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January 16, 2007

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First, let me say that I find it interesting that Card and Scottie are on the list. Remember, they both resigned about the same time. Card was involved in the slow-walking of evidence requests, giving time for the disappearance of 250 emails.

Yaay!

EW, I have been enjoying your track on this scandal from the beginning, and I am beside myself that you are there giving us the bird's eye view of history.

The Gang of 500 can't keep us in the dark and covered in manure like a field of mushrooms any longer.

No one has Duberstein on their lists? The guy who set up the Novak/Armitage meeting?

Any spec on what Thompson will be called to testify about? And Thompson, but no Ashcroft, even though Ashcroft was running the show through all the initial reports of FBI concerns.

Interesting list.

The list seems expansive for a perjury and obstruction case, but spot on for insights into a larger case coming up. Talk about setting the stage, better buy stock in Orville Redenbacker!

Witnesses, and names that may be mentioned. We still haven't seen a list of witnesses, except it's pretty certain that Libby and Cheney will be on the defense, and Russert, Cooper and Miller for the prosecution.


Paul Valleley is on the list because Libby wants to raise the point that Wilson mentioned Plame, in other words, that Wilson himself may have been (probably was, IMO) a leaker.


Is the entire questionnaire available?

I had the distinct honor & priveledge of spending some time with EW last weekend at the Media Reform conference and inhaling 'Anatomy of Deceit' in a single breath.

Marcy you Rock!

How surprised are you at how expansive the witness list is?

Toronto Star has an article. Is the VP going to be subpeoned and have to testify in a criminal trial and what does that mean legally. Congressmen are banned for five years after being served by Plame.

cboldt

Posted. And thanks for the correction. Wanted to get the list out there quickly, then got into a meeting and couldn't fix it.

Mary

Yes, I think the absence of Duberstein is the biggest surprise.

Important detail for scheduling, emptywheel, if we can trust this AP account today, as follows:

"Walton expects jury selection to take two to three days and has scheduled opening arguments to begin next Monday. The trial is expected to last four to six weeks."

Found that in Christy's link to MSNBC's AP photo of Libby that was in Pachacutec's first live-blogging thread today at FDL. Wanted you and looseheadprop to see it since your schedules are tight with regard to opening statements day. [I thought Walton might just go ahead and declare Monday the earliest date for opening, and this seems to confirm that he did in fact do so at some point recently.]

From the questions:

"Statement of the Case:
In July 2003, there were press accounts discussing former Ambassador Joseph Wilson’s trip to Niger (a country in Africa) and his criticism of the Bush Administration concerning the reasoning for the United States going to war in Iraq. In those accounts it was revealed that former Ambassador Wilson’s wife (Valerie Plame) worked at the Central Intelligence Agency (the CIA). After the articles were published, a federal investigation commenced to determine whether any violations of the law had been committed by the disclosure to the news media, and if so, who disclosed the information. Arising out of this investigation, was the issuance of the grand jury indictment charging Mr. Libby, who as I indicated was Vice President Cheney’s Chief of Staff and National Security Advisor, with obstruction of justice, perjury, and making false statements to Federal Bureau of Investigation (FBI) Special Agents and a grand jury resulting from statements Mr. Libby made during the investigation."

Looks like Libby got what he wanted on this issue. No mention of "classified" and a pretty limited description of the investigation. (Certainly not as broad as Fitzgerald's contention in other filings that the grand jury's purpose included investigating lies to the grand jury.)

Isn't this the list to see if potential jurors have any relationship to people involved or potentially involved in the case to screen them out? That is standard practice.

-- Looks like Libby got what he wanted on this issue. --


Tough call. The language he objected to to was "investigation into the possible leak of classified information," to which he proposed "investigation into the possible leak of alleged classified information." Libby's point being that the former language asserts somehow that the information was classified, or that the leak represented a criminal violation.

You indicate the following as being in Libby's favor ...



... determine whether any violations of the law had been committed by the disclosure to the news media, and if so, who disclosed the information.

