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February 05, 2006

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I just posted a bunch of comments over at Justoneminute, and I come here to see that you were thinking along the same lines (the vertical letter, trying to figure out what fits in the redacted portions). Kinda weird.

I disagree with you about Novak and about your eyeballing of what fits in the redacted portions. On page three, it seems that "Post" (as in Pincus of the WashPost) would fit with ease, contrary to what you wrote. I agree with you that "Times" (as in Novak of ChiSunTimes) would NOT fit. And I do not think it makes any sense whatsoever to first identify Novak as a CNN commentator when this was all sparked by his column, not his television appearances. Therefore, I think the redacted portion refers to "Walter Pincus of the Washington Post."

What do you make of item (3) at the top of page 12? Is that referring to Mary Matalin?

Jim,

Yeah, I took my measurement off the Post from page 3, too, only it didn't fit for me, not with a space after it. But I think we're dealing with really crummy quality, anyway, so none of this eyeballing is that exact, so I'm happy to say you may be right.

I also agree that Pincus is quite likely. It would make sense, if Cheney changed the approach with journalists on the 12th, for Libby to call those he knew were on the story, and Pincus would be the top of the list. Here's a question, then.

Did Pincus really talk to TWO reporters, or was his story about a different source just cover for his source? Because it would make sense that Libby would tell Pincus about Plame's identity (which Pincus has testified his unnamed source did).

So I'm willing to agree that Pincus is quite likely. But then we're back to the question--why not name Pincus in the subpoena?

Jim E

That reference correlates exactly to item 19 of the indictment:

Not earlier than June 2003, but on or before July 8, 2003, the Assistant to the vice President for Public Affairs learned from another government official that Wilson's wife worked at the CIA, and advised Libby of this information.

Isn't that Cathie Martin?

I think the redacted name is Pincus....

As you note, there is a little bit of the first letter of the redacted name showing. It does not look like it can be a capital "N" in that typeface.
(see "Northern" on page 1).

Here is my theory....

This affidavit was submitted to compel the testimony of not just Miller and Cooper, but Pincus as well. According to Pincus's own account (see http://www.niemanwatchdog.org/index.cfm?fuseaction=Showcase.view&showcaseid=0019 ), he finally spoke to Fitzgerald in September 2004...and the affidavit is dated August 27th, 2004. I don't think that is merely coincidental.

Here's the other thing. After reading Pincus's column last July, I put a "diary" on TPMCafe about it (see http://www.tpmcafe.com/story/2005/7/10/95928/2698 ), in which I said that, based on what Pincus had written,

In other words, the White House was not merely aware of Wilson's trip and its findings, someone had gone to the trouble to find out how the trip had originated, and then lied about Plame' s involvement in order to discredit his findings. (Plame did not "set up" the trip, as Pincus was told, nor did she "authorize" it, as Rove told Cooper. )

We found out later that Libby had gone to the trouble to investigate the trip -- something that Pincus had telegraphed last July....

p luk

Let me clarify. Are you saying this affidavit is arguing that Pincus needs to testify about Libby or about his other source (akin to what Cooper needed to do)?

Because if it's the former, then it's not possible for his name to be the redacted name. Fitzgerald is clearly talking about someone who has already testified--otherwise how could he say Libby's testimony contradicted XXX's testimony?

Okay, I'll reiterate. If Pincus' testimony of September 2004 is ALSO when he talked about Libby, he can't be the missing reporter.

But let's consider for a second who his source might be, if it's not Libby (and he has said on several occasions it's not). Several calls went out on July 12 in response to the strategy session aboard Air Force 2. So if Pincus' source is not Libby, then it's either Dick or Cathie Martin, who, we've learned, were the only other people in that strategy session. I'd think Martin is more likely (and perhaps she was the person who had earlier dealt with Pincus; it's not like Pincus is the kind of reporter Libby would cultivate).

But then for p luk's theory (which I rather like) to be true, then you have to assume Pincus testified twice, once about his conversation(s) with Libby (and this occurred before August 27), and again (in September)about his conversations with (I'm assuming) Dick or Cathie Martin.

My guess is that Pincus talked about his conversations with Libby, but Libby was not Pincus's original source --- and Fitzgerald wanted that information.

In his Niemanwatch piece, Pincus writes The Washington Post and I received subpoenas last summer from Patrick J. Fitzgerald,

and check out paragraph 98 (page 37 of the Fitzgerald PDF file). Its states flat out that

"the supoenas are issued to verify published information....[including] more specific information published in the Washington Post that one of its reporters was told about Wilson's wife on July 12, 2003."

Pincus is that reporter.

In sum....Pincus (like Cooper) willingly discussed his conversations with Libby based on Libby's release from any confidentiality agreement. Pincus was refusing to talk about his other source, and Fitz was supoenaing him to get that information.

Hey EW...

Forget my previous post regarding Novak (but still check out the weirdness surrounding Tatel's opinon vs. Fitz's affidavit on IIPA). I have recreated the relevant paragraph on page 2 using Microsoft word. The font is Times New Roman 12 pt., the margins are 1" on either side. If you put in "Glen Kessler of the Washington Post" in the first redacted space, and "Kessler" in the second, it fits perfectly. "Robert Novak of CNN" is just too short to fit in the first, even though "Novak" seems to fit okay in the second space.

It's also not Pincus, because Pincus doesn't line up right in the second line, if you notice, the "f" of "of" in the line above is perfectly aligned with the "d" of "and" in the line below (right after the redaction). Only "Kessler" in that second redaction space will do this (neither Novak or Pincus will).

I guess it's also possible that it might be someone else we don't know about, but Kessler looks pretty good to me from my recreation.

