More Obscure Plame Trivia You Will Not Find

Way back when, a major mystery of the Fitzgerald was, "What Did Rove Know And When Did He Know It?"  And a minor mystery that may have shed light on the major mystery was, just who, if anyone was named in the second subpoena to Matt Cooper, then of TIME?

Very briefly - Libby testified that he leaked info about Ms. Plame to Matt Cooper and others.  Cooper then agreed to testify to Fitzgerald about his talk with Libby and delivered a surprise - Cooper had actually broached the topic with Libby, and had an earlier source for the Plame news. 

Eventually we all learned that Cooper's earlier source was Karl Rove, but it was not clear just when Fitzgerald learned that.  Now, Cooper did receive a second subpoena to answer questions about that source and DoJ guidelines require subpoenas to the press to be for conversations with specific people unless all alternatives have been exhausted.  So the prevailing guess was that Fitzgerald suspected that Cooper's source was Rove, based either on Rove's testimony or e-mails, and that the subpoena to Cooper named Rove.

But Wait!  I actually had a bit of a brainwave in the fall of 2005 and persuaded myself (if no one else) that the subpoena to Cooper had been on a no-name basis (or see the comments here).  This was significant at the time because it suggested that Fitzgerald did not have direct evidence that Rove had leaked to Cooper.  (Let's also note that in the fullness of time we have learned that a lot of Rove's emails were not on the White House server at all, but may have been kept/lost at the RNC server.)

Such a point about Fitzgerald's willingness to issue a broad subpoena is also resonant today since it suggests that Fitzgerald issued a subpoena to a reporter on an exceptional basis under DoJ guidelines, with no supervision.  That ties in nicely to the appeal issue regarding his independence.

Well.  Confirmation that I was on to something emerged last April in an article by Matt Cooper describing the legal maneuverings behind his testimony:

Why did Kelly (in concert with Pearl­stine) press me to keep fighting in court and not ask Rove for permission to talk? Pearlstine told me he saw no reason to give up the fight so soon. We might, after all, prevail on appeal. I didn’t think so. When I checked in recently with Kelly, now the No. 2 on the editorial side of Time Inc., he told me that he took umbrage at complying with a subpoena that, unlike my first one—which was focused on Libby specifically—was a “fishing expedition.” Kelly still thinks it was the right call but told me, “It was easy for me to say some of this stuff because I was never heading for jail, but I thought the threat of jail was less real than you did.”

Interesting.

Comments

[topsecretk9]

Good going TM!

Also, does this suggest that Cooper was a ninny snitch on his first meeting like Russert?

FYI - Minority Oversight has put together a spread sheet of Valerie Plame's differing testimony under oath...(scroll to bottom of page for PDF link)

Full Text of Ranking Member Davis' Opening Statement, Administrator Doan's Testimony and a comparison of Valerie Plame Wilson's Contradictory Testimony Read More »

Asked and Answered: Valerie Plame Wilson's Contradictory Testimony

[clarice]

Good catch, indeed. I hope when Libby's lawyers write the brief and detail the S P's abandonment of DoJ rules, they add this one.

In the Conrad Black trial, yet another observer says the prosecution failed to make its case, and (surprise, surprise!) if there was any wrongdoing it was by the prosecution's star, immunized witness, not by the defendants.

http://www.torontosun.com/News/Columnists/Worthington_Peter/2007/06/18/4269508-sun.html>immunize the bums, pursue the innocent

[Other Tom]

This from Christopher Hitchens in Slate:

"I know of a senior lawyer in Washington who is betting very good money that if the case is heard again on appeal, the conviction will be reversed."

The whole thing is here:
http://www.slate.com/id/2168642/

(Incidentally, his analysis is amateurish compared to what shows up on JOM.)

[windansea]

(Incidentally, his analysis is amateurish compared to what shows up on JOM.)

Thought the same thing as I read it

[Elliott]

(Incidentally, his analysis is amateurish compared to what shows up on JOM.)

I would have said something about first-year law students, myself.

