nicely by Larry Johnson)...'

In which Larry told us that Ari Fleischer was Novak's source...among other amusing errors.

[sylvia]

"I have only caught the television out of the corner of my eye "

Uh huh. Suuuure. Just the corner of your eye right? C'mon, admit it- you are under oath sir! You know you are glued to that boob tube catching all the ins and outs, so to speak, of all the latest on Anna's newest baby daddy and Britney's shaved ends. It's okay, I know I am too.

[sylvia]

And by the way, Anna Nicole was murdered.

[richard mcenroe]

'bout time you started paying attention to the Important News that Matters to the People...

[Charlie (Colorado)]

That poor kid is gonna individuate and grow up if it kills her.

And Mom is gonna keep her pulling the gravy train if it's the last thing either of them does.

[Charlie (Colorado)]

And by the way, Anna Nicole was murdered.

Ya think? Sole heir (there's a legal term for a person who receives a bequest in a will but I forget) dead mysteriously, her dead mysteriously, the kid spirited away to the Bahamas by the "father" who won't do a paternity test... why would you think that?

Anyone seen Travis mcGee?

[Charlie (Colorado)]

Jane, Tom does have a response up on Kleiman's site. Kleiman discounts it.

[hit and run]

sbw:
My goodness! A tabloid topic. TM has jumped the shark.

---
Well - I would never be one to foment trouble but, Clarice did beg Tom not to put up a post about ANS...

and then

...she got that mention in the NYT blogging article and Tom/JOM was inexplicably absent.

I'm not saying anything, just looking a various dots. Connect them yourselves if you want.

[Charlie (Colorado)]

I blame Christianty.
If Britney and Anna never met a Christian, imagine how much better their lives would be....

Posted by: Charlie | February 19, 2007 at 05:55 AM

Who's this dick?

[boris]

Perhaps a third idiot?

[sylvia]

"Ya think?"

Yes, what are the odds. Not only that but Pierce Marshall, the son of Howard Marshall, died "unexpectedly" about a year ago as well. I think he was about 60. Supposedly it was some unexpected viral infection, but, hmmmm, he was a previosuly healthy guy before that. What are the odds that 3 out of 3 beneficiarys of the millions of dollars just up and drop dead? Not too high I think.

[Walter]

"Who's this...?"

Wrong head.

If we're still talking ANS, it just doesn't work from a math perspective. Really shouldn't be singular. Either 0 or > 1.

[Jane]

Tom does have a response up on Kleiman's site. Kleiman discounts it.

I am so outside the loop!

[Charlie (Colorado)]

Perhaps a third idiot?

No, I suspect it's a previously identified idiot wearing a sock.

[Charlie (Colorado)]

Oh, and yes, Mark's posted email address doesn't work.

[Carol Herman]

FROM CAROL HERMAN

Oh, Bully. A salon full of wigs, to go with the donk's closet full of Sandy Berg(l)er, pants, underpants, and sox. Where Russert, in his worst days, ahead, can go for a "fitting."

I expect, also, during sweeps week, that Russert with gulp mia-gulpers. Giving his best rendition of a catholic boy who feels bad. Raising all sorts of issues about alter boys. And, why the church can be bad for ya, when ya sin in public. (But the costs? More seating available on Sundays. Less people getting out of bed ta go.)

While DRUDGE last night, almost didn't say a word on the radio. Till the last five minutes. When he commented that it seemed middle-to-mainstream America was not listening to this DC circus at all. Take it for what it's worth.

[boris]

I haven't rescanned the previous thread to be sure but the only identified idiot from there wasn't posting that early and always wears socks in pairs.

[Charlie (Colorado)]

Boris, you're certainly making a good case for Christianity as a tolerant religion that can cope with criticism.

[Charlie (Colorado)]

Oh, Bully. A salon full of wigs, to go with the donk's closet full of Sandy Berg(l)er, pants, underpants, and sox. Where Russert, in his worst days, ahead, can go for a "fitting."

What?

[boris]

Only speak for myself and have made no case for anything else.

[Tomf]

I don't give a hoot about the Anna Nicole thing, but I can't take my eyes off of Britney. It's like watching a train wreck. A train wreck that you would kind've like to be a part of...

Oh, Lord.

[pg]

Plame pictures:

http://www.micahwright.com/propaganda/plame.jpg

This picture looks like she's on some anti depressants. The face is swollen.
http://jje3accounting.com/images/plame_food_in_teeth.jpg

http://bagnewsnotes.typepad.com/bagnews/images/wilson_plame-noir-tm.jpg

Don't forget she's not like Hilly, so maybe Hermans can leave her alone.......

[SunnyDay]

Anyone seen Travis mcGee?

Oh I love Travis McGee!!! Best escape fiction ever.

[Daniel]

I cannot get away from the trial.
People seem to think that the Russert charge is the most serious one.
It is a very specific one, namely that Libby lied not in some general way, but exactly in stating that Russert brought up the Wilson's in a telephone conversation and that surprised him.
If we examine that conversation and the difference between the testimony of Libby before the grand jury and that of Russert, we find five possible explanations of the apparent discrepancy between their memories.
They are as follows:
1. Russert lied purposefully about the conversation
2. Russert misremembered the conversation without ulterior motive and in all innocence
3. Libby misremembered the conversation without ulterior motive and in all innocence
4. Libby lied with intent to deceive the Grand Jury and and obstruct the investigation.
5. Both Russert and Libby are telling the truth and the discrepancy is solely the result of confusion about timing.

For a conviction, the jury would have to conclude that the only plausible explanation of the difference here is the fourth of these.

But let's consider each of these possibilities in turn.

