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October 14, 2005

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Love to see the Prisoner's Dilemma acted out in real life.

Pop culture reference for emptywheel:

Fitzgerald: Fezzik, tear her arms off.

Miller: Oh, you mean this notebook.

Judy: I can't compete with you physically, and you're no match for my brains.
Fitz: You're that smart?
Judy: Let me put it this way: Have you ever heard or Plato, Aristotle, Socrates?
Fitz: Yes.
Judy: Morons!
Fitz: Really! In that case, I challenge you to a battle of wits.
Judy: For the notebooks? To the death? I accept.


well, perhaps the grand jury interview didn't go exactly like that, bit...

Oh, oh, I know that one. Isn't that the Four Weddings and a Funeral?

No, seriously, Princess Bride was almost one of the legion of movies that I've ruined for myself by not watching it until everyone had already memorized every line.

The Wheel on a roll is a beautiful thing to behold!

1) What about the brevity of Judy's second GJ appearance?

2) What about the possibility of Judy taking the 5th?

3) How do you now see the odds of Bolton being indicted?

4) How do you now see the odds of new information on the Niger forgeries coming out of all this?

5) You're not really leaving town in the middle of all this are you??

Emptywheel, I want to tell you how great a job you and Jane Hamsher are in covering "Plame/Treason/Rover Gate." The DustBunny theory in particular is a PHENOMENAL assembling of disparate facts to get the underlying story. If you wrote a novel with facts as juicy as this, it'd blow out DaVinci Code in sales.

Not sure I agree with your theory about Fitz having to choose between confronting Judy about the June conversation or giving her a chance to perjure herself. Why would Fitz need to choose? Miller either (a) answers the questions truthfully about the June conversations, and Libby is hosed OR (b) Miller lies about or omits the June conversations and then Fitz flips her, and Libby is hosed.

In either case, Libby is hosed. (b) has the added benefit of Fitz nailing, prosecutorially speaking, Miller.

I'm real glad that Miller perjured herself in her first Grand Jury testimony. Miller was basically a Bush mole in the NYT spreading their lies. She deserves to be indicted with perjury, conspiracy and obstruction along with all of her other fellow WHIG "Turning Aspens."

I will want to yak if, after all the damage Miller has done to this country and the NYT with her irresponsible reporting, she gets a $1.2 million book deal and gets to preen around as a "martyr" for staying in jail to protect her "sources" when in reality all she was doing was protecting her worthless hide.

obsessed

It's my first vacation all year! (Well, my second one, but the last one was a weekend trip where I spent a full day getting bumped by Northwest). I'm confident I'll find squirrel-powered internet access while I'm gone.

I doubt Judy took the fifth. She wouldn't have handed over the new notes if she were going to take the fifth. Nor would she have agreed to testify willingly if she thought she'd have to take the fifth.

I think it's possible that she actually did agree to a plea bargain (we don't know how long her chat with Fitzgerald was yesterday). In which case, he can keep her testifying for the long term in hopes of a reduced sentence.

I'm not sure whether Fitz already has the Niger stuff, or whether he's ready to indict on the first level of the conspiracy in hopes that real possibility of jail time might flip some more of the tangential players.

And Bolton? I don't know. I think it's quite possible. But I also wonder who told Fitz about the conversation on the 25th. Nahhhh. Bolton would never flip.

Seems to me Miller was less of a mole than a component in a diverse newsroom, an element in the bellcurve of reportage on a range of factoid, demirumor, to genuine investigative journalism, sometimes touching on all parts of that range. The notebook I conceptualize as perhaps several pcs; and the Times' view of that content a complex mix of benevolent supervision and astute longterm planning. There will be a smokescreen fogstorm today, as well, given who is the day's witness. And all these appearances are starting points for trials that will have less constraints than the discovery process currently under way. The June questions will be asked in that subsequent forum. While the courts might touch upon the Niger constellation of matters, I would anticipate congress would have to supply its authoritarian impetus to launch a true factfinding. It is appropriate the winnowing of dust kittens is an ongoing effort in TNH. EW should stay off net during the entire getaway. Imagine how transparent these contrivances will seem after that hiatus, refreshed.