[clarice]

Recently, Cathy f did a brilliant analysis about Walton's claim that Libby should have asked around to see if Plame was classified--arguing that the Court was blaming Libby for bad CIA statecraft. I'm desperately trying to find it. If anyone does, can you please post it here as I continue searching thru the archives?

[cathyf]

Reading the document that TSK9 linked to brought to mind this little tidbit from the DoJ reading room on perjury, which includes this:

Section 1623(c) allows prosecutions for making two or more statements under oath that are inconsistent to the degree that one of them is necessarily false. In such prosecutions, the government does not have to prove which irreconcilably contradictory declaration was false. United States v. McAfee, 8 F.3d 1010, 1014 (5th Cir. 1993). In inconsistent declaration prosecutions, Congress expressly provided a defense when "the defendant at the time he made each declaration believed the declaration was true." United States v. Porter, 994 F.2d 470, 473 (8th Cir. 1993)(conviction reversed; questions not irreconcilably in conflict). Each of the irreconcilably inconsistent statements also must be within the statute of limitations. Id. at 472.

Prosecuting Plame has always had the worry about graymail, but now I'm wondering... The big juicy graymail opportunities come in the government having to prove that the statement is false. But if the government can repeat over and over that they don't care which one was false and it's not relevant, then that rules out a whole lot of opportunity for mischief.

It looks like Valerie's only real opportunity for defense is claiming that she got more information after her SSCI appearence and so changed her testimony. As we've seen, there is a good chance that a DC jury would buy such an outrageous story, but it's not exactly a sure thing, either. And most importantly, it appears that this defense gives her no opportunity to play the graymail game to any significant extent. Also, notice the whole book game -- Plame acts (and has been acting since May 2003) as someone who sincerely believes that the government's secrecy rules are there to protect her secrets rather than the government's secrets. If she somehow doesn't fundamentally get it, then overreaching is quite logical.

(The link to the grid showing the 3 issues where the testimony is contradictory is most interesting. That link is at the bottom of the link that TSK9 provided.)

[clarice]

I found what I was looking for in the Loennig thread. Also good comments there by Cecil, anduril and Charlie..

[anduril]

Powerline has links not only to Gabriel Schoenfeld's forthcoming Commentary article "CIA Follies" but also to two previous articles regarding the CIA, written between 12/07 and the present. No mention of Libby/Plame, but excellent background.

[lurker9876]

Walton's comments about Libby should have asked around to see if Plame was classified raised a red flag with me. How did Walton know that Libby did or did not make an effort? It is not for him to make such a comment, isn't it?

You writing an article about this?

[cathyf]

Clarice there was a thread last week where Cecil and Boris engaged an obnoxious troll and kept him off of the active thread. Boris kept repeating over and over that the CIA didn't have to tell the OVP about Plame if it was irrelevant, and even if it was relevant, they didn't need to break security regs by disclosing without identifying it as classified. He repeated about 30 times that it was the CIA that kept responding "It was the wife the wife the wife!" evertime anybody asked them about Wilson.

They did all the heavy lifting -- I just chimed in occasionally to keep the troll occupied on that thread so to keep him off of the current threads. Of course now I can't find the thread, either by browsing or google...

[RichatUF]

clarice-

...was blaming Libby for bad CIA statecraft... HEH!!

The CIA-not only not right but never wrong overseas, but here at home as well. They will have a better opportunity in 2008 to practice their statecraft.

RichatUF

[clarice]

No--you did a longer rift on the agency's bad statecraft which certainly made more sense than Walton's last minute, Libby had an obligation to check postscript to the sentencing, cathy.
Honestly, it was excellent.
A reader asked me to back up something and I figured why start from scratch when I have the VOlga boatmen here doing the heavy lifting.Why is Libby accountable for the agency's terrible tradecraft?

[lurker9876]

cathyf, try the "Libby's sentencing" thread for the obnoxious troll conversation.

[clarice]

***A longer rifF********

[cathyf]

Walton's comments about Libby should have asked around to see if Plame was classified raised a red flag with me. How did Walton know that Libby did or did not make an effort? It is not for him to make such a comment, isn't it?

