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September 30, 2005

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So let me get this straight. Judy didn't really have to be in jail... but once she decided it was in her best interest to sing, the voice lessons started in earnest. And her principled first amendment stand that Daniel Schorr and others (but not Doug Jehl, to his credit) bought into is just Judy blowing smoke out her butt trying to proptect herself, sice it was clear she was being set up and dropped like a hot potato by libby.

Gee, i wish we all get to hear her concert when she sings. Oh, well, the summary will be broadcast all over the internets.

This makes me want to know the content of the Judy-Bolton prison diaries even more. After all, how do you send a message saying, "Sure, out Libby, but make sure you still protect our earlier conversation" without the prosecutor considering it an incriminating discussion. And did he also give them permission to speak, reassurances he wouldn't slap an obstruction charge on them?

There also seems to be some contention between Abrams and Bennett. Recall that Arianna said the NYT was rethinking its stance once it got more realistic advice than Abrams was giving. Bennett started negotiations with Tate, not Abrams. So maybe it was Bennett giving the Times the dose of realism. But everything seems to have come down to Abrams' negotiations in the end.

One question I've always had, too, was whether there'd be a time when Abrams or Bennett split off, one defending the NYT the other Judy. Or something like that. I would have thought Abrams would be the NYT guy, and Bennett (big celebrity lawyer) the Judy guy. But maybe I've got it reversed.

Oh, and one more thing.

I think I'm vindicated in my supposition that NYT had found a loophole in the work for hire assumptions regarding Judy's notes. By most standards, they would own Judy's notes on a story. We know, because she handed over her notes, that she DID take notes of the July 8 meeting with Libby. But NYT has always been able to argue they don't have anything pertinent to the subpoena.

Doesn't mean my speculation that the had put her in some kind of disciplinary status is right. But it does mean they were able to argue compellingly to Fitz that those notes, which under normal circumstances would belong to the NYT, don't belong to them.

I was a little confused about the part where Fitzgerald gives Judy assurances he wouldn't slap her with obstruction charges for her conversations with Libby; when I first read it I thought it must refer to her conversations with Bolton. That conversation feels like it must be key in some way still unknown.

Regarding Abrams -- it makes sense that he wrote the final letter not because he was in charge of the negotiations (she'd still be sitting there come Christmas, IMHO) but because he had conducted the conversations with Tate earlier in the game and it was on him to set the dissembling straight. According to the Reuters article, he's been on the shelf, and had not talked to Fitzgerald as of two weeks ago. Sounds like he got dragged back in by Bennett to clean up his earlier mess.

Libby and Rove have both said they heard from "reporters" or "a reporter" that Wilson's wife was a CIA agent. But here's (again) the summary of Libby's testimony regarding his conversations with Miller as reported by the WaPo today:

"At the time, she asked him why Wilson had been chosen to investigate questions Cheney had posed about whether Iraq attempted to buy uranium in the African nation of Niger. Libby, the source familiar with the account said, told her the White House was working with the CIA to find out more about Wilson's trip and how he came to be selected.

"Libby told Miller he heard Wilson's wife had something to do with sending him but he did not know who she was or where she worked, the source said.

"Libby had a second conversation with Miller on July 12 or July 13, the source said, in which he told her he had learned that Wilson's wife had a role in sending him on the trip and that she worked for the CIA. Libby never knew Plame's name or that she was a covert operative, the source said."

Note, in the first conversation Libby tells Miller that Wilson's wife had something to do with the Niger trip. In the second conversation Libby tells Miller that Wilson's wife is a CIA agent.

Note that neither time does Libby say he heard the info from Miller--he is telling Miller. I have assumed that the source was Libby's lawyer. Maybe all Fitz wants is for Miller to corroborate that she didn' tell Libby. Then they have Libby for an earlier fabrication to Fitz's investigators or the FBI. Rove too.

