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November 22, 2006

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To this non-lawyer, the argument in this brief seems really lame. The CIPA section cited says the court may require the government to disclose information it will use to rebut the classified information that defendant uses. I doubt that Fitzgerald actually plans to rebut the classified information. Instead, I would expect Fitzgerald to accept all that evidence, but argue that other evidence indicates that Libby was focused on the Wilson matter. Neither CIPA or due process require the government to disclose information that contradicts the defendant's (unclassified) assertions.

Just happy you're OK, and I really hope you're getting your recommended weekly requirement of American football.
OT, and I really hope you forgot, a long time ago I was arguing with you and I was arguing against publicly financing National elections. Hurts my brain to even type those words now.
Progress not perfection.

WO

I think it's that other evidence Libby wants. What it amounts to, IMO, is a demand for the Jencks stuff immediately, rather than in 6 weeks, when they'll get it anyway. I can imagine it only means two things. One--he'll try to deal if he realizes they have certain kind of evidence (mind you, I don't buy this). Or two--that he's just trying to figure out what evidence he has now, for whatever reason, perhaps to figure out some other defense entirely.

Maybe they'll go back to an Ollie defense--I was ordered to take the fall.

John

Yup, I'm okay. Just in the big editing stage. I've got a deadline to hit, you know!

Hi, I am very busy like you now. In the hopes an expert might send you a viable link, I left swopa a link yesterday to the html version of a Walton memo of opinion November 13, 2006, which the DCD site mysteriously seemed to have withdrawn in pdf so the only way to find it was by mundane crawler archive; though, maybe DCD has repaired the broken link after a week of unavailability. I saw the government brief that prompted the Walton opinion, and I appreciate your link now to the universal solvent version of how to obsolesce the dot chart. I will let you know after reading it, too.

have you clarified whether or not the grand jury voted to indict Rove that everyone was wondering about in a previous thread?

I also understand there's a few things interesting in the new court transcripts. Has anyone read through those yet/?

robbie c

Your multiple personalities are merging embarrassingly. Please try to keep them straight.

Thanks.

huh?

What ever happened to Cathy Bihler that posted on UCMP and other forums? She has disapeared

yo EW

did I mention that you look Marvooolooous

and don't you think there's enough evidence all ready in the public domain to prove that scooter was obcessed with Wilson and Plame

I agree that scooter is playing for an appeal, or he could be trying to prove he's an idiot


when scooter's notes are introduced, the memory defense takes a big hit

the act of writing something down is a lot harder to forget than a simple conversation would be

and if we're talking multiple conversations and multiple notes, there's no way a reasonably inteligent person could forget those actions

so scooter can either claim his attornys were incompetent, or try to convince a jury that he (scooter) is an incompetent nit wit

The second reason I find this interesting is that it suggests Libby is fishing for something. As if he knew something really incriminating was out there, but isn't sure whether Fitzgerald has that piece of evidence.

I don't know. Wouldn't Libby's actions be the same even if there weren't such an especially incriminating piece of evidence out there? Wouldn't any appropriately aggressive defense want to get its hands on as much of the prosecution's case as early as possible, no matter what?

This is for robbie c., who showed some interest in this question before but didn't come up with an answer, and all those lawyers out there: can grand juries do straw ballots of one kind or another, that is, informal and non=binding votes on whether they'd back an indictment? The reason I'm interested in the question is because it could be one explanation for the reports emptywheel was hearing about the grand jury and Rove. Maybe the grand jury took a straw poll indicating their interest in or willingness to indict Rove, expressed the results to Fitzgerald, and Fitzgerald ultimately took a pass, never bringing an indictment formally to the grand jury to vote on and indict. Not saying that's what happened, I have no idea obviously, but I'm curious whether that's even a possible scenario.

So anyone?

roobi c

Quit teasing with those transcripts and hand 'em over already!

I left a note on the other thread yesterday that they were available and that Leopold had it. I sent him a note but he won't part with it. Am I missing something here?

EW,

Welcome back.