You know lurker, this gave me one of those "as if for the first time" moments. This is the second thing I've seen that follows a certain pattern. (One event is a curiosity; two is a pattern. :-)

So you take a statement which has a certain common-sense "obviousness" to an uninformed person, but is, in fact, obviously false to any informed person. I'm claiming two examples of this:

1) There must be a way for the government to conduct an investigation of top executive branch officials which doesn't have the appearance of being supervised by top government officials. Therefore when the Founding Fathers wrote in the Constitution that every action in government must have a trail of accountability to elected and/or to appointed & confirmed government officials, they were just kidding.

2) Lurker's example: When the government gives out a security clearence, it transfers the obligation to protect classified information from the government to the person with the security clearence. So when an agency official discloses information in a situation where a) the information is not designated as classified, and b) the information is not disclosed according to the most basic proceedure for dealing with classified info (only on a need-to-know basis), then the the person receiving the information is supposed to suspect that it is classified. Even though every bit of government-supplied training that he has tells him to conclude that it is unclassified. And not figuring out that the information is "supposed to be" classified is punishable by a year in prison.

If I understand things correctly, judges are supposed to only use two kinds of facts: findings of facts which are established through the trial process, and utterly obvious factual information (things like the laws of physics) which are presumed to be true. Obviously, the judgement call here is not to make the mistake of assuming that something is "obviously" true which is not true, and has not been found true. And just as obviously, the more stupid you are the more likely you are to make this error.

There is another pretty scary implication of Walton asserting the Libby bore the burden of determining what is and isn't classified. Walton has just been named a FISA judge. Imagine a situation where Walton discusses some tricky point of law with his law clerk (who, for the purpose of this example, will be assumed to have the highest security clearence.) Suppose that the case in toto required the identification of a CIA covert agent, but for the tricky point of law the ID of the agent was irrelevant. Suppose Walton mentions in passing the ID of the agent, without giving his clerk any indication that it's a covert agent. He does this because he sincerely believes that it's his clerk's responsibility to find out if the info is classified rather than it being his own responsibility to protect the classified information.

So, do you really want Walton to have access to any classified information at all since he has publicly stated that he believes that the most basic measures to protect classified information are optional?

[Pal2Pal (Sara)]

For those who have interest in the Haditha Marines story, this is a must read by Robin Mullins Boyd.
Some Inconvenient Facts about the Haditha Incident

[Pal2Pal (Sara)]

White House has been evacuated according to Fox.

[Sue]

Cathy,

I'm starting to get the hang of you. You must be awesome when teaching. You make stuff seem so, well, logical.

[cathyf]

*sigh* Sue, I wish. Mostly what I notice when I try to explain things to people is their eyes glazing over at the run-on sentences. And they weren't too impressed with me in school, either -- I got that math degree on a series of "gentleman's C" grades...

Not to mention that I have a direct comparison with my husband the physics professor, who is not only way smarter than me, but a way better teacher, too. I married above myself! ::wink::

[Tom Maguire]

1) There must be a way for the government to conduct an investigation of top executive branch officials which doesn't have the appearance of being supervised by top government officials. Therefore when the Founding Fathers wrote in the Constitution that every action in government must have a trail of accountability to elected and/or to appointed & confirmed government officials, they were just kidding.

I will bet that the trial transcript of that particular Waltonian insight appears in the Libby appeal.

[Pal2Pal (Sara)]

Well, I for one, really appreciate your analysis, cathyf. Yours and JMH's. Sometimes the lawyers here get so technical, it is impossible to follow as a layperson. For instance, I'm still trying to figure out how Fitz's "illegal" appointment survived Comey's resignation.

When I read all the many code and statute snippets posted here, my eyes glaze over but even more, they many times seem to cancel each other out and I figure either I'm missing some major point or the law is neither fair nor logical.

[danking]

"Walton's comments about Libby should have asked around to see if Plame was classified raised a red flag with me. How did Walton know that Libby did or did not make an effort? It is not for him to make such a comment, isn't it?"

It's the same as Bush being responsible for the CIA's bad WMD Intelligence. Bush should have been there for the "Curveball" interviews and interrogations. If he was, then he wouldn't have lied us into this pre-emptive war.

I still can't believe some of Walton's comments from the bench.