This seems to say that first there was in fact a determination that the leak constituted a violation of the law. Because if there was a violation, then the investigation would move to who disclosed the information. The inference being that if there hadn't been a violation (the "if" condition not being met) then the investigation would not proceed to the "who" question. I think this is the wrong conclusion to draw (that is, I think the statement is not an accurate paraphrase of the investigation) FWIW, but some people will draw that conclusion by what they fancy to be "careful parsing" of the language.

I didn't much like that question 17 in the voir dire, seemed like it was demanding that the jurors accept the defense theories of memory. But I'm no lawyer.

Kim beat me to it...

To say nothing of this (from the same list of questions):

"At this time, I want to ask you some questions about your beliefs or opinions about human memory:

(A.) Is there anyone who believes that everyone’s memory is like a tape recorder and therefore all individuals are able to remember exactly what they said and were told in the past?

(B.) Is there anyone who feels that a person could not honestly say something about a matter he or she truly believed to be the true when that person several months earlier actually said something totally different about that same matter?

(C.) Is there anyone who believes that it is impossible for a person to mistakenly believe that he or she was told something by one person when in fact the person was actually told the information by someone totally different several months earlier?

(D.) Is there anyone who believes that it is absolutely impossible for a person to believe very strongly that he or she has certain memories about something, even though it is determined that those memories are inaccurate?

Pretty far from the form jury instruction that Fitzgerald wanted.

Tough voir dire question: the Cheney one.
I could honestly answer genewrally that I could give a member of the Bush administration a fair trial. But how do you answer the Cheney question? He's been in the news for 7 years. If you pay any attention to the news one would have questions about his honesty - ie: variance between his pronouncements on anything and reported facts.
What would constitute a jury who has no opinion on the man?

I believe I am an open-minded person and would listen carefully. But I'd be blown off a jury so fast on this question. I could say I'd have an open mind but would have to say he has a history of at least saying things other than what other people are saying and that I would have questions.......

cboldt,

Quite correct. Many things could be read into the actual phrasing. I simply recalled the "classified" vs "allegedly classified".

"The inference being that if there hadn't been a violation (the "if" condition not being met) then the investigation would not proceed to the "who" question."

As the jury may not get to hear any evidence of "who" leaked to Novak, that could cut both ways.

-- I didn't much like that question 17 in the voir dire, seemed like it was demanding that the jurors accept the defense theories of memory. --

Those questions are phrased in such absolute terms that I doubt anybody would disagree with them.

In the general sense, any one of us has probably switched sides, mistaken attribution, and otherwise have flaws in memory. That's one reason why humans take written notes or otherwise reduce material to tangible form.

The trial, on the other hand, is quite fact specific. What was the defendant presented with, how important was "Mrs. Wilson works at the CIA" to him, and do you believe him when he says he forgot?

pow wow

Yeah, Walton set aside all of Thursday for voir dire. From Pach's latest, it looks like they're going to need it.

Walter

I think I agree with cboldt. The instruction is different from what both proposed, but a juror might assume that, since the investigation got to teh "whom," it must have passed the "if" stage. Of course, that's true in general--if DOJ declares an investigation, then the if has passed. Assuming, of course, that the CIA has represented things fairly.

Also not surprised about the memory stuff--or bugged, really. Libby doesn't get to have his expert, so he needs to be allowed to present his memory case based on jurors' common sense (which is how Walton ruled). Better to have this than to have any verdict overturned.

Carolyn,

I'd go down on the news question. I mean really, no access to TNH, etc?

Hmmm. So the question conditions the jurors to believe that disclosure was (is) a crime.

That does lend more importance to establishing the disclosures to Judy Miller and Cooper. But once established, points directly at motive.

Careless drafting, fair and equal treatment, or a hint into J. Walton's understanding of the case?

I wonder if Fitzgerald would have (or did actually, in oral arguments) suggested or agreed to this wording?

Perhaps a stupid question, but is the POTUS not going to be mentioned at all during the trial (or is it just assumed that any potential juror has an opinion on the president)?

If you find anything else out about why Risen's name comes up - dish. *g* He was the other one I was going to ask about.
I'm still not certain why Thompson's name would come up, but Ashcroft's not. Oh well, it will be what it will be.

Pretty sure Dickerson will not be a witness, and is probably on the list for key communications with Matt Cooper. Also, he will probably come up in the defense's cross-examination of Fleischer, I'd imagine.