Once again, let me join the chorus of encomia to emptywheel's analysis. One real point and one tiny nit:
First, saugatak is absolutely right and has pre-empted my comment, but I'll say it anyway. I think emptywheel's hypothesis that Judy was less than forthcoming will prove to be spot-on, if we ever get the whole story of her grand jury shenanigans (which might not actually ever surface). That said, I think the use of the tem "perjury trap" has been misleading. Any question on a material subject, if not answered truthfully, can elicit perjury. Stated otherwise, a simple question is only a perjury trap if one is determined to perjure one's self. We often ask witnesses questions that we know the answer to, in order to get the answer on the record, holding a document that proves it in waiting, in case the rube decides to lie. Whether that's a "trap" is somewhat semantic. A true perjury trap in my mind is a question or line of questions designed to do nothing more than elicit a lie that can be proved as such. I rather think that Fitz would prefer to just get a straight answer, which, I think you have demonstrated, he did not get. The nit is really quite trivial. In this arena, it is not so much case law that constrains the subpoenaing of a journalist, it's the U.S. Attorney's Manual. The idea that a discovery request or subpoena to a journalist may only be employed as a last resort is a creature of common-law journalist privileges (albeit one embraced by DOJ as a matter of policy). There are some federal courts that still adhere to that idea with respect to the civil discovery process (not the D.C. Circuit, by the way) but I don't think any federal court will now hold that there is any such legal constraint on a federal prosecutor.

SDangerfield

Thanks for the clarifications. I yield to your expertise. Beyond the fact that I'm not fond of perjury trap either, since it makes it sound like the prosecutor did something dirty.

Amazed an enthralled at this commentary. I've google news'd "plame" every day for two years; I'm now enraptured, ensconced, jacketted, bowled over by this thinking. Wow? Tentative wow. There's someone else out there musing, puzzling this case out? What an incredible age we live in. Thank you Emptywheel!!!!! And thanks to the HuffPo for pointing me here.

emptywheel,
Are you operating on the assumption that the controlling law is the IIPA rather than the Espionage Act? Why is that?

earlier comment not be taken sarcastically... I really do enjoy, hope, seek for stuff like this. So glad I found it.

Andrew Card was on C-Span this morning singing the praises of the prez, I employ you to check it out. Are we going to see the Feinman split-camp theory at bay, Rove vs Card?

Also be sure to check out marty kaplan's post on connectivity. A wheel is turning.

antiaristo

I'm agnostic on whether Bolton (or whoever first leaked the identity) will get Espionage or IIPA. But I think the Espionage leaks were designed to demonstrate to Judy the full extent of her jeopardy on this--it's the one of the three violations (IIPA, security clearance, and Espionage) that doesn't require the person to be a government employee, AFAIK.

This is a great post emptywheel. If he knows the whole story, any chance Fitzgerald was trying to get Rove to come in earlier this week to dig his hole deeper before asking Miller back? As I recall this was announced before the Judy developments.

Speaking of camps and divisions and neocons and traps. Let's assume there in fact exists this Cheney/Bush split. Novak's Sep 22 column talks about the growing conservative Bush-bashing movement in Aspen, noted by Petrox at Kos. Libby's phrasing in his letter to Judy about the aspens turning in clusters because their roots connect them could be an indication that it's okay to turn on Bush by rolling on Rove. The rest of Libby's letter supports that. If Cheney's camp can be considered the real neocons, and if Bush (not a real dyed-in-the-wool neocon of the Kristol/Cheney/Wolfowitz/Wurmser variety) is truly giving Cheney's office shit about Iraq, then you could easily see how Cheney's posse (including Libby) could want to fuck Rove/Bush. Of course, Fitz probably had the leverage on Judy to prevent her from being able to pick and choose her testimony. Purely speculation.

