At this time, we do not intend to offer any evidence of "other crimes" pursuant to Rule 404(b). As we discussed during out telephone conversation, Mr. Libby testified in teh grand jury that he had contact with reporters in which he disclosed the content of the National Intelligence Estimate ("NIE") to such reporters in the course of his interaction with reporters in June and July 2003 (and caused at least one other government official to discuss the NIE with the media in July 2003). We also note that it is our understanding that Mr. Libby testified that he was authorized to disclose information about the NIE to the press by his superiors. We expect that such conduct will be the subject of proof at trial in that we intend to introduce Libby's grand jury transcript in evidence and Mr. Libby has testified that the purpose of his July 8 meeting with Ms. Miller was to transmit information concerning the NIE. Our anticipated basis for offering such evidence is that such facts are inextricably intertwined with the narrative of the events of srping 2003, as Libby's testimony itself makes plain. (6)
I believe I was also one of the first to realize the implications of the passage:
First, we learn from this that the intent of the July 8 conversation--the one where Judy had to come to DC for breakfast at the St. Regis? Well, the stated reason for that meeting was so Libby could leak the classified contents of the NIE to Judy. Now, apparently Libby "was authorized to dislcose information about the NIE to the press by his superiors." (6) Hmm. Libby is the Chief of Staff to the VP. Who are his superiors. Hold on, I know!! Dick Cheney! George Bush! Both telling Libby to go peddle classified information to journalists. Nice crowd, this Bush White House.
Now the inestimable Murray Waas has gotten into the act with an article corroborating the claim that Libby was ordered to leak classified information and providing a lot more detail on what Libby leaked.
Beyond what was stated in the court paper, say people with firsthand knowledge of the matter, Libby also indicated what he will offer as a broad defense during his upcoming criminal trial: that Vice President Cheney and other senior Bush administration officials had earlier encouraged and authorized him to share classified information with journalists to build public support for going to war. Later, after the war began in 2003, Cheney authorized Libby to release additional classified information, including details of the NIE, to defend the administration's use of prewar intelligence in making the case for war.
Now let me first explain what I think this does not mean. I don't think this means Libby has flipped--certainly not in the recent past. The passage from Fitzgerald's letter I cited only mentioned the NIE. And while Waas suggests Libby was also authorized to leak intelligence to justify the war (really? You mean he leaked that aluminum tube story? You don't say!), Waas also makes clear that Libby is not claiming that Cheney ordered him to leak Plame's identity.
Libby does not, however, appear to be claiming that he was acting specifically on Cheney's behalf in disclosing information about Plame to the press.
There's another couple of pieces of evidence that Libby has not flipped. First, the news that someone ordered Libby to leak the NIE is evidence from his grand jury appearance, as the passage from Fitzgerald's letter makes crystal clear. There is not any evidence that Libby is providing this evidence now, in response to a plea bargain, or even that he produced it on Fitzmas eve, when rumors had him entertaining a plea bargain. Finally, it's clear from the tone of Fitzgerald's letter that this is not an amicable discussion. The lawyers in this are still heatedly arguing over discovery for Libby's perjury trial, with all apparent intent to go to trial. So I find it highly unlikely that Libby has recently flipped. Just before Fitzmas, possibly, but I doubt it. After all, Tom DeLay has probably warned Libby that if you make an agreement with a prosecutor, and then get all snitty after you make that deal, you may lose that deal and get thrown in much deeper hot water.
So what is this all about, then?
Well, first, let's look at Fitzgerald's response again. I haven't been able to find out where Libby's lawyers raised the NIE issue (perhaps on the conference call Fitzgerald references in his letter?). But they seem to be looking for any evidence relevant according to Rule 404(b), which if I (non-lawyer) read it right, says you can introduce evidence of other crimes if they show proof of motive or intent or so forth:
(b) Other crimes, wrongs, or acts
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
But Fitzgerald says he's not introducing the NIE tidbit as proof of another crime (that is, he's not accusing Libby of leaking classified information). Rather, he's introducing the NIE tidbit since it explains why Libby met with Judy on July 8--to "transmit information concerning the NIE." (Any corrections from the lawyers in the audience would be gratefully accepted.)
Now, recall my argument about the purpose of this Ocean of Motions. These motions are partially about figuring out what other evidence Fitzgerald has against Libby, to help put together his defense. And they're partially designed to ascertain what evidence Fitzgerald has against other Neocon cabal members, and how he intends to use it. In this particular case, they seem to have been trying to figure out:
- Whether Fitzgerald was going to go after Libby for leaking classified information
- How much information about Libby's leaking of classified information might be made public during the trial
In other words, in December and January, Libby's lawyers were trying to prevent Fitzgerald from making this little NIE tidbit public--or at least figure out how he was going to make it public. But now, after Fitzgerald's response to the Ocean of Motions has been public for over a week, someone is leaking to Waas that Libby's orders to leak classified information will be a central part of his defense. Is that defense strategy a response to the publication of these letters? Or is it a response to the news that Fitzgerald will insist on introducing the NIE tidbit because of the way it relates to Libby's breakfast meeting with Judy?
Well, I don't know. But in addition to what Waas says about a potential Ollie North defense, I think Libby may be opening up space here to explain away the primary motive for his lying.
Fitzgerald has already said he's going to make the NIE tidbit, at least, public (lordamercy, he already has!!). So there's no way to put leaking classified information back in the box. Libby's going to have to admit to as much in court. (There's the question of why he admitted it in the first place, but I suspect he may have been referencing something in his famously meticulous notes.) But look at what Libby is claiming. Dick (or someone) ordered him to leak classified information to justify the war. He ordered him to leak classified information to (what is it he was trying to convince Judy of, exactly???) ... But Libby says he was not ordered to leak Plame's identity. So, Libby's lawyers will ask, what motive would he have to lie about it, if he is already going to admit all this other classified leaking?
But perhaps we ought to raise just one more question, since we're talking about motive, a question I imagine William Ockham is asking about now. I said last week that Libby, then Chief of Staff and National Security Adviser to the Veep and Assistant to the President, likely had two superiors, if you are referring to superiors in the plural. Dick and Bush. Is that who Fitzgerald is alluding to, when he notes that Libby says his superiors ordered him to leak classified information? Waas asks just this question himself and notes:
The public correspondence does not mention the identities of the "superiors" who authorized the leaking of the classified information, but people with firsthand knowledge of the matter identified one of them as Cheney. Libby also testified that he worked closely with then-Deputy National Security Adviser Stephen Hadley and White House Deputy Chief of Staff Karl Rove in deciding what information to leak to the press to build public support for the war, and later, postwar, to defend the administration's use of prewar intelligence.
"People with firsthand knowledge of the matter identified one of [the superiors] as Cheney." Well, that's a no-brainer. And maybe Karl and Hadley and ... well, the rest remains unspoken. One of Libby's superiors is definitely Cheney. But underlying all of this discussion may be some other Libby superior not identified in Waas' article.