1. Russert lied; This possibility must be considered if Russert has any history of making false claims under oath and has a motivation to lie about this matter.
With regard to false claims under oath there is his petition requesting that he be allowed not to testify before the Grand Jury, when he had already given his evidence to the FBI. Wells already stated in this trial (without objection or contrary statement) that Russert lied to a judge on this matter.
With regard to motive, were Russert to admit that he had heard the Wilson trip source story before, he might face the alternatives seen by Miller: do jail time for contempt or reveal his sources. If those sources were other journalists, that would open up a whole mare's nest of trouble for him and for NBC.

2. Russert misremembered; that Russert has perfect memory has been shown to be false in unrefuted testimony given at this trial. The Buffalo incident provided an example in which he completely forgot an action of his own that was apparently of importance to him at the time.
With regard to his memories of his conversation or conversations with Libby, in his FBI statement, according to contemporary notes, he remembered one or two conversations, and the Wilson's might have been discoussed. In his latest testimony he remembers only one conversation and states that he could not have mentioned the Wilson's before learning about Novak's story.

3. Libby misremembered: Testimony was given at the trial that Libby had a tendency to misremember who told him what, to the point of retelling s story to the source of it.
Also Novak testified to a conversation with Libby that could have been confused with the second Russert call, and could have been the source of such mismemory.

4. Libby feloniously lied: The difficulty with this possibility is that there is no apparent motive for it or for Libby saying this with felonious intent. He could have attributed the conversation to Novak, and avoided the issue entirely. He could have declared his memory was dim about it. Some claim that Libby lied to shield someone. Even if this were so this was not a lie that shielded anyone. It there is a claim that he lied to do so he should be tried for that and not for this.

5. Everyone telling the truth: It is compatible with all testimony that Libby called Russert on July 10 and had a conversation which led nowhere (all agree on this); in the afternoon of July 11 someone at NBC read Novak's column off the wire, and a discussion took place about the Wilson's (it was on the wire by 1 PM according to Novak's testimony,) Russert, remembering the call from Libby, called him back and asked about the Wilson's. (Russert mentioned a discussion about them after Novak's story became known) This surprised Libby, who admitted only hearing the same rumor. This did not confirm the story to Russert, so he later forgot all about this unsuccessful call. (several reporters acknowledged forgetting contacts that yield no new information) Russert read Novak's column at home when it appeared three days later.
It seems to me that of the five possible explanations of the Russert question in the indictment the Libby feloniously lie one is the one of the least plausibility of all.
Can a reasonable person accept it as the only plausible explanation here, as would be necessary for a vote for conviction?

[Mark Kleiman]

This email address works. If you click the button on the site, just take off the irrelevant trailer inserted to defeat trolls.

[clarice]

Good analysis, Daniel.

[jerry]

End of days, surely, Britney's now dressing up like some crazy blond-Liz Taylor-Jacko fusion clone.

[clarice]

Mark, I'm afraid I cannot get to there from here. Post a clean email addy that works on a click along w/ a repeat of your question and I'll answer it/

[ghostcat]

Daniel -

The weakness in your analysis the premise of rationality. None of us is merely rational ... thank goodness ... and some of us are less rational than others. What those 12 individuals (and group members) *feel* will determine the verdict at least as much as the facts.

[theo]

Daniel --

I wish that your conclusion was correct. However, as even TM has acknowledged, the case against Libby is not entirely without foundation.

I think the prosecutors will argue that Libby had a very good reason to lie. His grand jury testimony, they will argue, was centered on one critical proposition -- that he had not leaked Plame to the press. His story over and over was that he had heard about her from the press and had done nothing more than tell people in the press that he had heard it from other reporters but could not say if the story was true. In other words, Libby "forgot" that he had ever learned about Plame from any official source and thus had not ever passed along classified information to any reporter.

Miller (and to an extent Cooper) have a different recollection. But each of these witnesses has problems with their own recollections. However, the biggest issue in the case is that for Libby to claim that he first heard it (or heard it "as if for the first time") from a reporter is that he has to identify that reporter.

The reporter he identified is Tim Russert. Russert denies even knowing about Plame at the time of this conversation and thus denies having told Libby.

Nor is this a simple case of differing recollections. Most notably, Ari Fleischer testified that Libby told HIM about Plame three or four days before Libby spoke to Russert. If this is true, Libby's testimony that Russert told him "as if for the first time" is false.

Could Russert be mistaken or lying? Sure. It is not all that easy to see a reason for Russert to have lied about this from the beginning but it is possible. What about Fleischer? Could he be mistaken or lying? Yes, of course. But again, there is no obvious reason for him to lie about this.

So the prosecutor will argue that the jury can either believe that ALL of Fleischer, Russert, Miller and Cooper (perhaps among even more prosecution witnesses) are mistaken or lying or they can believe that Libby is the one who is mistaken or lying.

The issue then comes down to whether Libby deliberately lied or whether he was mistaken -- perhaps he confused Novak with Russert or some such. (But this does not help explain Ari's testimony.) Or maybe he just had a poor memory.

Of course, the defense has a lot of ammunition to raise reasonable doubt. Miller's recollection was generally awful. Cooper's notes do not support his memory (and his memory is not all that different from Libby's about their conversation). Fleischer was contradicted by Pincus, perhaps damaging his credibility. Russert's insistence that he did not know at the time is called into question by Fleischer's testimony that he told David Gregory, who worked for Russert and would have told Russert had he heard.

But let's not fool ourselves. The prosecution has a plausible case on the Russert part of this trial. The issue is whether the defense can raise sufficient reasonable doubt.

[theo]

Daniel --

I wish that your conclusion was correct. However, as even TM has acknowledged, the case against Libby is not entirely without foundation.

