Libby's Team Pulls a Fitzgerald

by emptywheel

As I mentioned in my last post, the court filing gods have rained down upon us. In their filing moving to prevent the government from introducing any information relating to Valerie Plame's status, Libby's lawyers have pulled off a full Fitzgerald--revealing key information in a filing which in turn releases it to the media. This is, IMO, a bid to create the false impression that Plame was not covered by IIPA, but it also accomplishes the completely justified task of preventing the government from introducing things they haven't given to Libby for discovery.

Having steadfastly refused to provide discovery relating to these issues (other than the conclusory assertions included in two brief two "summaries" prepared by the CIA), the government cannot now be permitted to inflame the jury--and encourage it to punish uncharged and unfounded national security violations--by offering irrelevant and largely speculative evidence that sheds no light on the guilt or innocence of the charges that were brought.

Let me interrupt for a moment and point out that Libby knows what the conclusion of those two CIA reports were. He doesn't tell us what the conclusion was. I'm guessing that conclusion doesn't help his case. You see where I'm going. And based on that, he wants to prevent Fitzgerald from referring to Plame's status as classified. One more point. Summaries are all he gets on the rest of the classified data. But for this, he's arguing that summaries aren't good enough (the motion notes that Jeffress has filed a separate sealed declaration explaining why). If Fitzgerald feels the need to fight this, it's on this basis I suspect he'd make his argument.

Cherry Picking

Anyway, having argued no one should publish anything about Plame's status, Libby's team cherry picks the bits that do help their case. No doubt the JOMers will misunderstand this process of cherry picking--so whoever's turn it is to monitor JOM today, you get double credit for it.

And as for the picking? Well, there's Jeff's favorite, where Libby's lawyers insert a comma into Libby's own notes to make those notes look less incriminating.

as working in a "functional office[,]CP"

This suggests, to the uninformed, that CP (Counter-Proliferation) is a functional office. What it communicates without the comma is that she worked in the functional office of CP. The motion goes on to suggest that someone working in a functional office of Counter-Proliferation--part of the covert side of CIA--would be "an analyst." Uh huh, all those functional operatives, risking their lives at their functional desk jobs.

Libby then extracts one line from the summaries he has gotten (which, again, almost certainly show that Plame was classified and/or covert given the context):

Notes from a July 2003 internal CIA interview of William Harlow, then spokesperson for the agency, indicate that, at the same time as he was confirming to Mr. Novak that Ms. Wilson worked at the CIA, Mr. Harlow "found out" that Ms. Wilson was "not under cover."

Anyone want to bet that the following line of the summary reads something to the effect of, "but then Harlow asked specifically and learned she was a NOC, at which point Harlow called Novak back to give him the strongest warning he was permitted to give"? That would be perfectly consistent with the suggestion that the summaries conclude Plame was covert.

With these two cherry picks, Libby's team seems to want to put the press out there in their full idiotic regalia, arguing that because one line of a summary that concludes Plame was covert implies the contrary, Libby should get an apology. (I'm looking at you, David Broder).

Potential Damage

Thus far, I actually think Libby's motion is reasonably fair. To the degree that this trial is about perjury, and that Fitzgerald has limited discussions about Libby's security sock drawer because it's about perjury, then Fitzgerald shouldn't be able to make a big argument about Plame's actual status. But then the motion takes a pretty radical turn. It attempts to prevent Fitzgerald from talking about the potential damage of leaking Plame's identity.

Now, potential damage is central to the case--Libby lied about these conversations because he knew he shouldn't have had them, they risked national security. So by arguing that Fitzgerald can't talk about potential damage, I suspect they're trying to prevent Fitzgerald from explaining Libby's motive.

