This is the last of my Anatomy of a White House Smear series. We've seen some of the post-indictment events already, in reviewing the ways that Rove capitalized on the behavior of Woodward and Viveca Novak to evade charges. In this post, I examine the indictment and what we've learned since the indictment, with an eye toward speculating where this might go.
IANAL, so my thoughts on Scooter Libby's indictment come from an awareness of the case rather than lawyerly analysis. That said, there are several aspects of the indictment that stick out:
- Fitzgerald lays the ground work for charging IIPA, by establishing Libby's security clearance and responsibility to comply with the IIPA law, but he doesn't attempt to make the case that Libby knew Plame's status was covert, even though several details (of Cheney's description of Plame as CPD, or the conversation with Ari) suggest Libby did know it.
- Fitzgerald names a lot of witnesses, almost of all whom (save
probably Cheney, Addington, Edelman, and Judy) have either obtained a
cooperation agreement or will be friendly witnesses to Fitzgerald. We
don't see the names of other people (like most WHIG members of Hadley
or John Hannah) who have an awareness of these events, but who might
present problems on the witness stand--or might be under investigation.
The big exception, of course, is Karl Rove, named as Official A.
- Fitzgerald reveals he knows of Dick Cheney's involvement (in telling Libby of Plame's identity, in consulting with Libby on July 12, and possibly in annotating the CIA files on Wilson's trip).
On or about June 12, 2003, LIBBY was advised by the Vice President of the United States that Wilson’s wife worked at the Central Intelligence Agency in the Counterproliferation Division. LIBBY understood that the Vice President had learned this information from the CIA.
But at times, he downplays Dick's centrality to the action, as when he describes a conversation between Libby, Cathie Martin, and Dick Cheney on Air Force 2 this way:
On his return trip, LIBBY discussed with other officials aboard the plane what LIBBY should say in response to certain pending media inquiries, including questions from Time reporter Matthew Cooper.
Further, Fitzgerald leaves other key details (such as Cheney's involvement in the NIE leak) out of the indictment.
In other words, Fitzgerald doesn't hint at what he knows about a larger conspiracy, if there is one. But he does include clear threats to three people--Rove (in the form of designation as Official A), Libby (in the form of a potential IIPA violation), and Cheney (in the form of hints that Fitzgerald knows of his deep involvement in the leak)--without revealing all the details he knows. I believe the subsequent events, whatever they might be, were overshadowed by those three threats.
Libby's Legal and Fundraising Team
Even before the indictment was announced, Libby's allies began to set up his defense team. Note this VandeHei description: "intermediaries" for Libby make this effort.
But intermediaries for Libby have in recent days contacted several law firms with extensive white-collar criminal defense experience about possibly representing Libby in the near future, according to legal sources.
That is, I think, consistent with the nature of Libby's defense effort. His defense team and his defense fund--sponsored by all the leading lights of the Neocon project--serve not just to defend Libby, but to defend the larger project from exposure through this case. And so, at times, Libby's lawyers go to great length to reassure the public that they intend a full and antagonistic defense of Libby, and that they take misrepresentations about Dick's involvement seriously.
That shows in the team's choice of lawyers. While Ted Wells has successfully defended a number of indicted politicians, he has worked for more Democrats than Republicans.
Not so the other two lawyers added to the team (Joseph Tate, with whom Libby used to work, also remains on the team). The team's retention of John Cline, one of Ollie North's lawyers in Iran-Contra, reveals that it hoped to use a graymail strategy, to muck up the case by requesting highly classified documents which the White House might refuse to turn over, thereby forcing the government to dismiss the charges. (It appears that this strategy has largely failed, partly because the indictment's limitation to perjury and obstruction charges makes the most expansive requests irrelevant. At the most recent trial hearing, apparently, it also was announced that the White House had not objected to turning over the requested documents).
The inclusion of William Jeffress on the team serves two purposes. First, Jeffress manages the strategy for using journalists as witnesses. In particular, Jeffress' victory before SCOTUS in Nixon v. Warner Communications (in which the release of the Nixon tapes was postponed until after appeal), served to limit the press' right in trials. From the decision:
Nor is release of the tapes required by the Sixth Amendment guarantee of a public trial. While public understanding of the highly publicized trial may remain incomplete in the absence of the ability to listen to the tapes and form judgments as to their meaning, the same could be said of a live witness' testimony, yet there is no constitutional right to have such testimony recorded and broadcast. The guarantee of a public trial confers no special benefit on the press... [my emphasis]
Already, Jeffress has argued for expansive discovery of journalists' notes. But the Nixon decision may become pertinent as the defense introduces Judy's notes, which may implicate other members of the cabal. But that's not all. Jeffress also happens to be a partner in the TX law firm Baker Botts, which means he can somewhat legally share information with his law partner and Bush family fixer James A. Baker III. How about that! He can seek to prevent sharing of information with the press, but facilitate sharing information back to the cabal!