I think the prosecutors will argue that Libby had a very good reason to lie. His grand jury testimony, they will argue, was centered on one critical proposition -- that he had not leaked Plame to the press. His story over and over was that he had heard about her from the press and had done nothing more than tell people in the press that he had heard it from other reporters but could not say if the story was true. In other words, Libby "forgot" that he had ever learned about Plame from any official source and thus had not ever passed along classified information to any reporter.

Miller (and to an extent Cooper) have a different recollection. But each of these witnesses has problems with their own recollections. However, the biggest issue in the case is that for Libby to claim that he first heard it (or heard it "as if for the first time") from a reporter is that he has to identify that reporter.

The reporter he identified is Tim Russert. Russert denies even knowing about Plame at the time of this conversation and thus denies having told Libby.

Nor is this a simple case of differing recollections. Most notably, Ari Fleischer testified that Libby told HIM about Plame three or four days before Libby spoke to Russert. If this is true, Libby's testimony that Russert told him "as if for the first time" is false.

Could Russert be mistaken or lying? Sure. It is not all that easy to see a reason for Russert to have lied about this from the beginning but it is possible. What about Fleischer? Could he be mistaken or lying? Yes, of course. But again, there is no obvious reason for him to lie about this.

So the prosecutor will argue that the jury can either believe that ALL of Fleischer, Russert, Miller and Cooper (perhaps among even more prosecution witnesses) are mistaken or lying or they can believe that Libby is the one who is mistaken or lying.

The issue then comes down to whether Libby deliberately lied or whether he was mistaken -- perhaps he confused Novak with Russert or some such. (But this does not help explain Ari's testimony.) Or maybe he just had a poor memory.

Of course, the defense has a lot of ammunition to raise reasonable doubt. Miller's recollection was generally awful. Cooper's notes do not support his memory (and his memory is not all that different from Libby's about their conversation). Fleischer was contradicted by Pincus, perhaps damaging his credibility. Russert's insistence that he did not know at the time is called into question by Fleischer's testimony that he told David Gregory, who worked for Russert and would have told Russert had he heard.

But let's not fool ourselves. The prosecution has a plausible case on the Russert part of this trial. The issue is whether the defense can raise sufficient reasonable doubt.

[clarice]

I take it, Mark, this is your question--
So that's my challenge to Glenn Reynolds, Tom Maguire, Victoria Toensing, Clarice Feldman, Byron York, and all their friends: come up with a theory under which the non-classified nature of VPW's employment status couldn't be made public by Libby's defenders. I will post verbatim any response to this from any of the named parties or those of similar standing, or any reasonably polite and coherent response from anyone

It couldn't because when smoke and mirrors Fitzgerald got to trial and had to lay his cards on the table, he said the issue was irrelevant and he would put no evidence in on that point nor would he argue it. Of course, the government bears the burden of proof and one would suppose any such claim would involve documentation uniquely in the government's possession.

Having persuaded the court that the issue of Plame's status was irrelevant and that it was NOT an issue in this case, I do not see how the court would have permitted the defense to introduce the question.

As TM notes, moreover, "classified" is not undercover, a claim about Plame first raised by that lefty fabulist, David Corn. Perhaps he'd provide us his sources for that claim which surely led to this witch hunt.

[clarice]

I take it, Mark, this is your question--
So that's my challenge to Glenn Reynolds, Tom Maguire, Victoria Toensing, Clarice Feldman, Byron York, and all their friends: come up with a theory under which the non-classified nature of VPW's employment status couldn't be made public by Libby's defenders. I will post verbatim any response to this from any of the named parties or those of similar standing, or any reasonably polite and coherent response from anyone

It couldn't because when smoke and mirrors Fitzgerald got to trial and had to lay his cards on the table, he said the issue was irrelevant and he would put no evidence in on that point nor would he argue it. Of course, the government bears the burden of proof and one would suppose any such claim would involve documentation uniquely in the government's possession.

Having persuaded the court that the issue of Plame's status was irrelevant and that it was NOT an issue in this case, I do not see how the court would have permitted the defense to introduce the question.

As TM notes, moreover, "classified" is not undercover, a claim about Plame first raised by that lefty fabulist, David Corn. Perhaps he'd provide us his sources for that claim which surely led to this witch hunt.

[clarice]

"His grand jury testimony, they will argue, was centered on one critical proposition -- that he had not leaked Plame to the press."

Actually, Libby said he'd told a number of reporters and they said he didn't. He claimed he did not officially source the Plame stuff to reporters he spoke to, indicating only that he'd heard that rumor from other reporters.

[TimS]

Daniel, stay on subject.

Clarice, don't encourage him.

About the two "super girls." Britney, and Nicole.

It is pretty common knowledge that it is a druid thing, BUT I saw John Travolta on TV saying that Scientology could have saved Nicole.
Perhaps now he will save Britney.

Or maybe Travolta and Scientology could do all men a favor and raise Nicole from the dead. I for one would convert, immediately.

All Britney needs is to find a good man. I would guess that she only needs to be spanked properly and put to bed.

I can only assume that there are any number of candidates lined up.

[TimS]

Daniel, stay on subject.

Clarice, don't encourage him.

About the two "super girls." Britney, and Nicole.

It is pretty common knowledge that it is a druid thing, BUT I saw John Travolta on TV saying that Scientology could have saved Nicole.
Perhaps now he will save Britney.

Or maybe Travolta and Scientology could do all men a favor and raise Nicole from the dead. I for one would convert, immediately.

All Britney needs is to find a good man. I would guess that she only needs to be spanked properly and put to bed.

I can only assume that there are any number of candidates lined up.