Of particular concern is the way Libby's team argues this. They cite a passage of the May 5 Transcript in which Fitzgerald talks about discussion potential damage at trial (at 42-43). In the passage, Fitzgerald talks about how it's relevant:

One of the articles that came out in the New Republic in June of 2003. There was some discussion in there. After that article a witness spoke to Mr. Libby by telephone who was describing what it is that some of the problems were about Mr. Wilson's trip and the person said, can you make some information public, and Mr. Libby said, we can't because there are complications at the CIA which he didn't further explain, and he said, we can't talk about it on an open telephone line.

So the issue of potential damage from discussing it may come up. In a different conversation that Mr. Libby was present for, a witness did describe to Mr. Libby and another person the damage that can be caused specifically by the outing of Ms. Wilson. It was before the grand jury. It was back in July of 2003.

The first example shows that, in a conversation with Eric Edelman, Libby betrayed that he believed Plame's identity (or something else about Wilson's trip) was classified. So this example of "potential harm" goes right to proving that Libby had a reason to lie about this later on. And the second example again shows Libby learning that his leaking may have caused harm--which would give him cause to lie about his leaking later on (and there's the possibility that the other OVP person at this meeting was Dick, but that's just a suspicion). In other words, in arguing that Fitzgerald shouldn't be able to talk about potential harm, Libby's team is trying to rule out a lot of the motive discussion and, potentially, trying to exclude some of the government's witnesses.

Comments

[Jeff]

The upshot is the same, but I actually think the point about the comma is sort of the opposite. The point is that CPD is a functional office, where the implicit contrast is between offices defined by their function (like counterproliferation) and offices defined by their regional focus (NESA, for instance). But again, the upshot is that the comma is trying to obscure the simple fact that Cheney told Libby that she worked in CPD which is part of the Directorate of Operations, where all the people under cover are.

I suspect you're right about cherry picking the notes from the interview of Harlow, and I hope that Fitzgerald responds by giving us a more complete picture.

[Nan]

Thanks for your continued efforts! Hope the bookwriting is going smoothly!

Did folks see the Chicago Trib article?
http://www.chicagotribune.com/news/custom/newsroom/sns-ap-cia-leak,1,286672.story?ctrack=1&cset=true

[Jeff]

Just a quick note on ongoing doings: it turns out that the continuation of the CIPA hearing did happen yesterday, and the docket says that it is going to continue on Thursday.

[Jodi]

I am not trying upset or annoy people, and I am certainly no lawyer. However I am very curious and interested in this subject, so I offer my apologies ahead of time if my questions or statements annoy people.

Now, I have a few questions since I see a "jury" mentioned above.

How will the jury be selected?

Can a fair and impartial jury be found in DC? That is where I think this trial will be.

Will they automatically exclude people that voted Democratic or Republican? Go with more independent people?
Will they exclude people that are connected to the Iraqi War? I mean that have family over there or family that died there. Will they exclude people that work for the government directly?

Will they have a similar policy like some courts have when the case involves alcohol where they automatically exclude MADD members or sympathizers?

In other words how will the court handle those people that have a very fervent belief one way or another on the war, and on Bush. How will the court identify those people?

[freepatriot]

so when scooter loses this motion, Fitz gets to introduce the info that directly states that scooter violated national security, right ???

scooter should dig up

this is a debate he don't want to have

[Jeff]

My apologies, jodi. I had gotten the impression that you were in fact not very interested or curious about this subject, what with all the complaints about the intense interest and curiosity of people who are very interested and curious about the topic. Presumably your questions about jury selection will be answered when Walton rules on the voir dire questions the parties submit on November 13. I do think I can say with confidence, even though I'm not a lawyer, that they will not automatically exclude people who voted Democratic or Republican.

Two guesses. Part of Fitzgerald's response on the classified status issue will be to explain that he needs to say that Plame's status was classified information in order to explain what the investigation was about. Second, I think Libby's argument about potential damage is very very weak, and Fitzgerald will not have trouble with that one. a)Libby's defense tries to limit the time when Libby's knowledge of potential damage would be relevant to before he spoke with reporters. But of course Fitzgerlad will argue that the time that is in fact relevant is before Libby spoke with investigators; in fact, he's already made that clear in discussing in a previous filing the CIA briefer who told Libby about the damage that could come from Novak's revelation shortly after Novak published his column.