One other note. Whoever the redacted name is on page 2, its a reporter whose account of their conversation condtradicted Libby's own.

However, whoever this reporter is, this conversation is not mentioned in the indictment (despite the fact that it provides another instance of Libby lying under oath.)

Why wouldn't this additional conversation, contradicting Libby's sworn testimony, not be in the indictment?

Remember how I posited that the reason Rove was not indicted was because Fitzgerald was notified of Woodward's last minute disclosure -- including the claim by Woodward that Pincus knew about "Wilson's wife" before he talked to his source? This disclosure by Woodward would have made it impossible to rely upon Pincus' testimony with regard to anything -- including testimony that contradicted Libby's account.

viget....

what happens if you use "Pincus," instead of just "Pincus" in the single name redaction?

P.luk,

It aligns perfectly with the comma. But, why would you use a comma there? Isn't that grammatically incorrect?

It aligns perfectly with the comma. But, why would you use a comma there? Isn't that grammatically incorrect?

probably. But we should not assume that there is no "human error" involved in the typing of such documents.

IIRC, Kesslar claims he had no prior knowledge of "wilson's wife" from anyone, including Libby, so it makes him an unlikely candidate to be someone whose testimony would contradict Libby's. But, as TM notes, Pincus acknowledges that he spoke to Libby -- but that Libby was not his original source.

My guess is that Pincus called Libby for confirmation, and got it -- and that Libby's account was pretty much the same one he gave of his conversation with Cooper (i.e. he cited "other reporters") and that Pincus contradicted that.

Kessler remains the best typographical fit, but really doesn't fit with the narrative that has already been established.

p luk

I really LIKE the part that suggests this affidavit was going after Pincus, too. That I agree with.

But I just don't see any evidence that Pincus testified twice. In which case, Viget is right and Kessler is more likely.

re: Pincus and Libby...

see TM's discussion at

http://justoneminute.typepad.com/main/2005/07/now_the_times_d.html

p luk

Right, I had read that. But I think I still don't see where it says Pincus testified twice. What am I missing?

Right, I had read that. But I think I still don't see where it says Pincus testified twice. What am I missing?

1) In June 2003, Glenn Kessler testifies about his conversations with Libby during the specific time frame in question, but says that nothing relevant to the case was discussed.

http://www.washingtonpost.com/wp-dyn/articles/A62265-2004Jun22.html

2) From TM's page cited above:
Well, another clue as to Pincus' source, overlooked by the Timesmen, appeared in Editor & Publisher, with an article about Mr. Pincus that included this: "Libby was not my source but was someone I spoke to on a confidential basis," Pincus said.'

3) Libby was giving waivers to lots of people (Cooper, Kessler) .... and I think its safe to assume that this would have included Pincus.

4) Absent some good reason why Pincus would refuse to take the same deal that Kessler did, its safe to assume that the Post would have arranged for Pincus to talk to FitzG about Libby during the same period that Kesslar talked.

5) If its Kessler, then Libby had to have testified that he had discussed the Wilson/Niger story with him during the period in question -- because Kessler says that the subject was not discussed. Does that make sense? Especially given this statement from Kessler "Mr. Libby signed a waiver in which he asked me to discuss with the special counsel whether the Wilson matter was raised in two conversations that I had with him in 2003. Under these circumstances, at the request of my source, I am giving a deposition regarding these questions," Kessler said. (emphasis added). The "whether the matter was raised" phrase suggests that Libby said it wasn't, and Kessler agreed with him.

But I think the critical piece of information here is that this "other reporter" whose testimony conflicted with Libby's is not part of the indictment. If its Pincus, it fits in with my theory that at the time the indictment was handed down, Fitz had serious questions about the reliability of Pincus' testimony --- and kept all references about that testimony out of the indictment.

There is a December 11, 2005 post by EW mentioning a low level journalist's name that might fit orthographically but, you all are the historians here. I even observe there is a kernable letter in the news organization's name that shortens four characters to more like 3-plus, though I would need to visit the Maguire links kindly provided a few days ago. The way I recall this reporter's linkage is she was much later visiting with Luskin, not one of the high level reporters involved in the original Get-Shorty-and-Spouse campaign.
Oh, I forgot: the date in the link should be XII-XI-MMV, at least for the sake of this auspicious afternoon's pasttimes.
On a separate topic, I had wondered if the infamous belatedly produced Hadley email happened to be disgorged from some initially unsearched server wherein also might be archived some of the recently publicly described other missing emails, and whether Fitzgerald would have to divulge them individually during discovery if collateral evidence at his disposal verified some coverup or, as EW once postulated, even deliberate attempt at erasure. We still have the famous 12 hours AG allowed at the outset for a grace period for WH to clean house.
J

I've only had time to read through the document once quickly, so maybe this is off base and maybe I'm completely confused. But it appears to me that the other party involved here seeking to squash the subpoena is not Cooper and Time, and is probably Pincus and the WaPo. Looking at the timeline, Kessler did his interview with Fitzgerald on June 22, 2004; it was tape recorded to be provided to the grand jury. The grand jury issued a subpoena for Pincus on August 9, 2004; and MIller got hers August 12 and 14, 2004. Cooper was deposed about his conversation with Libby on August 23, 2004, and didn't get his next subpoena until September 13, 2004. Pincus gave his deposition some time in September 2004. And according to the WaPo on August 25, 2004, on Friday, August 20 the WaPo filed a motion to quash PIncus' subpoena. And Fitzgerald's affidavit is from August 27, 2004.

