Following the Libby verdict Special Counsel Fitzgerald offered some bold words about the importance of truth in the American judicial system:
"The truth is what drives our judicial system. If people don’t come forward and tell the truth, we have no hope of making the judicial system work.”
Inspirational! Yet, surprisingly for a man who claims to place such a premium on the truth, Mr. Fitzgerald demonstrates an inconstant relationship with the truth in his own conduct. Let's take a few examples of his own chicanery and deceit from these very proceedings against I. Lewis Libby.
Fitzgerald's cozying of Tim Russert, a key witness against Libby, provides one example. Tim Russert cooperated with the FBI in the fall of 2003 when they had questions about Libby's testimony. In 2004 Fitzgerald wanted Russert to reprise his cooperation and tell the grand jury what he had told the FBI.
Russert and the NBC lawyers negotiated for a bit with Fitzgerald (see p. 30 of Fitzgerald's filing) and then (presumably) decided that in order to maintain appearances it would be better if Russert testified under a court order. But let's note the phony and misleading affidavit signed by Tim Russert - he explains the importance of maintaining source confidentiality as part of a dynamic free press, and then tells the judge (paragraph six) that he cannot even confirm to the government whether he had in fact spoken at all with the government official in question.
My goodness - don't you suppose the judge would have been intrigued to learn that Russert had already confirmed the fact of the conversation, as well as its content, with the FBI? And surely a prosecutor as devoted to the truth as Mr. Fitzgerald would not allow this sort of lie by omission to be left uncorrected in front of a Federal judge?
In fact, Fitzgerald would let this go uncorrected (and stop calling him "Shirley"). But beyond that, Fitzgerald actually made no mention of Russert's previous cooperation is his own filing - he made the point that Russert had, on other occasions, unilaterally waived source confidentiality, but did not cite Russert's extremely on-point waiver in the current instance (see the Richard Clarke footnote on p. 33).
I can't imagine that the two sides thought they could keep Russert's cooperation a secret in the event of a trial, but in the summer of 2004 it was hard to predict where all this was headed. And preserving Russert's secret allowed him later to claim to have taken the high road when he belabored reporters such as Robert Novak for caving in to investigators. This is classic:
Russert asked why it took so long for [Novak] to say anything about his testimony.
"When I was subpoenaed, we announced it," said Russert. "When I testified before Patrick Fitzgerald, we announced that in what I had said and so, too, with Time Magazine and The New York Times.
"Why did you wait almost three years to tell the public that you had been subpoenaed and what you said?" Russert asked.
Ah, well, who knew?
Patrick Fitzgerald continued his dancing with the NBC stars in the matter of David Gregory. Former press secretary Ari Fleischer, testifying under a grant of "use immunity", said that he had disclosed information about Valerie Plame to John Dickerson (then of TIME, now with Slate) and David Gregory of NBC News on July 11 while on the President's trip to Africa.
Fitzgerald never called either of these reporters to confirm or reject this allegation (hey, dude, where's my leak investigation?) but he did note the allegation in a letter to the defense while negotiating disclosure with them. But wait! Did I say he noted the allegation? Let's see what he wrote (Exhibit C starts on p. 10; points 12-16 are on p. 13) - he told the defense that, he was "not aware" of any reporters who knew about Ms. Plame other than Bob Woodward, Bob Novak, Judy Miller, Matt Cooper, and Walter Pincus. That's correct in a Clintonian sense - since Fitzgerald had not vexed himself to call Dickerson or Gregory, one might say he did not "know" whether they had received a leak, although he was certainly "aware" of the possibility.
However, Fitzgerald then added this:
We also advise you that we understand that reporter John Dickerson of Time magazine discussed the trip by Mr. Wilson with government officials at some time on July 11 or after, subsequent to Mr. Cooper learning about Mr. Wilson's wife. Any conversations involving Mr. Dickerson likely took place in Africa and occurred after July 11.
The date is wrong - it was the morning of July 11 - and where is David Gregory in this story? Ari Fleischer's trial testimony was clear (1, 2, 3)- if his grand jury testimony was different, the defense would have highlighted that as yet one more example of his dubious memory.
So why the half-disclosure by Fitzgerald in December 2005? Why the attempt to delay the disclosure that Gregory may have received a leak (much closer to the trial date the defense got Fleischer's grand jury testimony)? Hard to guess - obviously, Gregory's actual story (if he ever tells it) will either discredit Fleischer or Russert, two key witnesses for the prosecution. But knowing Fitzgerald's commitment to the truth, that couldn't be the reason he lied by omission in his letter to the defense.
Ah, well.
Let's just wrap up by introducing one more mystery that may be resolved soon. Judy Miller fought her grand jury subpoena; as part of the legal battle, Fitzgerald submitted a sealed affidavit to the court explaining the importance of her testimony. What did he submit? We still don't know, although Dow Jones and the AP are battling to find out.
But echoes of his filing reverberate in the court decision that ultimately sent Judy Miller to jail for 85 days - there is this, for example from Henderson:
Because my colleagues and I agree that any federal common-law reporter’s privilege that may exist is not absolute and that the Special Counsel’s evidence defeats whatever privilege we may fashion, we need not, and therefore should not, decide anything more today than that the Special Counsel’s evidentiary proffer overcomes any hurdle, however high, a federal common-law reporter’s privilege may erect.
Or this from Tatel:
Because I agree that the balance in this case, which involves the alleged exposure of a covert agent, favors compelling the reporters’ testimony, I join the judgment of the court. I write separately, however, because I find Branzburg v. Hayes, 408 U.S. 665 (1972), more ambiguous than do my colleagues and because I believe that the consensus of forty-nine states plus the District of Columbia—and even the Department of Justice—would require us to protect reporters’ sources as a matter of federal common law were the leak at issue either less harmful or more newsworthy.
