Aspen Trees and Novakula

by emptywheel

Libby's lawyers are in a frenzy, subpoenaing everyone and their mother in hopes that they'll discover something to rebut the charges against Libby. They've subpoenaed Joe Wilson (admitting, however, that they don't expect to put him on the stand). They're going to place Novak's coming-clean-but-not-really column into evidence. And--get this--they're going to place Libby's Aspen letter into evidence.

Because, I suppose, putting a letter into evidence that transparently appeals to a meeting you've had with a journalist who might someday testify against you--in Libby's world that's going to help him prove that the journalists testified willingly.

---

Correction: As pow wow points out, they only want to submit the Aspen letter and Novak's column to support their efforts to have all discussion of journalists not wanting to testify out of the trial. They're not submitting it as evidence for the trial. Seems to me these two bits hurt their case, but I guess I'm just missing something. The larger point still stands--Libby's story and Novak's story seem to contradict.

---

The Aspen letter mystifies me (unless it's a veiled threat to Judy ... or perhaps we'll actually figure out what they discussed at that rodeo in August 2003).

But I'm most curious about the Novak column.

As you'll recall, Libby's team has twice admitted Novak was called to testify about a conversation he had with Libby, but which Novak has not admitted to publicly. First, they listed Novak among the reporters who had testified about Libby without mounting legal challenges to the subpoenas:

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. [my emphasis]

They make it even clearer in their subsequent filing on reporters that Novak and Libby had a conversation.

Of the six reporters subpoenaed to testify about their conversations with Mr.
Libby, three of them (Robert Novak, Glenn Kessler, and Walter Pincus) testified
without mounting any legal challenges.

(Let's take a little math break, shall we? Six journalists were subpoenaed to testify about Libby: Novak, Kessler, Pincus, Judy, Cooper, and ... ? Woodward testified, but without being subpoenaed. Which would leave David Sanger (to testify about his July 2 meeting), Andrea Mitchell (they also had a conversation at some point), or maybe either Phelps and Royce (though I doubt that--they sourced to intelligence professionals). Libby's first filing on this issue mentions Newsweek's Evan Thomas, so maybe he was subpoenaed. Who am I missing?)

Anyway, Libby's lawyers make it clear that Novak was subpoenaed, and he testified. But extrapolating from their description--in which they list those reporters who were given waivers to speak--suggests that Novak did not get a specific waiver to testify.

• Messrs. Kessler, Pincus, and Russert testified about their conversations with Mr. Libby in reliance on the waiver.
• Matthew Cooper testified based on representations Mr. Tate made to his counsel about the nature and scope of the waiver.

That is, Kessler, Pincus, and Russert testified based on Libby's waiver, Cooper testified based on a conversation between Tate and his lawyer, Sauber. But Novak--and this mystery 6th journalist--used neither the waiver nor a conversation with Libby's lawyer to justify testifying.

So Libby wants to introduce Novak's coming-clean-but-not-really column into evidence. As you'll recall, in the spirit of not really coming clean, Novak didn't mention his conversation with Libby, at all, in that column. Here are some relevant bits:

My attorneys advised me that I had no certain constitutional basis to refuse cooperation if subpoenaed by a grand jury. To do so would make me subject to imprisonment and inevitably result in court decisions that would diminish press freedom, all at heavy personal legal cost.

[snip]

An appointment was made for Fitzgerald to interview me at Swidler Berlin on Jan. 14, 2004. The problem facing me was that the special prosecutor had obtained signed waivers from every official who might have given me information about Valerie Wilson.

That created a dilemma. I did not believe blanket waivers in any way relieved me of my journalistic responsibility to protect a source.

[snip]

But on Jan. 12, two days before my meeting with Fitzgerald, the special prosecutor informed Hamilton that he would be bringing to the Swidler Berlin offices only two waivers.

[snip]

I had a second session with Fitzgerald at Swidler Berlin on Feb. 5, 2004, after which I was subpoenaed to appear before the grand jury. I testified at the U.S. courthouse in Washington on Feb. 25.

In these four appearances with federal authorities, I declined to answer when the questioning touched on matters beyond the CIA leak case.

