Kudos to Tom Maguire to pointing us to the Fitzgerald affidavit (PDF) everyone was hunting for yesterday. I've got some billable work that really needs to get done before the football and beer start, so I'm just going to point out two quick theories and then get to the big question raised in the first few pages of the affidavit.
Quick theory number one. As with the Tatel decision, much of this affidavit deals with Matthew Cooper, and almost all of that is redacted, presumably because it relates to Novak and Rove, not Libby. But the affidavit spends much more space on the Libby-Miller issues than the Cooper issues. It spends about thirteen pages (7 through 20) to make the case requiring Judy's testimony. Of this, around two pages seem to relate to Cooper's testimony about Libby (substantial parts of 14 and 15, although beware page 14 has been copied twice in this PDF, with the extra copy appearing before page 13). Then, the subpoena takes just seven pages (21 to 28) to make the case requiring further Cooper testimony. Not only does this reinforce my theory that there's something funky about Cooper's Libby testimony we still don't know. But it says that, at the time Fitzgerald wrote this affidavit, he had a lot more to say about Libby's leaking than about Cooper's source. Compare that to the Tatel opinion, which more evenly dedicates 4 pages to Judy's subpoena and 3 to Cooper's. This supports--but does not by itself prove--that Fitzgerald did not yet know who Cooper's source was on August 27, 2004. Or, to put it differently, this suggests that Fitzgerald may not yet have had the Rove-Hadley email verifying that Rove was Cooper's source. Which, in turn, supports the case that Luskin handed it over only after it became clear Cooper might have to testify.
Quick theory number two. On page 8, there's a heading reading, "Libby's Account of the July 12 Telephone Call Between Libby and Miller." Then, all the way back on page 28, the affidavit reads:
The grand jury needs to know when Libby advised Miller about Wilson's wife--during their private meeting outside the White House on July 8 or during the three minute telephone call on July 12--and whether Libby qualified his disclosure to Miller by stating that he had heard it only from a reporter and did not know if it were true.[my emphasis]
In both references, the affidavit refers to one July 12 phone call, the three minute call to Judy while she was in the Taxi to her Long Island house. Not only did Fitzgerald not mention the June 23 conversation (which I'm increasingly convinced he did not yet know about), but he appears to have known only about the shorter cell phone conversation, not the longer one from Judy's (presumably more secure) home phone. Did Libby try to hide that second, more substantive conversation? Sure looks like it.
Okay, now to the big question Maguire identifies in the first pages of the affidavit. The affidavit tells us Libby spoke to a reporter we don't know about.
Thus, Russert could not have then imparted that information to Libby. Moreover, Libby has given accounts of conversation with two other reporters - [redacted] and Matt Cooper of TIME magazine - that are contradicted in many respects by the testimony of [redacted] and Cooper. (2)
In context, this suggests two reporters besides Russert (Cooper and someone else) testified in a way that contradicted Libby's testimony. But in Libby's indictment, we only have mention of Russert, Cooper, and Judy, not this third journalist. And in Fitzgerald's letter responding to Libby's Ocean of Motions, he makes it clear that he knows of only 5 journalists who knew the identity of Plame: Woodward, Judy, Novak, Cooper, and Pincus. So either the unnamed journalist is one of these five, or the unnamed journalist testified he had not learned of Plame whereas Libby testified he had told the journalist her identity (the most likely journalist for this scenario would be Glen Kessler).
Now, the affidavit is incompletely redacted in the second redaction--the left edge of the first letter remains. It is a clearly vertical stem, ruling out Woodward as the named journalist, but leaving Novak, Pincus, and Kessler as possibilities. But the spacing of the first redaction strongly suggests it is not either Pincus or Kessler.
The first redaction should include the full name of the journalist and the journalist's affiliation (as it does with Cooper). The last word of the journalist's affiliation appears on the same line as the words "and Matt Cooper." And while there are roughly five characters of space available, the word Post, if it were italicized, does not appear to fit in the available space. (And "Times" definitely wouldn't fit, if that's where Tom Maguire is going.) CNN, which might not be italicized, would fit in the space.
I'm not entirely sure of this analysis. Further, on page 3, the phrase, "syndicated columnist Robert Novak" appears, as if he has not yet been mentioned.
Update: Jim E reports in the comments that he tried the same thing I did--take the "Post" from page 3 to see if it fit in this space. He says it did for him, handily. It didn't for me, not with a space. But I think the quality of this PDF is crummy enough I'm not willing to fight my case. Assuming "Post" does fit, I'd agree with Jim E that the most likely journalist is Pincus.
But the possibility is strong enough I'll review two pieces of evidence supporting my increasingly strong suspicion that Libby did have some conversation(s) with Novak regarding Plame.
- Murray Waas strongly suggests that Libby had a conversation with Novak early in the week of July 7, ostensibly to seed a campaign against Frances Fragos Townsend. This would have given him the opportunity to also discuss Plame.
- If you believe that Libby telegraphed instructions to Judy on how to testify via Steno Sue's article the morning that appeared the morning of Judy's testimony, then all of the information included (almost all of which we know to be demonstrably false) would have been an instruction. One of the claims in Steno Sue's article is that, "Libby did not talk to Novak about the case, the source said." As I say in my post on this article,
Why would Libby's friend need to remind Judy that Libby hadn't spoken to Novak in the case? Unless she knew that he had spoken to Novak? I think it highly possible that Libby's friend is telling Judy not to mention the fact that she knew Libby spoke to Novak about this case.
In other words, it appears that Libby was attempting to make sure that Judy didn't mention a Libby-Novak conversation (presumably before the June 12 one I'm proposing).
So why wouldn't the Novak conversation--presuming there is one--appear in Libby's subpoena? That's a question I'll have to ask ReddHedd, I guess. Is Fitzgerald obligated to include all instances of lying in a subpoena? I doubt it. He just can't bring up Libby lying about Novak if he hasn't included it in the indictment, right?
Well, here's an important point, though. Novak's Plame article may already have been out on the wires late on July 11. So a conversation on July 12 couldn't substantively relate to the content of Novak's column. It was already too late for that.
Anyway, here's my wild-assed Super Bowl Sunday guess.
Libby spoke to Novak early in the week of July 7 and on July 12. If you believe Rove at all (a big if, I know), Libby is the one who leaked Plame's identity to Novak; and he did so in the earlier conversation, such that he would know to blab the details to Joe Wilson's friend. On July 12, he just checked in with Novak. But Fitzgerald didn't include this detail in the indictment because he is still pursuing the IIPA violation.
I don't know. I hope the Steelers play better than I'm speculating today, because it just doesn't sit right, with the presumed early release of Novak's column.