Is this going to be on Court TV? I may have to get a VCR if it is.

Can you imagine if all those people are actually called and they have to testify? Be still my heart. Who needs chocolate when I can rerun Opening Statements? Don't get me started.

I am really curious about Richard Hohlt. He is a Republican lobbyist. What connection to the case does he have?

Which is particularly interesting, Mary, since he wasn't IIRC named in subpoenas to the Times.

WO

There are several people who might be on the list whose identity I don't know: the other 4 people who were willing to testify that Joe outed Valerie. And Joe's friend, to whom Novak blabbed Plame's identity.

Some questions about the reporters. On the one hand, Fitzgerald's narratives of the investigation usually seem to include the 1x2x6 article, by Allen and Priest with sourcing perhaps from some combination of Bartlett and Levine. On the other hand, Fitzgerald's 5-12-06 filing, which I took to include an exhaustive specification of the news articles he intends to submit as evidence or refer to, has not mention of the 1x2x6 article. Could it be that Libby intends to go into this, to show the possible flaws in the story and its role in the investigation?

Same question, for the same reasons, regarding Royce and Phelps' article.

Hersh: Given what we know of Libby's defense, I'd say it's almost certain that Fitzgerald will introduce the multiple copies of "Stovepipe" with annotations by Libby and others in OVP into evidence.

David Martin: He may belong with Armitage et al, as he was the reporter who did the interview and story when Armitage did his public confession.

I'd bet Risen spoke with Libby in the relevant period on subjects in our ballpark, with no mention of Plame, though who knows, given his area of best sourcing.

How do we know Sanger hasn't been subpoenaed?

I thought we did know that Sanger hadn't been subpoenaed. Of course, I'd love if he had been.

1X2X6 may be a new angle on the early stuff, given the mention of Scottie and Andy Card (and Bartlett and Levine). In other words, there may be some detailed description of the early investigation. Imagine, if you will, that DOJ said "Investigate Novak leak," and then 1X2X6 came out, and then investigation switched to "Investigate all 6 potential leaks." I could see this whole line of questioning being part of Libby's apparent effort to declare the false statements immaterial. And that may be why Thompson is on there.

I could see this whole line of questioning being part of Libby's apparent effort to declare the false statements immaterial.

That's the lines I was thinking along, though Thompson hadn't occurred to me as part of it.

Evan Thomas remains a puzzler.

As for the reporters Libby is going to call, I'd guess, apart from the possibility of calling the three central ones, Mitchell, which we know; Woodward, Pincus and Kessler from the Post; Risen, possibly Sanger and more likely Kristof from the Times; and David Gregory, though I'm not sure why.

Here are some interesting quotes from a Sanger-Risen July 12 article.

In a recent interview, Secretary of State Colin L. Powell said that by the time he got to a meeting that Mr. Tenet attended at the C.I.A. three nights after the president's Jan. 28 speech, Mr. Powell's staff had already dismissed any thought of using the Africa claim to bolster the case the secretary was to make a few days later at the United Nations.

[snip]

In recent days, the C.I.A.'s spokesman said Mr. Tenet had never personally approved Mr. Bush's use of the African uranium example in the speech. But Dan Bartlett, one of Mr. Bush's closest aides, who drafted parts of the address, said in an interview that the wording had been ''cleared at the highest levels of the C.I.A.'' which would seem to mean Mr. Tenet or his deputy, John McLaughlin.

[snip]

There is still a dispute over what exactly was said in their conversations. Mr. Foley was said to recall that before the speech, Mr. Joseph called him to ask about putting into the speech a reference to reports that Iraq was trying to buy hundreds of tons of yellowcake from Niger. Mr. Foley replied that the C.I.A. was not sure that the information was right.

Mr. Joseph then came back to Mr. Foley and pointed out that the British had already included the information in a report. Mr. Foley said yes, but noted that the C.I.A. had told the British that they were not sure that the information was correct. Mr. Joseph then asked whether it was accurate that the British reported the information. Mr. Foley said yes.

In other words, I wonder if the 16 words is going to be more of a big deal than we know. That doesn't make sense at all, but who knows?