This is what Libby wants to introduce into evidence. It shows, first, that:

• Novak testified out of fear of going to jail
• Novak didn't believe "blanket waivers" freed him to speak about his sources
• His dilemma about testifying ended when Fitzgerald brought waivers from Novak's specific sources--but this does not include Libby
• He claims not to have responded to questions that "touched on matters beyond the CIA leak case"

How does this help Libby? Taken together, Libby's filing and Novak's column show that Novak did not rely on a specific waiver, but testified anyway. He did so under fear of jail. And either Novak didn't testify fully about his conversation with Libby (because he said it had nothing to do with the Wilson column), or he did so without a waiver.

Here's a few more relevant details. First, Libby's lawyers boast that he voluntarily signed a waiver. But they also reveal he did not do so until they asked a second time.

During the second interview [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, and to request that they fully disclose any conversations they may have had with him regarding former Ambassador Joseph Wilson or his wife. Consistent with his desire to cooperate fully with the investigation, Mr. Libby signed such a waiver on January 5, 2004.

You know--that great spirit of cooperation, that waits a month and a half before complying with an FBI request?? They reveal why he wouldn't sign the first waiver.

In 2003, Mr. Libby offered to sign confidentiality waivers that were personal to each reporter to whom he had spoken about the subject matters under investigation. The FBI refused this offer, and asked for a general blanket waiver.

Libby wanted to sign waivers that covered only those people whom he had admitted talking to about Wilson. Would this have included Glenn Kessler, whom Libby seems to have claimed to have talked to about Plame, but who testified that Plame never came up? Anyway, here is the waiver that Libby eventually signed:

I request any member of the media with whom I may have communicated regarding the subject matters under investigation to fully disclose all such communications to federal law enforcement authorities. In particular, I request that no member of the media assert any privilege or refuse to answer any questions from federal law enforcement authorities on my behalf or for my benefit in connection with the subject matters under investigation.

...where "subject matters under investigation" are restricted to:

the possible disclosure to unauthorized persons of classified information in connection with Ambassador Joseph Wilson, his trip to Niger in February 2002, and matters relating thereto.

Again, this means that if Novak claims to have spoken to Libby solely about, say, the Frances Fragos Townsend smear, then Libby's waiver would not cover the conversation and--at least according to Novak's own version, Novak would have refused to answer questions because they "touched on matters beyond the CIA leak case." But Libby's own lawyers claim that Novak testified.

Which is it, Novak? Did you testify about a Plame conversation with Libby? Did you lie in your coming-clean-but-not-really column with regards to questions not dealing with Plame and testify that Libby had seeded your smear column attacking Townsend? FWIW, I emailed Novak and asked for some clarification about his conversation with Libby, but received no response.

But I didn't need to tell that to you.

Comments

[emptywheel]

One thing I note about this--both Libby and Novak wanted to limit the people they had to testify about. Libby wanted to, presumably, not testify about Novak (again, presuming they claim that their conversation didn't relate to Wilson--though perhaps there are other journalists he was trying to shield). And Novak wanted to not testify about everyone, as well. If I'm reading this right, their conversation may have been excluded from both categories under which they willingly testified.

[pow wow]

emptywheel - I think some of my language in an earlier thread's comments may have helped confuse things a little, but note that Libby has not (as far we yet know, at least) proferred these letters and columns as exhibits for the trial. His A-D supplemental exhibits filed on the case docket yesterday were to complete the record for his motion (in limine) to prevent most of the backstory represented by these documents from entering into the trial itself. [A confusion of types of exhibits, in other words.] That doesn't take away from your analysis of which reporters are which, but explains away the strangeness of Libby wanting the Aspen letter to be seen by the jury, for example (which he quite definitely doesn't want, because it won't help him make his case, as you make clear here).

[emptywheel]

Fair point, pow wow, and actually I just didn't see it in the filing.

But the point still stands. How does the Aspen letter help him convince Walton not to allow the Judy testimony in? Because it sure seems like it supports the case against, that is, that his behavior after March 24 2004 is relevant. And why include the NOvak stuff at all, which it seems really defeats your claim that Novak testified willingly and with no fear. Not least because Libby wants to make clear that Rove-related testimony doesn't affect his motion?