This still leaves out who told Libby between 7/8 and 7/12 that Wilson's wife was CIA. Again, the prime culprit is the INR memo, which could have been read from AF 1 to Libby and/or Rove by someone who didn't pay close attention to the little "S" for secret by the paragraph, or didn't think it applied to them. Unless that person told Rove/Libby that it was secret, they might not have known either, although one should expect that the identity of CIA agents is secret. Was the person who saw/read the memo authorized to see all of it? Not necessarily. So the issue is still who told Novak, and how did the info originally get to the smearers? INR memo or Fleitz/Bolton?

It would seem that Fitz would only need Miller to complete a case against someone. If she told them, they are off the hook. Why would Fitz need Miller's testimony to wrap up a no-indictment report? Seems like a lot to put someone through, and Miller wouldn't go to jail to withhold exonerating info.

If the above summary of Libby's testimony is right, Libby is in trouble. Of course, it could have been a summary by MILLER's lawyer trying to pin it all on Libby and giving him a heads up that that was what she was going to do. In which case we don't know if it is correct as to what Libby testified to or, if so, if Libby testified truthfully. Wheels within wheels.

Wheels within wheels.

An engine powered by CYA. nice guys to work with, these goodfellas.

I really appreciate ya'll's fantastic work on this, but I am confused by the "condition of employment" thing. Could somebody elxplain it's significance? I probably missed that diary - I've been on the road some lately, but I would appreciate somebody explaining it.

dksbook

Last year, Fitz originally subpoenaed NYT and Time in addition to their reporters to receive any materials they might have related to conversations that week. The NYT was able to give some explanation that was convincing enough that when contempt citations were issued, NYT didn't receive one. Time magazine did receive such a citation, which is why they released Cooper's notes, which if you recall preceded his testimony. In other words, Time broke, which made it pointless for Cooper to hold out any more.

We know Judy was working on a story, so there must be an unusual reason why NYT wouldn't own her notes for that story. Normally, a journalist's notes are considered work for hire and therefore the property of the company paying her to do her job. But somehow, NYT was able to argue that that wasn't the case this time around.

As I have suggested, Judy was probably off the ranch when she was working on this story. She wasn't supposed to work on anything alone, without her two source buddies. So my speculation has always been that the NYT simply told Fitz, "Judy was under discipline at the time she interviewed Source A, she was only supposed to be be working on Story A, B, and C. So if she has any notes on Story D, then it's not work she was doing for us."

The interesting thing about that is that Scooter claims Judy was talking to Libby for a story on WMD. Stories on WMD or on the anthrax case were the only things Judy was working on at that time. She published her final summary of Iraq's WMDs just after the leak hit. So it is plausible that she was talking to him about WMD. But it would mean NYT should have owned those notes.

Having caught the "Judy SPeaks After Testifying" show, I have to say that the one thing that leapt out for me from the whole performance was that she has not yet been home. Which means that Judy got out of jail yesterday afternoon and was remanded to the custody of the US Marshall Service for the evening to ensure her presence in court for testimony this morning. Unusual for a cooperating witness who is not accused of any criminal behavior, to be frank, or who is not a risk for flight. What does Fitz know about Judy that we don't know? This is getting seriously intriguing. A Federal Judge would not remand her custody to the Marshall's service without a reason to do so -- they don't waste resources for show, there has to have been a reason for sequestration. That La Miller was tired this morning says they were doing debriefing last night and getting her statement on record before testimony today -- and that sounds like it was a statement a bit longer than "Scooter Libby told me about Valerie Wilson Plame." doesn't it? Veddy, veddy interesting...

My favorite part of the WSJ coverage on this?

Reached last night, Arthur Sulzberger, Jr., publisher of the Times, said, "I can confirm that Judy Miller is out." He declined to elaborate except to say the reporter was "enjoying a steak at dinner, which you are interrupting." The New York Times is owned by New York Times Co. [emphasis mine]

Some people, after they got out of jail after 3 months, would go home and have a quiet dinner with their husband. Especially after reading those nasty rumors about the cruises and so forth.

But not Judy. She went and had dinner with Sulzberger.

Now, she and Sulzberger are old friends. And Sulzberger's presence doesn't mean her hubby wasn't there too.

But what does it say that he was treating her to a big steak dinner? A thank you for having finally agreed to testify and get the NYT out of its little legal trouble? A strategy session for how they were going to turn this embarrassment into a PR win? Or did Sulzberger just promise Fitz he would watch over Judy until she testified? Inquiring minds want to know.

