Libby Trial: Collective Forgetting in the Office of the Vice President

by emptywheel

I'm going to make a not-so-bold prediction. Libby is not going to put Dick Cheney on the stand. And he never intended to.

Here's why. It would be almost impossible to put Cheney on the stand and not expose him to perjury—or force him to reveal that he and Libby talked about leaking Plame's identity with journalists. That's because, according to FBI Agent Bond, Libby testified in his second FBI interview that he and Cheney might have talked about sharing Plame's ID with journalists. So if they put Cheney on the stand, there is almost no way he can answer questions about that July 12 conversation correctly. Either he admits he talked about revealing Plame's identity, or he risks refuting Libby's testimony.

He might opt to admit that he and Libby talked about leaking Plame's identity … if the whole journalist story were more plausible. But there's the rub.

Libby told a story attributing his knowledge, during the week of July 7, to Tim Russert. If it were true that that's where he got Plame's identity, then Libby could say he shared the information with Cheney sometime after the 10^th (or 11^th, as they will desperately argue in an attempt to prove that Russert could have learned of Plame's identity from David Gregory via Ari via Bartlett via the INR memo—my head is spinning!). And that he and Cheney both learned Plame's identity as if it were new the week of July 7, from journalists. And that he and Cheney thought this was news (but apparently didn't think it was news back on June 12, when they forgot it), and thought they should share it with journalists. 

As soon as Libby admitted to talking with Cheney about leaking Plame's identity, he committed to one of two scenarios: either he and Cheney both forgot Plame's identity, both learned it "as if it were new" from journalists, and thought that a piece of news that was forgettable in June was so newsworthy in July that they should share it with journalists. Or, he and Cheney learned of Plame's identity through classified channels and a month later decided to share that information with journalists. We're in the realm of an IIPA violation, folks, barring Cheney claiming that he declassified Valerie Wilson's identity … without telling her (which is where I think Cheney's prepared to go, if it gets that far—that should make the Wilsons' civil suit all the more delectable, I think).

Now there is one out for Scooter and Shooter. Novak. Not only did Rove tell Libby that Novak's impending column would out Plame. But it was apparently on the wires on July 11, early enough for Scooter and Shooter to have learned of Plame's identity once again, "as if it were new," without the implausible story of Russert. (This, I suspect, is why Wells introduced this in his opening statement. He's defending not just Libby, after all, but the whole cabal, so he needs to provide this kind of out.) This of course doesn't explain why Libby and Cheney collectively forgot Plame's identity, having discussed it the previous month, only to remember it again from Novak, "as if it were new." But at least it provides them, collectively, a chain of custody that doesn't entail leaking classified information learned through classified channels if and when the whole Russert story collapses. 

And that's why the mystery non-indictment of Rove and the purported Novak interview post-indictment and the still-unexplained Libby and Novak conversation is so damn enticing. Because Novak and Rove pose different risks for Libby.

Another detail revealed by FBI Agent Bond is that Libby said Rove said that Novak already knew of Plame's identity when he spoke to Rove. That's not a surprise, really—we know Armitage told Novak of Plame, so in fact Novak did know of Plame before he spoke with Libby. But it suggests that Libby testified that Rove never confirmed Plame's identity. By all accounts, however, at some point Rove testified that he did confirm Plame's identity. In other words, Libby's story and Rove's currently operative story probably can't both be true. Rove, of course, seems to suffer from the same curious forgetfulness as Judy Miller, with regard to his source, but there were reports in Fall 2005 that Rove maybe kind of remembered that maybe his source might have been Libby. Not enough to add an indictment on, but enough to make Rove a lousy witness in favor of Libby's story, since it would suggest Libby at some point un-forgot Plame's identity sufficiently to share it with Rove.

Which also might explain why Wells argued, in opening, that the WH threw Libby under the bus to save Rove's hide—it is possible (likely, even) Rove has already testified to something that would ruin Libby's entire little story, and by arguing that Libby got sacrificed to save Rove, they undercut anything Rove might say on the stand.

And then there's Novak. I still believe he'll play a role in this trial. One of the questions Zeidenberg asked FBI Agent Bond, after all, is whether Libby said anything about speaking to Novak during his FBI testimony. I have good reason to believe Libby hid a Novak meeting—hid it for quite some time. And that may be one more detail that gets exposed in this trial. I'm not yet sure what that means, mind you. But I am intrigued by it.

It's possible, of course, that Libby's team, in a fit of desperation, will undertake a scorched earth policy, calling Rove to the stand to expose all of this. (In which case I'd interpret Isikoff's non-story the other day about Rove and Bartlett getting subpoenaed as more than a gratuitous effort to get credit for a false scoop; I'd read it as one move in a giant game of legal chicken.) Boy wouldn't that be delectable! But it appears, at least, that some of the sworn (and unsworn, in the case of Cheney) statements of the key players doesn't coincide.

And one of the quickest ways to make it coincide would be if Scooter and Shooter admitted that they plotted, deliberately, to out Valerie Plame Wilson.