[maryrose]

cathyf:
I also appreciatiate your cogent summations. Having reeived a "C" in Statistics I know real logic when i read it and i would love to take one of your classes!

[JM Hanes]

Clarice:

I had to laugh when the author of Guilty - but of what? mused about what the Prosecution might have left to offer in its closer:

Things to look for in the closing statements: Will the prosecution still use the term "conspirators," and draw analogies with gangsters and burglars and fleeced shareholders? If so. they will embarrass themselves. I'd be surprised if they remind the jury of their earlier over-statements -- an indication that they know they've screwed up.

Embarassment? He apparently doesn't really know his FitzVolk yet! If experience is any guide, I'd prepare for something like this:

Ladies & Gentlemen: The evidence we have placed before you is overwhelming!

[Recite Indicment]

We put all our cards out on the table; was Conrad Black willing to do the same, or does he just ask you to assume his hands are clean? Does it make sense to believe that only the prosecution's parade of double crossing witnesses have been doing the fleecing around here? The idea that Conrad Black is the only innocent in this whole sleazy story strains credulity, but there are plenty of businessmen just like him, who are hoping you'll buy it. That's why convicting this victim this defendant is the moral equivalent of convicting conspirators everywhere.

[Insert story of a young, single, working mother whose stock is now worthless]

Ordinary people like us just aren't real to Robber Barons like Lord Black, but you can change that. The defense wants you to believe we're making mountains out of molehills, but we don't waste our time investigating minor crimes! The defense may call this a case of business as usual, but there's a bad smell in corporate America, and we can't afford to let Dick Cheney Conrad Black escape his share of blame. A slap on the wrist might as well be a slap in the very face of Justice and the RuleofLaw. Hold "Lord" Black accountable, and send a message to the Enrons, and the WorldComs, and Adelphias, Tycos, and Merrills that are really on trial here.

Defense objection will be preserved in the record for dismissal at sentencing.

[Foo Bar]

Very briefly - Libby testified that he leaked info about Ms. Plame to Matt Cooper and others

Hey, didn't we agree that it's better to say that Libby testified to discussing Plame with Cooper and others? "Leaking" may incorrectly suggest to some readers that Libby testified that he knew for a fact, based on official sources, that Plame was with the CIA at the time of his discussions with reporters.

[ambiorix]

Something has been bugging me for months and I do not understand why nobody has written about it.

I remember very clearly that early on in the investigation, it came out that Joe Wilson had bragged to Retired General Vallely (I think that's the right name) in the green room at FOX, that his wife worked at the CIA. That disclosure had been made in the spring before the Novack article, when Joe was still making appearances on FOX.

I also remember seeing Gen. Vallely on a FOXnews network show relating exactly that conversation. This appearance came just after Andrea Mitchell commented that "everyone in DC knew that Plame worked at the CIA".

This news was so damaging to the case that Joe even threatened to sue the General at the time.

Did I dream of all this? If not, why haven't I heard anything about this since. To me this disclosure was the nail in Joe's coffin and Fitzzy's investigation.
Can someone enlighten me as to why this info was never used?

A Reagan American

[Pal2Pal (Sara)]

I don't know the answer other than the General had a stroke (I think stroke not heart) and maybe he isn't available. Although I do think I saw an article saying he was recovering.

[clarice]

Libby's lawyers said they had at least 5 witnesses that Wilson told them about Plame, but as the question of Plame's covertness was ruled irrelevant to the trial by J Walton there was no way to introduce this as evidence. Certainly Gen. Vallely was one of those witnesses. I never heard he had a stroke.

[Pal2Pal (Sara)]

I don't think I dreamed it, but I'll be darned if I can find it now. Maybe I'm mistaken about it being Vallely.

[Maybeex]

Sara- I remember knowing that too, but I'm too lazy to goggle it.

[TexasIsHeaven]

Well folks,

I see Nifong is toast - gives me hope for Fitzfong.

And I see the living room is a wreck and you all are letting Sylvia run amok - whats up with that?

Lost my hard drive last month and I have had to read like crazy to catch up. I am sorry to be such a freeloader but I love this blog!

