Why Might Judy Miller Lie Misremember?

Judy Miller's testimony was filled with mystery.  She originally told the grand jury that she had no recollection of a June 23, 2003 meeting with Libby, and believed she chatted with his assistant.  At the exhortation of Special Counsel Fitzgerald she checked for additional notebooks and (yea!) found some in a shopping bag under her desk.  A notebook entry about a June 23 meeting with Libby so refreshed her memory that, although it is not memorialized in her notebook, she could even recall his demeanor as angry and upset.

Oddly, however, other entries in her notebook lack a similar power to spur Total Recall.  Her notation about "Valerie Flame"?  Ms. Miller has no idea how that got there, but she thinks it was not related to Libby.  She believes she talked to other sources about Ms. Plame, but can't remember who.  In fact, she apparently spent 85 days in jail without being able to remember who it was she might be protecting.

Well, maybe a jury will believe that.  But let me sketch some reasons that Ms. Miller might be, well, conveniently absent-minded with her "I Forgot" testimony.

The Matt Cooper story is critical here.  Mr. Cooper was cited for contempt in the summer of 2004 for refusing to respond to a subpoena from Special Counsel Fitzgerald ordering him to testify about conversations with I. Lewis Libby.  Eventually a deal was struck, Cooper testifed, and guess what?  During his Libby testimony he told Fitzgerald that he had other sources for the Plame leak, so Fitzgerald slapped him with a second subpoena.

None of this was lost on Ms. Miller, who shared counsel with Cooper as he fought his second subpoena and she fought her first.

So - one might guess that Ms. Miller concluded that forgetting about other sources was more prudent than the strategy adopted by Mr. Cooper.  Here is a WaPo recap:

Initially, Fitzgerald appeared focused on the theory that Libby had leaked Plame's identity, according to lawyers involved in the case. He had interviewed three other reporters about their conversations with Libby, but all three indicated he either did not discuss Plame or did not reveal her identity.

He also sought testimony from Cooper about his July 2003 story in Time. In 2004, Cooper obtained a waiver from Libby to discuss their conversation, as had the three other reporters.

Cooper and his attorneys were surprised that Fitzgerald agreed to ask Cooper questions only about his conversations with Libby, sources familiar with the investigation said.

The sources said Fitzgerald looked surprised in the August 2004 deposition when Cooper said it was he who brought up Wilson's wife with Libby, and that Libby responded, "Yeah, I heard that, too."

The prosecutor pressed Cooper to then explain how he knew about Wilson's wife in the first place, and Cooper said he would not answer the question because it did not involve Libby, the sources said.

That testimony contributed to a lengthy legal battle, as Fitzgerald sought to compel Cooper to testify before a grand jury about his conversation with the source. He also sought testimony from New York Times reporter Judith Miller.

Ms. Miller may have concluded that surprising the Special Counsel with new sources is a mistake.

And why might she choose to stick with her original story rather than allow her memory to improve with age, as happened with CIA official Robert Grenier?  Let me suggest a simple, plausible, but HYPOTHETICAL reason - she is protecting Robert Armitage.

In June 2003 Ms. Miller, who had covered the State Dept. at one time, was asking questions about the Wilson trip.  Robert Armitage was leaking to Bob Woodward about the Wilson trip, and had no particular reason to think that the Plame tidbit was sensitive.
So maybe he mentioned it to Ms. Miller.  Implausible?  They were both in the Aspen Institute, they were linked to Ahmad Chalabi and the Iraqi National Congress - where is the reasonable doubt threshold here?

But if Armitage did leak to Miller, it was surely obvious to Ms. Miller that Fitzgerald was unaware of this.  And by the summer of 2006 it became public knowledge that Armitage had been a double-leaker, to Novak and Woodward. 

Leaving Ms. Miller where?  If she testifies that her new and improved memory is that Richard Armitage was her original source and that she may well have asked Libby about Plame in June, even Fitzgerald's patience with Armitage may become exhausted.  Armitage was forthcoming about Novak, but forgot Woodward; he remembered Woodward, but forgot miller - maybe this will start to look like obstruction.

So perhaps Ms. Miller is worried that if her memory improves her testimony might be critical is sending her original source to jail.  What to do, what to do?

This is speculative, and I have no idea what the defense may plan to present when they tackle Miller's testimony in their Big Finish.  However, the scenario above strikes me as a plausible argument explaining why Miller might be shading her testimony, why she may have concealed that she asked Libby about Plame (that admission would make the existence of a prior source obvious), and why she is continuing to be resolute in her forgetfulness.  At the level of reasonable doubt, a jury may have trouble dismissing the possibility that Ms. Miller is covering for someone else.

Comments

[clarice]

I am in full agreement about her motive. She said as much on the stand.
As for Armitage, however, he was no fan of Chalabi who I still maintain was much and unjustly maligned by the CIA and DoS.
http://www.americanthinker.com/2006/10/richard_armitage_and_the_quiet.html>Liberty TV

But it is interesting to see this article by Sanger who (per FDL) just found out that Libby's subpoena for his testimony will be granted.

[Florence Schmieg]

This morning Nick Kristof is at it again, publishing a column filled with inuendo and blatant accusations against Dick Cheney in relationship to the Libby case. I guess he didn't learn a thing from his near death experience over the Hatfill jihad he waged. But of course, Dick Cheney is fair game for the NY Times.

[Great Banana]

So perhaps Ms. Miller is worried that if her memory improves her testimony might be critical is sending her original source to jail. What to do, what to do?

So, you think she would be willing to send an innocent man to jail (Libby) to protect her source (Armitage)?

Again, I ask, with all of the various people having shady memories, and not being completely forthcoming, why is only Libby on trial? It seems to me that Fitz could have picked any number of individuals to go after for perjury and/or obstruction (with the same amount of, perhaps even better, evidence), but choose Libby to be his fall guy. Why? BDS? A desire to not to be seen as a failure (i.e., he felt the need to nab "someone" from the administration)?

I honestly cannot see what could possibly have led Fitz to have a good faith belief that out of everyone involved, Libby was truly the guy who did the most wrong and who needed to be prosecuted. Granted, I did not see all the evidence he saw, but he has now had his chance to put his case on, and I'm even less convinced then before that he had something to give him a good faith belief that Libby was the bad guy in all of this.