[swe]

44 U.S.C. 3301
EW?
Edacted comments over legalities of operations officers? This is open source public knowledge and, so, Burger was doing spy stuff for an operations officer. It's not like he was an informant working for the CIA or something.

Pow WOW,
It's okay, the D supplement is good news and it's not like eveything when to toys and it's christmas, except for EW, who, apparently, has gone Grich.

[emptywheel]

SWE

I don't mind your comments. But let's make a deal. You do it with a consistent name, and I'll leave them there. I'm a little tired of more substantive commenters trying to make sense of your comments, as if you're a different commenter every time.

So what say you? Consistent pseudonym?

[01]

I'm not sure, EW. I was over at OTB and this guy named DC(I dont' want to say loser)came after my identity, just now, before I came here. He is really angry.

It's not that I don't feel like a substantive commentor. I really believe that, at times, I'm an equal to other people, even the ones that use consistent handles here, not that that's why I'm not substantive or that that is important when other, higher, considerations are made for the good of all mankind and, indeed, all existence.

I got in trouble. See, there was this group and I joined, but, when I joined I didn't realize there would be a murder of one in the group and that the person in charge of something like a blog, wouldn't allow a comment and that killed a guy all the way over in Iraq, first 'civilian casualty' based on standard training that I happen to be expert in by personal experience and training, not that that nearly got me killed too, but, hey, I'm in trouble again, I forgot the guy who worked for the same government tried to kill me too with pioson, not that my new roommate did too and then all this poison stuff started to happen in the news and I got made because those idiots always go to Jersey to buy missiles and he is Hezbollah and not Tigers, but that actually all makes sense because they farm each other out BUT ANYWAY I joined the group and found out the guy who killed her, I mean the guy - who tried to kill me was actually really pleased about it and it may be a danger to others, not that the guy didn't mean it and she, I mean him did.

As far as the comments, that's basic operations officer stuff and is common knowledge. I know, I never was one, but hey, that reminds me of someone in the news, not that she reminds me of Aimes or really is Aimes or that she was just as dangerous, BUT anyway, it isn't important who is commenting or, necessarily what they say, but, hey i'm in trouble again and am reninded of the lack of comments at yahoo groups, but that's not who they are..............

So, a consistent name. It's too easily checked. Ask MyDD or KOS what they did to them. It's easier to not be tracked down and, probably was safer, until now, when we just solved all this horrible stuff and got all better and we know yahoo groups won't happen again because of a comment that should have been read by someone who knew better, but probably forgot or something and, maybe this will make you look even better than the toy war thing going on and, even, more mature than OTB or JOM, really, thanks!

EW, I know your a real good person and will let me comment and it's Christmas and everything!

[punaise]

(okey-doke, then....)

emptywheel, this stuff makes my head spin, but thanks for laying it out for us lay-people.

[emptywheel]

I should always do two versions--my thinking through of things, then what it means. The short version of what this means:

Novak says he didn't testify about things unrelated to Plame. Libby did not sign a waiver for journalists to testify about matters unrelated to Plame. He also implies that Novak testified without a waiver from him. So either Novak's lying when he says he didn't answer any unrelated questions, or he testified without having a waiver from Libby to testify (the latter seems to be the case).

[pdaly]

I have to agree with punaise.

But I picture emptywheel set up in a van parked outside Libby's courthouse in January. With a printing press or photocopy machine inside to produce up-to-the-minute updates, emptywheel's spot will be as popular as a Goodhumor icecream truck in mid-summer-- handing out treats to a hungry press corps. I hope they bring their appetites.

And charge them well, emptywheel.

[emptywheel]

pdaly

I'll see what I can do. That'd be fun, wouldn't it?

One more takeaway point from this.

Both Libby and Novak tried to make sure they could limit testimony to select people, rather than having to testify (or waiving to testify) more generally. That is, Libby wanted to restrict testimony to the people he named--presumably Judy, Russert, Cooper, and Evan Thomas. And Novak wanted to restrict his own testimony to the people included in his own story of how he received the leak--Armitage, Rove, and Harlow.

