Jeff has kindly sent me two motions from Libby on what he'd like to prevent the government from using as evidence at trial. There are two things, so far, that Libby doesn't want you to know:
- He doesn't want you to think that his and Dick's insta-declassification of the NIE is illegal
- He doesn't want you to know that some reporters thought he might not want them to testify
- He doesn't want the government to offer evidence of Plame's status [I'll get to this later--Libby at once implies she was not undercover, but then demands the government not introduce any evidence related to it, the former is a cheap move given the context but the latter is fair]
This is, IMO, a simple argument and frankly a red herring.Libby made up this elaborate lie that his July 8 meeting with Judy was to leak the NIE. And now that he has to live with that lie, he wants to make sure Fitzgerald doesn't suggest to the jury that he illegally leaked classified information when he leaked the NIE.
That's not where Fitzgerald is going with the NIE stuff. So I fully expect the court will grant this motion.
That said, I find it, um, curious that Libby's team is now backing off some public assertions. The motion emphasized Presidential insta-declassification.
The government has never suggested--nor could it--that the President lacks the power to authorize the disclosure of previously classified information as he sees fit.
No mention of Vice President Dick's power to insta-declassify. I find that curious since in the first go-around, it was Dick who did the declassifying. It wasn't until Libby asked Dick to check with the President to make sure that
outing a spy declassifying selective bits of information was okay that the President got involved. Gosh. I wonder why they're downplaying Dick here?
Now, onto the reporters..
Discouraging reporters from testifying
This one, I imagine, will be more contentious. You see, Libby doesn't want the jury to know that Judy Miller went to jail for 85 days until, under threat of an additional obstruction charge, Libby gave her a big Aspen kiss and told her to testify. More specifically, Libby doesn't want you to know that reporters refused to testify, made motions to quash grand jury subpoenes, got declared in contempt of court, or, in Judy's case, went to jail. As Libby's team explains:
The government has indicated that it plans to argue at trial that Mr. Libby felt free to lie about his conversations with reporters because he expected that they would not cooperate with the investigation. The defense is concerned that the government will attempt to use the evidence we seek to exclude as part of an unfair and misleading effort to prop up this implausible argument.
Whew! Fighting words! Implausible prop, huh?? Of course, that's just the beginning of the BS they're throwing (guess they're cross about Fitz embarrassing their memory expert, huh?).
Then Libby launches into a series of disingenuous claims. First, Libby claims that,
The reporters who resisted testifying grounded their legal challenges on the First Amendment, reporters' privilege, and principles of journalistic ethics.
Sure, in some cases that's true (as with Walter Pincus, for example). But it's not true for the key journalistic witness in this case, Timmy Russert. As I've shown, Russert actually grounded his legal challenge in a rather self-important defense of access to the big beltway cocktail weenies. It was a pretty naked attempt to defend access, not speech (particularly since Fitzgerald wanted to learn what Russert said during a conversation in which he was playing the role of a manager).
Libby also dismisses Matt Cooper's totally inconsistent approach to source protection (in which he asked Libby for a waiver but not Karl, at least not until Luskin blabbed his mouth hubristically) with a footnote, saying Cooper's inconsistency is "entirely unrelated to Mr. Cooper's testimony regarding Mr. Libby." I'll grant him the point, but Cooper's inconsistent approach (and Time's rationale not to ask Karl for a waiver because it was election season) sure gives lie to the sanctity of the First Amendment.
Libby's next disingenuous claim has to do with his "voluntary waivers." Libby says he released everyone with not pressure. But then he reveals this bit.
During the second interview [which Libby has just reminded us took place on November 26, 2003], the FBI asked Mr. Libby to release reporters it wanted to question from any promises of confidentiality they had made to him,
Consistent with his desire to cooperate fully with the investigation, Mr. Libby signed a waiver on January 5, 2004.
Call me crazy, but when I ask someone to do something, and they don't comply for well over a month, I don't consider that cooperation. I consider it stalling. And news reports described some really drag out fights over this issue in Fall 2003. So I suspect the delay was not Libby's only sign of less-than-full cooperation. Libby goes onto explain why he signed the waiver.
Mr. Libby expected that he would be exonerated by the reporters' testimony, largely because--contrary to press speculation at the time--he was not a source for Robert Novak's column mentioning Ms. Wilson's CIA employment, because he had never engaged in any effort, concerted or otherwise, to disclose Ms. Wilson's identity, and because he had no reason to believe that the conversations he had with reporters regarding Ms. Wilson were unlawful or wrongful in any respect.
Shorter Libby: I didn't expect you to investigate the other, non-Novak leaks! And I really didn't think you'd have the balls to indict me for perjury, as opposed to the IIPA violation I was so concerned about!