I will want to yak if, after all the damage Miller has done to this country and the NYT with her irresponsible reporting, she gets a $1.2 million book deal and gets to preen around as a "martyr"

You give too much credit, such as it is, to the NYT. The NYT has done this to themselves. They deserve everything that happens as a result. They deserve massive loss of readership, massive loss of credibility, massive loss of revenues, and bankruptcy. Judy deserves a cell with a big, mannish, aggressive lesbian (not that there's anything wrong with being lesbian, it's the context and the effect).

park

I speculated just that at the time.

And she might have succeeded with that line in the first testimony. But not the second.

Rove fell victim to the classic blunders! The most famous is never get involved in a land war in Asia, but only slightly less well-known is this: never go in against a relentless Irishman when political death is on the line!! Ha ha ha ha ha ha ha!! Ha ha ha ha ha ha ha!! Ha ha ha--

I should have known you did, emptywheel. As soon as I hit submit I realized it could not possibly be an original thought. Your work on all this, by the way, has been extraordinary. I regret that I only started reading your posts in the last week or so. I wish I had time to go back and read them all. Maybe I'll try. Your blogging on this shows what blogging can and should be used for. Keep it up.

Wheel, you da man! Or is it woman? Great piece of sleuth. I think we definitely have (2) indicted conspirators, Rove and Libby, and (1) unindicted co-conspirator, Judy. Fitz probably allowed her to take a plea of time-served to come clean about her role in war propagandizing.

Wheel, you da man! Or is it woman? Great piece of sleuth. I think we definitely have (2) indicted conspirators, Rove and Libby, and (1) unindicted co-conspirator, Judy. Fitz probably allowed her to take a plea of time-served to come clean about her role in war propagandizing.

park - make sure not to miss the "What Judy Did" series!

emptywheel and SDangerfield

I have to defer to the two of you on your various areas of expertise, as I’m new at trying to trace these Plame/Wilson threads through. So I don’t have a full working command of the facts, and I have no prosecutorial/U.S. Attorney Manual experience, ala SDangerfield. Those limits notwithstanding, I’d like to add a comment on emptywheel’s theory. This initial premise for the theory got me to thinking:

“I think there are several reasons why Fitzgerald proceeded in the way he appears to have. First, case law is clear; a prosecutor can only subpoena journalists for materials he can't get via another source. I think it very likely that Fitzgerald knew--as early as August of 2004--about the June conversation with Libby. Not only did he know about the conversation, but he had enough evidence about it already, through non-journalist channels, that he couldn't include that in Judy's subpoena.”

I would imagine a person's notes of a meeting would very likely be regarded as unique, the equivalent of which couldn't be obtained elsewhere (unless, of course, you can get another exact copy of the notes from somewhere else, but that’s not our case.) Even if Fitz knew a long time ago that the June meeting took place, I think he would have a pretty easy time saying that there's likely unique information in Miller's notes that he DIDN'T have. Especially since the only known participants in that meeting (Miller and Libby) hadn't talked to him about it, so it's not like they could make the claim that they debriefed him on it, and therefore the notes themselves weren't necessary. (And, given that the participants never talked to Fitz, if he knew anything about the June meeting, it's not clear how he could have known anything other than the simple fact that it took place, and he could surely subpoena the notes and testimony about the meeting if all he knew was that a meeting happened.) (And, as a further aside, even if Miller and Libby had testified to him about the meeting, even that probably wouldn't be enough to preclude obtaining the notes -- a verbal description of what happened in a meeting, my guess is, would not generally be found to be identical to CONTEMPORANEOUS notes. The law tends to like such things better than (and view them as different from) two-year old recollections that can either be faded or, alternatively, shaped to fit the exigencies of the present day.)