[Cecil Turner]

"Leaking" may incorrectly suggest to some readers that Libby testified that he knew for a fact, based on official sources . . .

Concur "leaking" is sloppy; but the reason you proffer is not the major concern. "Official sources" is neither an element of the crime, nor a theory proffered by Libby. Moreover, it perpetuates the myth that Libby thought "official sources" was critical to an actual leaking charge, when 1) it isn't, and 2) he obviously knew that (second gj testimony):

Q. And when you were interviewed by the FBI, the first interview in this case, did you understand that if you had I told reporters that Wilson's wife had worked at the CIA, based upon knowledge you had learned from the government or from conversations with Vice President Cheney, that you could have committed a crime?
A. My understanding, when I heard it from Vice President Cheney, was that it wasn't classified information. I didn't understand it to be classified information. So my understanding would be, if I didn't think it was classified information, if it wasn't presented to me as classified information, if I wasn't intending to release classified information, that it wouldn't be a crime. [emphasis added]

The critical bit is "classified information" . . . and both Fitz and Libby knew it. "Official sources" is a red herring . . . and it belongs to Fitz.

[cathyf]

The critical bit is "classified information" . . . and both Fitz and Libby knew it. "Official sources" is a red herring . . . and it belongs to Fitz.

Classic tactical maneuver -- it wasn't a leak because it wasn't classified information, so change the subject to a hairy technical discussion of how he learned the unclassified information.

[clarice]

Cecil, cathy--reading the accounts of the Black case closing arguments by the govt the same tap dancing is going on there.

[Cecil Turner]

What's more, Fitzgerald admitted that was the rub, and that he had no evidence Libby knew of Plame's supposedly covert status (8/27/04 affidavit):

To date, we have no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work.

Judge Tatel (from IN RE: GRAND JURY SUBPOENA, JUDITH MILLER) correctly surmised that was the big piece of evidence they hoped to get from Judy, since it would support an actual leaking charge:

What’s more, if Libby mentioned Plame’s covert status in either conversation, charges under the Intelligence Identities Protection Act, 50 U.S.C. § 421, currently off the table for lack of evidence (see 8/27/04 Aff. at 28 & n.15), might become viable.

When that didn't pan out, they decided to go ahead with the obstruction/perjury charges. But the questions at the grand jury hearing--in particular the "official source" nonsense attempting to gin up a motive--illustrate it was part of Fitz's plan all along . . . and an actual leak charge wasn't the focus from the beginning.

How this relates to a lack of supervision (the critical point of the appointments clause argument) ought to be obvious. Fitz claims he could've been fired at any time, which may well be correct. However, his counseling the actual leaker(s) to remain silent--whilst ignoring/immunizing them in favor of chasing down someone else--denied the decision-makers the very information they needed to evaluate his [ab]use prosecutorial discretion.

[clarice]

H ewas also, I think, trying to get Libby for leaking what he thought had been a still classified NIE and was scotched in that effort when it turned out (a) the VP had declassified it,(b)was entitled to do that and (c)Libby had confirmed with Addington that the CP could do that before he spoke to Miller.

Mind you, Tenet should have done that so that the WH could respond to the lies of the CIA's Man in Niger, but inexxplicably didn't, leaving the WH vulnerable to this propaganda machine.

[cathyf]

Small note, clarice, it was Bush who declassified the NIE. The authority of a VP to declassify was one of the few innovations in Bush's version of the executive order establishing classified info procedures. Since that authority was only about 8 weeks old at that point, and it was a highly irregular declassification, Libby checked and double checked that it was ok, and Bush did the declassification to make him feel better.

[Foo Bar]

it perpetuates the myth that Libby thought "official sources" was critical to an actual leaking charge

Regardless of whether he thought it was relevant to a leaking charge, it seems to me it was relevant to what I think was his motivation to lie, which was to make sure he didn't hurt Bush's reelection chances.

When TM crossed out "leak" in that earlier post at my request, he more or less conceded that the difference between Libby's testimony and the prosecution's version of events is the difference between leaking and not leaking, irrespective of whether Libby knew Plame's status to be classified. You seem to agree that it's not right to say that Libby admitted leaking.