In other words, I wonder if the 16 words is going to be more of a big deal than we know.

Yes, one possibility is that Libby is going to use all of this to bolster his argument that the OVP just wanted to get the truth out on the merits while their integrity was under attack by the State Department and the CIA, witness the inaccurate coverage in the press, including Sanger and Risen's pick-up both on Powell and on the Joseph-Foley dispute. Risen might make a convenient witness too since Sanger might make an inconvenient one, depending on how Walton rules (or has ruled, for all I know) on Libby's motion in limine to exclude pre-July 8 NIE disclosure info.

Funny that Bush is not on the list, by the way.

Perhaps surprisingly, NBC News's former president, Neal Shapiro, isn't on the list.

Excellent point, MJW.

Bush is weird, but they're clearly asking about him in any case, as one juror today got herself excused when she answered there was no way she could be objective about Bush--she went on to list his crimes. Buh bye.

is this Jeff?


GUEST STAR OF THE LIBBY TRIAL: CHENEY. Jury selection began today in the trial of I. Lewis "Scooter" Libby, former Chief of Staff to Vice President Cheney, on five counts of obstruction of justice, perjury, and false statements. Opening statements are expected early next week. (I'll be doing a few posts from the trial here on Tapped.) This trial is the first and, for all we know, the only fruit of Special Prosecutor Patrick Fitzgerald's three-year-long inquiry into how the cover of CIA officer Valerie Plame Wilson was blown and whether anyone violated the law in doing so.

U.S. District Judge Reggie Walton has been emphatic in keeping the trial focused on Libby's alleged lying about his conversations with reporters Tim Russert, Judith Miller and Matt Cooper in July 2003, which Fitzgerald has charged was part of Libby's effort to obstruct the investigation. Despite this narrow framing of the issues at trial, however, it will be a dramatic public event for at least two reasons.

First, the events about which Libby is accused of lying involve the intersection of top government officials and elite DC reporters as they negotiated the prewar intel fiasco that turned out to be the beginning of the unraveling of the Bush administration. The trial will not be a forum for debating that fiasco; but it will be an occasion for publicly revisiting it.

Second, we are going to get unprecedented insight into the workings of the most powerful and most secretive Office of Vice President in history. As we just learned this morning, there are fifteen present or former members of the vice president's office who are likely to be witnesses or to come up in the course of the trial. The most spectacular, of course, will be Cheney himself, whom the defense has indicated it will call as a witness. We may in fact learn more from key Cheney aides like David Addington and Cathie Martin. One of the central questions about the trial is just how Fitzgerald intends to portray Libby's acting on behalf of Cheney. Information from pretrial motions has revealed a vice president intensively focused on responding to Joe Wilson's incendiary July 6 op-ed accusing the Bush administration of twisting the prewar intel. Cheney took unusual steps, such as directing media strategy himself, and in that context instructed Libby to leak classified information to reporters. Is Fitzgerald going to seek to show that one of the reasons Libby lied was to cover up the fact that Cheney directed him to leak Plame's CIA identity? Or is he going to suggest that Libby leaked information about Plame on his own -- and lied in order to prevent political embarrassment to the White House and to keep his own job? Either way, we are about to learn a lot more about how the vice president's office responded to a crisis of integrity from which it never recovered.

--Jeff Lomonaco

political animal says that is Jeff from the next hurrah

No Cliff May?

From a Sept 2006 Toensing piece in the WSJ:

During the investigation Mr. Fitzgerald learned that a former New York Times reporter, Cliff May, twice told the FBI that, prior to Mr. Novak's column, he had heard in an offhand way from a nongovernment employee that Mr. Wilson's wife worked for the CIA, a clear indication that her employment was known on the street. Ditto columnist Hugh Sidey, who wrote that Ms. Plame's name was "knocking around in the sub rosa world . . . for a long time."

Hugh Sidey is not on the list for other reasons, primarily, no one wants to host a seance.

I think Sanger is still an open question - just because the Times has not reported his being supoenaed does not mean it is not happening.

I would imagine Cliff's friend is either on the list, or didn't pan out. Cliff only ever had hearsay.
I'm guessing either Fierce or Hohlt, whomever they may be, is May's acquaintance.