[Jane]

It seems to me that Fitz could have picked any number of individuals to go after for perjury and/or obstruction (with the same amount of, perhaps even better, evidence), but choose Libby to be his fall guy. Why? BDS? A desire to not to be seen as a failure (i.e., he felt the need to nab "someone" from the administration)?

I think he was aiming at Cheney. At least that makes the most sense to me. When Libby didn't flip, with the moonbats at his back, he had to go forward, or so he thought.

[clarice]

She could have said at trial, that she was unprepared when Fitz (after his agreement with her) sprung that on her, that she'd had no opportunity to think about it then having just found those notes and that with time she thinks her other sources were (and name them). Instead, I think she opted for a stick it out version which is utterly incredible. Same result, she might think,"who'd believe I went to jail for 85 days to keep from disclosing the identity of people I can't recall?"

Well, Armitage will surely be called by the defense along with his phone and visitor's log.

[Road Dog]

Clarice/Tom - I've been lurking for a while now and just want to say thanks to you and the other bloggers (like Lance from Maine) devoting so much time and effort into this case, as well as sharing insights and analysis. I may add some more of my thoughts later, but after 25 years combined of law enforcement and practicing law, this prosecution is the biggest waste of resources I've ever seen. But what prompted me to finally post was Fitz' statements to the court about following the DOJ guidelines for investigating reports. If the Libby GJ testimony and "lies" to the FBI was truly obstructive to the investigation, Fitz would have been spending alot more time investigating reporters than he did. I subscibe to the theory that Libby was a little fish Fitz wanted to use as bait for a bigger one. And to keep the analogy of a fishing trip going, Fitz doesn't have a strong enough line to reel Libby in, but doesn't want to cut the line and let him go.

[Great Banana]

Jane,

I think he was aiming at Cheney. At least that makes the most sense to me. When Libby didn't flip, with the moonbats at his back, he had to go forward, or so he thought.

Even this doesn't make sense. Since Fitz knew the leaker was Armitage, and apparently knew that no actual crime had been committed by the leak, what was he aiming at Cheney for?

I think that this is a problem with special prosecutors in general. Once appointed, they feel the need to accomplish "something" to justify themselves and the money they spend. Thus, they continue investigating more and more things away from the original investiation, and eventually try to find something, anything, to prosecute.

I am fully and completely against ever having any special prosecutor appointed ever again, for any reason. They are nothing more than modern day star chambers run amok.

[Other Tom]

Off-topic, but I gotta get on record as withdrawing my prediction that Libby would testify. From the accounts of his demeanor on the grand jury audiotapes, it appears that much of the benefit of his testifying has already been attained.

Further off-topic: I think it is way past time for partisans on both sides of this case to disclose where they have stood on the issue of Special Prosecutors and Special Counsel over the past three decades. For my part, the last one who was appropriately appointed was Leon Jaworski. I believe that every single one of them, from that day to this, has done far more to harm the administration of justice than to help it. The institution is an invitation to abuse, and thus far no one has been able to resist the invitation. Don Smaltz, Kenneth Starr, Lawrence Walsh, the guy who went after Hamilton Jordan--need I go on?

[clarice]

Thanks, Road Dog.JOM's work is largely a collaborative effort--and I mean that sincerely, not in the Acadmey Awards sense of it--so many people digging to get to the truth.

[Great Banana]

I agree with Other Tom on special prosecutors.

The political process can take care of these issues. Congress has the power to investigate and subpoena. Yes, sometimes some people will get away with things b/c the political will is not there to go after them. But, the "solution" of special prosecutors creates more problems then it solves.

[Other Tom]

Amazing--Great Banana got his anti-SP rant published while I was typing mine. Good for him (or her), and I'm most happy to second that opinion.

[clarice]

OT, COngress agreed and said no more independent prosecutors, recognizing the excesses you note. DoJ then set up a special prosecutor system, far more contrained. Comey, to get Fitz this position, went outside that statutory framework and created this special special prosecutor without even the constraints formerly put on the independent prosecutor with this certain result.
The judge made a major error in this case:Not grantng Libby's motion to dismiss on the ground that the appointment was unconstitutional.
http://www.americanthinker.com/2006/03/the_potemkin_prosecution_part_1.html>Appointment

[Jane]

what was he aiming at Cheney for?

For being elected? Naw, you make a good point GB - Fitz appeared to be caught on a speeding train, egged on by Schumer and the rest of the moonbats and dedicated to getting those big bad guys in the WH.

I'd find it helpful to know if Fitz character has deserved impugning in the past - Andrew McCarthy apparently would say "no". it's clear that something (or someone) egged Fitz on. And apparently it had to do with the Bush WH, or maybe the war - because Armitage, Powell et. al. seemed to be excluded because they put distance between themselves and the WH.

[clarice]

***DoJ then set up a special prosecutor system, far more conStrained**********

[hit and run]

OT

Happy Ronald Reagan Birthday Day

[Great Banana]

Him.

[azaghal]

Pardon the vanity. I'm reposting this from the previous thread because it addresses something that seems to be an area of common misunderstanding.

Concerning Agent Bond's notetaking technique. Juror question:

JW: (to Bond) Why didn't you write down the comments by Mr Libby's lawyer in October 2003 that Libby hadn't had enough time to review documents?

B: I typically just write down the notes from the interviewee.

To my mind this is not an honest response. Following the interview Bond will write up a summary, known as an FD-302 (the form name). A "302" is not a summary of interview but simply a summary of investigation. The investigation in question could be an interview, could be a physical surveillance, could be a summary of documentary analysis, could be many things. Anythng relevant to the particular investigative step should be included.

With that in mind, you can bet that one relevant factor in the interview would be: who was present. Bond should have included a list of all who were present--I'm confident that she did. Now, if Tate had interjected himself into the conversation and made a statement that 1) in some way incriminated Libby or 2) in some way provided an investigative lead, is there anyone here who thinks Bond would not have included Tate's statement(s)? It's all part of the investigative step in question (an interview with attorney present), and the entire context is relevant. Bond was (theoretically) there to investigate, not to incriminate.