So what was in that evidentiary proffer? We may find out one day, but let me predict what we will not find:
an affidavit telling the justices that Armitage and Rove had been identified as the leakers to Novak, but no charges were planned against either of them for that leak;
that Ari Fleischer had confessed to leaking to John Dickerson and David Gregory, but there was no plan to call those two reporter to confirm that;
that Libby had confessed to leaking to Judy Miller on July 12, but he may also have leaked to her on July 8 and Fitzgerald was looking for a perjury charge;
and that Libby had confessed to leaking to Matt Cooper, but again, a perjury charge was in the works.
I'm only guessing, but the judges may have been less convinced of the wisdom of jailing Ms. Miller in that context.
Of course it goes without saying that, given his devotion to truth in the judicial process, Fitzgerald may have disclosed exactly that.
Ah, well.
ERRATA: Here is the site for related filings in the Russert subpoena.
In Miller, Sentelle concurred without agreeing that a reporter privilege exists; Henderson concurred but ducked the existence of a reporter privilege, arguing (as excerpted above) that the facts on offer trump any plausible privilege, as did Tatel, also excerpted above.
SHORTER JANE HAMSHER: Lacking a coherent response I will invoke Ken Starr and trust my readers to boo, skip the link, and avoid unpleasant facts.
He stole the strawberries too.
Posted by: Martin | March 08, 2007 at 10:47 AM
The Russert affidavit is either false or not. If the affidavit is false then you right wingers should do something about it like prosecuting Russert.
On the other hand if it is not outright false and can be debated in front of a judge, then Fitz did nothing wrong by responding and citing an instance where Russert did not protect the confidentiality of a source.
Note that Fitzgerald may not have wanted to tip off the specifics of this case to Libby who was lying and obstructing justice.
Posted by: Pete | March 08, 2007 at 10:47 AM
Pete, come on. If Fitz "didn't want to tip off Libby," that still doesn't give him license to proffer a false affidavit. I suspect that you wouldn't accept Libby lying for a greater cause. You're being ridiculous. If the affidavit is untrue, you should be outraged. If you believe it is true, you should show us some reason you hold that belief.
I won't hold my breath.
Posted by: Patrick | March 08, 2007 at 10:54 AM
The Libby confession about leaking to Cooper is pretty interesting because initially Rove did not confess to doing so.
Was Libby covering up for Rove?
Posted by: Pete | March 08, 2007 at 10:54 AM
OK Pete, thanks for the advice--I guess we right-wingers will prosecute Russert right away.
The point raised by lifelong Democrat David Boies, and many others who are not blinded by partisanship, is that whether Libby lied or not, he wasn't obstructing anything at all. But I don't expect Pete to address this issue forthrightly, any more than he could bring himself to be forthright about Dick Cheney and the "reconstituted nuclear weapons." It isn't that Pete is hostile to the truth; he's simply indifferent to it.
Posted by: Other Tom | March 08, 2007 at 10:55 AM
And by the way, the "rightwingers" on this site have no authority to prosecute. Or did you miss that in civics class?
I can't believe you would write that. You should be embarrassed. I suspect you are not.
Posted by: Patrick | March 08, 2007 at 10:56 AM
Swear me in and I'm on it!
OTOH these are good things to remind the OPR of.
Posted by: clarice | March 08, 2007 at 10:57 AM
What proffer? Fitz rebutted the argument.
You folks are coming up with tortured arguments. Face it Fitz won and your guy was convicted for perjury and obstruction. If Fitz did anything improper you have remedies for it, but I'm not holding my breath.
Posted by: Pete | March 08, 2007 at 10:57 AM
"Was Libby covering up for Rove?"
Apparently the Special Prosecutor doesn't think so. He's gone home. But if you left-wingers think so, you should prosecute Rove.
Posted by: Other Tom | March 08, 2007 at 10:57 AM
Our remedy, if needed, is a pardon. Deal with it.
Posted by: Other Tom | March 08, 2007 at 10:58 AM
Gonzalez did just fire 8 U.S. Attorneys for what he claims were "performance issues."
So is the White House too scared to fire Fitz or do they approve of his performance?
Posted by: Frank Lee | March 08, 2007 at 11:00 AM
In a previous thread, TM said he expected the defense to file papers alleging prosecutorial misconduct at a later time.
My questions:
1. I'm left wondering why they haven't already done so. Wouldn't this be something they'd want to formally allege *prior* to a verdict? Appeals are usually tougher to win than the case itself.
2. If Libby's own defense attorneys never do formally allege prosectutorial misconduct against Fitz, will that give TM pause, and will TM subsequently withdraw his accusations against the special prosecutor? (Or will Wells and Jeffress become his new targets?)
3. Isn't this all a long-winded way of saying that Fitz should have allowed Libby a way to constantly change his sworn testimony to better conform to the testimony of other witnesses?
Posted by: Jim E. | March 08, 2007 at 11:03 AM
Yeah, Libby was convicted, but that doesn't change the fact that Fitz offered a false affidavit to the court, and for that he should be ashamed, if not subject to some discipline from the bar.
Any remedy for Fitz's transgression is held by Libby, who may have an appeal argument based on prosecutroial misconduct, or Judy Miller, who was thrown in the hoosegow for three months based on Fitz's false representations.
Nd here's Libby leaking to Cooper "Yeah I heard that too, but I'm not even sure it's true." Ruthless, isn't it.
Posted by: Patrick | March 08, 2007 at 11:03 AM
Why fire him? He's gone home; his investigation is over.
Posted by: Other Tom | March 08, 2007 at 11:04 AM
Why did they fire the other 8?
Posted by: Frank Lee | March 08, 2007 at 11:05 AM
Note that Fitzgerald may not have wanted to tip off the specifics of this case to Libby who was lying and obstructing justice.