Excellent suggestion re Hohlt (donations) and Fierce (background).

Here is more than you want to know about Cliff May - he was at the RNC from 1997 to 2001; Fierce was at RNC from 1993-95 but stayed in touch with Rep politics afterwards (I checked the FEC database.)

Could be either or both, or neither. But I bet those two are on the list for Vallely-type reasons.

I really like the way this Jeff Lomonaco writes.

Check out picture #7, do we have a story here?

http://www.washingtonpost.com/wp-dyn/content/gallery/2005/10/28/GA2005102800657_index_frames.htm?startat=undefined

A language pointer - voire dire questions are not jury instructions. Jury instructions will come in at the end of the trial.

Another excellent article by Mr. Lomonaco can be found at The American Prospect.

"Discovery Phase"
10/13/06 Jeff Lomonaco

Other NSC / Michael Anton

Anton is quoted in a Sanger NYT article during leak week

Mr. Anton noted today that "other reporting that suggested that Iraq had tried to obtain uranium from Africa is not detailed or specific enough for us to be certain that such attempts were in fact made.

"Because of this lack of specificity," he continued, "this reporting alone did not rise to the level of inclusion in a presidential speech. That said, the issue of Iraq's attempts to acquire uranium from abroad was not an element underpinning the judgment reached by most intelligence agencies that Iraq was reconstituting its nuclear weapons program."
NYT 7/8/03

Michael Anton is quoted in an Allen/Millbank/Pincus page one WaPo article about Rice's role in the 16 word controversy.

Rice declined to be interviewed for this article. NSC officials said each of Rice's public statements is accurate. "It was and is the judgment of the intelligence community that Saddam Hussein was attempting to reconstitute his nuclear weapons program," said Michael Anton, an NSC spokesman. WaPo 7/27/03

A few questions guys.

This is looking beyond the Libby trial.

1) Did Cheney have the authority under Bush's Executive Order to declassify material, specifically - Plame's cover status and portions of the National Intelligence Estimates?

2) If Cheney did not have the authority or the proper authority, did he break Federal Laws for outing Agents and/or Bush's Executive Order? If so, what could happen next?

3) If Bush retroactively declasified the same material leaked by Cheney, which at the time was still classified, because Bush knew Cheney lacked any authority to declassify or became aware that Cheney lacked proper authority, then could Bush be named as a Co-Conspirator charged under the same Federal Law regarding outing intellenge agents?

Can a President violate his own Executive Order regarding the declassification procedure under the National Security Act when the reasoning behind the disclassification itself is not in the name of National Security?

Ah, polly, you're brilliant!! Thanks.

In both State of Denial and One Percent, they give versions of a big spat between NSC and CIA over who would take the fall for the 16 words. Early in the week (presumably, on the 7th), the NSC was preparing to take the fall. Then, by the end of the week, we know Condi basically hung Tenet out as laundry.

So I'm guessing Anton was actively involved in that discussion. And that that July 8 statement was NSC's attempt to take some responsibility.

Also, it shows a pretty dramatic difference in approach from OVP--which is where Hadley would come in, I guess.

Quick Question

I suspect we'd very quickly get into Constitutional issues. Fitz could pursue it if he made the case strongly enough in this trial that Libby was trying to hide such activity. But it would be difficult to do without really winning the PR battle in this trial. And given the makeup of SCOTUS, I'm not sure how productive this would be. Though who knows? It might be a good chance for Anthony Kennedy to restore some balance to our government.

It seems that if we skirt the constitutionality of all of this we leave to the future an issue of vital importance. Have we become such a nation of avoiders that we no longer have the will or tolerance of the ambiguity? If our forefathers were willing to face the discomfort, it seems that we need to be willing to face the challenge of this discussion. I hope Fitz will allow the process despite the risk of losing the immediate battle.

Pow Wow,
Thanks for looking out for me. Actually, after the dismal amount of progress yesterday, I'm not sure they will even get to Opening Statements on Monday.

Walton must be pissed. Unless they make up some lost time today and tomorrow, this is a lot of slippage for so early in the trial

I just pre-ordered your book.

Are you thinking about doing a follow on book after all of this is over?