Finally, I am curious to see whether Fitzgerald has any response to Libby's citation of the infamous footnote 15 on p. 28 of Fitzgerald's August 27, 2004 affidavit, which Libby's defense cites on p. 9 of its motion in limine. For two reasons. First, it only covers the issue of Libby's knowledge of covertness, not of classified status. And second, it's been over two years since Fitzgerald made that assertion. I am curious whether anything has changed, such as whether he learned anything new from Robert Grenier, who does not seem to appear in that affidavit and who may well have testified since then.

[freepatriot]

Off Topic, but did anybody notice how quickly the repuglican slime machine went to work on Kerry ???

why can't these assholes turn their awesome powers of attention and attack on the FUCKING WAR IN IRAQ

how does the presnit manage to attack Kerry in under an hour, but can't come up with a single new idea to fight the insurgency in Iraq for THREE FUCKING YEARS

anybody else notice that ???

[Made]

Plame leaked her own identity at 'Vanity Fair.' She admitted being a CIA operations officer, paramilitarily trained. This was confirmed by her 'farm' mates Larry Johnson and Jim Marcowski. Immediately following her article, ten opertions officers were assassinated in Iraq. They were not Americans like the Mercy Corps(Provisional Authority)volunteer assassinated in Iraq(first civilian casualty).
She was an attorney who worked with a local judge to bulldoze a house(bad idea according to her training at Peace Corps). The Director of Mercy Corps, Sarah Chayes, who is not supposed to be an operations officer, was also Peace Corps like Plame's husband Wilson. This happened at a time that judges were forming an international group to go overseas after they retire. The funding at Mercy Corps came from USAID(alot of it is CIA money)while Chris Shayes was on the intelligence committee who is also a Peace Corps volunteer like Chayes, both from Morocco.

The original damage goes back to Aimes, who was also a Peace Corps Volunteer and who's trainer(as well as other CIA operations officers) may or may not have retired as a Peace Corps Volunteer in, guess; Morocco. So, if Aimes leaked most operations officers and he did, Plame was already blown, which accounts for her behaviour of constantly trying to blow herself to someone important so that the repurcussions would follow and the imporatant person, like Cheney, would be blamed for the murders(like Iraq, but that was her blowing herself). Aimes operated like this killing over forty operations officers(foreign), which is why he was allowed to committ treason for so long; he was killing the enemy. This may have got someone set up who was also a Peace Corps Volunteer, but that was the point and Putin probably knows this. That volutneer may have seem Plame once and decided he did'nt want what was going to happen. Plame followed the same pattern and it's sad to see them repeat, but then there is the trainer going back and helping out Chayes and Shayes, right?

WMD was blown during the inspections by Blix. 'There is no WMD' and it may have been CIA selling off a program that was not liked because of Rice's 'close' relationship to Bush and her schooling him in WMD, which was mandatroy for all operations officers at CIA, yes, alot like the nuclear stuff. The Russians found out about the program and found the universities teaching WMD to the operations officers by Rice's degree. The KGB/FSB person who figured this out was assassinated in Russia in a contract killing (private security) around Rice's visit. Bush hired the University Presidents at CIA; Universities that taught WMD at CIA. CIA and and the WMD trained oeprations officers probalby were 'selling' the program at CIA off before the war and using Bush and Rice as an excuse for the 'inevitable' Bush Iraq war and WMD. The war was in their interest and protesting it later was also; Plame(CIA WMD) and Wilson were 'working' toward this from the beginning-Yellowcake.

