Tune in to my appearance on the FDL Book Salon Sunday, January 7 at 5PM ET
For more news on FDL/emptywheel/Huffington Post coverage of the trial see this
There's a Libby filing (in addition to the four or five or six last-ditch bites at the greymail apple he filed) attracting a whole bunch of attention. Here's my take on it.
The filing confirms something we've long suspected--at least one of the witnesses against Libby has an immunity agreement. Odds on favorite for this witness is Ari Fleischer. (I speculated that Cathie Martin might have been granted immunity the other day, but I agree that Ari is still the most likely candidate, with Martin being second most likely). The question is--what would he have immunity for?
On that, speculation is mixed. He may well be Pincus' source (if he is, though, I'll owe Swopa a beer, so it would suck to be me), and it remains unclear how forthcoming Pincus' source was about revealing Plame's identity when he first testified. So, the argument goes, Ari (if he is Pincus' source) may have gotten immunity for a false statements crime in exchange for substantive testimony against Libby. In most statements, Pincus leaves details about the timing of his source's honesty ambiguous. Though he does say in this CJR article his source was "cooperating" with prosecutors, which would seem to suggest that he had already 'fessed up to being Pincus' source, whoever it was.
In mid-2004, Patrick Fitzgerald’s office issued subpoenas to Pincus and the Post, demanding details of the 2003 conversations. Pincus initially refused to cooperate, but Fitzgerald soon made clear that Pincus’s source was cooperating with the investigation, and that the source was willing for Pincus to speak to the prosecutors.
Ari would face slightly more jeopardy than Armitage in leaking to Pincus, having been told by Libby that Plame's identity was "hush hush," so it is possible he simply wanted immunity from any IIPA prosecution. The same is true regarding the comments to John Dickerson, pushing him to look into who sent Wilson--though I doubt it, since Dickerson was never asked to testify as to the the content of that conversation (that is, Fitzgerald never checked Ari's story, if in fact Ari admitted to this).
There is one more possibility (one I don't really understand very well). Recall that one of the things Fitzgerald had to subpoena was the July 12 press gaggle (and he did so in the same batch as he subpoenaed the Air Force One phone records). I have never seen a convincing explanation of why it was subpoenaed--the most suspicious passage in it was this one:
In fact, in one of the least known parts of this story, which is now, for the first time, public -- and you find this in Director Tenet's statement last night -- the official that -- lower-level official sent from the CIA to Niger to look into whether or not Saddam Hussein had sought yellow cake from Niger, Wilson, he -- and Director Tenet's statement last night states the same former official, Wilson, also said that in June 1999 a businessman approached him and insisted that the former official, Wilson, meet an Iraqi delegation to discuss expanding commercial relations between Iraq and Niger. The former official interpreted the overture as an attempt to discuss uranium sales.
This is in Wilson's report back to the CIA. Wilson's own report, the very man who was on television saying Niger denies it, who never said anything about forged documents, reports himself that officials in Niger said that Iraq was seeking to contact officials in Niger about sales.
While Ari's insinuations that Wilson was the Iraq-Niger go-between are nasty, they are not illegal. Unless, of course, the Wilson trip report really does say that Wilson was the go-between (in which case, they botched the report even further than I think). In which case, Ari would be leaking illegally. In any case, the conjunction of this subpoena with the one for Air Force One call records suggest Fitzgerald may have gone after Ari early.
Finally, one more possibility. If there were open discussions about leaking Plame's identity (as descriptions of Adam Levine's and Dan Bartlett's involvement in Hubris seem to suggest), Ari may have wanted immunity from being involved in any conspiracy. We know Ari was getting talking points on this issue. If he got a talking point related to Plame, if he was in discussions related to outing Plame, he may have sought an immunity deal to avoid any implication from simply hearing of a deliberate campaign involving Plame, then pushing Dickerson to inquire about her.
The Scope of the Investigation
Apparently, Libby will argue at trial that, when he was interviewed by the FBI (October and November 2003), the scope of the investigation was different from what it became.
Because the focus of the investigation at the time Mr. Libby was interviewed by the FBI will apparently be a disputed issue at trial, the Court should not instruct the jury in accordance with the government's view of the investigation alone.