Wells' cross illustrates how tactically stupid the decision to exclude Tate's request was. It lead directly to Bond being impeached for bias and lack of credibility. Of course, we don't really know who made that decision--was it Bond, or was it a superior, whether FBI or DoJ? As I wrote earlier, who seriously thinks this summary was Bond's work and Bond's work alone?

[Great Banana]

I'd find it helpful to know if Fitz character has deserved impugning in the past - Andrew McCarthy apparently would say "no". it's clear that something (or someone) egged Fitz on. And apparently it had to do with the Bush WH, or maybe the war - because Armitage, Powell et. al. seemed to be excluded because they put distance between themselves and the WH.

McCathy's problem is he knew Fitz as a colleague, which shades his judgment. I have known plenty of lawyers who other lawyers think are great guys, with good character. However, having actually dealt with those lawyers on cases, they clearly are not good guys and do not have good character.

Plus, lawyers like to believe practicing law is "noble" and all other lawyers, for the most part, are honest, ethical, and fair. My experience is that this simply is not true, in any sense. Lawyers are just like anyone else, there are as many unethical, dishonest lawyers as there are unethical, dishonest people in any other business.

[hit and run]

azaghal - post it again on the new new thread. And any other thread that is posted today. Not vanity...a great insight!

[Jane]

Azaqhal,

It was worth reading twice.

[azaghal]

I'd find it helpful to know if Fitz character has deserved impugning in the past...

I know someone who came away from a meeting with Fitz saying: that guy needs to get laid. Casual vulgarity? Serious impugning of character? You be the judge. (True story)

[clarice]

Yes, azaghal.

I thought she said Eckenrode wrote up the 302.

More on notetakeing vs. videotaping (this time re the NCIS):
"Seven years into the 21st century, it's long past time for NCIS to catch up to 20th-century technology.

The investigators of the Naval Criminal Investigative Service, the federal agency responsible for investigating sailors and Marines accused of criminal acts, must immediately start recording their interviews and interrogations of witnesses and suspects with something better than a ballpoint pen.

The perils of not doing so are apparent to anyone following the Article 32 hearing of Marine 2nd Lt. Nathan Phan, who stands accused of assaulting three Iraqis in March and April, and making a false official statement regarding one of the incidents. Defense witnesses testified last month that NCIS agents added false material to the statements the agents were collecting from those witnesses while researching the charges against Phan. We may be stuck with a "he said, she said" dispute over what happened in those interviews, and it shouldn't have to be that way.

The disputed testimony in Phan's case has cast a harsh light on the outdated methods NCIS agents use to record those statements. Essentially, NCIS agents write down the statements of the witnesses they are questioning, and then have witnesses initial their own statements. But that leaves far too much room for error or interpretation. At least one witness now says he signed off on an inaccurate statement because he was busy with guard duty in Iraq."

http://www.nctimes.com/articles/2007/02/06/opinion/editorials/19_09_402_5_07.txt>pen

[clarice]

GB, In vouching for Fitz, McCarthy was not only vouching for a friend but for himself. He worked for Fitz in the SDNY.

[hit and run]

I know someone who came away from a meeting with Fitz saying: that guy needs to get laid.

Well, up until recently, he could have chosen from just about anybody on the lefty blogs.

But his star has faded and is fading quickly in those quarters, I would think.

He better act fast.

[fdcol63]

We certainly want a system where there is some mechanism for oversight and independent investigation into allegations of misconduct by elected and appointed officials in all 3 branches of government and in the Federal bureaucracy.

However, as Other Tom said, there's definitely a potential for, and probability of, abuse in ANY Special Prosecutor who needs to justify his or her position.

What should really concern us all - especially when we consider this investigation along with many recent judicial appointments and executive branch confirmation hearings - is that we're creating such a system of hyper-scrutiny and unrealistic expectations of nominees and other officials that intelligent, competent, and emotionally stable candidates will not put themselves or their families through these processes to serve the public.

We'll continue to get increasingly mediocre and selfish "public servants" who will endure this hyper-scrutiny and partisan mud-slinging for their own edification and pursuit of power.

[Other Tom]

Clarice, I well remember your posts (and American Thinker articles) on the constitutional issue surrounding this appointment. I felt the defense had a rather compelling argument, but held out little hope that a trial judge would grant the motion. I thought at the time that an immediate appeal to the DC Circuit was available, but evidently not. In any event, that issue is looming large out there for any appeal following a conviction.

As to Fitz personally, I have zero knowledge and no opinion. I just think he has been seduced by the unrestrained power of the office, as have all of his predecessors. Try to imagine a prosecutor being handed that power and those resources, and a few months later saying "sorry, folks--no wrongdoing here, nothing worth prosecuting." No one who has ever encountered a prosecutor, regardless of political alignment, could imagine any such thing.

[jwest]

Special prosecutors are a troubling answer to tough problem. Granted, they have done a great deal of harm, but what else is there?

With all the crimes committed during the Clinton administration, would we have trusted Janet Reno to bring the guilty to trial? Would the moonbats trust Ashcroft to investigate Bush? If Fitz is an example of non-partisan professionalism at the Justice Department, how does this country continue to operate?

[hit and run]

We may be stuck with a "he said, she said" dispute over what happened in those interviews, and it shouldn't have to be that way.

I know I'm whipped up into an anti-prosecutor frenzy with the Libby trial - but that's just criminal.

Two things -- one, it makes convicting an innocent person too possible.

And two, it could come back and bite prosecutions in the butt when guilty persons get off because the investigations are called into question enough for reasonable doubt.

Bad Bad Bad

But why? Why are things so outdated? Slow bureaucracy, or someone thinks it's better that way?

Some of us are so far removed from this type of stuff normally that it seems like it could only be fiction. And bad fiction - if I read something like that in a novel, I would curse the author of making sh*t up that is unbelievable.

Blech

[clarice]

Yes, fdcol63. Criminalize politics--and that is this case in a nutshell--and you make it even harder than it already is to attract good people to public service.

You cannot believe what effect something like this has on people and their families. I live here, and I know.

[Seixon]

In fact, if Miller already knew back in June when she says she first spoke to Libby, then that would back up Libby's claim that he was of the state of mind that all the reporters knew about it.

Nicholas Kristof knew, I am sure. He worked together with Miller at the Times. No sharing? Cooper shared with everyone at TIME, Woodward claims he shared it with Pincus, the only one who seemingly didn't share it with another reporter was Novak.

