1. Anonymous says:

    Madness, Madness!

    Haha!!!!! (couldn’t resist)

    I saw this post at FDL, and I want to tell you here how grateful I am for your attentive reading of this case.

  2. Anonymous says:

    ew – I missed the implications of your reference to Judge Laurence Silberman. [My understanding is that he’s in semi-retirement from the regular appeal panels, and that most of his official duties are spent on the double-secret spy court.]

    If it was to a lifetime Silberman’s spent flying on the right wing of U.S. foreign policy, I think there’s a number of indications he would be FAR harder on the game Team Libby played with Judge Walton. If there’s a better articulation of Silberman’s strongly-held views on leaking that in what he wrote on this as co-chair in the report of The Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destructio [released March 31, 2005], I don’t know what that could be.

    I’ve excerpted below part of what’s in â€Chapter 8: Analysisâ€, which is found near the end of the Report where the authors make their recommendations. I don’t understand the pagination system – these excerpts are either from pages 396 to 399 or 381 to 384. Anyway, the following is going to remind some folks about some well-known public statements by the Leaker-In-Chief’s progenitor:

    “To accompany these institutional suggestions, we offer recommendations to help address two problems that have harmful effects on sources and methods:
    (1) the problem of authorized disclosures and (2) the problem of unauthorized disclosures (more commonly referred to as “leaksâ€) of classified information

    Authorized disclosures often have unintended and harmful effects.

    THE PROBLEM OF MEDIA LEAKS

    The scope of damage done to our collection capabilities from media disclosures of classified information is well documented. Hundreds of serious press leaks have significantly impaired U.S. capabilities against our hardest targets.

    In our classified report, we detail several leaks that have collectively cost the American people hundreds of millions of dollars, and have done grave harm to national security. We cannot, however, discuss them in an unclassified format.

    These and hundreds of other leaks have been reported to the Justice
    Department by the Intelligence Community in the last ten years. However, to date, not a single indictment or prosecution has resulted.

    According to past government studies, the long-standing inability of the
    U.S. government to control press leaks results from a combination of factors – the use of unauthorized disclosures as a vehicle to influence policy,
    the lack of political will to deal firmly and consistently with government
    leakers in both the executive and legislative branches, the difficulty of prosecuting cases under existing statutes, and the challenge of identifying the leaker.

    … And those responsible for the most damaging leaks can be held
    accountable if they can be identified and if the government is willing to prosecute them.

    Finally, there is one point regarding leaks on which the Commission could not come to agreement. During our work, we were repeatedly told that the greatest barrier to prosecuting leaks was in identifying the “leaker.†And many people with whom we spoke also said that the best (if not only) way to identify leakers was through the reporters to whom classified information was leaked. In this vein, we thoroughly discussed the advantages and disadvantages of creating some sort of qualified privilege for reporters, which might simultaneously protect both First Amendment interests and the government’s interest in protecting classified information. Regrettably, and despite all of our efforts, we could not reach agreement on the details of such a proposal.â€

    The Report is book-length long, but it’s well-constructed and makes for a pretty brisk read – altho the color scheme can’t compete with the range we find on blogs. To me it seemed like a call for a return to the earlier more idealistic [?] days of the intelligence – the sort of views that attracted those like Ms. Plame into the CIA. It’s easy to find, but here’s a link:

    http://www.usatoday.com/news/washingt…..anel_x.htm

    Also, ew, a couple of unrelated things:

    1) I just caught up to the all the posts on your previous thread on the jury’s latest two notes, and I’d like to make a number of points [Thanks to all those who gave me high fives, I’m not worthy, etc. I think Cboldt and p.lukasiak were closest but missed with a few shots.] but it’s a little long [like that’s new for me] and this is your blog not mine so – might I have your guidance as to protocol?

    2) My own favourite Martian is flying back to me today from a well-earned golf outing , during which I’ve kept my mouth shut on the bad news of own household’s Fearless Leader – the original authentic dancing lab [We’ve got one of his more whimsical episodes immortalized on digital video, strutting his stuff to Brenda Fassie and Paul Simon .]and his losing battle with the mortal coil. We get lots of fun from Steve Clemons’ posts of his own goof troup at his blog TWN, but as I expect you may agree, they’re not of the Great Breed. Would you consider posting another of yours? I think I’ll need all the help I can get in dealing with the Martian’s invariable response when we lose one of the family, and I’m really not looking forward to a spring of walking without one to pull me along.

    – LabDancer

  3. Anonymous says:

    I agree with the notion that Judge Walton is trying to leave a record of the rationales behind his various rulings.

    I think the Russert and Mitchell issues are very weak grounds for appeal. Of the three issues covered in this memorandum, the limitation on admission of â€State of Mind†(CIPA) evidence represents the strongest ground for appeal – but I think it too isn’t very strong. But he doesn’t want the record of his reasoning to be limited to his statements from the bench. He took some time to ponder each of these issues, so his thought process was more involved.

    I see no issues in the conduct of the trial that I think represent reversible error.

    I’ve wanted to see the â€defective appoint†issue litigated through appeal from the time it was handed down. I think it’s an important point of process.

  4. Anonymous says:

    This is my own crazy take on this, and IANAL, but I think they actually did sincerely want to put the VP on the stand that Thursday, until after Hannah testified. I’m not 100% sure, but I think that at that point, Fitz was obligated to turn over Jencks material on Hannah (which might have been the sealed v. sealed hearing). I’m guessing whatever was in that material really made it look bad for Cheney’s (and possibly Libby’s) testifying, so they had to scratch him, or else have Fitz catch him in a perjury trap.

    I agree with Libby though, I think that they never really ever wanted him to testify, and even more so once they got Jencks on Ari, Martin and possibly Addington.

    The fact that Mayfield, Edelman or Hannah never testified for the prosecution makes me think that they will be star witnesses in a possible Cheney/Libby conspiracy trial.

  5. Anonymous says:

    Oh, and EW, to answer your last question, the benefit to building in the list of Very Important things to Wells’ opening statement is that it gave him the latitude to get it out in front of the jury without having to introduce it into evidence. As long as there was a possibility of Libby testifying, then I think it was OK for Wells to bring this up in the opening. Notice that they couldn’t use it in the summation.