[Other Tom]

The biggest problem I see for Libby is the perjury charge concerning Russert, discussed by Daniel above. And the problem lies in his grand jury testimony to the effect that this was the first he learned of Plame's employment. It seems to me that even if one concludes that the Russert conversation occurred just as Libby described it, that doesn't address the matter of the state of his knowledge at the time the conversation began. There is a great deal of testimony suggesting that he knew about Plame's position, and discussed it, after supposedly forgetting that he had heard it from the VP. On balance, I think he was lying, and as motive I think it was keeping the thing suppressed until after the '04 election. Whether I think this is beyond a reasonable doubt is another question; I suppose at this point I do not. In any event, for the life of me I still don't see how it satisfies the element of materiality, but somewhere along the way, in some manner that I am unaware of, that issue seems to have been abandoned. Perhaps I will be pleasantly surprised by the closing. I assume there is a jury instruction about materiality, but am not dextrous enough to locate it.

Those who have been following these threads closely may conclude that I have been persuaded by FooBar's exposition of all this, which I have indeed. I simply don't know the testimony well enough to examine this theory in any great detail; my only excuse for that is that I'm ancient and not very skilled at computer stuff. Anyway, if any of the more astute observers here could respond to the FooBar analysis, I'd certainly be interested to see it.

[boris]

The prosecution has a plausible case on the Russert part of this trial.

Plausible? No, assumes coverup not in evidence.

Sure it's possible that Libby forgot many relevant details and suspected Valerie was classified information and came up with a ridiculous fabrication to escape imagined jeapordy. There is no evidence for any of that. That just seems plausible if one believes Libby and Cheney were actually up to no good and were afraid of getting caught at it.

[theo]

Clarice --

Yes. We are saying the same thing. Libby's testimony was that while he had discussed Plame with members of the press, it was only to repeat what he had learned from other reporters. He was adamant that he neither told any reporter nor confirmed for any reporter that the rumors he had heard were true. In other words, the essence of Libby's testimony was that he could not be considered a "leaker" because he did not pass along any government information but merely repeated rumors that he had been told by reporters. He was also adamant that he told the reporters that that was all that he was doing.

One quibble. You say that Libby said that he told "a number" of reporters and they say he did not. I am aware of Glenn Kessler fitting this description. Anyone else?

[Rick Ballard]

Which Libby defender knows her status with certainty and is authorized to disclose it? Her "status" is knowledge controlled by the CIA and the question is properly directed to them - not to Libby defenders.

[Other Tom]

Theo's post appeared while I was typing mine. I believe he and I are seeing this in roughly the same way.

[Barney Frank]

It seems a rather ingenuous question. Fitz and the CIA have fought hammer and claw to prevent her status from being disclosed and then the defense is faulted for not knowing it?
Since we have yet to actually see what her status was it seems to me we are forced to infer it. And that seems fairly easy.

Fitz was appointed to find a leaker. He alleges that Libby was told who Plame was by governemnt sources and then discussed it with reporters. Since he obviously is not shy about prosecuting Libby on less than iron clad grounds, if he knew that revealing her employment was classified and therefore illegal he surely would have prosecuted Libby on Miller and Cooper's testimony. That he didn't seems to be the strongest evidence we have that it was not illegal for Libby to discuss her employment with anyone. Surely Fitz is in the best position to know her status and he has done his best to run away from establishing it.

[boris]

Libby's testimony was that he could not be considered a "leaker" because he did not pass along any government information but merely repeated rumors

When in fact the truth of the matter is that he could not be considered a "leaker" because the reporters he spoke to about it already knew.

[Other Tom]

I was referring to Theo's 0943 post.

I believe that Valerie was covert, just as Joe was a drug abuser. Neither of them, however, was either of those things at any time relevant to this prosecution. (Well, I'm more certain that the latter statement is true about Val than about Joe.)

[clarice]

theo--He also told the gj he raised the issue with Cooper, but Cooper testified he was the one to raise it w/Libby.

Rick, true, and furthermore the 1917 Espionage Act by its terms does not cover such information. It is antique and very specific. There is a question raised in the AIPAC case..about which Schoenfeld and the judge have grave reservations, moreover, whether a person given "classified" information orally, w/o ever seeing the classification or secret document can be held to account under that law.

It is amusing that when it comes to the press reporting true top secret information, knowing that it is secret and being asked at the highest levels not to print it. the left endorses the publication. OTOH where info was given orally and for which the recipient has no reason to believe it is secret the left tries to read the existing weak laws as if they were a very broad ranging super secrets act.

[theo]

Boris --

Sorry to disagree, but I do not think it is all that difficult to believe, given the early focus in this investigation into "who leaked Plame" that Libby would try to cover his backside with a story that said, in essence, "to the extent I talked to the press about her, it was only to pass along rumors that I heard from other reporters and I did not in any way shape or form pass along information that I received in my official capacity." In fact, this does seem to be the essential thrust of his grand jury testimony.

As noted above, this rendition of events requires him to identify the reporter that first told him. Libby said it was Russert. But Russert denies it and denies that it was even possible for him to have told Libby on that occasion (because Russert himself did not know at the time). This could be seen as Russert's word against Libby's, but when you throw in Ari Fleischer, it gets harder to buy Daniel's analysis. Plus, of course, the fact that Miller (for what her recollections are worth) and Cooper (to a limited extent) contradict Libby's version that he only passed along rumors.

Bottom line is that for Libby to be telling the truth, Russert, Cooper, Miller AND Fleischer must all be not telling the truth.

The defense needs to go strong for "reasonable doubt."

[Patrick R. Sullivan]

From Kleiman:

'Since Maguire concedes that VPW's employment status was classified information when Scooter Libby started blabbing it all over town at the direction of Dick Cheney...'

Who blogs at 'The Reality-Based Community'!

[boris]

Libby would try to cover his backside

Your motive to lie is actually motive to shut up.

The reporters Libby talked to, Miller and Cooper, already knew.