So, unless I am mistaken, this means that the other subpoena this affidavit has to do with is not for Cooper, and unless it's for someone we haven't heard about, it's for Pincus. And so it seems to me that pretty much narrows the reporter referred to redacted down to Kessler (which I think most likely, as we know he had a conversation with Libby on July 12 that the grand jury was interested in) or Novak.

great to see you here Jeff!!!!

and Jeff... you've totally nailed the facts here. We'd pretty much concluded that Pincus was the other person being supoenaed, based on less complete evidence than you presented. (Paragraph 98 makes it obvious that someone from the Post was being supoenaed....)


I think viget is correct. The document is question does indeed appear to have been produced by Microsoft Word using 12 point Times New Roman and 1" left and right margins (not mention the default behavior of substituting the en dash for --). If that's the case, Glenn Kessler (that's with 2 n's in the first name) is the prime suspect. The first redaction probably reads:

Glenn Kessler of The Washington Post
(with "The Washington Post" italicized)

The second one reads:

Kessler

That seems a bit weird, narratively speaking. Unless you posit that the Libby-Kessler conversation happened after the Russert-Libby conversation AND Libby testified that Kessler brought up Plame. If that's the case, then it's of less importance that the Russert conversation (where Libby claimed to first hear of Wilson's wife). Fitzgerald would leave it out of the indictment for the simple reason that it doesn't help his case much (he can already demonstrate that Libby is a serial liar) and potentially muddies the waters for a jury.

Ummm, I think Clarice over at justoneminute may be a bit off her rocker. She just told me the first world trade center bombings were not Al Queda, they were an act of war by Iraq. I feel kinda stupid for arguing with her now. You think the National Review and TM wouldn't link to crazy people ... but okay.

think Clarice over at justoneminute may be a bit off her rocker.

it doesn't bother me that Clarice is so nuts --- what bothers me is that she is considered a legal expert by the wingnut crowd over at JOM.....

the fact that people pay attention to her ravings, and actually think they make sense, is far more frightening than the mere existence of a nutjob like Clarice.

"the fact that people pay attention to her ravings, and actually think they make sense, is far more frightening than the mere existence of a nutjob like Clarice"

Dude, agreed. What is frightening is you get a lie .... "Iraq and 9/11 are linked", let's say. And then it just spreads and gets reinforced by the right wing spin machine. Up is down. Black is white. Evil is Good. The right has shown themselves to be the deepest hypocrits possible on the truth and the rule of law.

clarice is insane. TM (to his discredit), along with most of the rightwingers that comment there, gives her tremendous deference. Rush Limbaugh supposedly reads her stuff on the air sometimes.

Not to mention that clarice is almost undoubtedly not a woman. And frankly TM can't write his way out of a paper bag. I get a headache whenever I try to follow his logic. On the surface he appears sane, but dig just an inch and you find he's unreasonable and not clear thinking.

PBS "NOW" 2006-02-03: Blix says Cheney threatened to "discredit" him in 2002.

[The transcript is not up yet

http://www.pbs.org/now/archive_transcripts.html

but I had videotaped the program, and this comment by Hans Blix caught my attention: does anyone see a pattern here?? Cheney / Wilson / Plame, ahem? --GK]

BRANCACCIO: "He [Blix] remembers one meeting in the fall of 2002. On his way to the Oval Office to meet with President Bush, he was pulled aside by the Vice President. Blix says Cheney made it clear the Americans wanted to disarm the Iraqis by force, not by inspection."

BLIX: "Vice President Cheney said that, 'I want to put you on notice, want to tell you, that we will not hesitate to discredit you in favor of disarmament.' That's what he said. I was a little taken aback by it; because it seemed, to use the word 'discredit' at the time when we are doing our damn best, was not very very friendly."


--transcribed by GK.

Jeff--

No doubt. I have also come to the conclusion that this Aug 27 affy has nothing to do with Cooper and Time. Cooper and Time's Case Numbers are 04-MS-460 and -461, wheras Miller's is -407. The mystery subpoena must have dealt with case -406. You're also right in that Fitz's second subpoena to Cooper and Time didn't go out until September 13, after Cooper and Time had relented in part to their first subpoena in late August (around the 23rd, I think), probably testifying about Libby.

What's kind of weird is that on the OSC website, there's a Gov't memo to oppose joint scheduling conference dated end of June 2005. (remember this is after the SC had denied cert for Miller and Cooper). In it are claims that there was a contempt order for Cooper and Time dated October 13, 2004, but I could find no such order on the DC Circuit court's website. I did find a contempt order in November around the 11th, seemingly related to efforts to quash the September 13th subpoena.

So, what I don't understand is while Hogan vacated the previous contempt order of early August on August 23rd after Cooper and Time relented wrt Libby, he issues another contempt order *before* ruling on the motion to quash the second subpoena. Why? Was there more stuff responsive to the first subpoena that Time and Cooper were holding back, and that Fitz learned about in the interim time period between August 23rd and October 13th? (note that this time period includes when Rove was thought to testify too).

Couple other things, the redaction on p.2 of the Aug 28 affy wrt those seeking to quash the subpoena(s) has Judy miller followed by a semicolon, indicating that this is a series. I'm guessing given the amount of space that there are two other parties seeking to quash, otherwise there would just be an "and" instead of a semicolon. I agree that Pincus may be a logical choice, I'll have to go back and see if that'll fit in the space.

Also, the Feb 3, 2006 Circuit of Appeals opinion ordering the release of the previous redacted opinon and affy does point to another affy that presumably deals with the Cooper, Time and Rove case. The court declined to release this other affidavit. (and I'd like to point out that the court panel decided to release portions of Fitzgerald's affidavit on their own accord; I wonder if Fitz was okay with that)

The more we dig into this, the stranger it all gets. I hope all (or most) will be revealed soon.