    But if that’s true, then it means that Wells wasn’t being entirely truthful with Walton about why Libby was never called. Big surprise there, I chalk that sort of fib up to the same level as the attempted delay on Mayfield’s testimony with the â€piles and piles†of original notes the defense claimed they never received. In that, yeah it’s not 100% true, but it wasn’t 100% false either. I guess it’s the gray area that lawyers can get away with.

    I’m sure if Walton had pressed the issue about the Jencks material, Wells would have tried the same stunt, saying there were â€reams and reams†of material that they only just got through right after the trial started, so as of the time of the opening statments, they were still intent on calling Libby.

    Plus, Fitz never lodged an objection for the record, so I think the point’s kind of moot anyway. It’s certainly bad form, and will likely tarnish Wells’ reputation in future cases before Walton and any other DC District judges.

  6. Anonymous says:

    cboldt – â€I’ve wanted to see the â€defective appoint†issue litigated through appeal from the time it was handed down. I think it’s an important point of process.â€

    As to your second sentence, could you be so kind as to state why? I’m somewhat of a process guy – it’s given me a pretty good life style – and frankly I don’t get it. You may be aware that when the moon gets fullish and I grow hair, I lurk over at Tom MaGuire’s blog – they don’t appear to be feeling too chipper these days, poor dears – and I’ve tried to provoke them into something a little more… intellectual, if I may be so bold, behind their several fixations under the rubric of â€process†on things which, to me, appear as largely if not entirely incidental to the constitutionality of a complaint’s journey to conviction. And all I get is outed as a snark [altho IMO I regard that as something of a promotion from my previous status as a troll}.

    Anyway, you are far better accepted as an inter-blogger than me, I think mostly because while you limp to the right it doesn’t seem to have loosened your grip on your other faculties. So I can’t think of a better candidate to help me understand this view that this special prosecution is more Fitzcarroldo than fitting.

  7. Anonymous says:

    One of the really funny bits of spurious logic is the joy that some have taken by the fact that the jury seemed happy and â€in accord†when the Judge gave them Friday afternoon off. I remarked that I bet they are happy when the cookies come every afternoon to give them a little sugar break.

    The other really funny bit of spurious logic that rates up with the first is all the noise that has been made about the 2 hours that Libby took in the morning for breakfast with Ms Miller.
    No one around here ever looked at any other possibility besides serious Covert Agent outing, not even to spill the declassified NIE.
    But how about the glamorous Ms Miller for a reason also?

    Perhaps the lawyer didn’t want to bring that up in the jury room with Mrs Libby there, but I am sure judges everywhere will understand that there are reasons a man and a woman have a 2 hour breakfast. A little break from the normal routine. A pleasant outing…

  8. Anonymous says:

    If Silberman gets this appeal you can count on the same judgin’ that Scalia & Co. delivered in Bush v. Gore. That said, how can a man that sat on the President’s Iraq Intelligence Commission (Silberman-Robb) possibly preside over an appeal that originated with a dispute about Niger-to-Iraq yellowcake allegations?

  9. Anonymous says:

    viget – â€This is my own crazy take on this, and IANAL, but I think they actually did sincerely want to put the VP on the stand that Thursday, until after Hannah testified.â€

    I think it depends on who you mean by â€theyâ€. I have found that as their odometers rise criminal defending attorneys tend to use less and less client testimony additive in the mix. Over the last 20 years, if memory serves I’ve managed to talk all but 7 clients out of testifying, with mixed results. But when they don’t testify, the win rate goes way way up – I can’t recall more than 3 times over the same period where one of my client defendants facing criminal charges did not testify and was convicted.

    A lot of those newly charged assume they will or might have to testify – many [mostly the white collar variety] due to naivete, and others who had lots of opportunities to know better but were ill-advised or pig-headed. You know who ISN’T naive or ill-advised or pig-headed? Jeffress. Cline. Wells.

    I have to be circumspect here, because for many years now my clients have benefited from the knee-jerk assumptions of opposing government prosecutors that they would be testifying – assumptions to which I have sometimes contributed and NEVER discouraged. So this is coming from someone living in what looks more than a little like a glass house.

    I see this as a matter of propriety and scale. Pre-trial hearings on the admissibility and vetting of classified information and materials are a function of the defendant’s circumstances. That process exists to prevent the government from abusing the parameters of classification [which occurs in the BushII administration, with, shall we say, somewhat more frequency, forethought and disingenuity than any others]. But what did Libby wasn’t to â€use†a process aimed at to overcome government abuse – he abused a process to cherry pick from a data base constructed from abuse. I do not believe that I overstate when I suggest that what Libby did is akin to someone charged with incest authorizing his counsel to cross-examine the victim about other sexual activity.

    As to my own subscription to the principle, I reconcile it this way: It is one thing to take advantage of your opponent’s self-delusion; it is quite another to actively mislead.

  10. Anonymous says:

    LabDancer: – could you be so kind as to state why [you think â€defective appointment†is an important point of process]? –

    Just from the overarching point of view of how to conduct a critical (in the sense of objective, not in the sense of being important) investigation†when an allegation is against the usually investigatory (executive) branch. The Special prosecutor statute having lapsed, etc. It’s one of those things that plays between political and legal process, and so is just interesting to me.

    More specifically relating to the Plame leak and Libby trial, my point of view is that the WH aimed to use a quasi-legal process in order to obtain a clean bill of health on an accusation of undertaking political dirty (but legal) tricks. Ironically, if the appointment was defective, it’s not a bad reflection on Fitzgerald, it’s a reflection on the pinheads that couldn’t produce a special appointment that wasn’t defective.

  11. Anonymous says:

    viget

    They got Jencks on Edelman much earlier (unless FItz had already moved him off his witness list). He turned everything over on December 22.

  12. Anonymous says:

    LabDancer

    I may start tomorrow with a very goofy pic of mine. mr. emptywheel dressed him up for me–just one day before he started acting up, no doubt out of shame for having been treated taht way. You’ve given me one more incentive.

    cboldt

    What do you make of the Hubris assumption that the recusal was Ashcroft’s way of saving his political future? Then it wouldn’t be WH so much as Ashcroft. Add in teh manufactured smear about the prosecution being retaliation for the Marc Rich pardon (which COmey touched but Fitz did not), and you might be able to argue that they’re pushing that smear to get back at Comey, not Fitz. Comey, after all, is the guy who arranged it so Fitz could subpoena journalists.

    joejoejoe and LabDancer

    Silberman has ruled in appeals cases in teh past where he had clear conflicts, including on Iran-Contra. Though Walsh didn’t fight him that hard–I suspect Fitz has read enough to learn that lesson.