[clarice]

"As noted above, this rendition of events requires him to identify the reporter that first told him"..Really? The evidence is rather strong that a number of reporters were calling about the same time and Martin said Harlow said the reporters were calling AND Novak told Rove who told Libby about that call. Further, it is uncontested on the record that Libby told Rove that Russert had called and told him.

Russert had 2 conversations w/ Libby, the second of which may have been July 10 in the afternoon or July 11. By July 11 the Novak article was on the grapevine.

Now, Russert originally told that FBI that he might have told Libby but didn't think he had. At his presidential appearance and at trial he said it was "impossible" he could have--reconstructing this memory months and years after the event based only on what he later thought he knew in mid-July, but the full record of the reporter hordes descending on Harlow and the early dissemination of the Novak story make his reconstructed memory less, rather than more, plausible.

[Patrick R. Sullivan]

'Bottom line is that for Libby to be telling the truth, Russert, Cooper, Miller AND Fleischer must all be not telling the truth.'

Well, guess what, they aren't at least speaking accurately. Or, at least, they appear to be confused.

The only one who could be a problem for Libby is Russert. And, I just don't believe he wouldn't have asked Libby SOMETHING about the VP v CIA origin of Wilson's trip.

[Eric]

Clarice, If the judge doesn't know Flame's status, how can he rule or instruct on a materiality defense? Do you have any links to where the materiality issue has been ruled on, argued or discussed? Has Fitz claimed that his materiality link charging perjury was investigating the knowlege element of the Espionage Act? While Fitz was at it why didn't Fitz try to assert pendant jurisdiction and charge Libby with some common law crime?

[theo]

Clarice --

Okay, I get your point that Libby was not "required" to name the reporter who first told him. He could have said that he forgot or something. But be that as it may, he DID identify Russert as the reporter who told him "as if for the first time."

You make the point that perhaps Libby is correct and Russert incorrect in their recollections of this conversation. True enough, but if Fleischer is to be believed, Libby is wrong about his claim to have heard it from Russert "as if for the first time." Indeed, if Fleischer is right its hard to avoid the notion that Libby is not merely mistaken but lying about his conversation with Russert. (Could he really have told Fleischer that it was "hush hush" on Monday and forgotten he even knew it by Thursday or Friday?)

Again, maybe both Fleischer and Russert are mistaken or even lying. The same is true for Miller and Cooper as well. But basically if any one of them is telling the truth about their conversations with Libby, then Libby is mistaken. And the only issue is whether he lied or simply misremembered.

I think the defense needs to focus hard on reasonable doubt, particularly when it comes to memory. After all, Miller was contradicted at trial by Abrahamson and Fleischer was contradicted at trial by Pincus. Russert's testimony was indirectly challenged by Fleischer, who said that he told Gregory, who would be expected to have told Russert. It is hard to get past the notion that everyone has a different recollection of that week.

[james]

Klineman

Indeed, that's one obvious explanation for why Patrick Fitzgerald hasn't indicted anyone under the Intelligence Identities Protection Act or the Espionage Act; in either case, he would have to prove classification, and if he can't prove an element of the offense in open court he can't try his case.

In other words, not only was Plame top secret, but she was and still is so top secret that even to confirm her top-secretness would be a security violation. Never mind that the media themselves argued (justifiably) that her identity had already been leaked and should not be considered classified.

[Sara (Squiggler]

Well the ANS case just got screwier, if that is possible. Seems that the Hard Rock Casino/Hotel is run by the Seminole Indian Tribe and sits on tribal grounds which are considered a "separate nation" with its own laws and law enforcement. Although they seem to be cooperating, they don't have to honor FOIA requests and this is driving the media mad.

[steve]

None of the other witnesses except Fleischer and Russert claimed to unequivocally remember exactly how Libby phrased what he told them, either with respect to "the wife" vs. "Plame" or with respect to what he said his source of information was. It was all a big fog, with people reconstructing memories from notes or later feelings of "guilt," testimony prompted and shaped by Fitzgerald.

If Libby was trying in his testimony to conceal his leaking of information, why in the world would he pick Russert as his phony source? Miller or Novak would have been more reasonable. It just doesn't make sense.

As for memory, apparently Libby gets confused about where he heard things all the time. The testimony by his successor on this point struck me as extraordinary in its specificity. Combined with the he-had-a-lot-of-bigger-things-on-his-plate argument and the lack of Plame in the pushback talking points, and I think the memory defense gives an out to jurors who don't want to think too badly of Russert and Fitzgerald.

Materiality has baffled me from the beginning.

[jwest]

Someday, somehow I would like to see what Fitz statement to Tatel was concerning Val’s status.

From Tatel’s response, it sure seems that Fitz embellished her classification.

[boris]

You make the point that perhaps Libby is correct

No the actual point is that Libby had an easy out so making up a story to get himself in trouble makes no sense.

[Pofarmer]

But Russert denies it and denies that it was even possible for him to have told Libby on that occasion (because Russert himself did not know at the time)

So, what about Russerts evolving story? What about the fact that Miller and Cooper already knew?

And, has anyone testified that Libby didn't source any "confirmation" back to other reporters?

[Daniel]

Theo:
what you say is just not true;
"for Libby to be telling the truth Russert Cooper Miller AAND Fleischer must all be not telling the truth"
These people were talking about their memories from months before about conversations and aspects of them to which they had originally not given much thought.
They may well be very truthfully attempting to describe their memories but failing to do so, and of course Libby could be doing the same thing.
do you really believe that when two people disagree about some old conversation one must be purposely lying?
I find that people tend to remember what in their conversations reinforces their predilections and concerns, and to forget quickly everything else about them.
Those who possess information that is confidential or proprietary or secret are generally aware and concerned about spilling it and violating confidences. Libby in his position was constantly in possession of such information and could be expected always to concern himself with avoiding giving up what he should not.
Reporters have no interest in such matters and are generally interested in finding new information. It is unreasonable to expect memories of any conversations to agree precisely absent premeditated lies, as you seem to do.
The prosecution is supposed to prove beyond reasonable doubt that Libby's description of their conversation is a purposeful lie, independent of the other charges, and that means that none of the other four possibilities are plausible.
Your argument is that Libby lying is plausible as well. This is not enough for a criminal conviction. The other possible explanations must be shown to be implausible.
Was there ever any evidence for same?