Uh huh. Libby testified in March 2004; the affidavit was from June 4, 2004.
Maybe Fitzgerald was worried that Libby would invent a time machine?
Anyway, Pete, you were going to get back to me on your opinion of prosecutors lying. And I were hoping for something more substantive than "gee, you righties ought to deplore this".
Oh, well - I won't pretend my hopes were high.
Posted by: Tom Maguire | March 08, 2007 at 11:06 AM
But if you left-wingers think so, you should prosecute Rove.
HEH.
Posted by: topsecretk9 | March 08, 2007 at 11:06 AM
The Russert affidavit is either false or not. If the affidavit is false then you right wingers should do something about it like prosecuting Russert.
Pete, I'll admit that we on the Right have many magnificant and eldritch powers, like the ability to cloud the minds of the Clinton Administration's intelligence operation in order to get them to propose and pass the Iraq Liberation Act years before Bush was even in office, but the ability to file an indictment and prosecute is not one of them.
Posted by: Charlie (Colorado) | March 08, 2007 at 11:07 AM
So is the White House too scared to fire Fitz or do they approve of his performance?
Do the name "Archibald Cox" ring a bell?
Why did they fire the other 8?\
Why did Clinton fire all 80-odd?
Posted by: Charlie (Colorado) | March 08, 2007 at 11:09 AM
Don't forget the lost notes - the smartest man in the room was unable to put up his lead investigator (who most probably was leaking crap to Waas - on a leak investigation) because curiously he lost his notes.
Posted by: topsecretk9 | March 08, 2007 at 11:10 AM
"magnificent"
Spelling isn't one either.
Posted by: Charlie (Colorado) | March 08, 2007 at 11:11 AM
Left wingers don't control the Department of Justice-that's still in right wing control.
So if the DOJ doesn't reprimand Fitz, it can only mean he don't need no stinkin' reprimanding.
Posted by: Frank Lee | March 08, 2007 at 11:11 AM
TM said he expected the defense to file papers alleging prosecutorial misconduct at a later time.
Did I say "later", or "when appropriate"? Whatever.
2. If Libby's own defense attorneys never do formally allege prosectutorial misconduct against Fitz, will that give TM pause, and will TM subsequently withdraw his accusations against the special prosecutor? (Or will Wells and Jeffress become his new targets?)
3. Isn't this all a long-winded way of saying that Fitz should have allowed Libby a way to constantly change his sworn testimony to better conform to the testimony of other witnesses?
Geez, give up the decaf.
As to (3), no, it is a long-winded way to say that Fitzgerald ought to file honest documents. His letter to the defense is inexplicable, and was well past the time Libby might have changed his story.
As to (2), the likelihood of my withdrawing this based on the subsequent actions of others (as opposed to, for example, new facts) is tiny - I have no idea what motivations, pressures, and recourse Libby's defense team has (e.g., maybe they will be told to go easy on the DoJ and the DoJ won't oppose a pardon).
But do stop by with the many retractions that are no doubt piling up at the lefty sites who predicted that Fitz would flip Libby and go after Cheney, and I will consider it.
Posted by: Tom Maguire | March 08, 2007 at 11:12 AM
Was Libby covering up for Rove?
I've always thought so. It wasn't proven though so I guess we will both remain unsure.
Posted by: Sue | March 08, 2007 at 11:13 AM
Charlie:
Pete, I'll admit that we on the Right have many magnificant and eldritch powers, like the ability to cloud the minds of the Clinton Administration's intelligence operation in order to get them to propose and pass the Iraq Liberation Act years before Bush was even in office, but the ability to file an indictment and prosecute is not one of them.
Well, can we rightwingers at LEAST pass a non-binding resolution?
Well frak it.
I guess all we got left is to speak truth to power.
Posted by: hit and run | March 08, 2007 at 11:13 AM
Libby could have further testified. Other people (e.g. Rove) also testified after June 4 2004. At that time Rove and Libby were suspected of making up cover stories.
Posted by: Pete | March 08, 2007 at 11:14 AM
3. Isn't this all a long-winded way of saying that Fitz should have allowed Libby a way to constantly change his sworn testimony to better conform to the testimony of other witnesses?
Like he did so many others involved in this case? Why, yes, yes I do think he should have allowed Libby to change his testimony to conform to what others were testifying to.
Posted by: Sue | March 08, 2007 at 11:15 AM
Next stop: Fantasy land.
Who, praytell, would tell Libby to "go easy" on the DoJ?
Posted by: Frank Lee | March 08, 2007 at 11:17 AM
"But do stop by with the many retractions that are no doubt piling up at the lefty sites who predicted that Fitz would flip Libby and go after Cheney, and I will consider it."
Huh?
Posted by: Jim E. | March 08, 2007 at 11:17 AM
Nah, H&R, there's lots left to be done -- the appeal, for example. Just not Pete's imaginary approach.
Posted by: Charlie (Colorado) | March 08, 2007 at 11:17 AM
Sue wrote: "yes I do think he should have allowed Libby to change his testimony to conform to what others were testifying to."
Yes, Fitz does appear to have been very forgiving to those who returned with "evolved" memories in this case. Very forgiving. Almost like he didn't want to prosecute anyone. Maybe Libby ought to sue Tate (or whomever his first attorney was).
Posted by: Jim E. | March 08, 2007 at 11:20 AM
Why fire him?
Fire him? Let's appoint a special prosecutor to investigate and indict him. Call the Grand Jury!
Posted by: Jane | March 08, 2007 at 11:29 AM
"Why did they fire the other 8?"
Read a newspaper, pal. I'm not gonna do your homework for you.
Posted by: Other Tom | March 08, 2007 at 11:30 AM
Fitzgerald doesn't just make an argument that Libby obstructed his investigation into "who leaked". That would be troubling, not only because he knew "who leaked", but also because his only indication that "Libby" leaked in a manner differing from his statements in any significant manner came from articles such as the War on Wilson? and the 1x2x6 nonsense.