Plame is a card game. Foley is an artist. Foley, who was also a Peace Corps Volunteer and USAID(not that he was CIA), was assassinated in Jordan; not that Plame's boss' name was also Foley. Plame's dad was Air force and worked at NSA. The new Director at CIA (after Porter the union man went out in the 'party' scandal) is also NSA and Air Force as Plame's old boss (denied now), Foley moves all the CIA analysts over to DIA/NSA. It works out nicely for Plame's little 'journey' with her government service CIA career at the NSA monitoring domestical political groups, not that they would monitor a member of the intelligence committee who had a unique ability to get terror warnings, that happen the next day, out of Morocco. there were also all those 500 things that congress was investigating started by, guess, retired CIA operations officers who came out around Plame.

The real threat is global warming and it's not like blair wants some G8 GDP money from other countries as the dems rise in the poles and Gore finds out he actually started global warming like the internet, but that's not important to: Libby Libby Libby on the Table Table Table.............or was he Bush's brain?

Fitzgerald said he was in independent and that is because he knows you have to be a dem to work for the federal government and he is only interested in protecting all those union employees and destroying politicians like, guess, Plame. Anyway, everything is new now that a criminal conspiracy investigator will no longer indict a CIA operations officer like Aimes, so who does? CIA opereations officers did not make the move to NSA/DIA, but will probably be legacies to the military like Plame was to the CIA.

[lemond54]

All three motions are filled with irony. Lucky for Libby that he doesn't have to operate under the rules of detainees in Gitmo, eh?

[Frank Probst]

Hmmm.

I don't see how Libby is going to keep JudyJudyJudy from testifying about her time in the clink. She went to jail for 2 1/2 months for him. And all this First Amendment crap just isn't going to wash. She knew he was guilty as hell, and she knew her testimony would be damning. If she had known her testimony wouldn't hurt Scooter, she would have just testified at the start and said, "I'm going to preface my testimony by saying that I firmly believe that the First Amendment protects me from being compelled to testify here, and I am only doing so because my source has specifically given me clear permission to do so. If he had been in any way ambiguous about it, because he knew my testimony could ship his ass off to Federal Prison, then I would have been willing to go to jail to protect him."

As for the cherry picking about the was-she-or-wasn't-she-covert issue, it seems to me that Fitz can simply say that he'll limit his presentation of "potential damage" to things that Libby himself has already said. The statement "we can't talk about it" is pretty clear evidence that Libby knew he shouldn't be talking about it. The "why" is largely irrelevant. He knew he wasn't supposed to be talking about it, which is a clear motive to lie about the fact that he was, in fact, running off at the mouth about it.

Anyone know if Tenet will be talking about Plame in his book? That could really make trouble for Libby.

[TWI-Tom]

I always thought the Peace Corps was behind all this...

[John Casper]

"Plame leaked her own identity at 'Vanity Fair.'"
Novak "leaked" Plame's identity in July 2002 in the Chicago Sun Times. How could she "leak" it again in January 2004 in Vanity Fair?

[Leslie in CA]

John Casper:

Your insistence on these so-called facts is so tedious. Can you not grasp the inherent truthiness of these accusations? The Peace Corps; I mean, c'mon, who else could it be?

[robbie c.]

EW, do you consult an attorney or federal prosecutor at all?

[KevinNYC]

John Casper, I think you mean 2003.

[John Casper]

Leslie in CA, you are absoltuely correct, thank you.
KevinNYC, ditto, Novak's column was July 2003, not 2002 as I wrote.

[general panzer]

Attorneys: No Backstory in CIA Leak Case

By Matt Apuzzo
Associated Press Writer

October 31,2006 | WASHINGTON -- Special Prosecutor Patrick Fitzgerald and former White House aide I. Lewis "Scooter" Libby are asking a federal judge not to allow three years of politically charged backstory in the CIA leak case to seep into Libby's perjury trial in January.

In new court documents, Fitzgerald argued that he shouldn't have to explain why Libby was charged while others, including the source of the leak, escaped prosecution. Libby said jurors shouldn't hear about New York Times reporter Judith Miller's 85-day jail term for refusing to discuss her conversations with him.