[Pofarmer]

At his presidential appearance and at trial he said it was "impossible" he could have--reconstructing this memory months and years after the event based only on what he later thought he knew in mid-July,

So, would he have forgotten about the advance wire by then?

[boris]

One interpretation of Libby's testimony is that the first reporter he spoke with about Wilson's wife already knew about her and that surprised him. Further that he does not remember knowing it between the Cheney meeting and the reporter. That does not mean if someone had asked Libby on June 22nd "where does Wilson's wife work" he couldn't have answered.

Based on these low strength claims, any number of non-perjury scenarios are possible.

[Pofarmer]

True enough, but if Fleischer is to be believed,

Fleisher has been contradicted all over the place.

[Barney Frank]

theo,

--Bottom line is that for Libby to be telling the truth, Russert, Cooper, Miller AND Fleischer must all be not telling the truth.--

The only thing that need concern Libby is if the jury believes he was lying not that he was telling the truth.
A better formulation might be that for Libby to be lying, Russert, Cooper, Miller and Flesischer must not only be telling the truth they must also have credible memories and stories that have not changed. Most of the physical evidence we have from the reporters seems to contradict them, not Libby.

The bottom line as regards Libby's truth telling might very well be as mundane as a bunch of foggy memories, not the stark choice of all lies by one party or the other.

There is a logical disconnect that has always nagged my presumption of Libby's dishonesty.
Why would he impute a conversation to a reporter that he hadn't had a conversation with if he was bent on lying? Why would he not impute it to one of the reporters who apparently did discuss it with him or merely to passing rumors? A non sensical motive, or non sensical actions because of a motive, aren't much better than no motive at all.

[Sara (Squiggler]

I think Russert forgetting his own Buffalo story is going to sit big with the jury. When you add in the NBC shenanigans to protect him from having to testify, it cooks his goose as a reliable witness, IMHO.

[steve]

The preponderance of evidence is that Fleischer misremembered his conversation with Libby. The Plamay pronunciation rules out an oral introduction to her name; he used language to describe her position that tracks the INR paper rather than Libby's locutions; he was exposed to that paper directly or indirectly; and he claims to have told Pincus, who flatly denied it (of course Pincus denied getting it from Woodward, too, so that's not an ironclad point, merely contributing to reasonable doubt).

[theo]

Steve (and Boris) --

In HINDSIGHT it is obvious that if Libby were going to make up a story about hearing it from a reporter, he should have picked Novak and not Russert. (I am not suggesting that I am convinced that Libby made up any story.) But I think that during this investigation the focus was on "who told Novak?" Libby may not have wanted to put himself in the position of saying that Novak told him, because that would be admitting that he discussed it with Novak and that could put him in line to be at least one of those who leaked to Novak.

Boris -- I think you are not appreciating the difference between then and now. NOW you are right, he could have said a whole lot of things that would have been better for him than this. But he knew that he had at least discussed the matter with reporters (he may have forgotten how many, see Kessler) and therefore he either had to take the risk that he had "leaked" and was subject to prosecution or at least dismissal or come up with a story to explain his conversations with the reporters about Plame. The essence of his grand jury testimony was that he had not leaked but merely shared reporter gossip with other reporters. This could be a cover story designed to deny having been a "leaker" even though he had discussed it with reporters. In the context of the early investigation, I think it is at least plausible that he would in fact make up such a story about merely passing on reporter gossip. Of course, if this is true, he is learning the sad lesson of the tangled web.

Today it appears that if he had testified that he told Fleischer and Miller and confirmed it to Cooper, he would have no legal trouble at all. But the tenor of his grand jury testimony is that he did not want to admit doing anything other than repeating the gossip he heard from other reporters.

Of course, he may well be innocent. At most he might be guilty of a faulty recollection -- as so many other witnesses in this case are. But I think it is simply wrong to insist that the prosecution case makes no sense.

[Jane]

do you really believe that when two people disagree about some old conversation one must be purposely lying?

Daniel,

This is the part that bugs me the most. And it is a uniquely moonbat stance. George Bush was fed bad intel in WMD, so immediately he "LIED" about it. One can only hope the jury is not so inflicted.

[clarice]

Pofarmer, I believe he said he had no recollection about reading the advance wire and had a WOW moment when he saw the Novak article. Of course NBC had it on July 11 and he may have forgotten that it was brought to his attention then. What he does concede is that NBC was very interested in the sstory from Wilson's appearance on MTP on July 6 and the date of the Novak story (which he, I think in error, said was July 14).

"Clarice, If the judge doesn't know Flame's status, how can he rule or instruct on a materiality defense?"

I take it his position is that he credits the SP when he says that is what he was investigating in that period. That VT says that is ridiculous--because he should have first determined if Plame came w/in the statute and she didn't, has merit w/me, but the judge has foreclosed that.

"Do you have any links to where the materiality issue has been ruled on, argued or discussed? "

I discussed it several times..I believe (but heck it's just my memory and I wouldn't bank on it--in one of both of my articles titled The Potemkin Prosecution and in my article for the Weekly Standard titled The Case of the Missing Crime.

"Has Fitz claimed that his materiality link charging perjury was investigating the knowlege element of the Espionage Act? "

My best recollection is that he has said he was concentrating on the IIPA, not the obviously inapplicable Espionage Act.