I also caught the media presser. All on principle, she says. hopefully within the week we'll know if that's so. She's got to know that quite soon, it all comes out.

What is she and Sulzberger playing for, if in a week or two, the facade disappears?

RedHedd,

Is it possible Judy's still up on charges (like conspiracy) but she is getting consideration for having testified here? It seems likely that she still was the carrier of some information to Libby, in which case she might be liable. But if she were going to be charged, would she get to wander around for a little while?

DemFrom,

Judy and Sulzberger are saving the Grey Lady from having to lift her skirt so we can all see she wears dirty underwear. What will likely NOT become public is the way NYT sat on this story, after telling Judy not to publish it. What will likely NOT become public is the remarkable "embedded" relationship the NYT has with the Iraq war cheerleaders.

Which is why Sulzberger probably paid for the steak.

If she was sequestered overnight, where did the steak with Sulzberger fit in? Did he order it to go and bring it to her? Were there federal marshalls at the next table?

Interesting that she got both a written letter from Libby and the telephone call, why not a visit?

Emptywheel, it is entirely possible that Judy could be looking at criminal liability, especially if Fitz has information that she might have been involved in any cover-up scheme -- that would leave her open to conspiracy and obstruction and potentially false statements to the FBI charges, along with any co-conspirators. Or to perjury if she makes statements under oath to the SGJ that are false and Fitz can prove that she did so knowingly. Or...well, you get the picture. No indictments have been issued that we know of (they could always be under seal, so you never know...), so Judy would be released until the SGJ completes its consideration of the evidence. Here's hoping we know something soon -- the suspense is killing me!

btw, for everyone who hasn't spent time on the phone with people in prison or visiting them in the facility in person, EVERYTHING is pretty much recorded. While you are on the phone, you can hear periodic clicks that tell you your conversation is recorded -- and that is true for attorney calls as well, I can attest to that from calls between clients and myself in the past. When you visit, if you are visiting in the usual "between the glass booth" area, the phone that you use for speaking (like you see on tv) is also recorded. I would bet money that Judy's visits and calls have been recorded throughout her stay, and that Fitz already has an order in hand for a wiretap now that she is out for all her known numbers. I would.

Sorry dksbook,

I answered the wrong question. It appears that, since Bush said all WH employees had to give waivers, Tate said that didn't count. It was coerced. The implication being that Libby would have lost his job if he hadn't issued a blanket waiver.

Actually, to speculate on firedoglake's comment above--the import of the obstruction exception?

Is it possible that Judy and Bolton are collosally stupid enough to try to get away with an obstructing conversation in prison?

Imagine that Fitz has only finalized his Bolton understanding of this case since Judy's been in jail. Bolton goes to visit. He's an arrogant fuck, so he believes he's smart enough to outsmart Fitz. So he says something like, "Judy I appreciate the coverage you gave me for news issues while I was Under Secretary of State. And I hope you can give me the same coverage while I'm UN Ambassador." All true, I guarantee you. But enough a double entendre it could be interpreted as witness tampering. At which point Fitz says, "Oh Judy, in addition to the criminal contempt indictment I've got in my back pocket, I've got a little conspiracy charge for you as well. Are you sure you don't want to get on the horn with your buddy Scooter Libby?"

>EVERYTHING is pretty much recorded

...so when you watch The Wire on HBO, and the visiting thug is talking strategy with the jailed ringleader, that's all completely unrealistic? There's no way for a powerful crime figure to get messages and instructions to the outside?

ReddHedd, just for the record as someone who was (illegally) wiretapped for eight months, I can assure you that recording phone messages - in or out of prison - doesn't require giving the game away with little clicks.

- - -

Let me add my speculation to one teensy, tangential part of this terrific discussion: Judy's notes.