One big question, of course, is if the entire bit having to do with Pincus' subpoena is redacted solely to protect that uncharged and perhaps never-to-be-charged White House official from ridicule and embarrassment (or whatever the formula is), or to protect the integrity of the ongoing investigation.

From looking at the space available in paragraph 3, I was thinking the redacted reporter had to be Novak and not Kessler. But would Fitzgerald in paragraph 23 refer to Novak for the second time in one sentence (the redacted reporter shows up earlier in this sentence, redacted) by his full name, "Robert Novak"? I doubt it. This, together with the fact that the redacted reporter appears to have talked with Libby on July 12, between calls with Cooper and with Miller, and that we know Kessler talked with Libby on that day make me feel pretty strongly that Kessler is the redacted reporter. (Of course it's possible Novak talked to Libby on July 12 as well.) But that appears to mean that Fitzgerald is saying that Libby testified he told Kessler on July 12 that he'd heard from reporters that Wilson's wife was CIA and had sent him on the trip while Kessler testified they did not discuss the Wilsons at all, which is odd even though it fits with the pattern of apparent lies with which Libby built his story.

emptywheel -

You might want to consider taking down your current link to the Tatel opinion and reposting the opinion as a stand alone pdf, because right now the link actually takes you into PACER and your (?) account.

Ruth,

Thanks, for now I've just taken it down.

Okay, so assuming the first mystery journalist is Kessler (per viget and William and the remaining redacted material establishes the case requiring Pincus' testimony (Pincus' testimony about his Libby conversation, or about both conversations ... and do we really still believe there were two?)

What does that mean?

If Kessler testified that Libby DIDN'T say anything about Plame but Libby testified he did (the most logical guess, but somehow rather crude, given the level of detail Fitz used in the subpoena), did Fitz just leave him out because he was afraid Kessler hadn't been honest? Or did know of Plame's identity independently (perhaps from Woodward), so Fitzgerald didn't want to introduce him. Or perhaps Fitzgerald thought Libby's Kessler lie was not related to protecting Dick but just to further muddy the water?

And Pincus--again, it'd be nice to know whether we're talking about the Libby conversation or the other one.

Troubling - Jeralyn Merritt makes a good case that it shouldn't be Kessler. That said, I haven't followed all the links in the comments here, so maybe her points were all covered.

The CJR excerpt seems key:

Clarification: Glenn Kessler of The Washington Post notes that while he did agree to talk to Patrick Fitzgerald, as this article says, he wants to make clear that the scope of the questioning was very limited. Kessler says he did not divulge what two conversations he had with I. Lewis Libby in July 2003 were about, but merely affirmed that the subjects of Valerie Plame, Joseph Wilson, and Wilson's trip to Niger had not come up.

That said, and as others have noted - maybe Libby says Kessler told him, and Kessler denied it.

Well - Kessler covers State (which may have leaked to Woodward, although EW disputes that vigorously), so maybe he is not an appealing witness for Fitzgerald (How would Fitzgerald have known this in Oct 2005, before Woodward came forward? We would have to ask Fitzgerald, who is no doubt well aware of any shortcomings in his probe). And if Kessler's comment accurately captures the limited nature of his cooperation, he may not have made Fitzgerald's list of five reporters who knew simply because Fitzgerald never asked him.

FWIW, per the affidavit Russert claimed there was no newsroom buzz in NBC about Plame prior to the column, so that theory of mine is not exactly catching oxygen.

TM

FWIW, I think Fitz' response to Libby's motions suggest he's trying to protect the documentation on Plame from State (he has released all OVP stuff and a lot of CIA stuff, which means his refusal to turn everything over either says he's protecting his EOP stuff or State or both). So I could be wrong.

But heck, has anyone asked Woodward if he told Kessler about Plame? Say Libby testified that Kessler had told HIM about Plame. He might do so if, for some reason, he suspected that Kessler knew through Woodward. (But then, if Libby knew that much about Woodward, then it's unlikely Armitage was Woodward's source.)

And Pincus--again, it'd be nice to know whether we're talking about the Libby conversation or the other one.

well, insofar as Pincus has said that Libby is not his "source", and Pincus testified about his "source" without naming said source in the month following this affidavit, I'd say its a pretty good bet that we're talking about "the other one."

OK, I see I have to do the dirty work here - a new reason that Fitzgerald is so interested in Rove has emerged (and I only note this while digging into the question of whether Fitzgerald knew about Rove-Hadley; at one point, I had satisfied myself that the second Cooper subpoena did not name a target, which is odd per DoJ guidelines).

Anyway, here we go, from the WaPo:

The sources said Fitzgerald looked surprised in the August 2004 deposition when Cooper said it was he who brought up Wilson's wife with Libby, and that Libby responded, "Yeah, I heard that, too."

The prosecutor pressed Cooper to then
explain how he knew about Wilson's wife in the first place, and Cooper said he would not answer the question because it did not involve Libby, the sources said.

Hardly needs explaining, but - per the new docs, Libby had said that he told Cooper. Fitzgerald was probably just seeking confirmation of that, until Cooper surprised him by saying, Not so, I already knew.

So, was Libby protecting Karl by trying to keep him out of it? Inquiring minds would surely want to know.

Anyway, a case for Fitzgerald being unaware of Rove is at the ,a href="http://www.anonymousliberal.com/2005/11/case-against-rove.html">Anonymous Liberal, including the comments.

Another crazy idea following my and p.luk's speculation that Plame may have had "official" cover over at State (possibly with Bureau of Nonproliferation).