"While Fitz was at it why didn't Fitz try to assert pendant jurisdiction and charge Libby with some common law crime?"

I have no idea what you're talking about, In any event, I simply cannot get into Fitz' head--as you know, I cannot see why he charged Libby w/ anything at all.

[Walter]

Other Tom,

I'd say that Libby put on a materiality defense:

(a) Libby believed that the investigation was attempting to find who leaked to Novak (that is, who caused classified information to be disseminated broadly).

(b) Libby demonstrated he didn't leak broadly through cross of Cooper and Novak and testimony of most other reporters to whom he spoke.

(c) Libby demonstrated that Armitage leaked first (to Woodward) and best (to Novak).

So, how could any mistatement by Libby be material to the purported purpose (as opposed to the reported (1x2x6) purpose) of the investigation?

When you look at it from that perspective, it answers the questions that many at FDL have raised about the rationale behind the witnesses called and testimony elicited by the defense.

[clarice]

misgendered pronoun********** take it his position is that he credits the SP when he says that is what he was investigating in that period. That VT says that is ridiculous--because he should have first determined if Plame came w/in the statute and HE didn't, has merit w/me, but the judge has foreclosed that.****

[Other Tom]

The problem, as I see it, is that we are not necessarily talking about two or more people's differing recollections of a conversation. The problem is that even if we accept Libby's version of his conversation with Russert, how do we account for his testifying that he had no knowledge of Plame's employment until the Russert conversation?

[Syl]

All Libby learned in early June was wifey:cia NOT that she was involved in trip. Lots of govt people with spouses in govt. BFD. Just a piece of gossip.

The surprising info he heard from reporter(s) was that she was involved in trip but his memory conflated it ALL as info he was 'learning as if for the first time'.

Libby remembers being surprised. Libby remembers he had a heated convo with Russert and is sure it was Russert who told him.

Libby testified to what his memory told him. Libby knows he's careful about classified. CIA classification can go either way so he knows he was careful and 'remembers' exactly how he would have presented it to reporters WHETHER he knew it was true or not.

Fitz' case is entirely circumstantial and linear. Libby's memory is not linear. Libby testified to what he remembered and how he would have dealt with the info.

[steve]

Theo: Forget Novak, if you like.

Wouldn't Libby have claimed he got it from Judy Miller, his friend from the aspens, someone who was known to get leaks like this all the time from sources hither and yon? Someone who, if we believe both her testimony and Libby's, did talk about Plame and may have brought it up with him first? Someone who never published on the subject of Wilson and so could not put him at risk of seeming a leaker?

Libby didn't know Russert very well and had no reason to think that Russert would back him up or maintain confidentiality. And he would have had to cook this tale up premeditatedly, not in a panic. It's possible, but I think less than 50% likely.

As for the conflicting testimony of others, see my earlier posts.

[clarice]

He said that was not a significant part of the message from Cheney which was to rebut the substance of Wilson's lies on the merits..and that he had failed to note any connection between Wilson'd wife's employment in "counter proliferation" (which could have been in DoS or DIA or CIA )until reporters made the connection.I don't think that is an impossible leap.

[theo]

Steve --

Yes, I think the case hinges on reasonable doubt. Even if the jury believes that Libby is not telling the truth -- and given the number of witnesses who contradict him, that cannot be hard -- it does not mean that he intentionally lied. Given the lack of memory and the contradictions between the witnesses against Libby, it is also not hard to find that Libby is just one more person with a bad memory.

Barney Frank --

You raise a good question. If Libby was going to make up a story about a reporter telling him, why would he pick Russert? I am not sure. If this is a cover story, in hindsight he should have picked Novak, but in the beginning Novak was the ground zero of the investigation. It may be a lack of candidates. Who else did he speak to that week? Judy Miller, but he may not have wanted to put her in the soup or may have feared that she would come back and accuse him of telling her (which she did anyway). (Maybe he thought if he said she told him she would consider herself released from her obligation to protect her source.) Russert sort of fits. It is someone he talked to that week. It was someone who was very well connected and presumably knew what was what. (I am not sure of the dates, but maybe the Andrea Mitchell comments inspired him.) Russert was not someone that Libby was trying to cultivate a relationship with.

I am NOT saying that Libby did make up the story about hearing it from Russert. But he was very determined in his grand jury testimony to say that he heard it from a reporter. Russert may have been an odd choice, but not an impossible one.

Again, let me emphasize to this group I am NOT saying that Libby lied. I am not even saying that he was mistaken. Perhaps Russert did tell him and is either lying or forgot.

But I think we need to face up to the reality that the prosecution story here is not far fetched. It plausibly could have gone down the way the prosecution argues -- the only real argument for the defense is that there is reasonable doubt that it did.

[Other Tom]

Clarice, I know you have written about the materiality issue. What I meant by my question was, have their been any filings, discussion or argument on the issue in the course of the trial?

[Gary Maxwell]

Who believes that Fitz fought so hard to keep her status totally out of the case BECAUSE she was a supper secret covert agent of the CIA? And would those who do, please inform this poor miscreant of why in the world Fitz would not welcome, nay surely would WANT that to be known to the jury? Once you can explain that, then I will look at anything else you have to say about this subject.

[Walter]

Other Tom,

Way back in April, cboldt and I (as n00b commentators) got into the question of materiality.

He has since tired of repeating himself--I never tire of seeing my words lit up in pixels.

This thread is a good reference point. Try control-f and search for cboldt or Walter and you'll come to some materiality arguments. (There are good comments by everyone in that thread; I just remember mine best. It's a bit of a sentimental favorite, as it contains my first italics disaster.)

[Syl]

This trial is ALL about memories of memories.

There is nothing else here.