    Though thanks for bringing that part of Robb-Silberman to the fore. It offers a very good way to make it difficult for Silberman to repeat his previous efforts at throwing out honestly won convictions.

  13. Anonymous says:

    Jodi – Your comment raises one interesting point – tho not one you intended I’m afraid.

    Exhibit GX207 is Libby’s OVP office calendar for July 8, 2003. It includes this entry: â€8:30 a.m. Office time. 3 hoursâ€.

    1) That’s â€office timeâ€. Business. Not â€kanoodling timeâ€.

    2) That is quite different than saying Libby did not TAKE 3 hours from office time, AWAY from his OVP office – and thus out from under the routine surveillance of OVP visitor records and OVP telephone records and other eyes in the OVP.

    3)Not for a New York minute do I accept that Libby’s breakfast with the â€glamorous†Ms. Miller took anything approaching 3 hours.

    4)By some means as yet unrevealed the Thing that calls itself Novak made the leap from a â€disgusted†observor of an â€exhibition†by Joe Wilson at the studios of MTP on the morning of July 6 and a person so unknowledgeable about Wilson’s angle in the Iraq-Niger story that he sought out his Usually Reliable Sources [Novak left messages with both Rove and Libby, according to Hubris’ attribution to Adam Levine], to being knowing precisely which buttons to push on precisely which person not in the White House and not in the OVP in mid-afternoon of July 8 – a gap which even Evel Knievel would find a challenge.

    5)I suspect Libby spent some of his 3 hours booked off from â€Office time†occupied in bridging that substantial gap.

  14. Anonymous says:

    There is no way to bring up that silly point without discrediting Libby. He was so busy with big important stuff but yet, he had time for a two hour breakfast/affair??? Either way it doesn’t work. Then it means that he really wasn’t dealing with such important stuff, and that he was irresponsbibly shirking his very important duties to cavort with a female??? You get no traction on that point Jodi.

    Your point about the jury, made twice now, also seem pointless to me. Point is that they are not so split as to not be able to cover the animosity. There are certainly sometimes when the animosity is palpable. As in the case of the note to the judge…you can â€feel†the tension in that note. I hope that the jury understands that our troops lives and well being depend on them taking their time with the answer here…that the issue of Libby’s lies, is in fact, a matter of national defense. I hope they are more concerned with the importance of their decision than getting home…and I hope that if their is a hold out he will see that a mistake in the wrong direction has far more weight than the mistake of putting an innocent man in jail for 5 years. (if that were the worst case scenario on the other end of the polarity). If he’s guilty it means so much to the well being of the country and our troops that he be found so and that justice is served. The way I see it, putting an innocent man in jail for a few years if it is the worst case scenario is a tiny problem compared to not finding him guilty, if in fact he is.

    There is no comparison when the entire country, the outcome of the war, the well being of the troops, the reputation of the USA, and the damage done to Plame and all her constituents as well as to our national security are at the heart of the issue. If I were a juror…I would make that point. There is far more at stake here than the a few year in prison for one man…who might be a mightly liar. No comparison when you weight the importance of the crime. Letting him go would have far worse consequences for our country than finding him guilty if he were not.

  15. Anonymous says:

    Labdancer,

    the breakfast was 2 hours according to testimony, but as to the 3rd hour. I don’t know. Travel time? Stopping by the office or the store? By the accounts I have heard, Mr Libby usually put in 70 plus or so hours of work a week, and the only reason I can think of him putting down anything on his calendar was to just let people know he was off doing something. (I get my 70 a week and have time to take a lunch or breakfast, or supper when the impulse strikes.)
    Hey, as I learned in school, the day is 24 hours long, the week 168. He can find an hour or 3 all over the place. Nothing special about the breakfast being 2 hours long with the glamorous Ms Miller. I even remember in the live blog from the courthouse where a remark was made about Libby starting, and stopping breathing when Ms Miller took a breath, and flicked her hair, adjusted a garment,and arched her head a bit. (I have done that too, but I think she looks more glamorous than me. Certainly better dressed. I do need to go to the store I guess.)

    Katie,

    every man and woman is important. The children more so.
    I think that Libby will do 2 years unless pardoned. I don’t know how the pardon will work on disbarment.
    But I think that this prosecution of Libby for his memory lapses is far fetched.
    The lawyers above can talk more about â€entrapment†by interviewing people to talk about a crime they knew they didn’t commit, so that they were relaxed, and then catch them in a â€lie†about something that wasn’t a crime, but that they decided to say in order to set them in a better light.

    If ever anything has been learned from Martha, Libby, etc., it is don’t talk to the f***ing FBI without a lawyer if even then.
    And never be definite about anything.

    Yes Fitz caught Libby in a lie about an inconsequential matter that some, like yourself think very important. I recognize that, but to explain my own outlook I have to say where the ground is that I stand on.

    After being here a considerable amount of time, and going through the trial testiomony, I will say that Libby committed no crime against Mr Wilson or his wife Valerie Plame.

  16. Anonymous says:

    cboldt – Thanks for your response. I hope I see your point correctly, as something like this: Assuming the correct reading of the record of the investigation is that the appointee [Fitz] knew on or about the time of his appointment, or so early in the process of it that any distinction is meaningless, that not leak which underlay what led to the complaint by the CIA [which led to the authorization to investigate etc.] could be reasonably interpreted as constituting an offence of the IIPA, or any other statute, then it arguable that the appointee [still Fitz] failed in fulfilling his mandate of appointment by using it an opportunity to advance some political objective of his own or which he shared with the person who facilitated his being appointed.

    I kind of doubt anyone at JOM would put that quite so diplomatically, but – do I have that right?

    If I do have it right, then I have to say I take issue with the premise [and from what I can see through the redactions in the Tatel opinion on the subpoenas to the reporters, so did that appeal panel].

    I don’t know if anyone in this story will face a charge of illegal leaking. And, with respect, neither do you. I think we agree that there is method behind Fitzgerald’s â€madness, madness†outrage, but I don’t see it as political at all.