Libby wasn't having conversations with Kessler (who covers state) to talk about Wilson's wife, Valerie Wilson, or Valerie Plame, he was talking with Kessler about some analyst at Nonproliferation that may have been a Kessler source before. That analyst (with appropriate pseudonym, of course) was Plame. Libby wanted to know as much about her work at State as possible. And I'd guess that Libby wasn't necessarily saying he knew this analyst and Wilson's wife were one and the same person, but might have been dropping "hints" that all wasn't what it seems with the analyst (something along the lines of "I heard she has agency connections," "maybe she was involved in the Niger story"), in an attempt to blame State for the faulty Niger intel.

The same may have been true of Russert, which would explain EW's speculation that the brackets in the redacted opinion refer to Russert having known Plame as a State dept source on WMD, not as a CIA agent.

But heck, has anyone asked Woodward if he told Kessler about Plame?

It looks to me from Woodward's statement in his report on his testimony that he told Pincus that Fitzgerald asked him if he told anyone else about what he learned about Wilson's wife in mid-June. It's possible Woodward is confused, since Pincus has no recollection of being told by Woodward; but it looks like Woodward's testimony would imply that he did not tell Kessler.

In response to Jeralyn Merritt, who doubts the redacted reporter is Kessler over at talkleft. It seems pretty clear that the redacted reporter had a conversation with Libby on July 12, and that Libby testified that he told the reporter that he was hearing about Wilson's wife from reporters, and he didn't know if it was true. Paragraphs 23 and 33 of Fitzgerald's affidavit are key here. That means that if the reporter is either Kessler or Pincus, who both said they didn't talk about Wilson's wife at all with Libby, the testimony conflicts with Libby's in the same way. In this regard, Jeralyn seems to working with a false assumption when she says that Libby's and Kessler's testimony reportedly matched. We just don't know what Libby testified to regarding his conversation with Kessler, and it's perfectly possible he testified that in fact he talked about Plame with him and sourced the info back to reporters. And if we're right that one of the subpoenas Fitzgerald is seeking to enforce is for Pincus, the only way Pincus is the redacted reporters is if he had already been questioned about Libby, which I doubt.

Also, if I'm not mistaken, Fitzgerald's government response in the Dow Jones case is talking only about Tatel's opinion, not Fitzgerald's affidavit. If that's so, then the comment about only one witness not having publicly discussed their grand jury testimony (and I take that person to be Fleischer, not Harlow, as emptywheel suggests on talkleft's thread) has no implications for who's still under redaction in the affidavit.

I do agree that Cheney is under a bunch of the redactions. The question is, is that just to save him from public embarrassment and ridicule, or is it because he's still under investigation?

Jeff--

Yup. You are 100% correct that Fitz's govt response was ONLY dealing with Judge Tatel's opinion. If you read the February 3, 2006 order from the 3-judge panel of DC Circuit court of appeals, they order BOTH the release of redacted portions of Tatel's opinion, and the release of portions ofFitz's August 27 affy, "on [their] own initiative"

Apparently there is a Fitz affidavit (presumably under seal) dealing with his response to the Court's query to unseal portions of his August affy. The opinion suggests that Fitz specified which portions he thought were permissible to unseal, but it's not clear if the Court agreed with him 100%. So, there may be some discrepancies, but on the whole, it doesn't seem like there's that much new information in the affidavit.

Let me shovel some dirt on the Pincus alternative. Here is an Aug 10 2004 WaPo:

Lawyers involved in the case said it appears that Fitzgerald is now armed with a strong and unambiguous court ruling to demand the testimony of two journalists -- syndicated columnist Robert D. Novak, who first disclosed the CIA officer's name, and Washington Post reporter Walter Pincus, who has written that a Post reporter received information about her from a Bush administration official.

Pincus was served with a subpoena yesterday after Hogan's order was unsealed.

In their statement, NBC officials said Russert agreed to the interview after first resisting on First Amendment grounds. NBC lawyers reached an accommodation with the prosecutor in which Russert "was not required to appear before the grand jury and was not asked questions that would have required him to disclose information provided to him in confidence."

Washington Post reporter Glenn Kessler agreed to a similar interview with Fitzgerald's office earlier this summer. In both Kessler's case and Russert's, prosecutors' questions concerned conversations the reporters had in early July 2003 with Lewis I. "Scooter" Libby...

*IF* Pincus had taken a deal similar to Kessler's to discuss only Libby, how did the WaPo write this with a straight face? And why cover up Pincus' partial cooperation?

The easy answer is, Kessler took a deal because he had nothing (or so he thought); Pincus held out because he had received a leak; Libby's testimony contradicted Kessler.

So, why did Fitzgerald decide that Kessler was not even as good a witness as Judy Miller? Shouldn't Kessler in the indictment as "Russert II"? He is a second reporter where Libby invented a Plame conversation.

Or maybe Libby claimed he leaked to Kessler, and Kessler denied it? Did that seem too weird to present to a jury?

First, for those whom clarice has chased away from TM's place, I'm guessing that the main thrust of the Kessler-Libby conversations may be related to North Korea, and that Libby is the source for this comment:

A White House official, however, disputed any notion the administration had shifted in its public refusal to negotiate with North Korea. "As we have said many times, we will not submit to blackmail or grant inducements for the North to live up to its obligations," he said.

And one of the sources for this comment:

Officials at the Pentagon, State Department and White House declined to respond to Perry's criticism on the record. But speaking anonymously, administration officials vehemently disagreed with his analysis, saying they have succeeded in building a multilateral consensus that North Korea's nuclear program is unacceptable, leaving Pyongyang increasingly isolated.

Those are two of only three Kessler articles that include the words "senior administration official" for the relevent time period. The first is dated July 22 (and includes contributions from Pincus) and the second is dated July 15.