See what that means? Both tried to avoid having Novak testify on his conversation with Libby. Add in the fact that Libby telegraphed to Judy that she shouldn't say that Libby talked to Novak, and it sure looks like they were trying to hide the Novak conversation.

[John Lopresti]

I wonder if some here have an idea who the two reporters are who are resisting defense subpoena, though it is under negotiation still.

I think the take on RNov's column is right; defense wants the topics on which he expounds to be far from the kind of material that elicited his hasty exit in the notorious Who's Who interview.

The rooting around Aspens letter was a conflicted expression of concern. I think Libby was nonplussed she went to jail for him, but was breathing easy just then, that is, until Fitzgerald cut a deal with Judy after she got out, and then Woodward began the process that unraveled parts of Libby's alibis.

[pdaly]

Very nice. It sounds like obstruction of justice to me. Conspiracy to obstruct after the fact?

[SaltinWound]

The different pseudonyms from SWE and 01 aren't confusing to me. There seems to be a consistent voice at play. Thanks for the latest, wheel.

[2557]

Anyway, last bits from the search and destroy outside the safe area of politics:

http://www.bluejersey.com/showDiary.do?diaryId=2557

This would be a house with an address and phone number?

'smelled something fishy about the postings, and said they traced them to a computer'

[emptywheel]

Saltin

Ah, but you're a regular at this bar. It's the newbies who get confused...

[Rayne]

This bit right here:

"My attorneys advised me that I had no certain constitutional basis to refuse cooperation if subpoenaed by a grand jury."

...gave me pause. Why did Novak need to ask his attorney about this? Was he worried about incriminating himself, or was he worried about his source? Did his attorney tell him this before or after Judge Tatel's lengthy decision regarding Miller, citing Branzburg?

Something smells fishy to me; a waiver or lack thereof is irrelevant in the case of a crime witnessed by a journalist as there is no First Amendment protection. Did Novak have to testify about a crime he witnessed in order to avoid being charged with obstruction by failing to disclose it, or as an accessory?

Or, in other words, I think I see the same thing you do, EW. My question at this point is what crime(s) did Novak witness?

[emptywheel]

Rayne:

I'm not sure I know what the Novak-Libby conversation was. Here are three possibilities:

• Novak and Libby met around July 5 to go over pending smears, including the Frances Fragos Townsend smear and the Wilson smear--as they regularly used to
• Libby met with Novak sometime on July 8, and Libby told him, "go try to find out why Wilson got sent--I can tell you he never worked for the CIA, so find out why the CIA would send him
• Libby met with Novak after Judy basically said, no dice; he told him what he told Judy and, when he talked to Judy during their second conversation on July 12 (presumably when Libby was no longer in the same room as his assistant and Cathie Martin), he told her, "don't worry about the Wilson leak, Novakula has it covered

[Gire]

Melanie Sloan is pretty sure Dick Cheney's aid is going to jail, so maybe all that testifying by Dick isn't going to put P in J for T, but all this Dick stuff probably will have an affect on Libby prosecution by Joe Wilson. She's a regular on 'Al Franken and Rolling Stone.' She is executive Director of Crew, worked with Peace Corps(House Ethics),Foley(RPCV), Wilson(RPCV) and maybe is working on or advising Shayes(RPCV) on the Self policing Intelligence Ethics Committee, not that another RPCV received heavy USAID(CIA) NGO funding in Afghanistan and there was this insurgency when she got mad, ANYWAY I think all the Dick stuff has really ruined the trial.

I hope this isn't deleted too over politics like the CIA spy crap.

[kim]

Wouldn't Novak's conversations with Rove also be made available if he testified and got questioned by Fitz (I'm a clueless non-lawyer), if Rove discussed Libby or Cheney or Armitage or Woodward etc... or if Libby discussed Rove and W etc...?

[Rayne]

EW -- so are all three possibilities listed solid, meaning, there's no way that in any one of these potential variants that Novak is NOT witnessing a crime in progress? Or does one of the possible cases represent the clearest example of a reporter witnessing a crime?