    For quite some time I was bothered by the apparently perpetual spin on the IIPA [It’s particularly discouraging that even Toensing, who claims some direct involvement in how in its existence, apparently doesn’t seem able to interpret it properly.]

    On reading the plain language of the statute, I don’t have any difficulty whatsoever accepting that on July 14, 2003 Valerie Wilson qualified as a â€covert†agent under IIPA. I don’t have any difficulty concluding that her status as a CIA employee was disclosed. I have even LESS difficulty accepting that Libby was concerned that he was in the lead of an effort to disclose that someone who he knew to be a CIA employee â€may†be covert. Libby appears to have some quirks, but his behaviour in this story can’t be explained away by quirks of character [altho if we kick it up a notch into character FLAWS, then at least we’re in the ballpark].

    What I DON’T know if whether what Libby was told about Valerie Wilson was enough to satisfy a jury the IIPA’s requirement for â€knowledgeâ€. Fitzgerald may know – or at least, if there’s more out there than we’ve seen in this trial and learned from bloggurus such as emptywheel and eriposte, you’d think he’d know.

    But to me that’s critically different than whether I am prepared, and more importantly and appropriately whether FITZGERALD is prepared, to accept that what we know Libby DID know justified both the arc of his investigation [Waas always calls it a â€probeâ€, but that term just sets me off with the giggles.] I couldn’t tell you Fitzgerald’s reasons [altho I see them as coming from something like the same sense of public service I felt when I was a prosecutor], but I’m completely satisfied that AT WORST Libby was wilfully blind about whether Valerie Wilson qualified as â€covert†and met the overseas service requirement and that the CIA had taken steps blah blah.

    What I don’t know as a matter of legal interpretation is whether Libby’s wilful blindness satisfies the statutes requirement for knowledge. I think it should, but that the social engineer in me talking, and I know that better than half the country would out me as a liberal for thinking that way.

    What I also don’t know is whether the CIA would cooperate in producing in a public courtroom the level of proof it has that she is covert. Knowing what I do about such things from past experience, it is possible that providing that level of proof risks harm to other CIA â€assetsâ€. I’m not referring to Valerie Wilson’s string of agents; I’m referring to her direct superior(s) in the CIA. Because if she reported to a CIA George Smiley, then it seems likely to me that a lot of coverts report to that George Smiley.

    So, I respect your point of view on this, and for all I know some appeal panel might agree with it [which is the main theme of this thread]; but I’m afraid I can not agree that it raises any truly constitutional issues.

    By the way, thanks for your website with all the filings – I enjoy your comments on them. I also liked some of what you said on Counts 1 and 3 of the Indictment, and I’ll write something somewhere on your, and p.lukasiak’s also, on my views on the drafting of indictments.

  17. Anonymous says:

    It’s unnerving that the notes look like they are written by stoner law school dropouts. Even so, I’ll bet that their collective note-taking during testimony produced an accurate timeline, and putting the puzzle together was a bonding experience. This jury is acutely aware that by convicting Libby, they are convicting this Administration. It is a momentous responsibility for them to share.

    â€Humanly possible.†I can see how that weighs on a conscience. My best bet on that? There’s a juror who is torn by the remote possibility that Libby was remembering some conversation with a journalist about Wilson’s wife but that it wasn’t Russert. Remember how breezy and confident Libby was on tape, recounting his conversation with Russert? Could Libby really have lied so glibly? Could Libby possibly have â€transposed†a memory when questioned by the FBI and in front of the grand jury?

    No, it isn’t humanly possible, and that juror will ultimately convict (I predict). But remember that Libby was already building his memory defense as his eight hours of grand jury testimony progressed. Are we surprised that there’s someone sympathetic to him?

  18. Anonymous says:

    Labdancer: No, that isn’t my surmise about how Fitzgerald approached the assignment, or my sentiment.

    A short bifurcated â€analysis,†if you will. My preferred surmise is that Fitz didn’t challenge the CIA as to whether or not it could hold up its end of proof for a criminal violation. Fitzgerald picked up the reigns from the FBI investigation, which was focused on the â€who†and â€with what mens rea†questions. Fitzgerald saw evidence that caused him to doubt that Libby and Rove had been truthful with investigators, and in fact, that they had attempted to avoid detection by lying their asses off. Fitzgerald took that on as enough trouble in its own right.

    In the other fork, Fitzgerald suspected, maybe knew that there was no possibility of an IIPA or Espionage Act or any other criminal violation, for want of â€covert†or appropriate classified status. If he was of this mind, there is no direct evidence of it on the record. The record reads as though Fitz approached the assignment as though there was a possibility of a criminal leak violation, and if he could find a perp with the mens rea, he’d then probe the â€classified/covert†elements via the agency that possesses that information, the CIA.

    See my recent composition, Covert or Not in Purple Blogistan, for the same idea, rephrased.

    At any rate, in either fork, a decision to pursue false statements is a matter of prosecutorial discretion, and I don’t see any abuse of that discretion in this case, and I don’t presume that Fitzgerald is politically motivated.

    See Scooter Libby – Scamming the Sham for my slant on the politics involved in this appointment.

    On another subject, I caution against mistaking my interest in the defective assignments argument as advocacy for finding the appointment defective, and I doubt a court would find so after the fact. It would open a big can of worms.

  19. Anonymous says:

    cboldt – Thanks very much for your response at 17:55. I’ll try to pull together everything you’ve put me on to over the next few evenings [Where in hell did my Sunday go?] and get back to you once it’s all made it through the filters to the bottom of my food dish. Since with the necessarily-related subjects the chances of it getting long goes WAY beyond mere possibility, I may try to post it elsewhere and return here just with a link. [Thanks, ew.]

  20. Anonymous says:

    Three questions for you lawyers:

    1. In the discussion of how to get the workload documents in as evidence, is this what is meant by â€establishing a basis for the evidence?†There has to be a witness who testifies as to the significance of the documentary evidence before it can be admitted?

    2. What exactly is â€Jenks Material?â€

    3. What is â€CIPA?â€

    I’m sure I just missed # 2 and # 3 somewhere in previous discussions, but there is no real index that I can find that explains them and I don’t trust Google to give me legal advice.