I actually think he MAY be in the same boat as Russert, in that Libby said they talked about something they didn't. I also suspect the reason why Kessler wasn't included in the subpoena is something really pedestrian, such as he neither notes nor independent corroboration for his side of the conversation. We know Cooper and Judy have notes. And there was the suggestion that Russert shared his side of the Libby conversation with NBC brass. If Kessler doesn't have that, Fitz may have left him off to avoid a he-said/he-said fight that might jeopardize the larger conviction.

A couple of more notes and questions from the affidavit.

1. Regarding Maguire's speculation about Libby covering for Rove by saying that he, Libby, brought up Wilson's wife with Cooper on July 12 (a fact of Libby's testimony which delightfully undermines a rightwing talking point in any case), I will add that from paragraph 23 it looks like Libby testified that Rove told him on July 10 or 11 that Rove had learned about Plame from Novak. Assume a cover-up effort by Libby and Rove et al (as Murray Waas reported investigators suspected at one point), and assume further that Rove remembered his conversation with Cooper. Presumably then the cover story covers the fact that Rove did not source his information to Cooper on July 11 to reporters? Now assume instead that Rove genuinely forgot his conversation with Cooper. Why would Libby tell the cover story about his conversation with Cooper? Covering for TIME's other source - either Fleischer or Bartlett to Dickerson, or the Africa policy person Kurtz said he had heard was the third source back on July 17, 2005? (From the way Cooper frames his answers whenever the question of the third source comes up, it sounds to me like it wasn't his source but one of his coauthors'. I also suspect Kurtz' info may be botched in transmission - maybe it was "an Africa person", as in someone on the Africa trip, misunderstood as a person who worked on Africa.)

2. Assuming the other reporter Fitzgerald is going after in this affidavit is Pincus, I wonder whether Pincus' source had already gone forward to Fitzgerald and identified himself at the time of Fitzgerald's affidavit, and more generally when that was. It would be interesting to track down when various administration figures, especially Bartlett and Hadley, appeared before the grand jury, in relation to the timing of the subpoena to Pincus and his testifying. I also wonder whether Fitzgerald wasn't after Pincus for testimony about conversations with both Libby (if Pincus talked to Libby on July 12) and his source. From Pincus' news-breaking July 13, 2003 article (coauthored with Allen with contributions from Milbank who was in Africa with the President), it looks to me like Tenet, Hadley, and Bartlett were definite sources, as well as perhaps someone else from the CIA, though it's hard to know who was/were Pincus' source(s) exactly. But Libby could have been a source too, as could have Cheney, I suppose.

3. As part of comparing Libby's account with the accounts of other material witnesses, which are all substantially at odds with Libby's, paragraphs 28-32 are all redacted (the pages of the pdf are out of order at this point). Paragraph 27 deals with all the administration officials who contradict Libby, and paragraph 33 clearly picks up on the Cooper-Libby discusison in the middle. There is nothing that corresponds to this redacted chunk in the indictment, and clearly at least part of it deals with our redacted reporter, probably Kessler. But would just Kessler take up all that space, even with a lead-in to 33 on Cooper? Similarly, all of 34 through 46 are redacted. What's in there - is it all to do with Cooper? Or something else as well?

The 10/20/05 WAPO states that the Pincus source is a "White House official". This, to my knowledge is new. Since we're playing the anonymous source game note that they didn't say "senior".


Pincus, who spoke with Fitzgerald early in the case after his source said he could, has never revealed who told him that Wilson's wife helped arrange the trip to Niger. Pincus has said the source was not Libby, and has described the person as a "White House official" who called him. The source came forward to the prosecutor and released Pincus to discuss their conversation with Fitzgerald but not with the public.

Here are the previous accounts of the Pincus source.

Pincus himself said this about his source.

On July 12, 2003, an administration official, who was talking to me confidentially about a matter involving alleged Iraqi nuclear activities, veered off the precise matter we were discussing and told me that the White House had not paid attention to former Ambassador Joseph Wilson's CIA-sponsored February 2002 trip to Niger because it was set up as a boondoggle by his wife, an analyst with the agency working on weapons of mass destruction.

I didn't write about that information at that time because I did not believe it true that she had arranged his Niger trip.

WAPO mentions Pincus's source in a Nov 2004 article.

One current or former administration official has told Fitzgerald that he or she had a conversation with Washington Post reporter Walter Pincus on Saturday, July 12, Pincus has said publicly. Pincus also has said his source was not Libby. Pincus has previously said that an administration official told him that day that Wilson's trip to Niger was set up as a boondoggle by his CIA-employed wife.

I also found a reference to the Pincus source in the Columbia Journalism Review January/Febuary 2005.

after his source on Plame (not Libby) authorized him to talk to Fitzgerald, Pincus agreed to give a deposition in which he confirmed the time, date, and length of his conversation with the source but would not reveal the source's identity.

Pincus also gave testimony exonerating Libby, after a different source on Plame okayed his talking with Fitzgerald.

The new WAPO trying to be helpful notes these WH officials in the next paragraph.

Many White House officials have been called before the grand jury, including spokesman Scott McClellan, senior adviser Dan Bartlett, former communications aide Adam Levine and Fleischer, among others. Bush spoke personally with Fitzgerald early in the probe.

and this from the First Amendment Center 9/03/04 (note the date)

U.S. District Judge Thomas F. Hogan agreed to the release of the papers, filed last week in the case of reporters from The New York Times and The Washington Post, who have been called to testify before a grand jury investigating the leak of the identity of a covert CIA officer.
The news groups said they wanted the new arguments considered as Hogan took up the case of Judith Miller of The New York Times and Walter Pincus of The Washington Post, possibly today.