Comments

[lilnubber]

Marcy, I received your book from Amazon today, and it couldn't have arrived at a more perfect time. We've got wind chills way below zero this weekend, so I'm curling up with your book tomorrow.

[QuickSilver]

Emptywheel, what are the odds that Rove flipped and delivered the goods on Cheney?

I've always thought there was some calculated misdirection in that Rove non-indictment story. There certainly was with the Armitage alibi. Did you have a chance to ask Byron York about that?

[emptywheel]

QS

I didn't ask Byron about that--he didn't really want to talk much. Particularly after our appearance.

But I think it's possible Rove gave Fitz enough that further charges for Dick MIGHT be possible. It wouldn't take that much from him, after all (as he could prove that Libby had the intent to leak early on). The biggest problem is that Rove almost certainly leaked Plame's covert status to Novak, so he'd be a terrible witness.

[Jodi]

I thought that Cheney had been interviewed and that the FBI notes and/or GJ/or investigator material would be available to Fitz. If so then what ever question that Fitz might ask if Cheney were on the stand would have already been asked, and checked into.

Libby's problems are a lot of folks seem to think he told them something. He thought NOT. And then his notes seems to indicate same and he still said NOT.

I think all this talk about getting Cheney is just a pipe dream. Even if he did something, he is too smart to leave a trail. As for Libby, I and it seems many that know him don't understand what happened there. I think it was a strategy that depended on a linch pin that gave. Reporters talked.

I believe as has been said over and over that if Libby had just told the unvarnished truth he would not be being tried.

--->>> so maybe he does just have a memory fault?

[Jim E.]

EW wrote: "That's not a surprise, really—we know Armitage told Novak of Plame, so in fact Novak did know of Plame before he spoke with Libby."

Do you mean Rove, rather than Libby at the end?

Bond summarized what Libby said about Andrea Mitchell. From what I read in your liveblogging, Libby went out of his way to say that he specifically remembered that it didn't come up with Mitchell at all. I find that funny since some Libby partisans were convinced that Mitchell was in the midst of this somehow, and there goes Libby blowing that possibility to bits.

This whole time, I've been thinking that Russert is going to be Libby's biggest problem. But now, given the ludicrous statements Libby gave the investigators (and GJ), such as not even knowing Wilson's first name, I'm wondering if Libby's own voice -- on the GJ tapes -- will be his own worst enemy.

[Jim E.]

Also, do you have any opinion on why the lawyers went to sidebar when Dickerson's name came up (on a question asking Cooper if one of his sources was simply Dickierson), or why the lawyers seemed to stay away from talking about Dickerson's source?

[Jerry Fear]

Marcy,
I have no clue how you would hve energy to write comment, after wearing your fingers raw all week. I know you are a lawyer, but I'd swear that you trained in Court Reporting as well, and they didn't do it directly in English, back when. Your work is greatly appreciated. The inside/outside collaboration has also worked well.

Thanks for all of us.

[Jim E.]

The DOJ webpage has the edited video clips from McClellan's press conference up. Some of them are less than 5 seconds long.

Any thought as to why Fitz tried so hard to be able to show video of McClellan? Is it because he wants to get away from transcripts as much as possible and let the jury watch stuff? Because, to be honest, McClellan is not that compelling. Two of the C-SPAN clips are like 4 seconds long, and show a reporter half the time. One clip seems like it is two seconds long. Doesn't really seem like that big a deal to me, although its cool the DOJ put in on the web.

[emptywheel]

Jim E

Yeah, I meant Rove. But we will learn that Libby spoke to Novak that week (I'm fairly certain Wells said as much in the opening).

As to the sidebar, I don't know. I suspect that it had to do with the meaning of source. There was a funny sidebar when Jeffress was trying to accuse Ari of leaking to Pincus, which seems odd since if Ari were Pincus' source, it'd be admissible as impeachment. But there's still something funny with the whole Ari story that may come out if Gregory testifies.

FWIW, Dickerson was still sitting there in the media room when this occurred, insisting that Ari didn't tell them that about Plame. So Fitz may have compelling evidence from Gregory already to that effect--who knows?

And as to McC, I guess it's to make sure the "voice" of the WH gets in there. Keep in mind, it was read with Kedian reading the part of the journalists, so the jurors saw a Q&A, kind of. But yeah, it would have been a lot more fun if they would have let Fitz play the entire clip, which really was pretty impressive in toto.

Jerry

Actually, I'm not a lawyer.

[QuickSilver]

She's no lawyer, she's a Comp Lit Ph.D.

I'd argue that emptywheel has better skill set thanks to her particular academic training than she would have gained from studying the law.

[&y]

This is an excellent post, emptywheel. All your great work since the trial started has left me speechless. It's all I can do to keep up with the reading. Thank you.