Of necessity, reporters must be good compartmentalizers, as all but the most fortunate are usually working on several stories at once. So, while Judy may have been under discipline, and assigned only to subjects A,B & C, she may, like many of her fellows, been leveraging all her contacts for D, E and F stories. She gets to the end of her Times's assignment interview with Scooter and then she starts discussing something unassigned, something she may be planning to raise only later with her bosses, or something she has in mind to write for somebody else - a magazine, say. Technically, she may still be on the Times's clock, but ... And this might give the Times an out because that part of the notes don't apply. As we've heard, the notes have been redacted, and it's unlikely we'll ever learn what was in the left-out parts.

As for that steak, isn't that often offered as a last meal?

There is a way, but both parties have to know what they are doing in terms of the conversation and the code they use for discussions. The Wire is REALLY well done -- one of my favorite shows, actually, because they get the details right unlike most crime shows on tv. When the two priciples were discussing stuff at the prison, they had three factors in their favor: (1) overwhelmed (and sometimes lazy as to details) police and prosecutors on the case; (2) smart felons who spoke in careful language; and (3) payoff to prison officials for safety and other issues -- really good writing on that show! Also, the prison scenes in The Wire are in state facilities for the most part and not federal ones. In my experience, the Feds operate a much tighter ship in terms of equipment and recordings and such. Also, there has to be an active effort to monitor the specific conversations -- they tape hours and hours of stuff every day and have to dig back through those tapes to get what they want after the fact if they aren't doing active daily monitoring of a specific inmate (via a court order for the information obtained by the police or a prosecutor). Fitz is meticulous in terms of details for his prosecutions, and I can only assume he's had a standing order for all this from the moment Judy entered the facility.

MB -- I hear you on the clicks thing. I've had clients have to go through that as well and know what sort of technology you are talking about -- and how easily available it is for anyone who has a friend working at Radio Shack. In the case of prison calls, though, most facilities have put in place a system that makes the audible clicks due to either aged equipment not having been replaced or as an audible reminder that the calls are being recorded -- not sure about the motive as to why they do this, but every call I had with clients or witnesses in jail was accompanied with those clicks. May just be representative of them having antiquated equipment in WV -- that wouldn't surprise me one bit.

Obsessed -- one other thing. As an attorney, you have particular non-wired interview rooms that you can use with clients. A dirty attorney could, feasibly, pass information between an incarcerated client to someone on the outside when meeting in one of those rooms. But even there, you are generally in a glass-enclosed space, or at the very least a room with a glass window in the door, for safety reasons where you can be seen at all times by the guards on duty while you are with your client. (Well, with the exception being the time they didn't have any rooms available and had me meet with my client -- a huge, violent skeezeball -- in the weight room. Alone.) At least that is how it has worked for me in every facility -- state or federal -- where I have visited clients.

On July 22, 2005 Congressman Henry Waxman pointed out 11 Security Breaches in the Plame Case. YubaNet

This was later followed by a letter to Fitzgerlad from Congressman Maurice Hinchey, signed by 40 other Dems, requesting that the scope of his investigation be increased to include the origins of the forged documents about yelowcake from Niger.Crisis Papers Since State Department records reveal John Bolton as actively involved in this, it could be that Fitzgerald is indeed increasing the scope of his investigation and Miller figured it was time to say Uncle.

Bolton not realizing he was being recorded would be unthinkable -- I mean -- that would be like the President recording all of his grossly incriminating conversations in the Oval Office ... uhhhhh

I just can't get a handle on these guys ... they're smart enough to figure out how to get the red state masses act against their own financial interests and support them through thick and thin, but they're stupid enough to take over Iraq without any kind of plan to manipulate the no-doubt equally-gullible masses there. It's a puzzlement.

obssessed

I don't think it's a question of stupidity. I think it's a question of arrogance.

Wheel, thanks for your answer to my coercion query, and also for the clarification above that re: the NYT wiggle room on the notes. I just can't get over the fact that they wouldn't "own" her work product under the scenario MB suggests above - and also about the redacted notes - who would do that redacting, MB, and why, in your scenario?

About the obstruction of justice exclusion: Is there any reason Fitzgerald was limited to charging Judy with criminal contempt? Why not charge her with obstruction of justice for refusing to testify? Willfully witholding pertinent information can constitute obstruction of justice (See 18 USCA section 1505, for example).