By fall '03 the public perception had cemented that it was a bad thing that Plame's status got leaked. If the public found out prior to the election that Libby leaked- even if he hadn't known she was classified and therefore didn't break the law- it could have hurt Bush's reelection chances.

Remember what McClellan had said. He didn't say Libby didn't break the law. He didn't say Libby never knowingly leaked classified information. He said Libby (and Rove) had assured him they were not involved in the leaking of classified information, period, regardless of whether they knew it was classified or not.

Now, if Libby turns around and tells the FBI or the grand jury that he knew for a fact, based on official sources, that Plame was CIA while talking to reporters about her, that's a mighty big discrepancy with McClellan's pronouncement, and the risk that someone privy to Libby's testimony decides that the public ought to know about it and leaks it to the press is fairly substantial. Libby's "passing on reporter gossip" testimony is consistent enough with what McClellan said that there wasn't nearly the same risk of Libby's testimony getting leaked.

When I brought up the possibility of grand jury leaks of Libby's testimony in the prior thread where I got TM to cross out "leak", you inexplicably simply reiterated that grand jury testimony is supposed to stay secret, without acknowledging the numerous prior high-profile cases where it has been leaked (e.g. Clinton/Paula Jones and Barry Bonds/steroids).

There was also the possibility of his FBI testimony getting into the newspapers. Based on the events of a few decades before, I do think Libby might have Felt there was a possibility that if he had admitted leaking that this information might have found its way into reporters' hands.

[Cecil Turner]

Regardless of whether he thought it was relevant to a leaking charge, it seems to me it was relevant to what I think was his motivation to lie, which was to make sure he didn't hurt Bush's reelection chances.

It's fairly obvious that Fitz is proffering it as a motive to lie . . . but it's equally obvious that it's Fitz's construct, and that it doesn't make a lot of objective sense.

He said Libby (and Rove) had assured him they were not involved in the leaking of classified information, period, regardless of whether they knew it was classified or not.

I think you could make a pretty good argument that, if it wasn't represented as classified information to Libby (which all witnesses seem to agree it wasn't), then it wasn't "classified information" in the sense of a CIA identity leak. He also wasn't involved in the leak (of Valerie Plame's identity to Robert Novak) . . . something that can't truthfully be said in the case of Rove. Trying to salvage that statement seems a lot more problematic for Rove than Libby. In any event, his story doesn't fix it anyway . . . if he had classified information from the VP, hearing it again from Russert doesn't make it ok to pass on, nor any less of a leak of classified information.

There was also the possibility of his FBI testimony getting into the newspapers.

The idea that Libby is parsing his testimony to avoid bad publicity (and telling a story he has to know will not survive scrutiny), as opposed to legal jeopardy, is hard to credit. Yes, there's a possibility that any of his testimony might've leaked. There's a certainty that an indictment will be front-page news.

[boris]

to avoid bad publicity (and telling a story he has to know will not survive scrutiny)

If Libby had motive to lie and three monthes to come up with one that would fly, this wouldn't have been it.

He told the same story to Cooper, "heard that too but don't know if it's even true" that same week. Supposedly told it to Cheney and Rove that week too and since they were prepared to testify for defense one assumes they would confirm.

That means that for the same story, if it's a lie, it needs at least three different motives for the same one. So the claim that Libby probably made it all up "to avoid X, to avoid Y, and to avoid Z" is no longer the simple explanation.

[clarice]

Thanks for the correction, Cathy.

[cathyf]

If the public found out prior to the election that Libby leaked- even if he hadn't known she was classified and therefore didn't break the law- it could have hurt Bush's reelection chances.

This makes Fitzgerald's investigation the equivalent of hauling selected members of a sophmore english class before a grand jury and making them testify under oath, with no counsel, on penalty of perjury and obstruction charges, to find out who wrote "Ryan is a poopyhead" on Mrs. Smith's blackboard. Maybe somebody with more legal training than I can explain why I'm wrong, but doesn't the First Amendment protect you from the government requiring you to answer questions about when and with whom and under what circumstances and what you said during a private conversation which has nothing to do with any crime? It seems hard to imagine that the First Amendment doesn't protect that...