I think that the perfect possibility is the one which is a slam-dunk; it would be so obviously a crime that Novak simply rolled over instead of pulling a drama queen act like Miller did, in order to fight testifying before the GJ. I can't picture Novak placidly going along with his attorney's recommendation unless it was crystal-clear there was not a hair's breadth of wiggle room.

[emptywheel]

I think that all but the third possibility are ambiguous whether it was a crime or not. Which makes me believe the third is the most liklely--if you're going to risk a cover-up, you do it if the crime is obvious. Besides, it would explain the remaining Novak BS, like the use of the word "covert."

[Rayne]

The third option makes the dog that didn't bark fit very nicely -- meaning, Judy did all this chatting up Libby, but no article published, since Novakula had it covered. Judy was off the hook.

Explains, too, why she would go to jail: "Heck, Novakula had it covered, why should I have to endure being deposed to give up Libby?"

[John Lopresti]

I want to cede the bully pulpit to the exegetes here, but thought I should leave one apocryphum from a late night vision here. Libby did not write the following, patently, as in some passages it seems to counter his own message. That is why I filed it in the humor section of the Plame file, which I intend to archive until much later, and retire from blog posting until way into 2008. Greetings, and if you have the interest, the inaccurate letter is reproduced from the dream here:

Dear Judy, I am loyal to Cheney. Cheney is beholden to Bush1 and Bush 2. Rove is ruling gray eminently in the White House. You and I are neoCon theorists of the first order, pretty much. There may be even more risk for you in your regular occupation, globe trotting these days, than for me, though this is the White House. I remain ignorant of whether you are a double or triple agent, but you are so helpful on arms trade and Middle East politics that I feel we are soulmates. I know we appreciate each other's formal speeches and writings on WMD and relevant strategies beyond. In a way I am glad you, and even your employer NYT, were both brave enough to accept jail rather than snitching on our secrets, and, besides, Novakula was amenable to doing the skulduggery so we let him do it instead of somehow coercing you to. Prima facie it was risky for us to collaborate on the subterfuge of 'retaliation', as NYT now has taken to calling our conjoint work to expose the envoy's spy wife's real occupation in McLean. This ploy to out Plame affects the president, too; and, as you know, Bolton gets riled if we start messing with the dynamic of revealing the undercover identity of a key analyst of Middle East arms trade at a time when Bolton and other neoCons finally have shoved the UN out of Middle East affairs at least long enough to prosecute Bush and Cheney's war. And, if you are a double or triple agent, outing Plame could be much more risky for you than even I imagine; though, something deep inside me speaks reassuringly that you are only what you seem, the intrepid neoCon reporter at NYT expert for decades now in WMD and Middle East politics. You have helped the neoCon cause immensely. I even can feel like I regret reporters have no federal shield from the kind of roughshod tactics these 2 Attorneys General have developed for Bush and the NSA, for dealing with the terrorism crisis, information restraints by the administration augmented by information prying. This whole process of using a federal grand jury to flush out this administration's modus operandi is anomalous. It continues to puzzle us why Ashcroft suffered such a lapse of disloyalty in his permitting Comey to appoint Fitzgerald special prosecutor in this matter. And deepest of all, I feel compassion for your plight as the object of Fitzgerald's implaccable investigation. You did the right thing going to jail in my stead; Fitzgerald even probably would rather you did not endure that ignominy, as he is a decent sort. But this remains a democracy. Though, in these turbulent times, even that seems under duress. I hope we can stave off much damage to the administration; this is my protectorate in OVP like it is Rove's in EOP. You were right to grasp my pro forma release for you and other reporters to speak with investigators was authored by Cheney at Bush2's instruction, and that I really had not agreed to let anyone know your essential complicity in our plan to destroy the envoy's credibility, though as I write this now in redacted version I think ew had your personna right, you were just being coy about participating as the 1x2x6 gambit was destined to go way beyond your ordinary propagandist genre's telological reach. I even puzzle sometimes over Rove's insistence that Wilson needed quashing; the information was out there, and he only confirmed what other arms specialists related to the UN inspectors had said all along, and even the unstovepiped parts of our intelligence agencies were telling us too, all in agreement with Wilson that the uranium sales claim would not withstand any due diligence to verify its veracity. You know, war is part emotional; we had to hype the populace, so congress would agree to the plan to start several wars. I know you worked hard with our propaganda division to keep ahead of real reporting, always a day or two early, writing for the NYT often on the frontpage, stories that told the administration's inflammatory tale our way. For your journalism and brave spirit, and gift of intelligence you have my solid support. Sometimes it feels like we are merely trees in a large neoCon forest near the pinnacle of some Colorado craggy peak whereon the great ideologues of our time have developed a truly pure wingnut theophany of moralist western democracy. We are like the knotted coppices of aspens, you and I, caught by nearly identical currents in this sham exercise in democracy which Fitzgerald is pursuing. I am glad for the peace and security of our land, and appreciative of your help writing our propaganda for us and going to jail for us, indeed, for me, so our neoCon land can stay free. Yours adoringly, The Rodeo Clown of Intellect, The one they call Scoot.