More troubling to me, Fitzgerald has stated that he convened the grand jury at least in part to investigate whether "Libby lied to the FBI". That is, Libby obstructed an investigation of the truthfulness of his statements to the FBI by repeating the statements he made to the FBI.
As I've mentioned before, Fitzgerald recently won a conviction for obstruction of justice against a person who refused to answer questions before a grand jury.
I understand that there are those (Welcome back, CboldT!) who accept this result as a function of one's obligation as a citizen to be helpful when called upon by police.
But I think it's a far cry from "threats or force, or by any threatening letter or communication" or a person who "withholds, misrepresents, removes from any place, conceals, covers up, destroys, mutilates, alters, or by other means falsifies any documentary material, answers to written interrogatories" which calls to mind (to my mind at least) affirmative physical acts that inhibit the ability of the judicial system to come to the correct decision.
I understand that the law as written allows a conviction for "withholding" or "misrepresenting" one's own "oral testimony". I just think it's bad policy. It bespeaks a lack of confidence in our investigatory agencys' ability to interpret suspects' statements and detect falsehood therein.
Posted by: Walter | March 08, 2007 at 11:33 AM
Power w/out responsibility--that's what the opposition wants..Power to dooctate the war operations, power to deprive the president of all his powers, icnluding the absolute right to pardon, even power to megaphone every piece of propaganda like the Gitmo horrors, so well documented by Burlingame today in the WSJ. And when it comes to being responsible for their actions...forget it.
Posted by: clarice | March 08, 2007 at 11:34 AM
High in any discussion of Fitz's tenuous relationship to the truth ought to be his suggestion--in his unanswered rebuttal--that Cheney had shared his annotated NY Times Op-ed with Libby. Because two of the jurors pretty clearly bought it.
I'm guessing the Wells is going to bring that up in his motion for a new trial. That if Fitz had evidence that he did he should have produced it--say, by calling Cheney as a witness and having him so testify.
Also, I'm guessing that the Eleven Happy Campers and their St Valentine's Day Massacre will be mentioned in any such motion.
Posted by: Patrick R. Sullivan | March 08, 2007 at 11:35 AM
Yes, Fitz does appear to have been very forgiving to those who returned with "evolved" memories in this case.
That's what I've always liked about you Mr. E. Capable, when you want, of seeing that which is right before your eyes. Those evolving memories were certainly interesting. And the only one telling the same story, start to finish is indicted. Maybe that was the key? If you changed your story, even though it could not possibly be correct without someone else changing their story, you got a pass?
Posted by: Sue | March 08, 2007 at 11:39 AM
Those evolving memories were certainly interesting.
I failed to note my favorite evolving memory. The one that was felt. A felt memory.
Posted by: Sue | March 08, 2007 at 11:42 AM
My newspaper is full of lies since it printed Gonzalez op-ed.
My point is it's a little ridiculous to charge Fitz with prosecutorial misconduct while the DOJ is in the midst of canning 8 U.S. attorneys for what they claim is "poor performance".
If they're firing crappy U.S. Attorneys but leaving Fitz unscathed, it means somebody has it all wrong: So is it the DOJ or Maguire?
Posted by: Frank Lee | March 08, 2007 at 11:43 AM
Who, praytell, would tell Libby to "go easy" on the DoJ?
Is it "Stupid Day" today, or am I uncharacteristically insightful and cryptic?
I can easily imagine a scenario where a high level DoJ official whispers to Libby's team that if Libby does not make a stink about Fitzgerald's dubious conduct, the DoJ won't get all balky about Libby's pardon application.
Folks (OK, F Lee not Bailey) do realize that in the normal process, pardon applications get reviewed by DoJ? Remember the Marc Rich debacle, where the President just approved the pardon without the customary review and squawking?
Is this idea all that complicated?
As to people changing their testimony - do citizens have an absolute right to come back to the grand jury with a new story, or is it by invitation only? I thought the prosecutor controlled the process, but apparently Jim E believes otherwise.
An example would be Grenier - I would not be surprised if he obstructed the investigation by lying in 2004 when he said he had no memory of telling Libby about Plame. His goal - go away, don't bother me.
Later, he saw his civic duty (and saw Libby slipping away), so he changed his story. Whatever.
Of course, the opposite may be true - Grenier followed the story in the press, knew no one could contradict him, and invented a lie to help nail Libby.
Libby was convicted, so its all good for libs - lies at the CIA are not an issue.
Posted by: Tom Maguire | March 08, 2007 at 11:46 AM
"Power w/out responsibility..."
Posted by: clarice | March 08, 2007 at 08:34 AM
---------------------------------------------
Clarice, excellent article by that very name, treating journo-school MSM:
http://www.newcriterion.com/archive/23/feb05/journalism.htm
Posted by: stevesh | March 08, 2007 at 11:47 AM
I'm surprised that Novak hasn't commented yet on the grilling he got from Russert about not fighting his subpoena.
Does he even know?
Posted by: danking70 | March 08, 2007 at 11:48 AM
So you can easily imagine a scenario where the DoJ is deals with felons to keep mum about lawbreaking by the DoJ in return for a pardon?!
With friends like you, what enemies does the administration need?
Posted by: Frank Lee | March 08, 2007 at 11:50 AM
So is the White House too scared to fire Fitz or do they approve of his performance?
I think that they should. I think they are too scared.
Why fire him? He's gone home; his investigation is over.
This one is, but as Clarice and others have documented, he's been using these methods for a long time in his role as US Attorney.
He's about to use the same methods on Conrad Black; it's not at all clear a crime has been committed there, either.