This accompanies a lot of discussion over the meaning of the word "material" with respect to Libby's alleged lies. Thus, it seems that Libby's team is preparing to argue that:
- When Libby was interviewed in Fall 2003, the focus of the investigation related exclusively to the Novak leak
- Therefore, lies relating to leaks to Judy and Cooper are not material to the case, and therefore not worthy of False Statements or Obstruction charges
I don't blame Libby for this tactic. If he did, in fact, lie to obstruct the investigation, he did so to shield an IIPA charge. So he's probably pretty bummed that lies he told (if they are lies) to shift his own knowledge past the time when Novak learned of Plame are now getting him into trouble wrt leaks to other journalists. It's a tough game, I guess, trying to anticipate which lies you should tell...
Libby continues to try to hide that even he did not know whether, when he leaked to Woodward and Sanger, he was authorized to do so. He is trying to rule out any evidence relating to the pre-July 8 leaking.
As explained at the December 19th hearing, Mr. Libby will not offer any evidence that he discussed the contents of the NIE with reporters prior to his July 8, 2003 discussion with Judith Miller [ed. No, really? I'm so surprised] ... the government has indicated that it is very unlikely to raise pre-July 8 discussions either. ... As both sides agree that pre-July 8 disclosures have no real relevance in this case, and to avoid any further confusion or conflict on this issue, Mr. Libby requests that the Court issue a pre-trial ruling that evidence regarding pre-July 8 disclosures is inadmissable at trial under Fed. R. Evid. 403.
He goes on to try to strike the language from jury instructions that they should not speculate whether the NIE leaks were "proper or improper." Effectively, they are trying to rule out proof from Libby's own testimony that the earlier leaks may have been improper, and then strike "improper" so as to give the impression that all earlier NIE leaking was proper. But then Libby goes further in his attempt to pretend all his NIE leaking was legal. Here's his proposed instruction:
You have heard evidence regarding discussions Mr. Libby had with reporters about material contained in the October 2002 National Intelligence Estimate. There is no dispute that the President has the power to declassify previously classified material and to authorize its disclosure to the press. Nor is there any dispute that the President had exercised that power with respect to the NIE at the time Mr. Libby had those discussions. In other words, there is no question Mr. Libby acted properly in having those discussions and you are hereby instructed not to speculate otherwise.
Notice that swift application of uncontested facts regarding the July 8 leaking to all the leaking? Nice try, Scooter.
FWIW, I suspect Fitzgerald may only want to keep the NIE available in case Libby is able to call Woodward as a witness. Libby, of course, would love to have Woodward, because it gets him to testimony about Armitage. But he'd be a lot safer calling Woodward if he didn't risk having to admit that he was leaking stuff to Woodward he may not have been authorized to leak, so I suspect this is the core of the disagreement.
Finally, Libby seems to want to exclude any discussion relating to later misrecollections. They're asking to strike the following instruction:
False or inconsistent statements that a defendant makes in explanation or defense, after a crime has been committed, do not create a presumption of guilt. You may consider evidence of such false or inconsistent statements, however, as tending to prove the defendant's consciousness of guilt. You are not required to do so.
Libby rejects this, explaining,
Given that Mr. Libby is charged with making false statements and perjury, and the chronology of events of this case, this instruction unnecessarily risks confusing the jury. Mr. Libby told investigators and the grand jury more than once that Mr. Russert mentioned Mr. Wilson's wife. To the extent that Mr. Libby's recollection of this point is incorrect, he argues that it is due to a perfectly innocuous reason--a natural failure of memory. This instruction would mislead jurors into thinking that Mr. Libby's subsequent misrecollections to investigators and the grand jury may be considered as evidence of consciousness of guilt.
I'm really fascinated by this. It's like Libby is trying to prevent the same lie from being used as evidence that he told it. But I also suspect this has to do with later, contextualized references to Russert. Therefore, if asked if someone else mentioned Plame, and Libby reverted to the Russert story, he doesn't want that as being taken as evidence of guilt. Curious.
Please Don't Mention the Former Hill Staffer
This is, IMO, the funniest request. He asks the court to read this instruction:
You have heard testimony that Mr. Libby and other witnesses spoke to reporters under various conditions, such as "off the record," on background" and where one's comments are to be attributed to a particular job title. There is nothing improper with a person being interviewed to request, or a reporter agreeing to grant, these interview conditions in order to maintain the confidentiality of the person speaking with the reporter. [my emphasis]
This instruction would effectively bar the jury from considering the fact that Libby asked--and Judy agreed--that their July 8 conversation be attributed to a "former Hill staffer" as evidence of guilt. Because, you know, I should be able to attribute illegal information to whatever attribution I want. Next time I leak highly classified information, I suppose I'll just attribute it to "someone who might be named Scooter Libby." Because Scooter Libby sees no problem with giving misleading attributions to leaks, you know.
All in a days work.