[looseheadprop]

I think maybe you are overlooking the simplest explaination for why Scooter wants to use these exhibits in his motion in limine.

First: A motion in limine is written motion usually made at the begiining of a trial for a protective order against prejudicial questions and statements.

The purpose of such a motion is to avoid putting before a jury matters which are irrelevant, prejucial or inadmissable.

Scooter may wish to argue in his motion in limine that the Aspens Are Turning letter is written so oddly that there is a danger he will be prejudiced in that the jury will think it is some kind of coded message to Judy and he will therefore be prejudiced by the jury thinking he is trying to obstruct justice and that is consciousness of guilt.

If so, PJF would probabaly counter that evidence of consiousness of guilt is relevant and admissable to rebut a defense of lack of motive or other mental state defenses and the mere fact that PJF has not upgraded the charges to include an additional count of witness tampering, does not change it's status as relevant and admisable evidence.

[Rayne]

LHP -- you know, that still fits the ["dog that didn't bark" + 3rd possibility] schema.

Sounds plausible to me.

[John Lopresti]

Instead of Bjork the jury shorttermmemory deficit expert Defense tried to call, Fitzgerald might look for an expert on insideTheBeltway gossip-milling. A3G and wonkette come to mind, but it should be even more academia. The 1x2x6 was clever in the same way modern political conventions are overproduced infotainment. Jane must have some eloquent insight here. I need to read the in limine documents, kindly linked, though I suspect this is far from pretrial endgame. More clues will develop after final pretrial conference, when the preemptive strikes are exercised in the voir dire proceeding, if I remember RW's rulebook, 6 for each side; however, much of this likely will remain confidential in deference to citizen rights, especially folks who elect to request in camera Q+A as counsel scrutinizes their candidacy as jurymembers.
It remains illuminating to reread the original indictment, to which a diarist kindly provided a link recently; as I understand it, Defense pretty much may use the indictment as its bounds; and it is multifaceted in places.

[jwp]

we need a new method of exposing and (maybe) punishing political crimes in this country.

impeachment is too elaborate, time-consuming and blunt

grand juries do not expose the crime, and take too long

I am not sure what the answer might be. But the present system is inadequate.

[emptywheel]

lhp

Yeah, I'm most intrigued by the way he has included Novak along with Judy. Which suggests that example is as bad for him as the Judy stuff.

[dawnaggio]

Lawyer falls to death at hotel
RIP Paul Sanford
[EXCERPT]

...Mills said Sanford decided in recent years to add journalism to his many occupations.

Almost immediately, he caused a stir after he joined the White House Press Corps in 2005, making waves as the first reporter to ask then-White House press secretary Scott McClellan whether the leaking of CIA agent Valerie Plame's name might be considered an act of treason.

"There has been a lot of speculation concerning the meaning of the underlying statute and the grand jury investigation concerning Mr. Rove," Sanford asked. "The question is, have the legal counsel to the White House or White House staff reviewed the statute in sufficient specificity to determine whether a violation of that statute would, in effect, constitute treason?"

http://www.montereyherald.com/mld/montereyherald/news/16326502.htm
Lawyer falls to death at hotel
Seaside: Police suspect Paul Sanford committed suicide