The reason for firing the others, I suspect, is that the Democrats are planning on trying to bring people up for all kinds of trumped up charges in the investigations they are about to start initiating right and center. And having learned with Fitz, the Bush Admin has finally wised up and doesn't want people of his ilk around.
Posted by: Alcibiades | March 08, 2007 at 11:50 AM
"I can easily imagine a scenario where a high level DoJ official whispers to Libby's team that if Libby does not make a stink about Fitzgerald's dubious conduct, the DoJ won't get all balky about Libby's pardon application."
That hardly paints the administration in a flattering light.
Do you think that's proper behavior from the DOJ?
Posted by: Johnny | March 08, 2007 at 11:53 AM
So you can easily imagine a scenario where the DoJ is deals with felons to keep mum about lawbreaking by the DoJ in return for a pardon?!
This type of approach seemed to have worked for Clinton.
Posted by: Great Banana | March 08, 2007 at 11:54 AM
As I have already pointed out, given the standards set for perjury, I think that the AG should go to a grand jury and ask for indictments for perjury against Fitzgerald in the matter of his affadavits to the appeals court.
And indictments against Fitzgerald, Eckenrode and Bond for conspiracy to suborn perjury.
1) Their agreement with Russert specifically included that they would hide the fact that Russet talked freely to Eckenrode. When NBC filed the false affidavit, that went from simply helping Russert lie to the public to conspiracy to commit perjury.
2) Using Russert's hectoring of Novak as evidence of Russert's state of mind, it is obvious that once Russert talked to Eckenrode, he was a prime candidate for being blackmailed by anyone who knew that he had spoken to Eckenrode freely, without a subpeona, or indeed without seeing any ID proving that Eckenrode was who he claimed he was. And sure enough, after Eckenrode told Russert what story the FBI wanted, Russert changed his story to match what he had been told. The "losing" of the notes from the first interview are strong evidence of the conspiracy.
3) In the case of conspiracy to suborn perjury, it is not necessary for the perjury to actually happen to be convicted of the perjury. So even though Fitzgerald and the NBC lawyers conspired successfully to keep Mitchell from having to lie under oath, if the affidavit is true -- that Mitchell would have committed perjury if forced to testify -- then Fitzgerald (and probably the NBC lawyers) are still guilty of conspiracy.
4) According to the federal sentencing guidelines, suborning perjury gets a heavier sentence if it results in indictments, verdicts, or expenditures of large amounts of government resources.
The only question in my mind is whether the AG should supervise this prosecution personally, or should, following the guidelines for special prosecutors, name a distinguished independent prosecutor who is in a position to prosecute wrongdoing within the FBI and the Dept of Justice.
Posted by: cathyf | March 08, 2007 at 11:55 AM
Right. And comparing the Bush administration to the Clinton administration is certainly brave new territory for Bush defenders.
Has it really gotten that bad?
Posted by: Johnny | March 08, 2007 at 11:56 AM
"I can easily imagine a scenario where a high level DoJ official whispers to Libby's team that if Libby does not make a stink about Fitzgerald's dubious conduct, the DoJ won't get all balky about Libby's pardon application."
That hardly paints the administration in a flattering light.
Do you think that's proper behavior from the DOJ?
No, they should be investigating Fitzy on their own. but, just b/c something ought to be, does not mean that it is.
Something you must remember, the vast majority of people working at agencies like DOJ are lifetime civil-service employees. The political appointees don't usually change the institutions all that much and their are plenty of high-level non political appointees in any agency who do their own thing - witness the rogue CIA sending Joe Wilson to "investigate" the niger issue. Witness basically the constant leaks from the CIA against the admin, etc.
Thus, it is easy to believe that some high level, non-political appointee, could make this kind of wink-wink, nudge-nudge deal to protect Fitzy and/or the DOJ's image.
Posted by: Great Banana | March 08, 2007 at 11:59 AM
Right. And comparing the Bush administration to the Clinton administration is certainly brave new territory for Bush defenders.
Well, when the left stops idolizing Clinton and longing for the days of Clinton, we'll stop pointing out that everything the lefties claim make Bush so evil now, Clinton did 10 times worse.
Posted by: Great Banana | March 08, 2007 at 12:01 PM
TM wrote: "I thought the prosecutor controlled the process, but apparently Jim E believes otherwise."
Please don't put words into my mouth. Thanks.
As I previously wrote on another thread, it is up to the discretion of the prosecutor. A witness can request to reappear before the GJ. It's ultimately up to the prosecutor whether they're allowed to do so. But given what we know in this case -- I'm thinking mostly of Rove, but I think Armitage, and one other witness (Grenier?) fits the bill, too -- Fitz has shown a willingness in this case to grant such requests and allow people to volunteer themselves back to the GJ.
Posted by: Jim E. | March 08, 2007 at 12:05 PM
--Please don't put words into my mouth. Thanks.--
Biting MY tounge. ahem Bennett ahem.
Posted by: topsecretk9 | March 08, 2007 at 12:07 PM
I doubt that the DoJ would make a deal depending on his keeping quiet about prosecutorial misconduct. If the President doesn't feel guilt for what his naivete wrought I'd be astonished. He knew Armitage was undercutting him and did nothing. He knew Tenet was playing games and did nothing. He knew Ashcroft was a ninny and did nothing. He should have figured out soon after his appointment that Fitz was off the tracks and did nothing.
I love Bush for his decency, but the first rule for every leader, is that if you permit perfidy in even small things to go unpounished it will grow..and he did and it did.
Posted by: clarice | March 08, 2007 at 12:09 PM
CathyF at least is on the right track if you really believe Fitz is so bad.
Maguire apparently believes Bush let Fitz run roughshod over Libby and will now seek a deal with Libby to keep the misconduct "on the QT" in return for a pardon.
