Ah damnit. I'm not going to be able to concentrate until I get this NIE stuff off my chest. Here, best as I can figure it, is the jist of the NIE dirt that I alluded to earlier
- Libby has a notation in his notes to "tell Judith Miller" about something prior to the July 8 meeting
- To explain that notation, Libby says he was instructed to tell Judy about the NIE
- However, there is some confusion about when the NIE was insta-declassified for leakage
- We know, however, that Libby leaked the NIE materials to Woodward on June 27 (and possibly over the phone on June 23), which raises two possibilities: either that Libby leaked the still-classified document to Woodward or he leaked the NIE to Judy earlier, on June 23 [Date error fixed per lemondloulou]
- There is also the (vague) implication that Libby leaked NIE materials to another journalist on July 2
The ostensible reason Fitzgerald is raising the NIE is because, by showing the inconsistency around the dates, he can suggest that the notation "tell Judith Miller" actually relates to Plame. But it also raises interesting questions about the role (and interview responses) of Dick and George. And it raises the specter of another leaky conversation (I'm thinking this might be my missing Novak conversation) on July 2.
Let's start with the bit about Libby's notes. When Walton asks why the NIE is even relevant, Fitzgerald responds:
MR. FITZGERALD: Only to the extent that if Mr. Libby had an instruction to tell information to Ms. Miller on July 8 and he's saying the instruction reflected in his notes to tell me Judith Miller refers to the NIE. He says he did not discuss Mr. Wilson's wife that day. To our understand both were discussed. [my emphasis]
Libby has something in his notes reminding him to "tell information to Ms. Miller." And when asked about it, he said the instruction related--exclusively--to leaking the NIE.
Then Fitzgerald reveals more about how he'll use the NIE leak. He's willing to agree that the NIE was declassified as of July 8.
MR. FITZGERALD: Judge, I am not alleging that there was anything illegal about giving over material in the NIE that was declassified by direction of a superior. But when someone says commit that it is background material, I don't know what that means, background. We're not alleging that he committed a crime when he talked to Ms. Miller about the NIE on July 8 and was told you can tell her so much and was told so much. That's not an issue.
But (as Wells catches) that doesn't mean he'd agree that the NIE was declassified earlier.
MR. WELLS: No. What he said, he put in there, he slipped something in. He said as of July 8, because the government knows that one might make it --
THE COURT: But that was the conversation that he had with Ms. Miller on July 8.
MR. WELLS: Right. But the government knows there may be, there is certainly an argument that the government could make that there was an earlier conversation with somebody else maybe 10 days earlier. My math may be off.
Here, Wells admits to an earlier leak around June 28. This is (Wells admits later) the NIE leak that Woodward has told us about.
A portion of the typed notes shows that Libby discussed the October 2002 National Intelligence Estimate on Iraq's alleged weapons of mass destruction, mentioned "yellowcake" and said there was an "effort by the Iraqis to get it from Africa. It goes back to February '02."
Now, the timing here is actually really critical, because Woodward may have first mentioned the NIE to Libby on June 23, when they arranged their later meeting over the phone.
I told him I was sending to him an 18-page list of questions I wanted to ask Vice President Cheney. On page 5 of that list there was a question about "yellowcake" and the October 2002 National Intelligence Estimate regarding Iraq's weapons programs.
The passage that clearly describes Libby discussing the NIE, though, appears in Woodward's notes from their face-to-face meeting, on June 27 (which would put it eleven days before the July 8 Judy conversation). So probably everyone is referring to the same June 27 leak to Bob Woodward.
But Fitzgerald reveals--even flags this with an attempt to be "very clear"--there may have been two leaks before July 8.
MR. FITZGERALD: Your Honor, I'll say this and I'll be very clear. I think there may have been two earlier disclosures that we're not alleging or a crime that's not the focus. We didn't charge it. But what I want to be clear is --
Now Fitzgerald slows down and provides more detail which only makes things more confusing (this is probably the source of confusion about whether Libby was ordered to leak Plame's name).
MR. FITZGERALD: Yes. Let me explain how it came up. In a meeting I think six days before July 8 Mr. Libby testified that he recalled that he was given the specific authority for identification and that he checked, in fact, he checked with the vice president because he was concerned. He checked with someone else as to the lawfulness but said that this was the first time that he was authorized to describe particular language in the, a particular quote. It didn't turn out that he had talked to a reporter I think six days before and it came up and he testified and it's not going to be a big focus but it is in the grand jury. He said, well, either the declassification occurred earlier than I recalled it because he said it was before July 8th or I made a mistake or it was someone else out there. That was in the grand jury and he was examined about it. It wasn't followed up upon. We're not charging a violation.
Again, this is really muddled, but it appears to suggest Libby testified that Dick gave him the authority to leak the NIE on July 2, six days before his conversation with Judy. But, when asked about earlier possible leaks, Libby kind of hedged and said he maybe hadn't remembered clearly when the leak was authorized.
Here's what Wells says Libby testified to (and Wells is clear he wants this in the public record, probably so Jeffress doesn't have to leak to journalists again and risk a gag order).
MR. WELLS: Just so the record is clear what the grand jury testimony is. He said that the disclosure of the material was a go, then it was a stop and then it was a go. Then he is asked at some point was it possible that you went too fast. He says I could have made a mistake but I know I was supposed to go, then I was told to stop, and then I was told to go.
Geez, this is not just insta-declassification. This is stop-and-go insta-declassification. At any rate, it sounds like Libby testified to something that might explain why he was leaking NIE information in June, six days before he was authorized to leak it. Stop-and-go. Crikey. Maybe now they're claiming the NIE was declassified for an hour on June 27, then reclassified, then declassified for July 8, then reclassified for another ten days?