Then we have David Gregory... and Andrea Mitchell... and by extension Russert....

Gosh, it almost seems as if all the reporters coving the story already knew by mid-June that Plame was CIA.

And just for my state of mind, why in the world was Fitzgerald allowed to continue his investigation when he found out within 2 months that no crime had been committed? Can anyone explain?

[azaghal]

clarice, as you've noted more than once, he was also vouching for the hyper envelope pushing prosecutorial tactics that were largely pioneered in the Southern District.

Gotta do my taxes this a.m. Ugh. Look what they're being used for!

[Appalled Moderate]

Other Tom:

It was pretty clear from Iran Contra to the Starr follies that the Special Prosecutor law was not functioning in a useful way. I was glad to see the special counsel go. There is too much of an institutional bias to finding a charge -- any charge - to justify the investigation.

I wonder what would have happened if there had been no Fitz in this case. If the FBI simply closed up shop, there would have been screams of a cover up, and, based on the coverage up to December '03, these screams would have focused on Rove, and they may have reached such an intensity that Rove would have had to go. I also wonder, if Armitage had been identified early on as the leaker, whether that information would have been believed or reported.

I am enough of a cynic that the way the Plame things has played out has not been the disaster for this administration it could have been. For one thing, it stretched the cycle of the scandal to past 2004 (so the election was not unduly affected). For another, the chief of staff of the Vice President is not a high enough official to really stain this presidency.

TM:

Interesting theory. I think Judy is clearly protecting her other sources (and whatever future she might have in journalism), rather than just forgetting. Problem is, her other sources really could be anybody, and I don't think you can prove different. As a juror, I don't think I'd be all that convinced by Judy Miller's testimony, because it is very clear her memory is too convenient -- and that convenience could include "remembering" things that made Fitz happy but never really happened. She just does not get past reasonable doubt.

[Other Tom]

Fdcold, I'm reminded of Teddy Kennedy's acknowledging that his own behavior could not possibly withstand the scrutiny he was applying to then-nominee Joseph Alito. That little gem passed largely unnoticed, but a gem it is nonetheless.

[clarice]

OT, one independent prosecutor, a private atty, Jacob Stein, did just that--walked away saying after investigation the matter was too trivial to pursue further. The special counsel regs now in place compelled that the counsel selected be a private, non-DOJ attorney--and yet Comey overrode that to appoint fitz (I think due to a promise to Schumer that he'd do that.)

[Sue]

I am not in the crowd that Fitzgerald is incompetent or corrupt or any of the other characterizations of him that have been leveled. His specialty has been flipping the little guy to get to the big guy. You need to keep that in mind when you think about Comey appointing him. Anyway, he thought there was a conspiracy, again his specialty, he probably still thinks it, no evidence not deterring him, and did not think Libby would fall on the sword to protect Cheney. I don't think Fitzgerald was investigating the IIPA, but with his liberal interpretation of how laws should be written, he probably was looking at the Espionage Act or some other obscure law that would punish a person who criticized a noble whistleblower.

[Dan S]

I'm way behind on comments, but this struck me differently that it has before (I learned it as if for the first time!):

"In fact, she apparently spent 85 days in jail without being able to remember who it was she might be protecting."

That self-impeaches. If she can't remember, she has no need to protect anyone, she just testifies that she doesn't remember.

So, apparently, the trauma of being jailed wiped her memory, I guess.

[Florence Schmieg]

Jonathan Turley, who still is acreditted to practice law in Illinois and is thus quite connected there, stated on a Fox News show a few years back that Fitzgerald has had to be reigned in by the judiciary on many occasions in Illinois. This from Turley, a dedicated liberal and no fan of the Bush administration. He is also know for working up the food chain to get higher ups by setting perjury traps for those lower down and then, under threat, getting them to flip on the higher ups he is after. I believe that is what he did with Governor Ryan and is attempting with Mayor Daley. This is why I am convinced that he was after Cheney and or Rove and thought he would flip Libby in his usual fashion. So far it hasn't worked. I think that is because there is no there there.

[Other Tom]

Jwest, the answer to your question is, that's why we have elections. Not perfect, but aided by whistle-blowers and a free press (extremely imperfect), the idea is that the ultimate remedy lies at the ballot box. Undoubtedly politicians will "get away with" stuff they shouldn't, but there simply can't be a perfect system. The current one just imposes a much greater cost than any benefit we get from it, at least in my opinion.

Meanwhile, in other news...anybody know anything about what's going on in the courtroom?

[Great Banana]

With all the crimes committed during the Clinton administration, would we have trusted Janet Reno to bring the guilty to trial?

What good did any of those investigations do, ultimately? Waste a lot of money, send some lower level people to jail. I'm not convinced it was worth it in the least.

Would the moonbats trust Ashcroft to investigate Bush?

This is hardly a good argument for special prosecutors. So what if the moonbats don't trust it. They don't trust anything that does not go the way they want it to. They believe the 2000 election was "stolen", that diebold machines are set up to steal elections, etc., etc.

Congress has the ability to investigate. If the political will is not there to investigate, try to create that will. We have a free media - they can investigate. Yes, there will be cases of politicians getting away with things. But, that has always been the case - throughout history. there is no way to eliminate all corruption. giving unlimited power and money with no oversight to someone outside of the political process, to investigate for as long as they like, and to prosecute whenever, whoever they like, is not a good answer and should not be done.

[Patrick R. Sullivan]

Something odd in Libby's GJ testimony that is being released today; Libby says he forgot about knowing about the wife being CIA until Russert raised it. In the cross of Agent Bond they went out of their way to get her to say he didn't specifically say that, that it was a conclusion she jumped to.

Why, if his GJ testimony has him saying he forgot, bother to cross examine Bond on the point?

[clarice]

I don't know the answer for how to deal with official corruption if you do not trust the person you elected to office and his designated AG to pursue it. Maybe it's just the ballot box.
Maybe we need a standing commission to whom the AG must report his work on such charges. Frankly, I think that I'd rather live with the corruption than continue to endure these constant assaults on justice.Britain having ended star chambers has devised another way--the commission method. France bars any criminal investigation of public office holders until they are out of office. I know of no democracy which follows our lead on this.