Hope you were checking the site. Especially some of the stuff posted by Sara. Very good.

Jeff, I don't do criminal stuff, but I would be surprised if there were any formal rule about straw polls. Pretty darn sure there isn't a rule. The only question would be an ethical one, I suppose. And off hand, I do not see why it would be unethical to do the poll.

Illegal to tell anyone that you did it, however.

robbie c.

Ah, I see. You're accusing Leopold of ungenerosity, not sharing what he's got with the community, leaving it up to each of us to shell out the hundreds upon hundreds of dollars it costs to get transcripts that, in this case, are unlikely to be proportionately filled with revealing new information about the underlying facts of the case and the facts underlying the case.

I was just thinking you had access to those transcripts and were going to share them with emptywheel et al.

OK. well, sorry, but I dont' think I implied at all that someone was supposed to spend money on it. I was just sayin'. I queried Leopold on IM about his upcoming stories. I am not accusing him of any wrongdoing

robbie c.

Fair enough. How about that other question you said you were going to look into about grand juries being able (or not) to have nonbinding straw ballots, as a possible explanation for the unconfirmed reports about the gj and Rove? You thought it was a good one when I raised it. Did you find anything out?

On that note, thanks jwp, my intuition is the same as yours, but I've got nothing more than that.

did not find anything out about it. I admit I never asked :(

sorry.

I have looked for Daniel Schorr's historic commentary during Iran Contra as a military person was testifying in congress, about the investigation's needing a "bigger faller", a coinage of journalist expression perhaps hyperbole at the time, though eventually pardons issued forth like independence day pyrotechnics, Reagan exiting, Bush-I forgiving; the nation budged forward.
Present moment, news reports have it that December's lameduck congress lasts four days. Some events are too distantly connected in dockets for complete integration, yet, I asked as I read this story about an announcement from the meticulous and prolific Judge Walker in the Hepting matter Friday last, whether an ultimate case management conference scheduled to January 11 might synchronize with events elsewhere the administration might hope to coordinate as if the segue from lameduck two branches to lameduck one branch January 3, plus the publication of Tenet's storm, and the SP sector of the Libby investigation Plame Wilson matter might comprise a series of inputs sufficient to elicit the reciprocity motion defense filed yesterday.

I could believe the administration would negotiate to arrange timing of other schedulable events. The three conservative jurist nominations, the US UN representative's term's expiration, the cloture rule, the discretionary celerity of processing KSM et cie, Specter's neoFISA now that DeWine's election was lost, lessening House capacity to support. I would expect several of these pathways include Scotusization. I would hope for a more collegial outcome given the recent elections, but expect only more TX barbeQ politics as usual. The last of last week NKatyal filed a motion in opposition to the SG's petition to dismiss the remand of Hamdan as that case clicks thru the courts. Also a few days ago JReno and amici have brought suit against some clauses in MCA in the alMarri matter. I saw a lede about a petition to dismiss in the WilsonPlame civil suit, as well. But I am doing other stuff right now. Hope the link helps, if it is quantifiably germane; or it could languish until there is time for that topic. The date's proximity was all that appeared meaningful to me in the Hepting matter's progress; the CNN link discusses the appeal process paralleling the district court process. In the Jeffress Olsen refutatory evidence sharing pretrial motion, I think the prereading of tealeaves requires the permutation charts; but that whole business that opened these doors about Judy and then her saying she had a secret clearance or some kind of credential to do her work these many years, makes me wonder less about information sharing now from Fitzgerald, and more about the surprises during the actual trial; if one only knew which witnesses would help Fitzgerald most, and the fragments of each witness' testimony which would provide new ways to re-call prior witnesses for elaboration; ellipsis.

We miss you.