An ingenious plan. Reminiscent of Judy Miller's scheme to spend time in jail for contempt rather than risk imprisonment on some other charge.
Posted by: Frank Lee | March 08, 2007 at 12:09 PM
"Biting MY tounge. ahem Bennett ahem."
It must be obscure comment day around here. ???
Posted by: Jim E. | March 08, 2007 at 12:09 PM
If they're firing crappy U.S. Attorneys but leaving Fitz unscathed, it means somebody has it all wrong: So is it the DOJ or Maguire?
No, you moron, it's you: do you remember the furor that followed Nixon firing Archibald Cox? Whatever the statutes might say, it is for all practical purposes impossible for the President to fire a special prosecutor.
Posted by: Charlie (Colorado) | March 08, 2007 at 12:11 PM
Mr. E
Bob Bennett. CNN. YOU. Anyways, doesn't matter.
Posted by: topsecretk9 | March 08, 2007 at 12:12 PM
Sometimes I wonder if the reason there are no notes from Eckenrodes call to Russert is simply due to the fact he was calling as a source for Russert rather than as an investigative interview.
Then someone tried to reverse the lens at a later date.
Posted by: SlimGuy | March 08, 2007 at 12:12 PM
Clarice already set Maguire straight.
Posted by: Frank Lee | March 08, 2007 at 12:13 PM
I just can't even imagine the moonbat's response if anyone in this administration called Fitz on his dishonesty, now or then. So the disingenuousness of suggesting such a thing is rich.
If the media wasn't in the tank for the moonbat's they would be salivating at this story. But then again the media largely is this story.
A nice touch would be the appeals Court, spanking Mr. Fitzgerald, loudly and soundly while making a referral to the bar.
But I won't hold my breath.
Posted by: Jane | March 08, 2007 at 12:16 PM
Slimguy - what do you mean by a source for Russert? You mean, sound him out?
Posted by: Alcibiades | March 08, 2007 at 12:17 PM
it is for all practical purposes impossible for the President to fire a special prosecutor.
Yep, if Fitz were shown on national tv strangling cute puppies, the President would still not be able to fire him. The MSM would immediately start questioning if Rove had shipped puppies to Fitz house. I question the timing!
Fitz will never be fired. I hope at some point they might turn the funding spigot off.
Fantasy World moment. Fitz decides he likes being special prosecutor so much, that he declares himself the permanent Special Prosecutor and starts investigating the next administration (Dem in my fantasy). He'll let the DOJ read about it in media reports.
Posted by: ARC: Brian | March 08, 2007 at 12:17 PM
Ah yes, the first day I remember you posting around here. I tried to make a humorous comment, you flipped out, and screamed (in caps) what a liar I was.
Ahem. I seem to recall you apologized weeks later for your over-the-top lameness.
Posted by: Jim E. | March 08, 2007 at 12:18 PM
Slimguy - what do you mean by a source for Russert? You mean, sound him out?
Posted by: Alcibiades | March 08, 2007 at 09:17 AM
No I mean as in anonymous source for Russert.
Someone on Fritz's team was leaking to the press.
Posted by: SlimGuy | March 08, 2007 at 12:19 PM
Dishonor Russert #2 don't forget - he brain farted on his super special presidential treatment with lawyers present sans GJ.
Posted by: topsecretk9 | March 08, 2007 at 12:21 PM
What did Fitz know and when did he know it? Seriously.
Fitz claimed that, before he called for a Grand Jury, Libby was “telling stories” that didn’t fit the evidence as Fitz understood it. I don’t think that is true.
The most damning story Libby was accused of telling was this:
On or about July 11, 2003, over the phone
A reporter (Russert) told Libby that he (Russert) knew about Plame.
Libby refused to confirm.
Libby didn’t immediately recall that he had heard about Plame before conversation.
Russert told Libby "all the reporters know"
What Fitzgerald knew:
On or about July 11, 2003, over the phone
A reporter (Novak) told Libby the he (Novak) knew about Plame.
Libby refused to confirm.
(so far identical to the Libby statement)
Libby had no memory of the Novak conversation.
Russert denied speaking about Plame.
Given that these two telephone conversations were similar in content, and took place at approximately the same time, I'm surprised the SP didn't investigate the possibility that Libby confused the two calls.
Posted by: MikeS | March 08, 2007 at 12:21 PM
Mr. E
I did. I was just snickering at your adversity to words in mouths NOW!!!!
Posted by: topsecretk9 | March 08, 2007 at 12:24 PM
--I'm surprised the SP didn't investigate the possibility--
Seriously, you are? He didn't investigate anything beyond Get Rove - Get Cheney - otherwise he would have been as through as the AP and taken a gander at Armitage's appointment calendar - or Armitage's multiple witness tamperings.
Posted by: topsecretk9 | March 08, 2007 at 12:27 PM
Please don't put words into my mouth. Thanks.
Fair enough - here is what you wrote yesterday:
And a bit later, this:
I was sufficiently surprised to wonder this:
I would love to see a cite for that - my impression was that Fitzgerald never called him back because he wanted to indict on the testimony he had. I had no idea Libby could have demanded another appearance.
And I now see your reply:
Glad we cleared that up. As to evidence that Libby did or did not request a new appearance, we have yet to see any.
Posted by: Tom Maguire | March 08, 2007 at 12:31 PM
This whole scenario would have been put if
Ms.Plame had come forward at the get go and
rendered the so-called outing moot.
Washington D.C. should be renamed Salem.
Posted by: mshyde | March 08, 2007 at 12:34 PM
Jane Hamsher, the paragon of free and open discussion, has linked to this article.
Her “money shot”:
“….Joe Wilson was, in fact, right. The next one who accuses him of lying better produce some friggin' uranium pronto, know what I mean? “
Posted by: jwest | March 08, 2007 at 12:35 PM
Here's a surprise - Frankie and Johnny were lovers... or at least, Frankie Lee and Johnny share the same IP address.