The court documents, filed late Monday, are an effort to keep the trial focused on whether Libby, the former chief of staff to Vice President Dick Cheney, lied to investigators about his conversation with reporters regarding CIA officer Valerie Plame.

[shortened for copyright reasons]

[JohnLopresti]

ew, I put a late nite comment in the thread in which you and Jeff first discuss the 3 motions Libby filed October 30, though you are way ahead of most of us on this material. I need to revisit the new Judy link you left for us the other day. I wonder how closely her new map of the region might dovetail with Baker-III's.

[J. Hipresta]

That guy was wrong abut Shays. He served in Fiji and, yes, there was a coup today in fiji as he announced his service at CBS news.

Plame was leaked and sold the KGB in 1993.
Casper was a friendly ghost?

It's not really Peace Corps. Both CIA and Peace Corps were created by Congress. Both agencies have the same work, just different.

[clbrune]

I understand the defense requests to limit information about the NIE, the reporters' resistance to divulge information, Plame's status, and the damage from leaking her name. To some extent I agree:
1) Fitz shouldn't "sandbag" Libby by claiming he leaked classified NIE information;
2) Fitz can't present a claim that reporters (esp Miller) were keeping silent because Libby directed them (her) to do so
3) Fitz can not be permitted to inflame a jury by calling Plame covert--if she wasn't--and claiming there was actual damage done to the nation--if there wasn't (setting aside the actual facts).

In my mind, though, Fitz should get all he needs, and I think the defense is simply trying to quash everything they possibly can. I think Fitz can counter each of these points:
1) Fine, the NIE was declassified--partially. He agrees not to try and sandbag Libby. He will stick to the charges of perjury, obstruction, and false statements;
2) Fitz does not need to claim that the reporters (esp Miller) resisted testifying at Libby's instruction (which would be obstruction--though this isn't the obstruction Libby is charged with). Instead, Libby's motive for believing he could lie to the FBI is based on the journalistic integrity of Judith Miller (yes, tongue in cheek), and the confidence that she would protect her source (or lover ;-)). This may be sufficient for Fitz to be willing to ignore all the legal wranglings Miller was involved with. Besides, *at the time Libby first testified* he had no reason to think that *novak* was a problem--and once he had testified, his story was set. Libby had to either change his tune, or else gamble. He gambled. The rest of the reporter story seems generally irrelevant;
3) The defense motion about Plame/damage is weak. Yes, Fitz should not be allowed to inflame a jury by hinting at damage; however, if he has evidence that Libby was informed of *potential* damage, that goes to motive. If that evidence shows Libby was informed of the potential for damage *after* talking to reporters and *before* talking to the FBI, that is strong motivational evidence. The actual damage is irrelevant, and Fitz doesn't need it.

I don't think these motions successfully argue against introducing reporter testimony. I also don't think it successfully argues against introducing evidence *in the possession of Libby* about Plame's status, regardless of it's truth. Heck, the facts could say that not only was Plame not NOC, but that she didn't work for the CIA, isn't married to Joe Wilson, and isn't even female. What matters is what Libby knew, and all Fitz needs (and he is entitled to) is the evidence showing what Libby knew (even if Libby claims he forgot it all).

[Mary]

Frank P - Tenet is taking a job with a British co., a chunk of which is owned by the Carlyle Group.

I think he's still working at earning his medal. I thought of him today watching the votevets ad.

[Tom Maguire]

No doubt the JOMers will misunderstand this process of cherry picking--so whoever's turn it is to monitor JOM today, you get double credit for it.

I would like to think that I qualify as at least an honorary JOMer, and I posted this on what I see is Jeff's favorite:

(2) Unless Maureen Dowd handled the redactions (a possibility), Cheney did not tell Libby much about Plame's status - per the notes (page 6), she was described as "working in a 'functional office'[,] CP".