Revision: I was thinking of a DeWine neoFISA draft, as DeWine lost this election; but, reviewing the House election results although Heather Wilson originally was going to solo on a counterproposal to Specter's, the final House version was a co-authorship effort involving Rep. Wilson et al.; yet, curiously, her home state NM, being kind of sparsely populated, makes it difficult to round up 1,900 voters, the margin by which Wilson evidently won, though Congressional Quarterly continues to show it too close to call., and a re-canvass in that election, even though HWilson's opponent Madrid already publicly acquiesced, is underway, the Democratic party having underwritten the effort with new funds. NM lacks a state-funding mechanism for recounting, instead, it is billed to the requester of the recount. Madrid is reportedly open to the idea of rescinding her concession statement, according to a news report.
MeteorB wrote about ISG a few days ago; I think the administration might work to elicit some material results from ISG on a useful media cycle timed to offset Libby trial reporting in early 2007. Looking at the Iraq study group roster, it seems like a blue ribbon panel which might have sufficient influence to counterbalance any effort to engage in adventurist foreign policy again, though that is the president's prerogative, within bounds. I note the dismay Adelman expressed recently on behalf of neocons who thought a pure victory was within possibility, but the effort got muddled somehow. Like for the dozens of reasons we have studied to elucidate these past two years; Fitzgerald often seems to share that sensibility.

Happy Thanksgiving to all.

Welcome back, emptywheel.
Just my two cents: I hope your book will be printed on acid free paper. We will need every copy to last well into the future (is there such a thing as fireproof paper, too? ;-)

Wondering if you will explore the trip taken by Cheney's copy of the Amb. Wilson 7/03 op-ed in the NYT from Cheney's home (presumably) to DC and ultimately into Fitzgerald's hands. If Cheney took such pains to save his copy of the Wilson op-ed, it seems Libby's forgetfulness about the Wilson topic would be insulting to Cheney. (yah, right)

Here is my incomplete understanding of the Cheney-annotated op-ed and its journey:
I believe Cheney stated his margin notes were his thoughts jotted down at the time he first read the Wilson op-ed. Did Cheney read the op-ed on Sunday? or even an early version Saturday? If so, this implies he read it while on his ranch (emptywheel has reminded us that Fourth of July 2003 was a long weekend). Cheney's notes demonstrate a detailed familiarity with Wilson's marital status and Wilson's wife's CIA work. There is no way to guess this just from reading the Wilson op-ed. The work up on Wilson was already completed by the time of Wilson July '03 op-ed.

Cheney arrives in DC on (Tuesday?). He kept his original Sunday NYT newspaper instead of requesting a new one once back at the WH. Cheney (or was it Libby?) uses an exacto knife to extract the op-ed and place it on the corner of his desk, presumably balancing it atop all the other important clippings he was known for keeping. This marked up op-ed then survives the initial FBI probe and WH documents collection at a time when WH-friendly Attorney General Ashcroft is running the investigation. The document remains even when the investigation is handed over to wild card Fitzgerald.

It seems inconceivable that a piece of paper in Cheney's hands could make such a journey in this administration without someone taking a special interest in its survival.

My question: is the preservation of the Cheney copy of Wilson's op-ed an indication that someone in the WH is trying to expose the WH and/or Cheney?, or that the WH actually follows the law in response to a DOJ investigations?, or that it is a red herring placed by the WH?(this last possibility does not seem likely since it implicates Cheney)

OK, Jeff, Leopold emailed me back today and said that he was told by federal prosecutor that the grand jury would never do a straw ballow or informal vote.

I communicated with him on iChat by the way. JasLeopold is his moniker. He published a college friend of mine's piece on truthout

he was told by federal prosecutor that the grand jury would never do a straw ballow or informal vote.

What does that mean? It is prohibited? It's against existing norms? The just don't like to? What? Let's get some precision here.