[Tom Bowler]

H&R,

Well, up until recently, he could have chosen from just about anybody on the lefty blogs.

But his star has faded and is fading quickly in those quarters, I would think.

He better act fast.

And I'd be willing to bet his standing with the left will get worse before it gets better. With regard to this comment you made in the other thread:

But to think that Fitz went down this road and indicted Libby and dragged him through hell with the intention to right the wrongs in the media is impossible to believe, I think.

You make perfect sense. However, I'll continue my fantasizing anyway, at least until somebody can tell me that it would be possible for a prosecutor to successfully make a case against the combined forces of the CIA hiding behind national security and the press hiding behind the first amendment.

Can any of the legal talent here answer the question, is it reasonable to believe a prosecutor could make that kind of a case head on? Think of the MSM uproar if he tried. By going after Libby he has them all thinking they'll make history bringing down the evil administration. How can they refuse?

[clarice]

Patrick..the clue may be "CIA". The June note simply says "counter proliferation".

[maryrose]

RoadDog:
Thanks for posting and adding to the discussion. It's always rewarding to get a fresh viewpoint.
AM:
Good take on Judy Miller as far as motives and modus operandi.
OT:
So proud of the Repubs in the Senate for hanging tough. Take that Harry{Illegal land deal} Reid.

[Fritz (not Fitz)]

"Jonathan Turley, who still is acreditted to practice law in Illinois and is thus quite connected there, stated on a Fox News show a few years back that Fitzgerald has had to be reigned in by the judiciary on many occasions in Illinois."

Instead of looking at complex theories could it be that Fitz is just an overzealous prosecuter who is used to getting his way. Fitz is also the prosecuter in media baron Conrad Blacks case.

"On 17 November 2005, eleven criminal fraud charges were brought by U. S. Attorney Patrick Fitzgerald against Black and three former Hollinger executives. Eight of the criminal fraud charges are against Black, and a warrant has been issued for his arrest. On 15 December 2005, four new federal charges were laid against Black by Fitzgerald in Chicago. The new counts include racketeering, obstruction of justice, money laundering and wire fraud. Under the racketeering count, Fitzgerald is seeking forfeiture of more than $92,000,000 (USD)."

Mark Steyn who worked for Black writesI'm more convinced than ever that 99 percent of the various charges against them are a lot of hooey.

[jwest]

Great Banana & Other Tom,

Your arguments against SP’s are predicated on a “free press” bringing truth to the masses for change at elections.

If we had an honest press, I would agree. But, as is amply demonstrated by the Libby case, the current press is the problem, not the solution.

[clarice]

Motivation is always so complex. I think the SDNY was utterly out of control under Mary Jo White and as the SSCI noted their excessively aggressive methods were often counterproductive. (The case against the WTC bombers deserves close scrutiny . I am told in their zeal to get the "fall guys" they buried the lede--Iraq was behind it.

Now, Javerts see themselves as shining knights fighting for truth and justice, but can we discount obsessive,overweening ambition and the frisson of almost unlimited power and control over other peoples' lives?

[Dan S]

"And just for my state of mind, why in the world was Fitzgerald allowed to continue his investigation when he found out within 2 months that no crime had been committed? Can anyone explain?

Posted by: Seixon | February 06, 2007 at 07:49 AM "

There is no "off" switch built onto a Special Prosecutor, which is a large part of the problem.

[Great Banana]

Jwest,

Your arguments against SP’s are predicated on a “free press” bringing truth to the masses for change at elections.

If we had an honest press, I would agree. But, as is amply demonstrated by the Libby case, the current press is the problem, not the solution.

No, I mentioned a free press as one of the things that can be used when there is evidecne of corruption. Free elections are another. Also, congress has the power to investigate and subpoena. That sometimes congress will not have the political will or desire to investigate is not a reason to set up a new king - the special prosecutor. After all, we get what we deserve in elections.

I think the desire for a special prosecutor is a very liberal desire. The wish for the government to someohow save us from our own choices (elections).

Every time we appoint a special prosecutor, we are saying that our system of government does not work and we must go outside that system of government for a solution. That, to me, is asinine. Why not just get rid of our system of government then?

[Christopher Fotos]

Instead of looking at complex theories could it be that Fitz is just an overzealous prosecuter who is used to getting his way.

That's how it looks to me. As a layman, over the years it's struck me that there's a class of prosecutors simply immune to reason and evidence, going back to the Salem witch trials day-care child-abuse cases of the 1980's. It's a different problem than the mere corruption with Nifong, I think.

[danking70]

TM, I would suggest including the word obvious to your last sentence.

"At the level of reasonable doubt, a jury may have trouble dismissing the obvious possibility that Ms. Miller is covering for someone else."

It seemed the jurors were even able to pick that up too.

[centralcal]

Does anyone have a best guess how many hours of Libby's GJ tape replay remain?

[fdcol63]

jwest and Great Banana,

I think you're both right. We already have mechanisms in place to deal with these issues, but they require willingness on the part of Congress to fully and fairly investigate, and on a well-informed electorate to "throw the bums out" at the next election.

Unforunately, it seems that partisanship has completed eroded even the veneer of objectivity on the part of our elected Congressional leadership, and it's impossible to get a well-informed and well-educated electorate because of the pervasive Left-leaning bias of the MSM and the innuendos, uncovered stories, half-truths, and blatant lies that they pass along to us.

Thank goodness for New Media and blogs like JOM, and the tireless efforts of people like Clarice, Tom Maguire, et al. Those of us who are really interested now are able to hear "the other side" and get more "balance".

Unfortunately, the Leftists still dominate the MSM, and most people still get their news from an industry (print, broadcast, etc.) that is still overwhelmingly dominated by self-described Democratic Party supporters and liberals.

Add to this the Leftist dominance in academia and Hollywood, which both have an enormous impact on shaping the belief systems of young Americans, and we can see that it will still take many years before real political and ideological balance is brought back into the system.

Until that occurs, I'm afraid that the "checks and balances" mechanisms built into our system by The Founders will need some external assistance from SOMEWHERE.

LOL

[Dan S]

"F: I'll show you a phone bill showing that Mr. Novak called you between July 8th and 11th. Do you see your number on this phone bill?