And even beyond this, assume for a second that it's possible that Fitz could lose the argument that the equivalent of the notes was not attainable through any other source (though, as I said above, I think he would have the better of this.) At the very least it is a sufficiently close question that, if he knew about the meeting, he almost certainly would have ASKED for the notes, and then fought it out in court. If he, as a good lawyer, had even a colorable claim to the notes, he certainly would have asked for them, and let the other side make the case that they couldn’t be obtained. It's what lawyers invariably do, all the time.

Which also sort of brings up the point that it’s not clear why Fitz would have had so much information about the June meeting that he felt he couldn’t make a good faith request for the notes under the law as he understood it, but he didn’t have an equal amount of information about the July meetings/conversations such that he also thought he was precluded from making a good faith request for information about those. All signs indicate that he in fact had much more information about the July meetings, of course, which under this theory should have dq’d him from subpoenaing information about them from reporters.

As for SDangerfield’s “nit,” which was very useful information, that only troubled me further with respect to this theory. If the DC Circuit doesn’t recognize a qualified journalists privilege, Fitz wouldn’t have even had to worry about convincing a court that he couldn’t obtain the substantial equivalent of the notes elsewhere. All he would have had to do under the Manual, presumably (I’m guessing here, more or less), is convince himself that, in good faith, turning to Miller for these notes was a last resort – they couldn’t have been gotten elsewhere. And, as I said above, I think he easily could have met this standard.

I’m not sure what, if any, implications this has for the overall theory, but I thought I’d raise it and let you fold it in.

EmptyWheel -- As well-researched speculation goes, this is pretty amazing, and very well put-together. Great work.

I think I may be missing one point you're making here, so I have a quick question: why was Miller inclined to avoid discussing "Iraq and uranium"? Because she was trying to follow Libby's instructions in his letter to her? Or because she wants to hide the extent to which she was fed crappy information which then ended up on the NYTimes front page? Or something else?

Dave

Or something else. I've speculated that that line of questioning would lead quickly to the Niger forgeries (and possible other forgeries).

But it seems fairly likely that Judy is less worried about her implication in the Plame scandal than in the larger Niger scandal.

Great work on this EW. What's your thoughts on the players after the indictments. When the heat get's hotter for Rove, Libby, Judy or whomever... will there be any new revelations to save their butts. Who turns on who?

EW,

A few thoughts..

>>"I think they're important, but nowhere near as important in the leak case as eRiposte suggests. Rather Cooper and Judy provided the crucial piece of evidence of another crime. Not the leak, but the cover-up. "

I think we are saying the same thing here, but with a different emphasis. Proving the cover-up is/was an essential part to Fitzgerald's case. (More on this below)

>>"Fitzgerald was confident before Judy testified he had finished his leak case, the central issue. But he wanted Miller and Cooper to complete his "sideshow," his obstruction and perjury cases."

I see the data a bit differently here. I think his main investigation stalled and he needed Cooper and Miller to testify because of that. Remember, the judges were persuaded to force Miller and Cooper to testify ONLY because they were convinced that the case had taken a turn where their testimony was *essential* for the case to move forward. So, I don't think the Cooper or Miller testimonies were a sideshow at all.

Let me recap what I said in my TLC post...

-----
1. Rove had changed his story with the grand jury which made it clear that his words could not be trusted. He spoke to Novak and Cooper and Novak was a serial fabricator in cahoots with Rove who could not be trusted. Cooper was the only person who could shed light on whether Rove's latest narrative was true or not. Hence his appeal to the court to force Cooper to testify.
-----

It is quite unrealistic to expect that Fitzgerald knew that Cooper did not call Rove to talk about welfare reform. Cooper spoke to no one about that particular aspect, until his testimony - so there was no way for Fitzgerald to know that he could trap Rove on the welfare reform angle. What he did know is that Rove had changed his story at least once, maybe twice. He must have thought that there is no reason to trust the latest version of his story about his conversation with Cooper and who mentioned Valerie Wilson to whom. Hence the push to make Cooper testify.

Back to my post...