But Wells doesn't seem to be too worried about the date. He's sure, you see, that either Dick or George or both have stated in interviews that they did declassify the NIE, though they didn't state when they declassified it.
MR. WELLS: I started out making what I characterized as a Brady request to the extent that either the vice president or the president have testified that they did authorize disclosure.
THE COURT: Testified?
MR. WELLS: I'm making a Brady request. I believe there is testimony. I believe there is testimony or interviews.
THE COURT: I didn't know they had testified.
MR. WELLS: I don't know the procedure whether they talked to somebody in somebody's office. But to the extent he has statements from either the vice president or the president, to the extent that disclosure of the NIE was authorized and I believe that maybe that the testimony does not tie it down to a particular day, only that it did take place, I believe I'm entitled to that.
Here's where I think Fitzgerald pulls a fast one. Walton has all but ordered Fitzgerald to turn over the Dick and George's interview evidence, when Fitzgerald goes into how he will summarize that evidence for Libby. He's not going to give Libby the transcripts themselves. And then, before you know it, Fitzgerald has not only avoided handing over their transcripts, but he is back to arguing the primary evidence--about the date--is Libby's own testimony.
MR. FITZGERALD: And he has it. It is the grand jury transcript. It is not a big deal. It is his client saying I'm not sure if I had the authority when I talked on July 2nd or not, and he has it. But it is not a focus.
THE COURT: You don't have anything that would definitively show that he did not have authority.
MR. FITZGERALD: As to the timing, no, I don't have anything that sets the date other than before, my belief is it is before July 8th. Besides saying July 8 it happened by, I can't move the date into June or July, a specific date.
Shew. I'm glad that's been cleared up. If I read the transcript right, Fitzgerald just got away with not handing over Dick and George's testimony because it doesn't directly address the date of the declassification. I'm glad Fitzgerald is working for us.
Actually, there's still quite a lot that's not clear--and I think Fitzgerald is leaving it murky on purpose. There's a whole passage earlier where no one but Fitzgerald appears to be aware that Fitzgerald is talking about another earlier leak, in addition to the Woodward leak. This passage follows on Fitzgerald's explanation that this all pertains to Libby's note that he should inform Judy of something, the first quote I included above (so keep in mind Fitzgerald says this before he later makes efforts to state clearly that he thinks there were two NIE leaks).
MR. FITZGERALD: Only to the extent that if Mr. Libby had an instruction to tell information to Ms. Miller on July 8 and he's saying the instruction reflected in his notes to tell me Judith Miller refers to the NIE. He says he did not discuss Mr. Wilson's wife that day. To our understand both were discussed.
THE COURT: Both were discussed at the earlier?
MR. FITZGERALD: On July 8.
THE COURT: Oh, July 8.
MR. FITZGERALD: Right. The earlier one which was July 2 only the NIE was discussed, and that's not particularly relevant but also in I think an earlier conversation we're not getting into it may have come up once before then. It is not a focus of things. I think when we go through the grand jury transcript I'm sure that there maybe something that Mr. Wells raises as --
THE COURT: I understand you're saying it's not a focus. But I think I need to understand whether you are going to seek to introduce evidence about it because I'm having a hard time understanding how that would be relevant.
MR. FITZGERALD: I will come back to that. Let me jump ahead. There's no other discovery we have on it so it's not like we're sitting on documents or exhibits that --
THE COURT: It is a moot issue. You don't have anything on it.
MR. FITZGERALD: Right. What I'm saying is that, look, that is not the focus of what we are doing and I'm not going to dispute that he was authorized on July 8. I don't know what happened before so I am not going to stipulate that he was authorized on June 23 or July 2. But that's not what the trial is about. The trial is about what happened in the grand jury, you know, lying about the wife. [my emphasis]
So first, Fitzgerald says that Libby had a conversation on July 2 that only related to the NIE (a conversation that Wells either doesn't know about or is ignoring). Then he says there was an earlier conversation (and this could relate to the Woodward interview, but then why introduce it as doubtful? though he may have done so because he doesn't intend to call Woodward as a witness). And then, when he throws out plausible earlier declassification dates, he throws out July 2 (when Libby apparently testified to receiving instructions to start leaking the NIE). Or June 23. Not June 27, but June 23. June 23 is of course relevant not only because that's the earlier of two days that Libby spoke with Woodward. But it's the same day Libby first leaked to Judy Miller.
So I think several things are possible here, all delicious. First, if this was declassified on June 23, then it may mean Libby leaked the NIE to Judy on June 23, at their first meeting. In which case, he would have no need to leak it to her again on July 8, which would suggest the reference to Judy probably referred to something else, like maybe Plame. (Note, too, that if he leaked to Judy on June 23, it would be clear, because Judy's note about it--assuming Judy took notes--would be in an entirely different notebook from her July 8 notebook.)
Then there's the question of the July 2 meeting. From the context, it's totally ambiguous whether Fitzgerald is referring to a meeting with Judy, or someone else. If it was Judy, the same issue applies--if he told Judy about the NIE on July 2, then why write a note to remind yourself to tell her about it again six days later?
Or, it may be that Libby leaked the NIE to someone else on July 2, someone who is almost certainly one of the other reporters involved in this case (otherwise, it'd put Fitzgerald into a discovery problem). Someone like, say, Robert Novak. Did Libby get together with Novak to smear Frances Fragos Townsend, leak the NIE, and who knows what else on July 2?
Whatever it is, Fitzgerald seems to be doing two things. Making it crystal clear there's another conversation out there, one that hasn't been discussed in the indictment or the press. And suggesting that he may have evidence to refute Libby's claim to have leaked the NIE to Judy on July 8.
I can see why he doesn't so much care whether it was authorized or not. It seems like the NIE leaking is the key to dismantling Libby's entire currently operative story.