From Barnes & Noble-Tenet's publisher has backed off the publishing date from January to March for his version.

Though, Katie, there's a case to be made that we don't want SCOTUS to decide these constitutional issues until we have two or three more sane justices on it.

Where did you get the Potential Witness (and Mention) List?

Another excellent article by Mr. Lomonaco can be found at The American Prospect.

"Discovery Phase"
10/13/06 Jeff Lomonaco

Thanks for the tip Polly - this one's also very good.

I love it when the Post does this! Speaking of a potential juror, they drop this in the middle of today's report from the courtroom, as though it were just well-known, confirmation of something I've suspected:

And he had gone to parties with The Post's Walter Pincus, another defense witness.

Duh. I somehow missed the sentence two before the one I mentioned, which identifies Woodward as a defense witness too:

He had worked in the paper's Metro section, he said, where his editor was Woodward, a key defense witness.

And here is the article.

One interesting little item from Libby's filing today on jury instructions. They refer to the inclusion in the exhibit list at least one article - Pincus and Allen's 10-4-03 WaPo article on the exposure of Brewster-Jennings, which is intriguing - that was not among the articles Fitzgerald specified as ones he would introduce back in May 2006.

Also this, from p. 8:

the defense may well argue that Mr. liby or government witnesses have mistakenly combined accurate memories of different conversations or events to form one inaccurate composite memory of an event or conversation. Likewise, the defense may argue that Mr. libby, or government witnesses, have remembered the content of a conversation more or less accurately, but have misremembered with whom he or she had that conversaion.

That's about what I've been suggesting. They'll say Woodward was Russert, Kessler was someone else, Judy was earlier and yadda yadda. That's probably their best shot, too, assuming the June 23 Woodward conversation happened before the June 23 Judy conversation.

re Hohlt (donations) and Fierce (background)

One of them could be this guy

FBI agents showed up unannounced last week at the home of a private citizen who was believed to have some knowledge of White House handling of Plame's identity, according to a source involved in the investigation. The source refused to identify the person who was interviewed, but said it was a man who had only peripheral knowledge of the case and had discussed it with officials in the White House.

WaPo 12/26/03

Pincus and Allen's 10-4-03 WaPo article on the exposure of Brewster-Jennings

"Leak of Agent's Name Causes Exposure of CIA Front Firm"
WaPo 10/4/03

Some people not named as "Potential Witnesses and Names that may be Mentioned"

Ashcroft
Gonzales
Wurmser
Fleitz
Douglas Rohn INR Memo

Rove related

Israel Hernandez
Susan Ralston
Viveca Novak

Reporters
David Cloud WSJ
Isikoff

polly

Don't forget our favorite reporter Cliff May, also absent from the list. I can't imagine why. Some righties have expressed full confidence that May and his source were going to be a part of the defense's takedown of Wilson.

Your reminder of that old 2003 article reminded me of the early coverage, which you've repeatedly drawn attention to, of the pursuit of the RNC in this stuff. That sort of disappeared, but I wonder if somehow that is where Hohlt and Fierce fit. I'm still curious which side will be using them, if that's so, to tell its narrative of the early stages of the investigation.

EW-

I've always wondered if the plan was to confuse Russert and Tweety, because the way Libby quoted Russert it sounded much more like Tweety flying off the handle, and it would be very easy for Libby to just say later, oops I meant Tweety, I always get those two confused. And I could see Tweety, the inveterate gossip that he is, getting all excited about something that he thought only he knew.

But possibly it could have been Woodward telling tales out of school. I guess if it were Tweety we would have known by now.

Yeah, I saw Maguire mentioned Cliff May upthread.

On the RNC connection, Waas had this in October 2003

Of particular interest, the two sources said, were contacts between White House officials and the Republican National Committee during the burgeoning scandal. Probers are interested in how the Bush administration and party officials strategized to stymie negative press and to counter public criticism by former ambassador Joseph C. Wilson IV of the leak of his wife's status as a CIA officer.

Waas 10/29/03

That and maybe a couple of other passages from Waas was what I had in mind, polly. I'm curious whether those two Republican bigdonors/lobbyists will be witnesses, or just mentioned in the prosecution's narrative of the underlying events and/or the course of the investigation.

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