  21. Anonymous says:

    Before I get dragged back into ’real’ life, I should like to have some predictions memorialized to put my .ephemeral digitalized comments where my mouth has been. According to my best reading on the cold tea leaves, as of this moment I see the immediate results in US v. Libby as follows:

    Count 1 – guilty
    Count 2 – guilty
    Count 3 – not guilty
    Count 4 – guilty
    Count 5 – guilty

    I foresee sentencing being scheduled down the line for the attorneys to â€prepare their submissions†[and more to the point to allow the verdicts to sink in so the parties can get down to the serious business of seeing whether Libby wants to deal – because Libby and the lawyers on both sides know that a pardon is well short of guaranteed.]

    I foresee Fitzgerald asking Judge Walton to impose some pretty serious terms on Libby before he is released pending sentencing and appeals etc.

    Then sometime before June, after Fitzgerald has finished stripping one-time press baron Lord Barfington, er Black, of his pretentions, what remains of his known sources of income and case, and of course his freedom [and possibly his trophy wife – who I gather is Canada’s answer to Judith Miller], we can find out who gets to Cheney first – Fitzgerald or Waxman.

    While I recognize I’ve been received for more than my share of indulgence over the last two threads, may I be foregiven one more indulgence before toodling up the freeway to the airport to pick up my favorite Martian.

    On the remote chance the traffic en route hastens my demise, I should like to know before I ’go’ whether the posts over the name â€Jodi†emanate from an actual corporeal entity who holds honestly to the beliefs reflected in her comments to, or is in reality not at all â€in reality†but instead literary device. I realize I myself of a full moon am wont to embark on a walk on the wild side among the Pushtans at JOM – but I do so under a rationale that there may be some who post there who have some worthwhile point of view, something which might confound my smug assumptions, or illuminate the discussion, to throw a pie in its face at the very least.

    And of course there are such worthies – foremost among them the aforementioned cboldt, and it would be unseemly to fail to mention in this vein JOM’s overseer, ew’s alter ego made flesh, Tom Maguire, their TM to our MT. And others.

    But surely by this time no one in their right mind – I’m sorry that phrase suddenly seems to have outgrown its cultural genesis and henceforth I will take pains to avoid using it – no one in a PROPER FRAME of mind, I should say – would put up with the abuse Jodi has called down on herself. And especially when JOM’s hearth seems far more welcoming to those of her faith.

    So, while I confess that being caught by one’s ditsy neighbour in an occasional exchange holds its occasional ’charms’ amid its usual frustrations – I’d hate to be forced into early retirement from this mortal coil under the delusion of her corporeal existence when she’s but the alter ego to some whacky funster.

  22. Anonymous says:

    cboldt – in one of your blogs you write:

    I personally think the public disclosure that Mr. Wilson’s wife had a hand in sending him on a fact-finding mission to Niger was beneficial to the country.

    It has not been shown what role Valerie played in Joe Wilson’s trip to Niger, and the mention in the SCCI report is so full of holes that one cannot come to a conclusion.

    But for the sake of argument, even if one assumes that Plame had enough influence to get Joe Wilson sent on the trip, how does the disclosure benefit the country?

    And if you are concerned anout disclosures which would benefit the country, there are far, far more important things that we should know about. On intelligence related to Iraq what did the administration know and when, what did they ignore, how was the intelligence produced, how was the war sold to the public, etc. Is it your contention that the Bush administration should come clean on those issues too?

  23. Anonymous says:

    cboldt

    One, of many, weakness in your position–Fitz knows the actual facts of Plame’s work, not just what the CIA told him. If there was no cause for IIPA, he’d know.

  24. Anonymous says:

    IANAL

    CIPA = Classified Information Procedures Act

    All the best speculation that I have read has been that if Fitz had included IIPA, 18 USC 794 and 18 USC 798,18 USC 794 and 18 USC 798 in the indictments, Libby’s team would have buried Fitz in a â€Graymail†defense, a threat to release state secrets. Even though Fitz only charged perjury and obstruction, Libby still tried the graymail defense in mountains of pre-trial motions. It didn’t work but I think that is what the CIPA references are to.

    I believe Jenks is a an important court case applied to evidentiary questions about admissable testimony, specifically, â€hearsay.â€

  25. Anonymous says:

    cboldt said: In the other fork, Fitzgerald suspected, maybe knew that there was no possibility of an IIPA or Espionage Act or any other criminal violation, for want of â€covert†or appropriate classified status.

    I am not sure if I am following what you are saying, but in the indictment Fitzgerald specifically said that Plame’s status was classified during the relevant time in July 2003.

  26. Anonymous says:

    Labdancer, you dazzle with your facility of phrase and word, very much as Tom of JOM does.

    And I will answer some of your inquiry.

    cboldt also dazzles, but with a studied parsimony with words that I really am taken aback by.

    Clarice I have also grown to respect.

    Emptywheel I admire, for her tenacity and amazing task and ideals driven purpose. She could be a physicist building models for the “things that go bump in the dark.â€

    DemFromCT I admire also and really like. He actually reminds me a lot of my father, and that is a high compliment. He is the one that explained the people here to me when I didn’t quite get it (â€this is a political blog, what do you expect?â€, and told me later that I had been “sucked in†by the discussion.

    But I am none of you or any other that contributes much elsewhere to this mess we are discussing here.

    My purpose on coming here to The Next Hurrah was to find out the chances of a general legal and/or media massacre of the White House (Bush, Cheney, Rove, Libby, et al.) and possible ramifications.

    My boss asked me to check into it and report on it, and I looked all over and besides the main media outlets, settled on a few sites for searching out insider info. I have now mentioned two: The Next Hurrah, and JOM.

    My early analysis is holding. Rove, Cheney, and Bush have not been significantly pulled into this mess. I was surprised when Mr. Libby was, even though it was in a peripheral manner. However I do see the errors he made and have now heard much about how Special Prosecutors mostly charge for things incidental to the investigation rather than for things directly related to their mandate. Mr Libby seems like a nice person and sadly it appears that he is going to be the sacrificial anode in this matter.

    Please don’t think by my saying the above that I don’t have sympathy for Ms Plame. I do. She too is a sacrifice.

    Now why were I and my boss interested in this matter? Well, frankly it relates to some work we do for the Government. Beyond that I can’t comment.