Something smells. Have to admit I've not been paying as close attention to l'affaire du Plame, since I know EW will ultimately do it for me. ;-)

But something still smells. I don't think it's Libby that's doing the sniffing, just looks like Libby. What I want to know -- and this is a rhetorical question, no answer expected or required, particularly since I have only my sniffer on which to work -- is whether this new spate of filings is at all coincident with the "coup" in the White House with the Bush family consigliere now manning the broom? My suspicions is that somebody has been charged with building a firewall between the Bush White House and the rest of the junta, in order to salvage the next two years and what's left of the family legacy. That may include building a case against DeadEye, throwing him under the bus and on the pyre.

pdaly's comment is a perfect example of the kind of evidence that would help accomplish this end...exactly where was this clipping that it didn't surface immediately, or that it survived as long as it did? Pasted into Libby's notebook? Miller's notebook(s)? somebody else's notebook? and what other materials are out there like this that suggest 1) active involvement by DeadEye and 2) an effort to remember both questions, answers, perspectives from SAO's?

Food for thought. No response required. Keep plugging, EW, can't wait to see what you're working on!!

robbie c, is this anonymous Federal prosecutor, one of the five sources that told Jason that Fitz was going to indict Rove?

why don't you ask him? I don't know why everyone is coming down on me for talking to him. I am not making any factual statements just repeating what the IM said verbatim. that's it. I am just trying to help with the dialogue.

robbie c.

I think the thing is that we like the public discussion here, so we can all stay informed, rather than a series of private exchanges, and I suspect we all pretty much believe that you're close enough to Leopold that, well, asking you is almost like asking him. ;)

OK.

robbie c.

Ok, then, then how about the answers to the questions you alluded to, and the followups you got? At least, mine and John Casper's? Nobody's coming down on you at all, of course, everybody just wants to pursue the useful info.

Sheez, bad karma.

The criminal rule on grand juries is short. It does not address any question about straw votes. For civil purposes, I have read ten zillion cases about grand jury secrecy, and never saw even a passing reference to straw votes.

My hunch is that a prosecutor would not do a straw vote because it seems to mock the idea of the grand jury as an independent body. In other words, the prosecutor would not want to be seen as putting up for votes only those things that he/she knows in advance that he/she could win.

And, possibly, a defendant could attack the grand jury process on those grounds, but those challenges are brought under a vague and deferential standard.

In summary, I doubt that straw votes are routinely done. Also, I doubt that they are necessary. My guess is that the prosecutor usually knows damn well what the jury will and will not sign onto.

Jeff, I don't have answers to anything. I am an observer, like you, and I thought I was being helpful with sending an IM out and repeating your question and getting an answer. I don't know what John Casper asked so I can't supply an answer.

robbie c, Jason routinely comments at tnh and other liberal blogs under assumed names, for example, "Harry Shed." Masquerading as Harry Shed, Jason made vile physical threats against one tnh blogger, DHinMI, and insulted emptywheel with obscenities usually reserved for public toilets, for her all too accurate portrayl of Jason in, "Reading Comprehension can be Fun."

Wrt my question, I do not understand how anyone familiar enough with Jason to trade IM's with him could be unfamiliar with his "scoop" that Fitz indicted Rove.
According to Jason, he had 5 independent anonymous sources, that no one else in the media had. As the days dragged on and Fitz did not indict Rove, Jason promised to "out" all five anonymous sources if their information prooved unreliable. A lot of us were asking at the time, why any anonymous source would go to Jason Leopold, as opposed to everyone else in the MSM, with a scoop that everyone wanted. During this, readers were pounding FDL, emptywheel, and other reputable plameologists about why they wouldn't jump on the Jason Leopold scoop. This in turn sucked traffic away from these sites and pushed it to Truthout (or as I like to call it, Fakeout). Of course, all five of Jason's anonymous sources turned out to be wrong and he never "outed" them, as he had promised to do.
IMO, Jason reads emptywheel, Jeff, and the other best Plameologists, and then invents anonymous sources to parrot their insights. Jason is simply engaging in "plagiarism," and hiding it behind "anonymous" sources that only exist in Jason's imagination. This is what Jason does, routinely, because he doesn't care that it sucks attention away from credible bloggers and worse, allows Rove and the MSM to question the reliability of the very best bloggers. His naked selfishness does much to injure others, reliable bloggers, and our nation.