And while we're on the subject of Robert Novak ... there's this.
At various times during 2004, the grand jury issued subpoenas to reporters who had spoken to Mr. Libby. These reporters reacted to the subpoenas in different ways. Certain of them (such as Robert Novak, Glenn Kessler and Walter Pincus) testified without mounting legal challenges to the subpoenas they had received.
Hmmm. "Spoken to Mr. Libby ... Robert Novak." I guess that answers the questions I've been asking about whether Libby spoke to Novak in the affirmative? But here's an interesting thing. Novak has just blabbed incessantly about how the only three sources he testified about were Armitage, Turdblossom, and Harlow. But here Libby is, asserting that Novak was not only subpoenaed about Libby, but testified. For those journalists reading along here, you might want to ask Novak about this little discrepancy. And while you're asking, you might ask him whether Libby is the one who told Novak that, "Joe Wilson never worked for the CIA." Because someone who is not Armitage, Turdblossom, or Harlow did, and I'd sure like to know who that is.
Anyway, considering that Libby coached Judy to testify that he had not met with Novak, I suspect there's more to this Novak meeting than the lying douchebag has admitted.
Onto one more disingenuous statement. Libby claims that, since there were witnesses to his conversation with Cooper, it's silly to think he believed he could rely on journalists not testifying.
Mr. Libby could not have assumed that he could falsely represent the details of that conversation with abandon. This is because two other witnesses were present for that call: Cathie Martin, Assistant to the Vice President for Public Affairs, and Jenny Mayfield, Mr. Libby's personal assistant. Obviously, Mr. Libby could not have expected that either Ms. Martin or Ms. Mayfield would refuse to cooperate with the investigation or testify falsely.
Now let me interrupt for a second. WTF were Martin and Mayfield doing observing Libby's phone call? I mean, does it strike anyone that Libby didn't respond to Cooper until he had witnesses present? (You'll recall that Cooper had been waiting for a call back from Libby all day, while he was at the Country Club with friends).
Well, in any case, the statement is disingenuous because these folks generally DON'T testify on each other. But it's kind of good news, because it means Martin, who is a fairly valuable witness so far, will testify to what Libby said to Cooper. As she may also testify to the whole strategy session, which seemingly decided that Libby should make calls in her presence.
And here's some funny logic (well, it would be funny if the same logic hadn't gotten us into war in Iraq).
The reporters' legal battles, however, occurred months, if not years, after Mr. Libby supposedly concocted his cover story and repeated it to the FBI and the grand jury. These later developments could not possibly have influenced Mr. Libby's state of mind or motives during the relevant time period.
Huh. Libby says the government will argue that "he expected" reporters wouldn't testify. Obviously his state of mind after they testified would no longer be that "he expected" they wouldn't testify. At that point, his state of mind would have been--no doubt was--"holy shit, those backstabbing journalists, they sold me out!" But before they decided how they would respond, Libby could have no more than expectations.
Libby's best Aspen-buddy
Then Libby goes into his Judy story. This is interesting more for the details it includes and doesn't include than for any discussion of the life cycle of Aspen plants.
- Libby, for example, neglects to mention that Tate told Abrams how Libby had testified during early negotiations. Sure, it doesn't deal with whether or not Tate told Abrams "don't go there" when it became clear that Judy's testimony would differ from Libby's. But even Tate's sharing of testimony sure gives lie to Libby's forthrightness in this matter.
- Libby mentions that Bennett started negotiating with Libby before Fitzgerald's issued his veiled threat of an obstruction charge. I don't understand how this helps Libby's case. If it took Fitzgerald's veiled threat for Bennett's negotiations to work, how does that support the notion you're cooperating?
Libby ends up saying, basically, you didn't charge me with obstruction, so you can't introduce this stuff now.
The rest of his treatment of Judy is pretty oblique. He mentions his concern about the jury seeing
the fricking Aspen love letter communications between him and Judy, but he mentions none by name.
Libby must be pretty serious about this motion, because he resorts to threats to accomplish his objective. First, there's the threat to call Abrams and Bennett to the stand (not mentioning of course that if Abrams and Bennett get called, so will Tate, who has quite a bit to lose if it became clear he was coaching witness testimony). And then there's this.
The defense may even need to call the Special Counsel to testify about his discussions with counsel for Mr. Libby and counsel for reporters concerning the voluntariness of Mr. Libby's answer.
Frankly, I suspect Fitzgerald will craft a nice narrow response to this--perhaps to say he'll leave it to journalists, and also to say he can introduce the Aspen letter and the leaked GJ testimony.
But I say, while we're issuing threats, the hell with it. Leave all this information out. But call the President to the stand, and have him repeat his doubts that no one would go to jail because journalists are so good at protecting their sources. That ought to cover it.