Libby has released his proposed theory of defense instruction and there's some mighty parsing in there I'd like to call attention to:
Mr. Libby further contends that when the investigation began, he was confident that he had not provided any information about Mr. Wilson's wife to Robert Novak, and that he had not disclosed classified information about Mr. Wilson or his wife to any other reporters. Further, Mr. Libby was well aware when he was first interviewed by the FBI and when he testified to the grand jury that the investigators could and likely would talk to the journalists he spoke with concerning Ambassador Wilson and that those journalists would truthfully recount their recollections of the conversations he had with them.
Several points about this mighty parsing, starting with my favorite. Note how Libby phrases his description of what he told Novak differently than the other journalists. "Had not provided any information about Mr. Wilson's wife to Robert Novak." That leaves open a whole slew of possibilities that he did do, most notably (reconstructing based on the difference with the other statement), providing classified information about Mr. Wilson to Robert Novak. I'm not saying he did, but the careful phrasing certainly leaves open that possibility. This would accord with long-held suspicions of mine that (and let me emphasize--these are all hypothetical):
- Libby spoke to Novak before Novak spoke to Armitage
- Libby told Armitage that Wilson never worked at the CIA and encouraged Novak to find out why Wilson got sent
I'd add one more possibility, given this construction--that Libby also leaked the contents of the CIA trip report to Novak. Recall that Novak mentioned the trip report and reported the White House pushing for its disclosure in his original column.
The story, actually, is whether the administration deliberately ignored Wilson's advice, and that requires scrutinizing the CIA summary of what their envoy reported. The Agency never before has declassified that kind of information, but the White House would like it to do just that now -- in its and in the public's interest.
If Rove indeed only confirmed the statement Novak repeated from Armitage, it suggests someone else cued Novak to push for the CIA report--and that someone is highly unlikely to be Armitage, given the White House attribution. I still think it just as likely that Rove gave Novak this. But the possibility that Libby leaked the trip report is enticing, and would explain why he left open the possibility of leaking something classified to Novak.
Then there's the bit about what Libby said to other reporters:
he had not disclosed classified information about Mr. Wilson or his wife to any other reporters
We know Libby will argue that he was just passing on info he received as gossip--and that Plame's identity was not classified. But this is a remarkable commitment pre-trial, to say he gave no classified information about Mr. Wilson or his wife to any other reporters. After all, Fitzgerald has said he leaked the trip report to Judy. This is Libby, committing ahead of time, to claiming he did not do so. Is Libby so sure he'll be able to impeach Judy's testimony that he's already making this statement?
And finally, the bit about the journalists.
Further, Mr. Libby was well aware when he was first interviewed by the FBI and when he testified to the grand jury that the investigators could and likely would talk to the journalists he spoke with concerning Ambassador Wilson and that those journalists would truthfully recount their recollections of the conversations he had with them.
This is completely disingenuous, as both the press and the President were insisting at precisely the same time as Libby first testified that journalists would never testify. No one expected them to testify, least of all Libby. Furthermore, Libby refused to sign a waiver on November 26, which certainly suggests he thought he could keep the journalists silent. And, given the list of people who will be mentioned that was released the other day, it seems clear that this will be an object of some contention during the trial--there's just no other reason why Tate, Abrams, and Bennett would be named. (On that note--when did they stop naming Tate in motions submitted to the court? Because he's not on this one.) Libby is worried--badly--that the attempts of Judy and, I'm increasingly convinced, Novak not to testify will really damn him in the eyes of the jury. As well he should be.