    But about me. As I have already said, I played sports in HS and College, and thought in High School I would get a college degree for teaching science and math which are always in high demand and which I always liked and did well in, and be a Girls Basketball coach. Of course in the back of my mind, I thought about professional athletics.

    Well, you know how that professional athlete dream goes, and even more so for women, so I decided to go back to school to get a masters for I had always done well, though I had not dedicated my time to my studies.
    I only wanted a masters, but ended with a doctorate, and now work a dream job looking into new exciting technologies, and as I like to say “nurturing them..â€

    My family, I have talked about, and won’t say more, for the sake of their privacy.

    And LabDancer, about bad remarks and abuse. Well I have heard none here half as bad as what I heard on the court beginning in high school. In private, I would say more, but I don’t act like an a** in public.

  27. Anonymous says:

    Pete: – even if one assumes that Plame had enough influence to get Joe Wilson sent on the trip, how does the disclosure benefit the country? –

    It had a tendency to cause people to question Wilson’s objectivity. In general, I think questioning the objectivity of a presenter is good. I also think Wilson is a liar, in general, in that he carefully states things to lead the listener to a false conclusion. So inasmuch as (true or false) saying he was sent to Niger as a bit of nepotism results in the listener question (and look more carefully) both at what he says on the subject, and what the CIA says about the subject.

    Pete: – in the indictment Fitzgerald specifically said that Plame’s status was classified during the relevant time in July 2003. –

    He used an odd phrase, â€employment status is classified.†That phrase does not appear in any statute. I think that phrase is intended to preserve the legitimacy of the investigation – the leak was â€important†(otherwise, why bother with a special counsel?). I discuss that a bit in Covert or Not in Purple Blogistan, and covered it in more detail in extended e-mail conversation with Mark Kleiman.

    In short, I’d be looking for a phrase that says outright â€the fact that Plame was employed by the CIA was classified.†It’s easy enough to write, it would track the IIPA statute, it would track the general boilerplate language at 1.d in the indictment. But Fitzgerald uses two phrases with no legal significance: â€her employment status was classified†and â€affiliation with the CIA was not common knowledge outside the intelligence community.â€

    If Plame was in fact covert, it would have made conviction a slam dunk, by causing paragraph 1.f to read …

    Joseph Wilson was married to Valerie Plame Wilson (â€Valerie Wilsonâ€). At all relevant times from January 1, 2002 through July 2003, Valerie Wilson was employed by the CIA, and the fact that Valerie Wilson was employed by the CIA was classified.

    The words in the indictment are carefully chosen (for the most part), and â€her employment status was classified†has ALWAYS stuck out like a sore thumb – I commented on that even at the time of the October 28, 2005 Fitzgerald press conference announcing the indictment. See, for example, my posts at FreeRepublic here and here and here.

    emptywheel: – Fitz knows the actual facts of Plame’s work, not just what the CIA told him. If there was no cause for IIPA, he’d know. –
    I figure the CIA is the authority regarding anything â€covert†or â€classified†about Plame’s association with the CIA. Just where, besides the CIA, would Fitzgerald obtain authoritative input regarding â€the actual facts of Plame’s work?â€

    As for â€no cause for IIPA,†as you know, there are multiple elements, failure of any one of which ends the inquiry. Fitz has no evidence of Libby’s mens rea. IIPA fails. Does he push back on the CIA to prove covert status so IIPA can be made on â€covert?†Why bother if it fails on mens rea?

    In the end, the left is determined to see IIPA in the fact pattern, the right is determined to see absence of it, and neither side is going to budge. I have fully expressed, over a period of a year and half, why I come down where I do, and intend to leave it at that, period, end of my contribution to the discussion.

  28. Anonymous says:

    emptywheel: – What do you make of the Hubris assumption that the recusal was Ashcroft’s way of saving his political future? Then it wouldn’t be WH so much as Ashcroft. Add in teh manufactured smear about the prosecution being retaliation for the Marc Rich pardon (which COmey touched but Fitz did not), and you might be able to argue that they’re pushing that smear to get back at Comey, not Fitz. Comey, after all, is the guy who arranged it so Fitz could subpoena journalists. –

    The WH put off an investigation (at all) from July to the very end of September. The investigation itself was in response to political pressure. The WH wanted (still does) to come off as squeaky clean, so whatever â€investigation†was going to be undertaken had to reach a â€no crime here†conclusion — meaning to say that if there was a possibility of finding a â€leak crime,†the WH would have stonewalled empaneling an investigation. See behavior re: NSA, extraordinary renditions, Gitmo, habeas, torture, etc.

    Aside from lying to investigators, the entire Plame case is politics writ large. CIA and Schumer, et al on one side; Bush, Ashcroft and their teammates on the other. The politics work best behind a smokescreen, and the opposing sides are all-too willing to oblige with that.

    At any rate, I think Ashcroft’s recusal was a good-hearted effort to produce an investigation that was arms-length distance from the WH. If he’d have personally picked the special counsel (or whatever), the left would have howled that the investigation was a sham.

    I put no stock in the theory that this prosecution represents some sort of retaliation for the Marc Rich pardon. My sense is that Fitzgerald is a straight-up apolitical type.

  29. Anonymous says:

    cboldt said, â€It had a tendency to cause people to question Wilson’s objectivity. In general, I think questioning the objectivity of a presenter is good. I also think Wilson is a liar, in general, in that he carefully states things to lead the listener to a false conclusion. So inasmuch as (true or false) saying he was sent to Niger as a bit of nepotism results in the listener question (and look more carefully) both at what he says on the subject, and what the CIA says about the subject.â€

    Why would the fact that Wilson’s wife sent him (assuming it was proved that was the case, which it has not) cause anyone to question Wilson? Assuming that Wison was qualified for the trip (he was), how does the assignment by the wife tar Wilson? And we are talking about the Bush administration where Dick Cheney can get Elizabeth Cheney a plum assignment in the State Department with little relevant experience, where Bush cronies can get jobs in the administration with little relevant experience (heckuva job Brownie, for example) – contrast these to Wilson who has already been sent on a similar mission to Niger by the CIA previously.

    I totally disagree with the â€or false†part of your â€true or false†comment – the ends do not justify the means and one should not be using false allegations to have people question anyone or anything.

    And you duck the more important question. If in your opinion, the nation benefits by disclosure, aren’t the disclosures by the Bush administration about how the intelligence was gamed far more important?