I expect they will be back under yet more guises - the banning software is not hard to circumvent here, unfortunately.
And if they come back as just one person, they will be welcome. Probably still ignorant and rude, but welcome.
Posted by: Tom Maguire | March 08, 2007 at 12:37 PM
Produce uranium? Why? Why not just produce the SSCI report? Seems that'll do just fine. And just for the record, let me be the "next one to accuse him of lying": Joe Wilson is lying. And I have no uranium to produce.
Posted by: Other Tom | March 08, 2007 at 12:40 PM
No doubt in my mind that Libby was his own worst enemy in his testimony. Some here say that his testimony made no sense, hence he must be telling the truth. However, even if if he was telling the truth, he should have been smart rnough to realize how unbelievable it sounded, and taken great pains to clarify it, or squelch some of it, as in the uneccesary comments in Count 5.
Posted by: sylvia | March 08, 2007 at 12:40 PM
Hey Frank--you just got outed. File a lawsuit.
Posted by: Other Tom | March 08, 2007 at 12:41 PM
Glad we cleared that up. As to evidence that Libby did or did not request a new appearance, we have yet to see any.
Perhaps he was simply unaware that this was a possibility. It has to be unusual in any case.
I'd read he didn't get a Washington attorney until he was in trouble already, after his appearance.
Posted by: Alcibiades | March 08, 2007 at 12:42 PM
"Frankie Lee and Johnny share the same IP address"
Yes Tom, you can even post with the same ID as someone here. People did that to me a lot. Maybe you could work on some way to prevent that at least - only one same ID with the same addy on the page allowed.
Posted by: sylvia | March 08, 2007 at 12:43 PM
Fitz won't even prosecute a criminal conspiracy happening as he does his investigation.
Posted by: Wap | March 08, 2007 at 12:44 PM
Hamsher is also not happy that the jurors would like a pardon. She's lecturing them to shut their traps.
Posted by: topsecretk9 | March 08, 2007 at 12:47 PM
Top,
I can't take myself back over there. Not even for the humor of it.
I am going to visit EW, though. When I get around to it. I promised the crew over there to stay away unless more indictments were issued, in which case I'd be back to eat my crow, cold with a dash of salt, please. I figure it would be worth the trip to rub in that I was right on one thing at least. ::grin::
Posted by: Sue | March 08, 2007 at 12:50 PM
Question for the legal types here.
Since the babbling jurors at least give the impression the were considering the Bigger Picture Valarie outing issue contrary to the limitations that I thought were in the jury instructions can Walton order nullification of the jury verdict and declare a mistrial?
Posted by: SlimGuy | March 08, 2007 at 12:51 PM
Is it just me, or has David Corn subtly changed his story of how he outed Valerie Plame as a CIA spy:
' When I saw the reference to his wife as a CIA spy, I called Wilson and asked about that. He was livid about the column. He would neither confirm nor deny anything. But, he said, if the information in the Novak column was accurate--if she were a CIA operative--then her cover had been blown and that would have serious consequences. If the information was wrong, then she had been falsely branded a spy.'
So, now it's Joe was pushing Corn to publicize his wife's spydom (or not). How does this help protect her identity?
Posted by: Patrick R. Sullivan | March 08, 2007 at 12:53 PM
Here's a surprise - Frankie and Johnny were lovers... or at least, Frankie Lee and Johnny share the same IP address.
Forget the IP thing.
So help me, defiling Donna Douglas in this way will NOT be tolerated.
Posted by: hit and run | March 08, 2007 at 12:55 PM
It would seem that if Walton can legally quash the verdict , its a win win for everyone.
Fritz and the left of center types on the jury can all live happily ever after with "don't blame me I voted against Bush" tshirts.
Posted by: SlimGuy | March 08, 2007 at 12:59 PM
"can Walton order nullification of the jury verdict and declare a mistrial?"
Yes we need more discussion on whether and when Fitz knew Plame was not covert. If she was not covert, the trial is basically false arrest in my opinion. And even it is a grey area about her status, I still think the same applies. I mean, there's not much else to help Libby out at this point anyway, we might as well ponder this.
Posted by: sylvia | March 08, 2007 at 01:00 PM
So, now it's Joe was pushing Corn to publicize his wife's spydom (or not). How does this help protect her identity?
Has nothing to do with covering her ass. Corn has seen the way the wind is blowing when even the WPost denounces Wilson as the liar and blowhard he is, and he's covering his own. Notice how well this new narrative fits in with the tidbit from the Woodward/armitage tape we heard, about how Joe was blowing his horn all over. Also Corn realizes he was used; and was quite happy to be used. But now that respectable media conventional wisdom shows him up for the ass he is, he doesn't want to be that ass anymore.
Posted by: Alcibiades | March 08, 2007 at 01:05 PM
Slimguy, earlier I posted my thoughts on this issue as I remember federal practice from ten or more years ago. Someone else confirmed my recollection. The short version is that in the federal courts you cannot use post-verdict juror comments for any purpose unless they disclose bribery, actual fraud or intimidation, or they reveal that a juror made a materially false statement or omission in voir dire. Juror statements revealing that they were confused about the facts, the law or the jury instructions aren't admissible.
Just for some background, things are quite different in the California state courts. As a result, post-trial proceedings often involve races to get to the jurors, get them (often with the aid of leading questions and encouragement) to make statements undercutting the verdict, preparing affidavits for them to sign, and reopening the whole mess. I very much prefer the federal practice.
Posted by: Other Tom | March 08, 2007 at 01:05 PM
It would seem that if Walton can legally quash the verdict , its a win win for everyone.
Right. And we all believe that Walton has the cojones and the strong minded independent streak to do that.