----
Fitzgerald's ultimate goal was to catch Libby in a lie, not Miller (Miller was not his original person of interest). So, once he knew Libby had not disclosed a June meeting with Miller involving Joseph Wilson, he needed to get Miller on the stand to contradict Libby. However, he COULD NOT include the June 2003 date in the subpoena to Miller because that would tip off LIBBY (not Miller) that Fitzgerald was on to him and allow him to come back to the grand jury saying he "misspoke", before Miller contradicted him. That's the key.

Now, on to Miller. I suspect Patrick Fitzgerald did not expect that Miller would deny or hide the June 2003 meeting [I say this because I don't know of any a priori evidence that Fitzgerald had which would have convinced him that Miller would collude with Libby, as she did]. That may have come as a mild surprise to him. (Remember, even Libby's letter to Miller surfaced after her testimony). The Miller trap, in that sense, was applied ONCE Miller was deposed by Fitzgerald prior to her grand jury appearance and just after she was released from jail. When Miller didn't mention the June 2003 meeting during her deposition, Fitzgerald must have realized she was trying to help Libby and had to get her under oath - so that he could flip her.
-----

If Fitzgerald's case was that rock-solid and he didn't need Cooper or Miller to testify (i.e., if the latter was a sideshow), Fitzgerald would not have really forced them to. I've read enough about him to know that he is a very thorough prosecutor. He knows that the people he is investigating have the most powerful lawyers in the world and his case has to be so solid that any indictments wouldn't be thrown out during arraignment or at the first hearing.

Now, I will make one qualification though. There is a small possibility that Miller was in Fitzgerald's sights for more than the Libby angle. As I said in one of my posts on the Miller saga, I am still intrigued by Libby's letter which implied that Miller knew of Valerie Plame before they spoke about it. I don't know if this is true. If it is, then Fitzgerald may have gotten wind of that somehow and that would give him an additional reason to force Miller to testify. I really think that the June 2003 meeting between Miller and Libby is key to understanding whether Miller knew of Valerie Plame from someone else (like Bolton) before she spoke to Libby or anyone else.

Perhaps you're right. Still, the NYT is/was such a pillar of journalism and, along with WaPo and WSJ, I loved the quality of their writing and journalism.

I hope that NYT does the right thing and reports ALL of the truth even if it damages them in the short-run, and who cares whether that hurts Miller. That's really the only way NYT can get its credibility back now.

Journalists have a duty to report the TRUTH on newsworthy matters. That's always the justification reporters use when they "out" secrets or dirty laundry that the "outee" wants to stay hidden. It's complete hypocrisy that the NYT is willing to report and reveal everyone else's dirty secrets, but not their own. I can only hope that the NYT finally comes to its senses, dumps Judy and rats her out the way she deserves.

emptywheel, I have a question. you wrote: "As far as we know, Fitzgerald has not called Libby back to the grand jury. He's not going to give Libby a chance to flip."

does this mean that because Fitz has called Rove back to the grand jury that he's looking to flip Rove? or is he just tying up loose ends, or looking for further evidence/lying to be able to indict him?

I can only imagine three people of importance that Rove could flip on: Libby, Cheney and Bush. I would find it hard to believe that Rove would give the goods on Bush, assuming there are any. (if only because Bush will be the one to pardon Rove) the other two are likely candidates, from what I have read.

personally I'd much rather see Rove go down than Libby. but of course one can pray and hope that both those rats are indicted, and many times over.

michael

Good question

I'm not sure he cared to let Rove come back. But figured since Luskin had offered--and things had gotten significantly worse since Luskin had offered--he ought to give ROve more rope.

eRiposte

I guess I'm saying that Fitz likely had several counts without the conspiracy--he has Rove and Libby and likely a few more violating their security agreements. Honestly, he didn't need Cooper much beyond that. But when you show conspiracy (and perjury and obstruction) than you show the bigger gig.

Emptywheel: you are so smart and readable. Thank you for your posts and for being an honest person.

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