John Casper, I am quite familiar with the Rove scoop reported by leopold and I believe there is some substance to what he reported. That is my personal opinion, based on zero information. Maybe i am a conspiracy type but that's what I think. And i had read here that others were implying or leaning toward the possibility of the same. If you feel that Leopold is stealing other people's work your entitled to think that but having read all of the different topics he wrote about like enron and stuff, his work in various magazines I find that hard to believe.

I also read on Larry Johnson's blog The No Quarter that Joe Wilson was one of leopold's sources and that Wilson and Johnson both vouched for leopold so i don't know. I think Rove is guilty and pulled a fast one

robbi c, this is my 14:27:
"robbie c, is this anonymous Federal prosecutor, one of the five sources that told Jason that Fitz was going to indict Rove?".


robbie c: this is your response at 1:17:"I don't know what John Casper asked so I can't supply an answer."

This is from your 16:51: "John Casper, I am quite familiar with the Rove scoop reported by leopold and I believe there is some substance to what he reported."...

Which of your responses was less inaccurate?

John, jeff had posted a comment asking if I can answer your question. What was your question? Maybe I missed it in the thread.

if this is the question Jeff was asking: is this anonymous Federal prosecutor, one of the five sources that told Jason that Fitz was going to indict Rove?" the answer is I have no idea. I did not ask questions about Leopold's sources of who told him about Rove. But I don't believe that he made up the indictment story. Bad info? maybe. But I don't think its made up.

For the record, about contacts with Jason Leopold: I once got an email from him out of the blue after I had posted a comment criticizing him at (I think) dKos. I have no idea what robbie c.'s relationship with Leopold is or isn't, but contact with him does not necessarily constitute a relationship.

my exchange with leopold has been pleasant. I would not say I have a "relationship" with him. When I see him on IM and if I have a question I ask. He has answered me every time.

I have contacted other journalists at bigger newspapers and never received a response

And now I have heard from Jason again, in response to my comment above. He says:

You leave the impression that I sent you an email simply because you criticized me when in fact I sent it you a note to clarify the public record which was distorted. You wrote on Kos that I reported there would be 22 indictments, which I never did as you can see from the exchange below. So if you post a comment about me at least do so in context

I did not recall when I posted the comment above the particulars of the comment I had posted at dKos; but as Jason says, it had to do with the oft-repeated charge that he said there would be 22 indictments in the Libby case, which he says is not true, he never reported that. So, again for the record, that was the context of his contacting me the first time.

Leslie, I sent him the comment you made.

Leslie, I just sent Leopold the comment you made here. He's on IM, JasLeopold, and said I could send out his IM address. i have to say that you really did leave the impression that he contacted you when it appeared from the email that he was setting the record straight. He showed me and the Yahoo political group a copy of the exchange with you and you did apologize to him in it so I find it suspect that you're not posting that part of the full exchange here with you apologizing and talking about Larry Johnson.

you said on Kos that Leopold reported there would be 22 indictments. The story actually was reported by Radar magazine and when Leopold sent you the link you apologized to him for saying that on Kos and promised him you would be more careful. So i think it's fair if you are saying something that is untrue and someone just corrects you.

Off topic (sorry robbie and Leslie), but five hundred million seems like a lot for a library:

http://www.nydailynews.com/front/story/475052p-399492c.html

Article includes this: "Bush loyalists have already identified wealthy heiresses, Arab nations and captains of industry as potential "mega" donors and are pressing for a formal site announcement - now expected early in the new year."

Wealthy heiresses? How much of that five hundred million do we think is coming from the Armstrong Ranch?

robbie c. - my comment was made, in fact, for your benefit, to illustrate the point that one need not have a "relationship" with Jason to have had contact with him. Given your additional comments here, it appears that you are certainly seeking to have a relationship with him. I stand by my original comment.

It would appear from the docket that the CIPA hearing is over, though I can't be sure.

In any case, the hearing on the motions in limine is starting on December 19.

Gear up for grub with a tripleheader of pigskin, including a meeting of brothers in Dallas. Everybody knows it's been a rough year for her, but find out who else had issues

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