L: (recognizes an extension, but says it's not his main number)"

It's interesting that phone records come up on Libby's end, but not (often? at all?) on reporters' ends. Of course, I'm sure this is due at least in part to freedom of the press issues, but does it harm Libby's chance at a fair trial, and should the civil rights of an individual be placed behind the rights of a protected class?

In my opinion the weight given to reporter's testimony should be lessened by every bit of protection they claim. That protection erects a barrier behind which exculpatory information can be hidden. Libby has had his rights to 5th amendment protection restricted by compliance with a Presidential order, his hands are already "tied" in that respect, now they are tied even more tightly to protect the media's "freedom?"

Does this seem fair to anyone?

[jwest]

GB,

There needs to be some mechanism to investigate and prosecute actual crimes that take place during the term of an administration.

This is difficult to do when the head of the Justice Department is appointed by the administration. The problems with the SP stem from the abuse of the powers by overzealous individuals.

Fitz, if he had an open, logical mind, would have shut this thing down 30 days after he was appointed. It would have been bright mark on the history of Special Prosecutors

[Other Tom]

Concerning the free press, it's probably never been freer and more robust than it is today. Every literate citizen recognizes that the NYT, WaPo and the three formerly major networks (and CNN) are biased; there is no longer any serious question about it. However, with the spread of cable, satellite, and above all the web, the truth is more likely to get out now than ever before. See, e.g. Rathergate: twenty years ago we would never have discovered the fraud in the first place, and if we had we would have had no recourse other than an angry letter to CBS News, which would never have been read on the air.

While we're discussing overzealous prosecutors, I can simply suggest from personal experience that I would include Rudy in that category. A politically ambitious prosecutor is a particularly dangerous animal. Having said that, I fully intend to vote for the man. As I say, there's no such thing as a perfect system, and you can't let the perfect be the enemy of the good.

[danking70]

I had no problem with McCarthy stating that he was a friend and co-worker of Fitz and would give him the benefit of doubt in this political case.

I would hope that all my friends would do the same for me.

However, it is his overly defensive demeanor now that's reflecting badly on him. Hey your buddy's messing up. Call him on it and deal with it.

[Sue]

Does this seem fair to anyone?

No.

[jwest]

What would the world look like today had Clarice been appointed Special Prosecutor in the Plame matter?

[clarice]

Dan S:"Libby has had his rights to 5th amendment protection restricted by compliance with a Presidential order, his hands are already "tied" in that respect, now they are tied even more tightly to protect the media's "freedom?"

Does this seem fair to anyone?"

Not to me. When we discussed Libby's limited options at discovery and the failure of the SP to fully investigate the matter (and thereby deprive Libby of useful exculpatory information) I first raised it.

Had it not been for his hoodwinking of the DC Ct of Appeals, the danger would have been less severe.

[Another Bob]

DanS:

No it isn't at all fair.

I've always been troubled about how a few words in the First Amendment have been stretched beyond their plain meaning to create a protected class in the first place.

I have to stop there, otherwise I'd start writing a book here. This is one of my real sore spots about how American society has evolved.

[Other Tom]

Jwest, I have absolutely no doubt that Clarice would have done the right thing. As a result, she would have vanished down the memory hole like the Mr. Jacob Stein to whom she referred. And that would be too bad, in a sense, but we would still have discovered her here.

[Dan S]

"What would the world look like today had Clarice been appointed Special Prosecutor in the Plame matter?

Posted by: jwest | February 06, 2007 at 08:42 AM"

"Everyone" would know that Cheney and Clarice had a thing going on, and that she decided there was no there there in order to help him cover up ordering the outing of a Noble Defender of American Freedom and a Noble Whistleblower who stood up against the evil BushCo.

These narratives are so easy to write...

[Sue]

F: Do you recall Hadley saying on July 9th that we need to do something about Wilson now, discredit him?

Hadley isn't a prosecution witness, is he?

[Sue]

I just wish the person reporting live from the courtroom for FDL would understand their own 'oh my's' are wishful thinking. It isn't that big of a deal IF FITZ DIDN'T CALL THEM FOR THE PROSECUTION. It obviously didn't help Fitzgerald with his case. Hopefully, someone will relay this message to the echo chamber over there!

[clarice]

HEH! Never would happen. I was nominated twice for the DC Superior Ct and once for the Ct of Appeals. The Carter administration apparently thought I was too conservative. The Reagan administration apparently thought I was too liberal.
And then I said the hell with it. I am no one's idea of a team player.(Of course at the last interview when asked if I'd always wanted to be a judge (what kind of creepy person would that be?) I said I really wanted to be a prima ballerina but I didn't think I was going to make it.

[Dan S]

Clarice,

I think we need more judges that don't really want to be judges, and presecutors that don't really want to be prosecutors, and reps and senators that would relaly rather be doing something else... and all the way up.

But prima ballerinas should really really want to be prima ballerinas.

[Great Banana]

Clarice,

I said I really wanted to be a prima ballerina but I didn't think I was going to make it

Well, you certainly have proven the ability to stay on point.

Jwest - you are stating that the problem with our system is that the top law enforcement official (federally) has a political bias. I understand that. Now, find me someone who has no bias to appoint or to be the special prosecutor. Then I will agree with you.

[clarice]

Some of you may be wondering what my frequently used unclosed ( means. Now it generally is a typo cause I can't type and don't proofread my posts as well as I oughta, but I'm beginning to think it's an unconscious symbol for a stage aside.

[Rocco]

I know someone who came away from a meeting with Fitz saying: that guy needs to get laid.

Evidently the guy is into group sex because he's screwing everyone of us with this farce of a trial!

[Dan S]

Hehe, Clarice. I'm willing to entertain that theory.

I drop a lot of letters when typing. And spaces. But I KNOW that's partly keyboard issues. Too many different keyboards, and at least one is a wee bit sticky.

I prefer blaming outside material objects to my unconscious. The latter is a can of worms I don't want to use as bait.

[Dan S]

*realizes he just left an opening in that post that H&R is apt to drive a semi through*

oops.

[Jane]

Even reading the FDL interpretation of the GJ testimony, Libby comes across as honest and forthright and all the things FDL would not want him to come across like.

And I truly love how Chris Matthews comes across. I wonder how it sounds to a liberal jury?