  30. Anonymous says:

    Pete: – Why would the fact that Wilson’s wife sent him (assuming it was proved that was the case, which it has not) cause anyone to question Wilson? Assuming that Wison was qualified for the trip (he was), how does the assignment by the wife tar Wilson? –

    Assuming he was qualified and objective means to take it as stipulated. So, if the assumption is that he’s qualified, bringing up â€how he got the assignment†becomes irrelevant.

    But if his assignment was driven in part by his wife’s suggestion, then qualified or not, the assignee comes off as having a bias to come up with any preconceived notion the wife or employer want him to deliver.

    My point was meant to be a simple and fundamental one. I think it’s good to question everybody’s qualifications, motives, backchannels, etc. I find my understanding of issues is much better when I research contentions, rather than assume they are true.

    And that’s not to say that what the person reported was false – just to say that’s it’s healthy to question, and that the pubic, in general, does a lousy job of getting to the bottom of any issue.

    Pete: – I totally disagree with the â€or false†part of your â€true or false†comment – the ends do not justify the means –

    I’d be surprised if you felt otherwise. My moral compass operates from beliefs about this case that are radically different from yours (it’s not unlikely that we are at polar extremes of opposition), and we probably have different degrees of tolerance for mudslinging politics.

    I don’t think telling the world that Plame worked at the CIA resulted in any compromise of national security. I further find Joe Wilson’s delivery of information to be intentionally misleading to the casual reader, much as I find Fitzgerald’s â€employment status was classified,†and the White House â€no leak of classified information†as intending to mislead the reader to a false conclusion.

    Pete: – If in your opinion, the nation benefits by disclosure, aren’t the disclosures by the Bush administration about how the intelligence was gamed far more important? –

    Ranking the relative importance of the Plame disclosure and the rationale for prosecuting a military invasion of Iraq is a no brainer.

    P.S. I can think of Bush cronyism nominations and appointments that bug me more than the Cheney daughter assignment. Gonzales, Julie Myers, and Harriet Miers come to mind readily.

  31. Anonymous says:

    Jodi – Thank you for answering my question [and several others which I hadn’t been aware of asking]. Among other lessons I hope to retain from the experience of reading your interjection [If memory serves, I sought third party confirmation of your corporeality; but I’m not complaining.], I suppose this shows that one can never anticipate a Perry Mason moment.

    If it’s not an imposition, might I know the gist of your dispatches to your employer on your mission here and at JOM?

    And forgive my boldness, but I do have this one small suggestion on a matter of technique: I’m not convinced it maximizes your effectiveness as a professional clandestine reporter that you let just anyone in on that. But don’t worry about me – I won’t tell a soul.

  32. Anonymous says:

    I think that Jodi is a high school graduate working as a secretary for somebody’s aide in some office of some political arm of the Republicans. Her syntax is not masters or doctorate level.
    Oh, and LabDancer, are you, by any chance, a southerner? I ask, because your florid language is suggestive of the Demosthenian Society rhetoric I had the â€pleasure†of hearing as one of only two female guests at their annual dinner, hosted by the late, great Albert Sayre, Constitutional expert and professor of political science at the University of Georgia in the early 1960’s.
    Ah, and Emptywheel, your book is extremely well-written and a necessary accompaniment to the discussions on your blog. Thank you for your erudition and great humor.

  33. Anonymous says:

    Margaret – â€Late and spotty†captures the state of my knowledge of Jodi’s animus. I’ve read sporadically from emptywheel’s pre-2006 work here – and only two of her posts at DKos. An archeological expedition into past comments dawned on me only recently. On first reading Jodi’s post on this thread at 03:29 – – oh…I missed the hour; she may not have been at her best – it occurred that it may contain some revelation. I gather your comment aims to fill the gap in my education. Thank you. I will consider the propriety of withdrawal from the contest. My mother – my hero – called compassion the better part of valour.

    There was a time when to be called a southerner was to evoke the spirit of John O’Hara. I take that as a mighty compliment.

  34. Anonymous says:

    LabDancer, I misled you by placing quotation marks around plesure, in referring to Dr. Albert Sayre’s remarks at the Demosthenian dinner. He was a great, gallant, old time southern gentleman, and one of the most compassionate, respectful gentlemen I have ever had the pleasure to know. He had great integrity and was called upon by the Supreme Court justices for advice, from time to time in Constitutional matters.
    I only remember the rhetoric as being florid and very oh, say, Addison and Steele-like in its wit and construction. It was an honor to have been chosen to be one of the only two women invited, as it was an all male debating society. It was an extremely civilized occasion, and I cherish the memory of it and his remarks about feminine virtues, their intellect, and their and naturally â€superior,†womanly gifts. I think he would have adored Marcy.

    If you aren’t southern, I forgive you. I am, and I’m proud of it, mostly because of people like Dr. Sayre. And, I do enjoy your convoluted and original language.

  35. Anonymous says:

    ,
    LabDancer,

    did I ever say I was a clandestine reporter?

    And even if I had ever been, my small task is over. I am just hanging around like any student of a new game, watching the final heroics while the clock ticks down. Like DemFromCT said, you get â€sucked in.â€

    Margaret,

    well I guess I should thank you for not freepatrioting or Kagro Xing me. And there was one worse, that actually mailed me. But then I don’t check that box except when I set up an anonomous account.

  36. Anonymous says:

    All.

    Kind of anticlimatic once it is over…

    The Monday Morning game analyzers will have a spurt of activity.

    Sentencing in June.
    Motion for new trial.
    Appeals.
    Maybe a little excitement in Jan 2009.

    I am sure many here will enjoy for a little while, what previously they would have considered a mere pittance, a few crumbs, compared to their hopes a year or so ago, but

    the anticipation is over, the fun is done.

    – Jodi

  37. Anonymous says:

    Hey Tokyo Jodi

    You played yourself…
    Ain’t nobody else’s fault, you played yourself

    It’s just the beginning and I’m sure it’s just a matter of time before we hear, as Mr. Free (Patriot) is wont to say, â€Mr. Conyers, your next witness pleaseâ€! Libby was just a finger in the dyke.

    Now stick that in your fake doctorate cap!