An obstruction charge could be a pretty big hammer (no pun intended). It had already been established that there was no reporter's privilege that applied and she didn't claim the 5th. How was her refusal to provide subpoenaed information not obstruction of justice?

dks -- I can answer the redacting question. Judy would sit down with her attorneys and redact the portions of the notes that they felt were outside the scope of the agreement they have with the special prosecutor for her testimony and note provision. Her notes were negotiated as a part of whatever deal Fitz cut with Bennett and company to obtain Judy's testimony. They would be redacted if, say, she was talking to Libby about matters outside the scope of the agreement, i.e. what sort of flowers Rove's wife would like for her birthday, what he wants her to print from Curveball next, etc., etc. The Special Prosecutor would then review the notes, and they would negotiate if it seems that some potentially related material had been redacted according to the flow of the notes when he reads them. There is also a possibility that the Court would do the redaction -- sometimes the Judge is given the authority on agreement of the parties to read through the material and discern what is and is not relevant in terms of the agreement for testimony and information provision. HTH!

My guess is that redacting was a group effort, and a fine-tooth comb one at that. One (legit) reason would be to eliminate any reference to those "other sources" that Judy has got Fitz to agree she doesn't have to talk about before the grand jury. But redactions could also include subject matter considered outside the scope of the investigation, although who gets to decide what is and isn't could become an issue in itself. Half the journalists I know use some kind of code. My mother taught me Gregg shorthand, which I adapted, and still use - almost unreadable to anyone but me, so it'll be interesting to know if Judy's notes have been transcribed.

Bennett was just on CNN saying that Judy's testimony was limited solely to what she knew about the Plame matter. That she didn't want Fitz to get into matters outside of Plame.

Guess she didn't want to get into what she might know about Niger documents, eh? But that does leave a WIDE OPEN door in terms of questions. Damn, Fitz is good!

Wow.

Wouldn't it be remarkable if the restriction really was to Plame? Which meant he could ask about Bolton, no problem? Which might happen only if the Bolton visit caused Judy some problems. (That is, got her in enough trouble that she didn't HAVE to tell her source.)

BTW, ReddHedd,

what sort of flowers Rove's wife would like for her birthday, what he wants her to print from Curveball next, etc., etc., how'd you get a hold of Judy's notes?

Or, assuming that Fitz could only go after other sources if 1) he had gone back to a judge and gotten it okayed or 2) he had proven that Judy's relationship wrt her other sources was not the relationship of a journalist to a source.

Wouldn't that second one be delicious?

Bennett was asked several different ways whether testimony was limited solely to Libby, and his response was consistently "related to the Valerie Plame matter." The intentional, repeated and expansive vagueness speaks volumes in lawyer speak. I think Judy cut a deal.

No wonder Sulzberger bought her a steak.

Why do I get this feeling that the notes are so important and who redacted them is so important? And the only reason i can see for going thru a long drawn-out redaction negotiation is to "protect" any other sources outside the scope, yada, yada. But at this point, who cares? She cut a deal, she's talking, what is there to protect, except her career? And does she have one anymore? Is that what all this drama has been about? Geez, I can't wait for the book!

A questions for you sharp minds: Let's say several people in the WH are indicted by the Plame grand jury, including Rove. How big a deal will this be in the media, and will it get confused in the public mind with the Delay and Frist problems, instead of being seen as a much more serious offense than money laundering or insider trading? I suppose a lot of it depends on how clearly Fitzgerald presents the "narrative" of the case and how much our nationa security was compromised, i.e., agents in the field died, etc. But how much of this evidence will Fitz be allowed to reveal at the time of the indictments? Won't most of remain confidential until the trial(s)?

I just read here on Kos that it might be possible her deal was to keep Fitz from investigating her very own bogus WMD crapola. How likely is that?

I've been so focused on indictments, that I forgot until now to wonder when the trials would be. Wouldn't I love to be a juror on one of those! Of course, even if I lived in DC and was called, the defense lawyers would look up my political contributions and reject me.

orchid,

I think this will meld, to some degree, into the Franklin trial, if it gets any publicity (it will be more closely guarded). And eventually they'll all meld into one, tied by Abramoff.