So two of Libby's three big name lawyers were instrumental at limiting one individual trial from bringing down entire Republican conspiracies in the past. That, in and of itself, indicates the understanding Libby's team brings to his trial: as the burglars tried to on Watergate and North tried to with Iran-Contra, Libby's trial must limit the damage to the larger conspiracy.
What better person to manage the PR and fund raising side of this, then, than Barbara Comstock, who (with Mark Corallo) seems to be the RNC's designated gal in charge of limiting the damage one obscenely corrupt Republican's trial can have on the rest of the obscenely corrupt Republican project.
The New Evidence
As the Neocons put Libby's team in place, new evidence continued to come in, most of it ostensibly related to Rove's attempt to avoid indictment. Apparently in Rove's testimony on October 14, he revealed that Libby might be his source for Plame's identity; he presumably provided more details on their July 11 conversation, about which Rove and Libby might have had contradictory stories. On Tuesday October 25 (before the indictment), Adam Levine spoke to one of Fitzgerald's prosecutors about an email Rove sent him and a conversation they had on July 11. Early reports of Levine's testimony suggest Cooper didn't come up, though in addition to providing more credence to Rove's story, Levine's testimony would also have given Fitzgerald the email Rove sent directly before or after his Hadley email, the one that somehow got lost. I think it possible that Rove's strategy to avoid indictment, either intentionally or accidentally, may have provided Fitzgerald evidence related to the cover-up.
As discussed in my last post, Fitzgerald also pursued the testimony of Bob Woodward, Richard Armitage (presumably), Bob Luskin, and Viveca Novak. Much of this new testimony appears to have helped Rove (though it is not at all clear that Viveca's testimony corroborated Luskin's). Woodward's testimony may also have helped Fitzgerald gain more details about Libby's NIE leaking.
Most of this post-indictment evidence may not directly pertain to Libby. But then, in a January 23 letter, Fitzgerald revealed that "not all email" of the OVP and EOP "for certain time periods in 2003 was preserved in the normal archiving process on the White House computer system." Jeffress provides a more extensive description of these emails (even while trying to downplay the scandal of emails having been "lost" from the White House computers), which he had yet to receive on February 24.
I may say we are also told that there are an additional approximately 250 pages of documents that are emails from the office of the vice president. Your Honor, may recall that in earlier filings it was represented or alluded to that certain e-mails had not been preserved in the White House. That turns out not to be true. There were some e-mails that weren't archived in the normal process but the office of the vice president or the office of administration I guess it is has been able to recover those e-mails. Gave those to special counsel I think only on February 6 and those again are going to be produced to us. We don't know what's in there. We've been led to believe it's probably not anything startling in those e-mails but again we need to review those and that also may be the subject of a motion.
"Your story is false and utterly without foundation," he said. "There has never been any discussion of any deal of any kind involving Mr. Rove. His cooperation has at all times been voluntary and unconditional."
Luskin appears to object to the notion that Rove got a deal, while insisting all the while that Rove was cooperating voluntarily. Which just leaves it up to you to imagine what Luskin might mean when he talks of Rove's "cooperation."
Imagine, though, if "cooperation" was what got Novak and Rove to testify again. Novak's testimony, perhaps unsurprisingly, passed without much notice (as did his earlier testimony). The one indication that he has testified again is a single line in a Anne Kornblut NYT piece.
Mr. Novak has testified to the grand jury since Mr. Rove's last appearance in October 2005.
Now, recall, Novak made a stink in December when he complained,
"I'm confident the president knows who the source is," Novak told a luncheon audience at the John Locke Foundation in Raleigh on Tuesday. "I'd be amazed if he doesn't."
"So I say, 'Don't bug me. Don't bug Bob Woodward. Bug the president as to whether he should reveal who the source is.' "
Then, a week before Rove testified the fifth time, Novak revealed his characteristic charm at a panel run by his paper, the Chicago Sun-Times.
Novak acknowledged the swirl of speculation regarding his actions in Fitzgerald's investigation of the leak, including whether he testified before a grand jury, revealed his source to Fitzgerald or made some sort of a plea bargain by fingering someone else so he could stay out of jail.