I have no idea what may have been redacted there, but my understanding was that Cheney told Libby that Ms. Plame was in the CPD.

I suppose I could pass the time insinuating that folks here are liars or fools - is that really the way we need to go? I would like to remain open to the possibility that people disagree in good faith.

I may return when I am done fuming - I was going to point out an absurdity in your previous post on this, but why bother.

[Jeff]

I would like to think that I qualify as at least an honorary JOMer

Tom

Is the object of an authoritarian cult a member of that cult? I'm just kidding, there is obviously a strong distinction to be made, on the basis of things like the fact that JOMers tend to blow right by any point you make not amenable to a pre-established view of the case, for instance your very nice point the other day that if Mayfield and Martin had backed up Libby's version of his July 12 conversation with Cooper, it's doubtful Libby would have been indicted in part on the basis of his account of that conversation.

On the issue of Libby's notes, leaving aside for the moment my initial point that LIbby's note about Plame working in the functional office of Counterproliferation at the CIA would indicate the very opposite of what Libby's lawyers suggest it would, you might have missed an interesting point in an earlier filing that might speak to a question we have gone around on in the past: the question of when and how exactly Libby disclosed to investigators that he had been told by Cheney about Plame in June 2003. It turns out that Libby's notes were written in a shorthand format unique to Libby, and which only someone familiar with would be able to decipher. Now, it looks like the note about Cheney telling Libby about Plame in June, which Libby's defense cites, may not have been written in that shorthand (although they could also be quoting the already deciphered rendition). But if it were it raises the obvious questions: how and when did investigators decipher Libby's notes? Did Libby go through it with them? Did someone else - like, say, Jenny Mayfield? Did Libby fully anticipate that they would be able to read his notes?

On a related note, another matter on which JOMers departed from your own take on things is the related question of Cheney's notes on Miller's article. As I recall, it was a classic moment at JOM - your confidence that there was nothing to it seemed to be shaken, and this drove JOMers absolutely bonkers. But here's my question. Can you explain to me how someone could infer from Cheney's notes that he did not then know about Wilson's wife - that he too had forgotten - or that he had no clue of the idea that she was involved in his trip? It boggles my mind, maybe I'm missing something. But that seems to be, more or less, the orthodox view over at JOM - though, once again, it appears to be an orthodoxy from which the object of JOMers veneration (I mean you, not clarice) departs.

[emptywheel]

Tom,

My point was simple. It is inconceivable that the summaries given to Libby conclude that Plame's identity was not classified (they may be poorly argued, but we can be sure the conclusion at least labels her classified). Therefore, the choice to select just that bit about Harlow out of a summary that otherwise almost certainly concludes her identity was classified was probably targeted at least as much to folks like JOMers, who would ignore the logic and assume Harlow's doubt is all there was, as it was to Walton. Note that I said that was a very Fitzgeraldian move--to reveal something that helps your case publicly but not legally by concluding that detail in the filing. Kudos to Libby's team for using their filings to introduce trial evidence pre-emptively. Though their mention of the Novak meeting kind of puts them even for the day.

[katie Jensen]

I understand that keeping the focus very narrow and related solely to the charges to Libby helps to protect Fitz et al from the grey mail issue. However, I wonder if someone could elaborate on the possibilities, if Cheney does in fact testify, related to fitz "working his way up the chain." Many blogs continue to discuss the potential for this to occur given Fitz's history with the mob, al-queda and other ne'er do wells. Is there any potential for this to occur given the very narrow focus that Fitz must take? It does seem to me that many of the most explosive issues will not come to light. Of course, for many of us, the fascination with this case stems from the obvious concern that Plame occured because Bush lied to congress and the American people about the reasons for the war in Iraq. Can the arguement ever reach the conclusion that Libby's motive for lying was to cover this story, or will that have to be avoided entirely due to the security issues? (ie to protect Cheney?) I know that this is the million dollar question but I wonder if someone could elaborate on the effect these decisions might have on that outcome.