How Many Times Did Libby Talk To Novak?

by emptywheel

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.

Comments

[Jim E.]

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?

[emptywheel]

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?

[emptywheel]

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?

[p.lukasiak]

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....

[emptywheel]

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?

[emptywheel]

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.

[p.lukasiak]

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.

[viget]

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.

[p.lukasiak]

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.

[p.lukasiak]

viget....

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

[viget]

P.luk,

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

[p.lukasiak]

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.

[emptywheel]

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.

[p.lukasiak]

re: Pincus and Libby...

see TM's discussion at

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

[emptywheel]

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?

[p.lukasiak]

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.

[JohnLopresti]

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

[Jeff]

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.

[p.lukasiak]

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....)

[William Ockham]

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.

[narexbyrnesphdetc]

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.

[p.lukasiak]

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.

[narexbyrnesphdetc]

"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.

[Jim E.]

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.

[lemondloulou54]

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.