But he called the speculation "ridiculous," declining to reveal his actions.
"I'm not going to tell you because it's none of your damn business," he said.
Still, he did say, "If I had gone before a grand jury and taken the Fifth Amendment, Mr. Fitzgerald would have that on the street in about two minutes."
Curiously, he gives a non-denial denial: he didn't take the fifth. But it's none of our damn business whether he accepted a plea deal. And this from a guy who could not be legally liable for his original publication (unless those calls to consider prosecute NYT for publishing classified leaks really take root). At the same appearance, Novak expresses regret for suggesting Bush knew his source back in December.
At an appearance in December, Novak said President Bush knows his source, too. On Wednesday, he called those remarks "indiscreet."
As I said, Rove testified for the fifth time just after Novak's latest outburst. This time, unlike his testimony in October, Rove apparently kept his testimony very secret even within the White House.
His grand jury appearance, which was kept secret even from Rove's closest White House colleagues until shortly before he went to court yesterday, suggests that prosecutor Patrick J. Fitzgerald remains keenly interested in Rove's role in the case.
And if CNN is correct, Rove's testimony (and therefore I presume Novak's) pertains to something new since Libby's indictment.
Karl Rove appeared today before the Grand Jury investigating the disclosure of a CIA agent's identity. He testified voluntarily and unconditionally at the request of Special Counsel Patrick Fitzgerald to explore a matter raised since Mr. Rove's last appearance in October 2005.
And that's it--Rove testifies a fifth time, then over a month later, Luskin reports that Fitzgerald has indicated he doesn't anticipate seeking charges against Rove. Rove got a Get Out of Jail Free Card, whatever Luskin and he had to do to get it.
Against this background of Rove working to escape charges and the discovery of missing emails, Fitzgerald has slowly revealed--to us, at least--some critical details of his case. Now, ostensibly at least, these revelations all serve the purpose to make sure Fitzgerald will be able to demonstrate motive. And that motive? I think Fitzgerald will argue that Libby lied for three primary reasons:
- To hide his culpability from Bush
- Because he realized (at least after the fact) the leak harmed national security
- To protect Dick (and, to a lesser degree, Rove)
So that's the ostensible reason Fitzgerald has included the items I'll describe in his discussion of evidence for the case. However, by revealing these items to the public, Fitzgerald is revealing the fundamental truth of his investigation: Dick Cheney authorized Libby and strategized with him to leak Plame's identity. While I don't know whether Fitzgerald will ever be able to prove it legally, he has provided ample evidence to show that Libby has been lying to protect Dick, and with Dick, the deliberate efforts the two of them made to expose a spy.
The first big revelation came in the same letter where Fitzgerald warned Libby's lawyers about the missing emails. In a passage explaining he did not intend to introduce "other crimes" at trial, he reveals that Libby has testified to leaking with NIE with authorization from his superiors.
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 the 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.
As I speculated at the time, subsequent filings and hearings have confirmed that Libby testified that Dick and Bush had authorized this leaking.
Now Fitzgerald has revealed, over time, that he has a good deal of evidence relating to Libby's claims about the NIE. For example, Fitzgerald revealed he will introduce an article which was the end-product of Libby having some lackey leak the NIE t o the WSJ.
In addition, the government’s evidence at trial (including the defendant’s grand jury transcript) will refer to a July 17, 2003, Wall Street Journal editorial entitled “Yellowcake Remix,” which contained quotations from the 2002 National Intelligence Estimate (“NIE”). This editorial resulted from the defendant’s transmittal, through another government official, of a copy of portions of the NIE to the Wall Street Journal shortly before the editorial was published.
Fitzgerald says the government will offer this as evidence of the attention to which Libby was paying the smear (to counter his "I was too busy to remember" defense). But I suspect it will serve further purpose--to show the kinds of ways, some of them quite casual, that Libby leaked the NIE.
Fitzgerald will also present information about Libby's earlier activities with the NIE. Libby claimed to ask permission to leak the NIE on July 2. Both he and Woodward have testified that Libby leaked the contents of the NIE in June; Fitzgerald has suggested Libby may have started leaking it as early as June 23, the same day Libby met with Judy. It's unclear precisely when Libby was authorized to leak the NIE and when he actually leaked it. But that's part of the problem. Libby has testified to being so cautious about leaking the NIE that he got David Addington to give his opinion on the legality of it and made sure Bush approved of it. Yet he had already leaked the NIE by the time Addington is said to have given his opinion (probably July 2).