He'll probably do almost precisely what the prosecutor asks for, as far as sentencing goes, even though this guilty verdict came down to his mistake in allowing Fitz's state of mind incriminating evidence from Cheney against strong objection from the defense.
Posted by: Alcibiades | March 08, 2007 at 01:09 PM
Captain Quarters posted: No Pardon In The Near Future
Then we get
Get a Grip Mr. President
Excellent ideas, J. Peter Mulhern
Someone needs to generate a petition for everyone (except martin, spartacvs, re-pete, et al) to sign and send it to the White House and DoJ.
Posted by: lurker | March 08, 2007 at 01:11 PM
What Fitz knew
Fitz implied that he was suspicious of Libby’s statements because they contained information that might be exculpatory if Libby were charged under the IIPA.
For example:
Libby said “reporters were telling us (the White House) about Plame.
What Fitz knew:
Reporters were telling the White House about Plame and asking for confirmation.
Libby stated that he confirmed the Plame stories to reporters only by saying he heard it from other reporters.
What Fitz knew:
Libby didn’t confirm the Plame story at all according to Novak, Woodward, and Pincus(?) He did confirm according to Cooper. (not confirming at all would seem to be even more exculpatory than Libby confirming that he heard it from reporters). What is suspicious about not confirming at all?
Posted by: MikeS | March 08, 2007 at 01:13 PM
OT: cannot use post-verdict juror comments for any purpose
Any? Juror statements that reveal decisions by the judge had unintended consequences forseen by defense should be taken into account IMO. Hope they are.
In addition to improper use of the articles esp annotated by Cheney, there is my suspicion that the jury convicted Libby on some counts based on no matter what he said to Cooper he misled the GJ about what he really knew at the time. IOW convicting a crime not charged.
Posted by: boris | March 08, 2007 at 01:16 PM
OT, I think that is a perfectly accurate statement of the effect of post trial juror statements in federal court. OTOH when the defense argues it was error to have admitted over its objection the Cheney marked op ed and the 1x2x6 article they can use the juror statements to show that what they feared would happen, did happen.
At least one juror has said he/she didn't believe the Libby was busy w/ other matters defense . There ,too, it might be used to buttress the defense claim that the Ct erred in keeping the defense from entering most of the CIPA material when Libby declined to testify.
Posted by: clarice | March 08, 2007 at 01:17 PM
Posted by: cathyf | March 08, 2007 at 01:18 PM
The other charge used for Fitz's investigation is this : Title 18, section 793.
(d) Whoever, lawfully having possession of, access to, control
over, or being entrusted with any document, ...relating to the
national defense, or information relating to the national defense
which information the possessor has reason to believe could be used
to the injury of the United States or to the advantage of any
foreign nation, willfully communicates, delivers, transmits ...the same to any person not entitled to receive it...
I suppose even if the "covert" law didn't pan out, Fitz still had this one. Still where was the evidence that Fitz was pursuing any particular "document" in Libby's case? Without a particular document and the disclosure of the content of that SPECIFIC document to, say, Russert, not just "I heard that too", I don't see how this charge applies from the getgo. If no underlying charges apply, why was this case against Libby allowed to proceed? Just curious. And is this issue able to be appealed?
Posted by: sylvia | March 08, 2007 at 01:19 PM
"that the jury convicted Libby on some counts based on no matter what he said to Cooper he misled the GJ about what he really knew at the time"
Boris, that was a question I had too but I just looked that up in the indictment. As you can see, say at the beginning of count 5, there is language that all undelined statements from the testimony can be judged as false statements, so they count against Libby too and are fair game, even if they are not part of the specific charges.
Posted by: sylvia | March 08, 2007 at 01:23 PM
I don't see a problem. Fitzgerald and the FBI must have met the high standards of the Justice Department since you don't see mass resignations or protests. Fitzgerald is the best prosecutor in the country, he's a prosecutor's prosecutor, his honor and integrity are beyond question else you'd hear questions from the Justice Department.
Just as the Walter Reed scandal tells you all you need to know about a National Health System, Fitzgerald's performance tells you all you need to know about our "Justice" Department. Way to go Fitz! You're the Man!
Posted by: Curly Smith | March 08, 2007 at 01:26 PM
sylvia,
With regards to the "Title 18, section 793," Fitz never prosecuted on that point. I think this had to do with the Libby/Miller breakfast meeting at which Libby arrived with part of the insta-declassified NIE. If it hadn't yet been declassified *and* if Libby had handed the paper to Miller, I think that's where this charge could have come into play. But nothing came of this.
Posted by: Jim E. | March 08, 2007 at 01:26 PM
The Wilsons say goodbye to DC via Hot Air AND
plan to sue CIA if CIA refuses to let Valerie Plame publish her book:
Goodbye DC
While Libby goes through the appeal process, those sentencing dates still loom. Dan Reihl heard from MSNBC that Libby would remain free on bail until appeal. So if Judge Walton decides that Libby be sentenced jail time, will he still be required to spent jail time while his appeal process is pending?
Posted by: lurker | March 08, 2007 at 01:27 PM
Here's the language from the indictment:
I. LEWIS LIBBY, also known as “SCOOTER LIBBY,” defendant herein, having taken an oath to testify truthfully in a proceeding before a grand jury of the United States, knowingly made a false material declaration, in that he gave the following testimony regarding his conversations with reporters concerning the employment of Joseph Wilson’s wife by the CIA (underlined portions alleged as false):
a. Testimony Given on or about March 5, 2004 Regarding a Conversation With Matthew Cooper on or About July 12, 2003:
Posted by: sylvia | March 08, 2007 at 01:27 PM
Joe Wilson lied, the SSCI Report makes that very clear. It was so clear that even the left-leaning Washington Post said in so many words that Wilson is a freakin' liar.
Posted by: libmeister | March 08, 2007 at 01:28 PM