Just to be clear..There is no doubt that Pincus not only talked to Libby, he testified about that conversation as well.

Pincus also gave testimony exonerating Libby, after a different source on Plame okayed his talking with Fitzgerald.

CJR Jan/Feb 2005

The "different source" mentioned in the quote must be Libby.

Polly - You've pretty much definitively identified Pincus as the other target of Fitzgerald's affidavit and subpoena. But I think the "different source" is different from Libby and is just Pincus' July 12 source on Plame.

I forgot this 9/16/04 WaPo which is the article relating that Pincus had just given his deposition. In that article Schmidt has this:

Pincus answered questions about Libby as well. Both he and Cooper said they did so with Libby's approval, and both said that their conversations with Libby did not touch on the identity of Wilson's wife.

It reads to me that Schmidt is saying that Pincus discussed his conversation with Libby in his September 15, 2004 deposition.

Jeff,

I think you are right. I read the sentence as if the two parts were linked. So it looks most likely that Pincus only testifed once by deposition on 9/15/04

It reads to me that Schmidt is saying that Pincus discussed his conversation with Libby in his September 15, 2004 deposition.

not so fast. IIRC, Cooper spoke about Libby in a separate conversation from the one that he had about Rove.

Brilliant work, polly.

So Pincus is definitively the target of much of this affidavit. (FWIW, I think the rest of the dicussion about the July 12 conversations ALSO includes details about the July 12 coaching session aboard AF2. There's more to that than just that it happens. Given that Fitz is insistent on making public that Libby was ordered by his superiors to leak the NIE (per his ocean of motions response), I suspect he has made as much of an effort to prove he was ordered by his superiors to leak this information.

Note the 10/20/05 article is a VandeHei and Leonnig article. Not as obliging to Administration spin as Steno Sue, but VandeHei is not far off. Which means they (OVP) may have used the "White House" moniker to be slightly misleading, if it were someone from OVP. Of the "helpful" list they've offered, I think none are likely, McLellan because he probably wasn't in the loop yet, Levine because he's the wrong side of WH and the wrong function (scheduling Sunday talk shows), and the other two because they were in Africa. Hadley has to be a leading candidate still. I think Cathie Martin needs to be considered (particularly since the call occurred on July 12, presumably after the AF2 flitht). Dick? I don't think Dick would talk to Pincus.

So I'm leaning Cathie Martin, with Hadley as a fall-back.

p luk

Yes, Cooper testified twice. But there's a paper trail for it. I agree that this is ambiguous (and, since it's Steno Sue and she seems to be making a case exonerating Libby, it may be intentional), but this paragraph appears several paragraphs before the one polly cited:

Post reporter Walter Pincus, who had been subpoenaed to testify to a grand jury in the case, instead gave a deposition yesterday in which he recounted his conversation with the source, whom he has previously identified as an "administration official." Pincus said he did not name the source and agreed to be questioned only with the source's approval.

Again, it's ambiguous given the interim paragraph talking about Cooper's August testimony on Pincus. But in context you would think it meant Libby testified about Libby on September 15. If that's not right, I gotta believe that's intentional on Libby-using-Steno Sue-as-a-mouthpiece's part.

p luk - The article should have read "Pincus has answered questions about Libby as well" is the reference was back to a previous deposition, instead of to the same one where he answered questions about September 15, 2004.

ew - I'm positive that Pincus has now clarified that his July 12 source was a White House official, and that information comes from Pincus, not the OVP. I've heard Pincus say this on NPR (and I believe elsewhere). Also, don't forget they've got phones on AF1, so there's no reason to think Rice or Bartlett or Fleischer couldn't have been on the phone with Pincus on July 12. I believe somewhere Pincus specifies that his source was returning a phone call to him, FWIW. polly, any clue on that? It might have been a New York Observer article. In any case, I hadn't thought about Cathie Martin as Pincus' source, that's an interesting suggestion. She is pretty obviously the source for the quickly smothered WaPo article containing the info about Cheney and Libby strategizing on AF2 on July 12.

The other leading candidates have to be Hadley and Bartlett, and I'll add Rice, especially since Pincus' description of how his source veered off the precise matter they were talking with to talk about the Wilsons almost perfectly describes Rice's strange performance in her July 11 press gaggle of AF1, with the exception that in the gaggle Rice didn't out Plame, she just walked reporters up to the information. If you look at Pincus' July 13, 2003 story, it's clear someone from NSC was talking to Pincus, trying to give an NSC-friendly and CIA-unfriendly account of Tenet's intervention with Hadley before Bush's October 2003 Cincinnati speech to take out the Niger uranium bs. This dispute over the reasons for why the CIA and Tenet intervened played out over the next week, with Hadley and Bartlett making the ultimately failed case for the NSC and the White House. Their shamefaced July 22, 2003 press conference, after Bartlett's on background one of the 18th, is a classic.

Jeff

I need to go back and re-read the affidavit. But I'd bet that the call came after the AF2 flight. Which suggests it was affected by the AF2 discussion (which doesn't rule Hadley out, since we know he was emailing with people about the leak). The reason I'm challenging the WH source question (not in principle, just whether or not it is a bit of a ruse) is because someone like Cathie Martin would be at that ambiguous level, clearly not working IN the WH, but associated directly with the Executive. Also note, in early references in this Pincus/WaPo refer to "him or her" pretty studiously. Then Pincus notes in the Nieman article that he refers to his source as male just out of expediency. Which makes it quite possible that his source is female (Condi or Cathie, I'd suggest).

Interesting new two-parter from Dickerson up describing his role in this. Two SAOs really pushed him toward Plame without actually outing her. He heard from Cooper before Novak's column. It was obvious there was indeed a war on Wilson. It's almost certain that one of the two SAOs was Fleischer, and the most likely candidates for the other one are Bartlett or Rice, hard to know which it might be.

