Carving Out a Defense

by emptywheel

Must. Stop. Blogging. Must. Do. Billable. Work.

But I can't resist the subpoena Libby's team has given to Judy (thanks to Jeralyn for making it available).

I have eagerly anticipated seeing this subpoena, because of all the challenges it might present to Libby and the cabal. He needs to pursue any and all leaks that Judy may have carried, to support his argument that "everyone" was talking about Plame. But at the same time, he needs to protect the cabal and particularly its long-standing method of using Judy as a cut-out to leak information.

Lucky for Libby, Fitzgerald has made it easy for him.

The first trick is to only ask for communications regarding conversations from a number of named individuals:

All documents reflecting communications by you concerning former Ambassador Joseph Wilson prior to July 14, 2003, with any of the following persons: Ari Fleischer, Mark [sic] Grossman, Eric Edelman, Bob Grenier, Cathy Martin, Joseph Wilson, George Tenet, and Bill Harlow.

This is identical to a request Libby's lawyers make of Time. And it appears to be a fair list, the list of people who will be called in trial to testify that Libby spoke of Plame's identity before he spoke with Tim Russert.

But the list is not comprehensive. It doesn't include Dick Cheney or David Addington, both of whom had significant conversations with Libby prior to July 10 regarding Plame. Nor does it include Karl Rove, who had a pertinent conversation with Libby before the July 12 conversation. Now, presumably if one of these people told Judy directly of Plame's identity, it would have to be produced under this request:

All documents, whenever prepared or received, indicating or suggesting that any employee or agent of The New York Times (including but not limited to you and Nicholas Kristof) was aware, prior to July 14, 2003, that the wife of Ambassador Joseph Wilson was employed by the CIA.

But discussions about the NIE, the trip report on Joe Wilson, or the mysterious January 24 document wouldn't need to be disclosed.

Also, by naming a list of people, the subpoena rules out some other people who might offer information of interest: people like John Bolton or Stephen Hadley or David Wurmser or John Hannah, for example. For that matter, where the hell is Richard Armitage? Aren't you interested in learning whether Judy spoke to the supposedly loose-lipped Richard Armitage? Conveniently, it appears logical, though, that Libby doesn't name these people, since Fitzgerald has contested the relevance of Armitage and Hadley (in particular) as witnesses to Libby's perjury trial.

Fitzgerald's other favor is even greater. Fitzgerald originally requested Libby's notes starting on June 7, presumably in relation to Pincus' inquiries at OVP. So Libby uses that date as the range of time for which he'll request Judy's phone logs and appointment calendars:

All appointment calendars, telephone logs and records of telephone calls placed or received by you during the period June 7 to July 14, 2003.

Now, Libby argued (successfully, IIRC) that he ought to have more of his own notes, going back to May 6. But he doesn't use that earlier May date in his subpoena to Miller. Why not?

Well, conveniently, June 7 is not just the day before the Pincus inquiries hit at OVP, it's also the date when Judy finished reporting on the "Bioweapons Labs." Before that period, she may have records of a conversation with an SAO who said, "'some analysts give the hydrogen claim more credence," but then "asserted that the majority still linked the Iraqi trailers to germ weapons." She may also have records of a conversation with an SAO (perhaps the same one?) who "said the White House had not put pressure on the intelligence community in any way on the content of its white paper, or on the timing of its release." Going even further back, she'd almost certainly have records related to a white paper some SAOs leaked to her. Or records of a conversation in which some SAOs "said intelligence analysts in Washington and Baghdad reached their conclusion about the trailers after analyzing, and rejecting, alternative theories of how they could have been used." By asking for phone logs starting only in June 7, Libby shields from discovery all of the SAO leaks to Judy (leaks which he may have been party to) during the month of May.

They're not raising millions for Libby's defense fund for nothing, you know.

I frankly think there are still risks. Who's to say, for example, whether Judy doesn't keep all her SAO leaks in one set of notebooks, and that, by requesting Judy's notebooks, Libby will reveal some earlier dirt. Further, who's to say whether Judy didn't tell George Freeman something revealing after she told him she had spoken to "many people" about Plame, before and after Novak's article.

But then, Judy has gone to jail for Libby once before. She's probably willing to protect him once again.

Update: If you haven't already seen it, Tom Maguire has posted Judy's motion to quash. TM points out the most interesting bit (about which I'd work up a good suspicion if it wasn't so damn hilarious):

At this time, Ms. Miller cannot locate the original notebook containing notes of her June 23, 2003 conversation with Mr. Libby. However, counsel is in possession of a true and complete color copy.

Psst! Judy! Did you look under your desk, in all those paper shopping bags? That's where you hid it the last time you wanted to lose it!

Comments

[William Ockham]

Can someone explain to me why they aren't issuing a subpoena to Robert Novak?

[emptywheel]

Nope.

Um. How about this. If you believe my Waas-based theory that Libby talked to Novak sometime in the days before the leak about Frances Fragos Townsend, then he might not want to let Fitz put Novak on the stand for fear of exposing a more substantive conversation than revealed in the indictment. They really are just facing perjury at this point, and they'd probably like to keep it that way?

Or this. Novak did get subpoenaed, he hasn't chosen to quash, so we don't know about it?

Or this. For reasons related to my first notion, Libby has decided he'll go with just Rove on the stand there, rather than Rove and Novak?

Or how about this. I don't have any clue.

[William Ockham]

I'm also very curious about this item from the Time subpoena:

5. The original of the document produced to the grand jury or Office of Special Counsel bearing Bates number MC 0043-44.

They also ask for unredacted copies of many (all?) redacted documents produced for the investigation from Matthew Cooper and Time Magazine. Since the document mentioned above would fall in the sequence described in the request for unredacted copies, presumably they have some reason for wanting the original.

[Jeff]

Am I overreading, or does Bennett elide the difference between the documents covered by Request 3 (all docs relating to Plame) and Request 1 (the notebooks that Fitzgerald already obtained)? Or is Bennett implying that Miller has nothing responsive to Request 3 beyond the notebooks she already turned over to Fitzgerald?

[kim]

Very interesting to see those Judy quotes about analysts on the bioweapons trailers.

It makes me wonder wonder just how far back she was getting classified info, passed under the table by the W Administration?

Must have been a whole lot of declassifying going on over there.

[JohnLopresti]

Besides dust bunny memoirs, Libby's people are on the record as wanting to pressure these two journalists especially. My guess aligns with EW's cherrypicking the evidence theories; but, as Christy likely would suggest, that is what defense is supposed to do. I would expect Libby's people to want pressure on the two organizations, Time, NY Times; and recordkeeping systems and internal communications in those two news businesses; no shield for personnel matters, or candid executive branch deliberative processes. I wonder how serious Jeff would take the step to MTQ right away; maybe it is a routine reply, perhaps the only way to deny discovery. Though it is a stretch to see Judy as a hostile witness. Wonder what is in those notes; probably enough to keep the folks busy the rest of 2006 devising a revisionist history by the time the trial date arrives in 1Q2007. Got to clear the dust bunny to find at least one more notebook.