I think the big question is, will this trial spark a reexamination of Cheney's and Judy's lies which got us into the war. That is, will it finally give us a DSM investigation. Will we learn who forged the Niger forgeries. If we get that kind of investigation--or if the purported Niger forgery investigation reappears from under whatever rock it has been hiding under, then you will have very serious attention paid to it. But that's a very big if.

An investigation? A real one? Not until January, 2007.

I've been wondering whether what broke the dam might have been the delivery of a number of Target letters sometime around the middle of August. Judy could have received one, at least one that noted intent to persue Criminal Contempt...and evaluations might have been made as to how damaging to other principles her conviction and imprisonment might be as one looks down the road.

Sara,

Interesting suggestion.

Or it may be that Bolton received a target letter and told her about it during the visit. Would that constitute obstruction? If not (that is, if he could say it openly), then it would immediately tell Judy that they already had enough evidence to fill in the space around her. Which might change her approach to testifying.

Although FWIW I seem to recall Tate saying yesterday that he had not been informed that Libby was a target.

This still leaves out who told Libby between 7/8 and 7/12 that Wilson's wife was CIA.

Don't overlook Matt Cooper of Time, who spoke with Libby on July 12 after speaking with Rove.

From Meet The Press:

EXCERPT
MR. RUSSERT: You also write in Time magazine this week, "This was actually my second testimony for the special prosecutor. In August 2004, I gave limited testimony about my conversation with [Vice President Dick Cheney's chief of staff] Scooter Libby. Libby had also given me a special waiver, and I gave a deposition in the office of my attorney. I have never discussed that conversation until now. In that testimony, I recorded an on-the-record conversation with Libby that moved to background. On the record, he denied that Cheney knew"--of--"or played any role the Wilson trip to Niger. On background, I asked Libby if he had heard anything about Wilson's wife sending her husband to Niger. Libby replied, `Yeah, I've heard that, too,' or words to that effect."

Did you interpret that as a confirmation?

MR. COOPER: I did, yeah.

MR. RUSSERT: Did Mr. Libby say at any time that Joe Wilson's wife worked for the CIA?

MR. COOPER: No, he didn't say that.

MR. RUSSERT: But you said it to him?

MR. COOPER: I said, "Was she involved in sending him?," yeah.

MR. RUSSERT: And that she worked for the CIA?

MR. COOPER: I believe so.

END

TM

But that's still not enough for the Novak leak.

You need to get to Plame's maiden name (I know that's a legal weakness, since Novak can plausibly argue he learned it from Whos Who). More importantly, you need to get her covert status (thus far in the week, there is nothing to indicate that she's anything but an analyst. Somehow, by the time you get to Novak, she's an operative, not an analyst).

I still think we are ignoring the obvious here. Well maybe not so obvious, but if you understand the system details, it is fairly obvious.

I would point to a much earlier date for the discovery of Mrs. Plame Wilson's "discovery" -- namely soon after the decision was made in Libby's office to do a "workup" on Joe Wilson in the first week of March, 2003.

Wilson was a Foreign Service Officer for over 20 years -- and in the State Department, he would have a personnel file detailing all his assignments, his proficency ratings, it would include complaints plus letters of commendation -- just everything in his jacker.

In addition, I would imagine that when he married Valerie Plame in 1998 he had a security review -- something that happens to all CIA officers who form relationships and get married. NOC's do not move in with or marry anyone without reporting it, and having it reviewed. And yes -- that too would be in Joe's Jacket at State -- a request for a security review had been made -- done -- passed on to CIA. Any of the people at the Libby meeting where a "workup" had been authorized who had access to State Files would have been able to discover that Valerie and Joe's relationship had gone through proper clearance processes. So the information about Valerie probably was available much earlier to the folk scratching for dirt at the White House -- and there are several persons such as Hannah and/or Wurmser who worked in both Bolton's office and Libby's office, could have been the avenue through which the information traveled. In fact reading Joe's personnel file would in my mind be step one in the workup. The contents would have probably been known among the Libby anti-Joe Wilson taskforce by mid March. And all the members of that group have been to the Grand Jury long since.

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