Jeff,

Most likely Barlett and Fleischer

Then, on a long Bush trip to Africa, Fleischer and Bartlett prompted clusters of reporters to look into the bureaucratic origins of the Wilson trip. How did the spin doctors know to cast that lure?

Newsweek 7/17/05

I'll look around on the Pincus contact.

p luk

EW said everything I would have said on the Pincus deposition.

Polly

Yeah, the Fineman line is what I had in mind making Bartlett a likely candidate. But the way Dickerson frames the episode sort of suggests that he might have been following up with Rice on what she said in the press gaggle that day, and she elaborating. Rice could be eliminated if it could be determined that she participated in Bush's meeting with the President of Uganda (during which Dickerson had his conversation with SAO 1) and in the event at the Ugandan AIDS center during which Dickerson had the other conversation with SAO 2.

I think Bartlett more likely than Condi anyway, in that he'd be more likely to admit the "shoddy damage control."

There's a passage from Hubris, that solidifies my belief that Bartlett was the 1x2x6 source.
P 291: Post-leak, source is obviously Levine, Bartlett, just back from Africa wants to back off attack on Valerie becuase it's "unproductive and demeaning." (1x2x6 article: the leak was "wrong and didn't diminish Wilson's credibility"). Per Levine, Bartlett was "against the idea of the wife as a talking point." Levine tells Bartlett "Scooter and Karl are out of control, you've got to reign these guys in." Bartlett rolls his eyes and says, "I know, I know."

Which brings me to my other mystery: why was Fitzgerald visiting Bush's personal criminal attorney on the day Libby was indicted? Isikoff's ultra-lame explanation (Fitzgerald was spitting on his legal requirement to protect the grand jury process by telling a private attorney about the status of a purported non-target of the investigation - how Isikoff can ever live this down is beyond me). I think it has to do with the wild risks Rove took to avoid the Cooper testimony. By Cooper's account, a mini-conversation, in no to be attributed to Rove, which involved an upcoming declassification.

I do not believe Adam Levine was called in, on the eve of indictments, to verify a benign explanation for Rove's supreme-busy-ness, and innocent mis-recollection. The fact that Rove avoided admitting the miniscule Cooper conversation has to do both with how he learned of Plame, and what, specifically, what Rove told Cooper was going to be declassified in the next few days.

As to Armitage, who FBI investigators did not believe was entirely forthcoming, I believe he was telling the truth when he went to the FBI. I will note that Walter Kansteiner, from whom Wilson sought State approval for his Niger trip (The Politics of Truth, p. 17) resigned on Oct 1, 2003 because his two children needed a father. http://allafrica.com/stories/200310010765.html

Same day Armitage went to the FBI. I'm wondering if Armitage was less than completely candid because the scuttlebut at State was even louder than the INR memo on Valerie Plame's status. Perhaps Armitage is really and truly embarasssed because he was gossip-mongering about Wilson at the same time Libby was truly at war.

The INR memo makes clear that State was responding to allegations that INR had some involvement in Wilson's trip, and was being blamed for not reporting back to OVP. The only connection to Wilson's trip and State was Wilson's visit to Kansteiner, and Rohn's memo. Since Rohn and Simon Dodge weren't available when Silver wrote his memo, that leaves only Silver and Kansteiner (and his deputy, per Wilson's book) available to be among the state dept personnel who could or would be saying Wilson's wife was responsible for Wilson's trip (per the indictment, where Grossman tells Libby, in late May or early June that "state department personnel" were saying Valerie sent Joe.

The Kansteiner resignation on 1 Oct (to spend more time with his family), and Armitage's come-to-Jesus moment on 1 Oct seem too coincidental to dismiss.

I've always felt that Woodward's indictment eve rumor-fest (with Isikoff on LKL, reporting that a WH souce tipped him off to Woodward's bombshell on "Mr. X" was too convenient by far. I think somebody tipped Woodward off to the fact that he ought to check his calendar the week before the indictments. Was it Libby's team? Common sense says this is angle they would have checked out on day 1 - what better degense than to have evidence of a plausible reporter source for Libby and Rove? But sources in the WH waited until both Rove and Libby were primary candidates for indictment.

It seems to me that Armitage and Libby/Rove were playing a game of "I know what you did last summer", all of it undocuented (otherwise Fitz would have nailed them on the IIPA charge or conspiracy). This is all about the "underground railroad" of information Woodward bragged about.

Sorry - I meant to add re: the stunning timing of Woodward's purported Mr. X bombshell (coming from the WH to Isikoff) would have been beneficial to both Rove and Libby, seeing as how they learned Valerie was both married to Joe and CIA, from "reporters."

How come Libby's team, Rove's team, didn't go to battle with Fitzgerald on that point? I think it's because it represented a double-edged sword for them. They knew what Armitage knew and told Woodward, but maybe Armitage's response would have hurt them, or more specifically, Libby.

From Woodward's LKL mea culpa in November, 2005

"KING:Two questions. What do you feel like, being involved in a story, rather than covering it? Because that's what this is. And number two does Libby know who your source is?

WOODWARD: "

It seems to me that the possibility that Armitage came clean and protected his interests. Libby didn't come clean and protected his interests. Both knew what information was flowing beneath the paper trail radar, and both knew how it could be used against them, and how it could be used against their enemies.

I say "both", but who knows if it was Rove or Libby that benefitted most from outing Mr. X on the eve of what were even odds of both Rove and Libby being indicted? We know more about Libby's tale than we do of Rove's (Luskin spinning for Rove being a lot of what we know about Rove).

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