[Charlie (Colorado)]

But why? Why are things so outdated? Slow bureaucracy, or someone thinks it's better that way?

Charlie's Second Law of Bureaucracies says "bureaucracies always optimize to do what is rewarded." In this case, the prosecutors are rewarded in multiple ways --- from promotion to press relations to public office --- for their convictions. So prosecutors do whatever they can to get convictions.

Feebies are rewarded for "getting bad guys" and for getting good press. (There is no one as concerned with good press as the FBI; it's been that way since Hoover.) Combine that with an ambitious prosecutor in a high-visibility case, and they will tend to find out whatever they think the prosecutor wants to know.

Sure, there are other drives, but when you have a large number of ambitious people, some of them will have either flexible ethics or well-developed rationalization glands.

Outcome?

[Other Tom]

Jane--tell us more about Chris Matthews. I detest that obnoxious clown, and would relish any information that casts him in a bad light.

[Jane]

Well, you certainly have proven the ability to stay on point.

Ooooh that comment deserves some kind of award!

[Jane]

Charlie,

It's just the GJ testimony at FDL - where Libby compained to Russert about the fact that Matthews was telling lies.

Russert said "call the producer" (Adam Levine) and Libby struck out.

I just like the fact that the testimony highlights what an agenda driven jerk Matthews has become.

[Jane]

oops,

It was you OT, not Charlie.

My eyes are old. Sorry.

[jwest]

Am I reading the GJ testimony right?

Libby calls Russert, exchanges pleasantries, starts talking about Andrea (Everyone Knows) Mitchell, a little about Matthews, then Russert says he will call Scooter back.

Libby remembers that Russert mentioned Ms. Wilson on second call.

When Russert testifies, are we suppose to believe that between calls Russert had no contact with Mitchell (or anyone else) on the subject?

[clarice]

Jane, it was not only great but FAST.

[clarice]

jwest, I hope fdl is taking it down right because your point is exactly right.

I am beginning to think Wells' objection to putting in the entire transcript was one of those "don't throw me in the briar patch" things.

[Charlie (Colorado)]

When we discussed Libby's limited options at discovery and the failure of the SP to fully investigate the matter (and thereby deprive Libby of useful exculpatory information) I first raised it.

Had it not been for his hoodwinking of the DC Ct of Appeals, the danger would have been less severe.

Clarice, did anything ever come of your letter to the DC Bar about Fitz?

[Syl]

re special prosecutors who keep broadening their investigations to justify their own existence...

On a moral and ethical level isn't it society's fault that we consider spending money to find evidence of a crime hunky dory, but spending money that finds no evidence of a crime a waste?

Our anger should be placed with those who instigate investigations due to political motive which is the real waste.

Once a legitimate investigative process gets going, to me, the moneys spent is justified whether evidence of a crime was found or not. Justice is as well served by discovering there was no crime, as discovering there was.

[Jane]

So if people are against Special prosecutors - and I'm one of them, how do people feel about the Nifong case in that regard?

[cathyf]

Special prosecutors are a troubling answer to tough problem. Granted, they have done a great deal of harm, but what else is there?

Well, if you read the history of the Star Chamber, it was set up to deal with exactly the same problem. It was politically very popular because if some powerful person did wrong, then the Star Chamber was the refuge of the "little person" who got screwed. And it took decades for the Star Chamber to descend to the point where they were publicly torturing a critic because the guy refused to plead guilty to a charge sheet written in Latin and demanded to hear the charges in English.

I have to admit that I used to think that special prosecutors were a fine solution to a problem that had to be solved. And yes, I cheered as Clinton was hoisted on his own petard, and reasoned that if you don't want a president to be harassed by prosecutors, then don't vote for a guy who breaks the exact same sexual-harassment laws that he took great political credit for passing.

But I have decided that I was completely wrong. Back in the 17th Century, the people finally rose up and decided that it was far better to let the occasional scoundral off than to have this Star Chamber out there as another branch of government jockeying for influence. The founding fathers were extraordinarily sensitive to the issues of out-of-control prosecutors, since a huge amount of Enlightenment thought was dedicated to finding solutions to the problems caused by unchecked government power. These men were very few generations removed from the English Civil War, Star Chambers, Inquisitions, and the political breakdowns of the Reformation. (Before the Reformation, the pope served as a counterweight to the absolute rights of European monarchs. Once that was removed, new institutions had to evolve to replace that. And of course "evolve" in this context is a polite euphemism for "a whole lot of people got killed.")

The solution that the founding fathers came up with was checks and balances, and a system where everyone in the government is either elected or is ultimately accountable to someone who is elected. The Constitution did set up "special" prosecutors and "special" courts. Congress has subpeona power for their hearings, and impeachment is well-defined with the House serving as the "special" prosecutor while the Senate serves as the "special" court.

During Watergate, the "special" prosecutors acted as agents of the House judiciary committee. They were not "special" because they were accountable to nobody, they were "special" because (de facto) they were accountable to Congress (and the HJC in partuicular) rather than to the Executive. This was the "nose in the tent" though, and the next disaster for the constitution was Iran-Contra. There, Congress did its duty and held hearings, but then Ollie North "got off" because Congress doing its investigative duty "screwed up" SP Walsh's case. And the lesson learned was that Congress needs to stop carrying out their constitutional mandate of furthering political disputes in order to leave a clear field of play for the Star Chamber special prosecutors to do their extra-constitutional "mandate"(?) of converting political disputes to criminal prosecutions.

The problem is not just to stop the whole "special prosecutor" outrage, but also to get Congress to resume their oversight duties. If you think about it, this is at the root of a lot of the problems we have with our system. Congress likes special prosecutors for the same reason that they like judicial activism -- under the Constitution, it is their job to hold the hearings, and bear the political fallout of trying to forge compromises that are going to make people unhappy with them. The Congress would much rather have the special prosecutors and the bureaucrats and the judges do their job of making policy, while they retreat to handing out pork full-time.

[roanoke]

I'm reading the same part of the GJ testimony about the Russert phone call and there is no way the Defense should try to claim that Libby mixed up Russert with Cooper.

That just isn't going to fly is it?

He has the specific complaint about Matthews, there is a mention of Mitchell and then the CIA comment by Russert.