[theo]

On materiality, I just do not know. If Libby heard it from government sources -- CIA and State plus Cheney -- and lied to the grand jury and said he heard it from a reporter is that "material" and if so to what?

But I keep remembering another case where a fellow lied under oath at a deposition by saying that he could not recall ever being alone with a certain woman. This was perhaps material to the case in which he gave his deposition because it was a sexual harrassment case and the "certain woman" was a subordinate employee. Eventually, the civil case was thrown out on technical grounds. Did that make the lie about not recalling the "certain woman" immaterial for perjury purposes? I seem to recall that a whole lot of people had opinions on that one way and the other.

[Sara (Squiggler]

Other Tom: When you first asked about materiality, I did a search thru all the filings and as much testimony (no official transcripts) that I could find and only found one reference. I quoted that to you in 2 different threads, but remember no response or discussion. Without looking it up again, my memory is there was one reference in a filing where Fitz said that materiality goes to the questions asked not the answers given. Since I'm not a lawyer, I don't really understand what that means in relation to any crimes.

[Walter]

Other Tom,

Here is a comment by Clarice discussing materiality in the context of jury instructions.

[glenda waggoner]

If I were on jury-the fact Russert cannot remember
a hotly contested incident with a local Buffalo reporter(which subject was he, personally) coupled
with the lie(omission) about talking to Eckenrode,and special care he was given(law offices
with his attorney not GJ) WOULD COMPLETELY MAKE
HIS TESTIMONY RE: Libby- didn't mention Plame to me
on phone at the time this was all breaking in the
public-TOTALLY INCREDIBLE AND UNBELIEVABLE! The
agent Bond couldn't get her stories straight, most
every other witness helped Libby not SP. Juries
are instructed to only consider evidence, so let's
hope this is true-afterwards at the much ballyhooed
press conference they can all say "Besides reasonable doubt Fitzgerald brought a case not
supported by evidence." Wouldn't that be loverly?
And that anyone would trust this spook Larry Johnson is very scary-agent/analysts like him are
main reason the CIA has NO respect.

[Pofarmer]

The problem is that even if we accept Libby's version of his conversation with Russert, how do we account for his testifying that he had no knowledge of Plame's employment until the Russert conversation?

Is that the exact testimony? I'll admit, I haven't devined it out of the transcripts. However, it would certainly be possible for Libby to know that Plame worked at the CIA, without knowing she was directly responsible for Joe's trip. Or, was the fact the "Wilson's wife works at CIA" just a rumor from reporters they were trying to track down untill somebody hit em with the big one?

[cathyf]

Again, maybe both Fleischer and Russert are mistaken or even lying. The same is true for Miller and Cooper as well.

Theo, you seem to be working from the underlying assumption that it is somehow wildly implausible that four people failed to remember correctly four events.

Obviously you've never graded exams...

[Jane]

Clarice,

What is your recollection of the age of the jurors? How many would you guess are over 50?

And since it is -4 degrees here, with a windchill of -45 degrees, I'm wondering why you are not out in the sun!

[Syl]

Again and more...

All Libby learned in early June was wifey:cia NOT that she was involved in trip. Lots of govt people with spouses in govt. BFD. Just a piece of gossip.

The surprising info he heard from reporter(s) was that she was involved in trip but his memory conflated it ALL as info he was 'learning as if for the first time'.

Libby remembers being surprised. Libby remembers he had a heated convo with Russert and is sure it was Russert who told him.

Libby testified to what his memory told him. Libby knows he's careful about classified. CIA classification can go either way so he knows he was careful and 'remembers' exactly how he would have presented it to reporters WHETHER he knew it was true or not.

Note: Libby did not tell Miller that wifey sent him to Niger. That was the part of the info he was 'surprised' to learn later. Libby did not tell Ari she sent him on the trip. Ditto.

Libby's memory conflates it all as having come from [Russert] even though he actually did remember part of it. That's why his testimony is so confusing, his memory was confused as well.

Fitz' case is entirely circumstantial and linear. Libby's memory is not linear. Libby testified to what he remembered and how he would have dealt with the info.

If the above scenario is reasonable, you must acquit because it fits the 'facts' as well as fitz' theory.

[theo]

In a narrow sense you are right Cathyf. I have never graded exams.

But in order to Libby to be completely accurate in his description of what happened, ALL of Russert, Miller, Cooper and Fleischer must be incorrect in their testimony as it relates to him. Is that "wildly implausible"? Hmmmmmm. Let me say that I would not think that to be the most likely explanation.

What is far more plausible is that they all got some part of the story wrong -- including Libby. But testifying incorrectly is not the same as perjury and even a belief that a witness lied under oath is not enough to convict unless that belief is "beyond a reasonable doubt."

[Lew Clark]

Question: What do Valerie Plame, Anna Nicole Smith, and Britney Spears have in common?

Answer: Intelligent, informed people don't think any of these women are/were covert agents.

But, if Valerie was ever a covert agent, she will never function as one again. Smith died under mysterious circumstances. And Spears has obviously been exposed to some really strange substance(s) that have destroyed her brain (polonium?).

Coincidence? I DON'T THINK SO!

[Ralph L.]

In my in-box this morning was a form letter from UNC asking us not to bribe their employees. I said "Looks like we can't send them free (semiannual church) BBQ tickets anymore." My boss said "You said the same exact thing last week." I said I've never seen the letter before.

Who goes to prison?

In my defense, I have a much better memory usually than he does, I'd swear he's made this kind of mistake/lie before, he may have heard it from his father, and I would have filed the letter if I'd seen it last week. I was off most of the week bothering bloggers and buggering brothers.

In his defense, if I'm not paying attention, things don't always stick in my head, and he is the boss.

I would not want my freedom or lack of it determined by someone's recollection, not even my own.