By showing the inconsistencies with Libby's NIE story, Fitzgerald started to draw out Libby's central lie--one Fitzgerald probably does not yet have evidence for, but one that is increasingly clear is a lie. Libby was ordered to leak something to Judy on July 8, 2003. He says he was orderd to leak the NIE. But that doesn't make any sense.
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 -- [my emphasis]
Libby says he was told to leak the NIE on July 8. But he had already leaked it. Therefore, it is completely ridiculous to think he would be ordered to leak it again--much less that he would get permission specifically from the President when he hadn't done so in June, when he leaked it to Bob Woodward. So if he wasn't ordered to leak the NIE, then what was he ordered to leak?
More recently, Fitzgerald has revealed another important detail. Libby, along with someone else in OVP, was warned of the damage that the Plame leak could cause.
The July 14 Chicago Sun Times column by Mr. Novak is relevant because on the day the article was published, a CIA official was asked in the defendant’s presence, by another person in the OVP, whether that CIA official had read that column. (The CIA official had not.) At some time thereafter, as discussed briefly at the March 5 oral argument, the CIA official discussed in the defendant’s presence the dangers posed by disclosure of the CIA affiliation of one of its employees as had occurred in the Novak column.
This revelation may really just speak to motive. It shows, regardless of whether Libby knew when he was leaking Plame's identity, the damage it might cause, that he knew of it before he first testified to the FBI. But depending on the timing, it may be evidence of knowledgeable leaking. Andrea Mitchell, for example, appears to have been encouraged to leak Plame's identity after Novak's column, perhaps as late as July 20. If Fitzgerald can show Libby continued to push this leak after receiving a warning of the damage it might cause, he may be closer to proving malice and intentionality.
Then, finally, there is the smoking gun, Dick's own notes written on his copy of Joe Wilson's op-ed. Dick uses some of the same terms others in the White House would use later in the week.
Have they done this sort of thing?
Send an Amb to answer a question?
Do we ordinarily send people out pro bono to work for us?
Or did his wife send him on a junket?
Dick Cheney effectively drafted the talking points they later used to rationalize leaking Plame's name on Wilson's op-ed itself. Particularly the use of junket, a word that is utterly absurd in the context of a discussion about a trip to Niger, marks Dick's notes as the source of the talking points.
There's just one thing left to connect--Dick's notes with the order to leak Plame's identity. Libby has already testified that Dick spoke about the Wilson op-ed.
As the defendant admitted in his grand jury testimony, he communicated extensively with the Vice President regarding the Wilson Op Ed during the relevant period, and received direction from the Vice President regarding his response to the Wilson Op Ed. The Vice President’s handwritten notes on a clipping of the Wilson Op Ed, which reflect his views concerning Mr. Wilson and his wife, are evidence of the views the Vice President communicated during the conversations that the Vice President and his chief of staff had during the period immediately following the publication of the Wilson Op Ed, and corroborate other evidence regarding these communications, which are central to the government’s proof that defendant knowingly made false statements to federal agents and the grand jury.
But when asked specifically about when they talked about the contents of Dick's notes on Wilson's op-ed, Libby gives a completely bogus response.
Q. And lastly it says, or did his wife send him on a junket? Do you recall the Vice-President indicating or asking you or anyone in your presence whether or not Ambassador Wilson's wife had arranged to have him sent on a junket?
A. I think I recall him -- I don't recall him asking me that particular question, but I think I recall him musing about that.
Q. Okay, and do you recall when it was that he mused about that?
A. I think it was after the Wilson column.
Q. Okay, and obviously --
A. I don't mean the Wilson column, I'm sorry, I misspoke. I think it was after the Novak column.
Q. Okay. And you mentioned last time that you thought he had written, handwritten here, may have been discussed at a later date, like August or September by the Vice-President?
A. Yes, sir.
Q. And --
A. I don't know, later. I don't know when, but yes.
Q. Okay. And can you tell us why it would be that the Vice-President read the Novak column and had the questions some of which apparently seem to be answered by the Novak column, would go back and pull out an original July 6th op-ed piece and write on that?
"I don't know, later. I don't know when, but yes." And this man used to be one of the most important members of our national security team. It would be courteous to say that Fitzgerald doubts Libby.
There are just a few shitty lies standing between Dick Cheney and full culpability for willingly leaking the identity of a CIA spy. I don't know whether Fitzgerald believes he can break through those shitty lies. But it's pretty clear they're nothing but shitty lies.