Hopefully they don't go with the Libby confused Russert with Cooper-it's got to be better than that.

I guess it is going to depend on Russert's testimony-but if Russert doesn't remember he owes it to fairness to be clear about that.

What I am afraid of is Russert's ego feels bruised and he feels used about supposedly pimping the WMD line before the war.

So someone has to pay.

Russert-is he so completely convinced by Wilson (who's expertise is being an ambassador to Niger from ~1976 to 1978) -that he is willing to be responsible for Libby going to jail.

[clarice]

cathyf..your brilliant posts always leave me wanting more..this was a classic.

[clarice]

Charlie, On Nov 28 I got a letter from Tamara Kessler,Sr Ast Counsel to the OPR acknowledging receipt of my complaint and indicating that office would notify me of the results of that "review when it is complete". I have heard nothing further.

[Dan S]

cathyf,

Nice essay/synopsis. And I agree the real problem is Congress shirking its constitutional responsibilities (a lot of that going around... like Bush signing McCain-Feingold too).

If the trend doesn't change, I predict the system of government will change dramatically before too long. We're just pulling ourselves apart with the aid of a press that seems to want that.

The irony is, if it happens, I predict one of the first things to fall into the sewer will be freedom of the press.

[Great Banana]

Cathyf,

great comment. I agree wholeheartedly.

I would add that Congress also does this trick w/ agencies. Passing the buck to a beauracracy to make "laws" (regulations) that may be unpopular, to insulate themselves from people being unhappy with the laws passed. The created agency then needs to rationalize its own existence and obtain more power / funding, thus they seek to pass ever more "laws" (regulations).

In an efforct to keep their elected office, they continue to seek more and more ways to insulate themselves from being accountable for any decisions.

[jwest]

Cathyf,

Although I agree with you more than it seems, depending on Congress to exercise their oversight responsibilities in the interest of finding the truth instead of promoting their own individual agendas is more than I can hope for.

I believe it is far easier to find an honest individual outside of the beltway to investigate serious allegations of wrongdoing within an administration. Sometimes you’ll get lucky (Starr) and sometimes you’ll get a buffoon in blinders.

Until something better comes along, I cannot in good conscience rely on our elected representatives to keep the good of the country ahead of their own interests. Maybe a fail-safe mechanism attached to the SP (like a random three person panel that needs to agree on the continuation), would help the situation.

[Syl]

There is no "off" switch built onto a Special Prosecutor, which is a large part of the problem.

Well, there was in this one. Fitz wrote a note to Comey asking if he could go after process crimes.

Comey said yes.

I'm with Sue in that I hold no personal animus against fitz. He was doing his job, he's aggressive, he thinks he's right. He was given the power and he knows how to use it.

[Great Banana]

Jwest,

Until something better comes along, I cannot in good conscience rely on our elected representatives to keep the good of the country ahead of their own interests. Maybe a fail-safe mechanism attached to the SP (like a random three person panel that needs to agree on the continuation), would help the situation.

You do realize that special prosecutors are only ever appointed b/c of political interests? So, you are basically appointing someone with unlimited power, unlimited budget, and no oversight based on the political demands of someone else? How is any good ever going to come of that?

Just the fact that SPs are appointed shows that the system would/could work w/o them. But proves, essentially, Cathyf's point, which is that congress does not want the accountability so farms it out to someone unelected and unaccountable.

I have more faith in our system of government than in the whims of a special prosecutor who is unelected and unaccountable.

[cathyf]

Thanks for your kind words, clarice, but I should, in the interest of full disclosure, point out that my position is quite close to being completely plagiarized from the WSJ editorial page position. It only took them 20 years or so to convince me!

[hit and run]

DanS:
*realizes he just left an opening in that post that H&R is apt to drive a semi through*

For future reference - that is a very effective way to cut off any attempt by me to snark. If you point it out, it just ain't fun no more

[clarice]

cathyf--honest and brilliant.Is that any way to go thru life?

[Dan S]

Syl,

If it were an off switch, it would still be there.

I agree there was a breakpoint where Comey could have stopped this. And Fitz himself can any day. The judge could call off THIS trial, but he can't make Fitz stop the investigation, can he? I suppose Congress could defund Fitz.

I started out being a Fitz admirer and fan. That's long gone. At this point I do feel he's crossed the line into at least ethical problems. Part of that is probably external to this case. We've seen others recently more egregious that are undoubtedly affecting my willingness to assume Fitz's integrity.

But even if he can proove sufficiently that Libby lied, he's way off track and he isn't investigating and reporting on what he was tasked with any more. If this whole wound is to heal, a factual report (or at least a statement) from him that there was no crime (not that he can't PROVE one, thus implying a coverup beat him) that he can find, that the leak process was X...Y...Z, that while there may have been some adversarial activity between institutions of government and the Plames, it was just politics as usual would surely aid the process of scabbing it over.

Instead he's scratching his own itch to chalk up some sort of a "win," and picking at the edges of whatever scab forms.

I hope the jury doesn't give him his "win," in any form. That's the ideal outcome in my eyes... at this point.

[Dan S]

H&R,

Don't be teaching your grandmother to suck eggs! :)

[cboldt]

-- I'm with Sue in that I hold no personal animus against fitz. --

That's a gratuitous "compliment" that doesn't express an opinion as to his judgement in this case.

[Barney Frank]

I think that I'd rather live with the corruption than continue to endure these constant assaults on justice.

Isn't unpunished corruption also an assault on justice?

And how is congress setting up special prosecuters, which is not a proper function of the legislative branch, not a trashing of the Constitution?

The greatest threat to a nation's liberties is unchecked and corrupt government power directed at it's citizens. Anything that slows or prevents that is a good thing. There is no reason that a compromise involving rigid oversight, perhaps shared by all three branches or some combination thereof can't produce a workable special prosecuter provision. The unavoidable fact is when alleged crimes involves the executive it is essential to have some type of independent means to investigate and prosecute. The problem we have with Fitzgerald is precisely because the IC law expired and there is no oversight or restraint on him. That is an argument for a prudent Independent Counsel law not an argument for a get out of jail free card for the executive branch. There have been excesses in the past but the value of rooting out some of Nixon's and Clinton's crimes seems to me a pretty large payoff at a pretty small cost.