  38. Anonymous says:

    Sorry for the late response to cboldt:

    Assuming he was qualified and objective means to take it as stipulated. So, if the assumption is that he’s qualified, bringing up â€how he got the assignment†becomes irrelevant.

    My point exactly.

    But if his assignment was driven in part by his wife’s suggestion, then qualified or not, the assignee comes off as having a bias to come up with any preconceived notion the wife or employer want him to deliver.

    I don’t know which employer you are referring to (I assume you mean CIA but that makes no sense). The point about the wife makes no sense, since just because a wife suggests her husband be given an assignment does not automatically imply that there is bias in the work performed by the husband. Especially when you have not been able to demonstrate anything wrong in the work performed by the husband.

    My point was meant to be a simple and fundamental one. I think it’s good to question everybody’s qualifications, motives, backchannels, etc. I find my understanding of issues is much better when I research contentions, rather than assume they are true.

    Sure, but one could question Wilson’s motivations without dragging in his wife.

    And that’s not to say that what the person reported was false – just to say that’s it’s healthy to question, and that the pubic, in general, does a lousy job of getting to the bottom of any issue.

    Here is where I largely disagree with you. You are saying (loosely paraphrased) that Wilson’s report was correct but we should still raise issues about the report because Wilson was suggested by his wife.If you really want to question motives, question who was sent by whom, then you should have a big issue with the way the Iraq intelligence was presented to us by the Bush administration. The information turned out to be false. The bias and motivations of the Bush administration are clear. I am not sure of where you stand on this and your “no brainer†comment.

    I further find Joe Wilson’s delivery of information to be intentionally misleading to the casual reader,

    What was misleading in Wilson’s NYT article?

    much as I find Fitzgerald’s â€employment status was classified,â€

    Here is another Fitzgerald quote from his press conference: “In July 2003, the fact that Valerie Wilson was a CIA officer was classified.â€

  39. Anonymous says:

    Pete: I consider you to be the left’s equivalent of Cecil Turner (hint: he’s on my twit-list for being pedantic and chronically misrepresenting the record), and will leave it at that. Parse my rhetoric however you please, others can do the same. As I said, we are probably polar opposites ideologically, and nobody’s opinion (not yours, not mine, not any reader here) hangs in the balance of an argument between us.

  40. Anonymous says:

    Pete: I consider you to be the left’s equivalent of Cecil Turner (hint: he’s on my twit-list for being pedantic and chronically misrepresenting the record), and will leave it at that. Parse my rhetoric however you please, others can do the same. As I said, we are probably polar opposites ideologically, and nobody’s opinion (not yours, not mine, not any reader here) hangs in the balance of an argument between us.

    Please. I’ve been fairly respective of you, I have not personally attacked you. If you want to show how I’ve been â€pedantic†or â€misrepresented the record†by all means do so. But to leave those comments out and compare me to someone I know little about is simply engaging in a dishonest dialog.

  41. Anonymous says:

    I was explaining why my response wasn’t substantive, by expressing my personal opinion of your part of this exchange. Take heart, my snippy response enables you and others to likewise label me a twit, and move on.

    Taking Fitzgerald’s â€employment status was classified†out of context is extremely misleading, and as far as I am concerned is a gross misrepresentation of Fitzgerald’s position taken in that press conference.

    As for my opinion that you are â€pedantic,†if you don’t see it, you’ll just dispute my evidence. At any rate, the label isn’t worth arguing one way or the other. The bottom line is that I’m just not interested in debating with you, and I’m honestly telling you why I choose not to.

  42. Anonymous says:

    Cut and paste typo above — I meant to say that taking Fitz’s â€the fact that Valerie Wilson was a CIA officer was classified†out of context is a gross misrepresentation of his position.

    The general point I was trying to make (before) was that I find Fitz’s use of the phrase â€employment status was classified†to be misleading to the casual reader, and deliberately so. I still think Fitz was justified in pursuing and prosecuting Libby for false statements, FWIW. I use Fitz’s misleading phrase as an example of misleading casual readers, and I accuse Wilson of likewise using carefully tuned phrasing to cause casual readers to jump to false conclusions. The contentions of people who use carefully tuned phrases should be examined carefully.

    To go back and visit my original point that you find distasteful, some readers have to be hit with irrelevant stuff in order to cause them to look closer. That isn’t a concession that â€Wilson’s wife worked at the CIA and suggested him for the assignment†is irrelevant, just saying that different readers respond to different stimulus.

    I assume that you (and most readers at TNH) will never agree with my point of view that â€outing†Plame was a net benefit for the country – and in hindsight I probably should have let your objection stand without any attempt on my part to explain it.

  43. Anonymous says:

    The general point I was trying to make (before) was that I find Fitz’s use of the phrase â€employment status was classified†to be misleading to the casual reader, and deliberately so. I still think Fitz was justified in pursuing and prosecuting Libby for false statements, FWIW. I use Fitz’s misleading phrase as an example of misleading casual readers, and I accuse Wilson of likewise using carefully tuned phrasing to cause casual readers to jump to false conclusions. The contentions of people who use carefully tuned phrases should be examined carefully.

    You have said that Fitz’s phrase was misleading (even though I think that the phrase Fitz used in the press conference seems to be the one you are looking for). How is Fitz’s wording misleading?

    Many have said that Fitz did not want to get bogged down in the trial to having to prove classified things that he would not be allowed to declassify and present as evidence. You seem to be saying that Fitz is deliberately imprecise to mislead certain people. I am at a loss here.

  44. Anonymous says:

    To go back and visit my original point that you find distasteful, some readers have to be hit with irrelevant stuff in order to cause them to look closer. That isn’t a concession that â€Wilson’s wife worked at the CIA and suggested him for the assignment†is irrelevant, just saying that different readers respond to different stimulus.

    Sure. But some things cannot be said even if there may be some benefit to disclosing them.

    Consider the following information stated in Libby’s indictment:

    Shortly after publication of the article in The New Republic, LIBBY spoke by telephone with his then Principal Deputy and discussed the article. That official asked LIBBY whether information about Wilson’s trip could be shared with the press to rebut the allegations that the Vice President had sent Wilson. LIBBY responded that there would be complications at the CIA in disclosing that information publicly, and that he could not discuss the matter on a non-secure telephone line.

    So while there may be a benefit to getting a certain audience to respond, even Libby knew the dangers of a public disclosure.