[John Casper]

emptywheel, off topic, but imho, something I learned from you is surfacing, the importance of James Comey. It sounds as though Scooter and I bet Addington and many others basically told the FBI a version that was a lot closer to the truth, because it was prior to Ashcroft recusing himself at Comey's demand/request (Dec. 2003). They thought they could count on Ashcroft protecting them, so why take a chance on actually lying. Plus, they were damn proud of what they had done. It's only because of Comey that we got Fitz on board and now there's another round of GJ testimony. It sounds as though Addington didn't change his testimony before the GJ, but Scooter did.

[William Jensen]

While I agree that there is far more than meets the eye, I don't see Fitz bringing any of this up. His case is tracking the indictment pretty closely and he seems to be keeping his case as simple as possible. He is finishing up with Russert, who is likely his best witness. It seems that he is looking at the indictment.

The real question, which you have hit on, is what will the defense do. I don't see this case going six weeks. I'm guessing the defense will rest without putting any witnesses on. Putting witnesses on the stand is just going to open more issues up that will embarrass the Administration and poison Libby's defense. The potential costs of putting Rove, Cheney, Bartlett, etc. far exceeds any benefits.

The costs of putting these guys on is to make this Administration and Libby's defense look even worse than it does now. And what would be the benefit? Perhaps it would distract the jury from the claim in the indictment, i.e. Libby's claim to the FBI and his testimony before the Grand Jury regarding conversations with Miller, Cooper and Russert.

Isn't Libby accused of lying to the FBI and the Grand Jury about the content of those three conversations? If so, why would any of this other stuff even be relevant, at least with respect to this trial - obviously, a CIA agent's name was disclosed and no one appears to be held responsible for it, which is the real problem in my view.

If I were Libby, I'd rest and simply argue that Miller and Cooper are mistaken. How to respond to Russert? Well, only time will tell and I'll wait to hear from you next week. Thanks for the updates. My train rides home every night have been fascinating and it's due to you.

without there . Frankly, it seems to me t

[mickey]

Libby: Don't Release Grand Jury Tapes

Does this mean you're not going to be able to "live blog" the tapes? Or does this mean that your "live blog" is going to be the world's only portal to these tapes?

[wtmesq]

Honestly, I never thought they were going to call Cheney. I think it was 100% for jury selection purpose. Once they offed all the Cheney haters, as so many of us are, maybe they could finally get poor scooter a fair trial.

[cgreen]

I thought Cheney (sometime before the Nov. elections, as I recall) stated he would never appear in court (some of his unitary executive stance) and I took that to mean he would not come to Libby's. Since the law could compel him, maybe he was just expressing confidence he would never be called.

[cgreen]

Found the news item.
Was in re: appearing before congress. Not federal court.

http://thinkprogress.org/2006/11/05/cheney-testify/

[Canuck Stuck in Muck]

Hey, Marcy. Take a look at the date on the hand written memo, GX104 (http://www.usdoj.gov/usao/iln/osc/exhibits/0130/GX10401.PDF). Maybe my tinfoil hat is on too tight, but if you're right, Libby would not want the world to know that he knew anything on June 11th. This document image is such high resolution that you can really zoom in on the date. Notice that the initial numeral one is a slightly tipped vertical line with a half hook at the bottom. If you zoom in on the overwritten second numeral, you'll see that the 2 is written over a previous numeral with the identical tipped vertical line ending in a half hook. It also looks to me as if there was some consternation about which numeral to superimpose on the 11, because the top half of the 2 almost looks like a closed loop. Again, if you look closely you can see at least three strokes--the original 11, something that looks like the lower left-hand part of a closed loop, and the multiple iterations of the numeral 2 overtop all. Like I said, maybe the hat's a little too tight. Or I'm a bear of very little brain. One or the other.

[Ardant]

From WaPo and other sources I've seen "Fitzgerald said Libby learned Plame's identity from Cheney and discussed it with journalists. Libby says he forgot about his conversation with Cheney and, when he heard about Plame from a reporter weeks later, it struck him as new information."

I've read all of ew's great live blogs, but have I missed this or is this still the missing piece about Cheney (via Tenent?) to Scooter. Have we seen evidence of that yet? Or is this item for Congress?

Thanks, anyone.

[pow wow]

Canuck Stuck in Muck - I'm with you on that interpretation of the note's date and its potential significance. Just posted a comment at the end of the last thread, with regard to that exhibit and the conversation that Libby has claimed it references.

Ardant: No - we've seen nothing publicly that I'm aware of with regard to how Cheney learned (independently of Libby) what he supposedly relayed to Libby on June 12 (or so) about Plame's connection to the CP unit of the CIA's Directorate of Operations.

[LabDancer]

Emptywheel - It seems everyone wants a piece of the hot pundit now! Ach, you deserve it.

I've had this thought for some time, and I have to ask whether you recall hearing something on this while doing the LBJ this last week.

Something most reality-based security types know but AEI/neocon buffoons do not is that for some years now there's been a computer program that first duplicates hard drives and then allows for the duplicate harddrive to be searched for the remnants of erased files, including erased emails, which are stored in a 'temp' file on the harddrive.

My thinking has been that with (1) Ashcroft dragging his feet in responding to the CIA's request for investigation, then (23) whatever-in-hell Abu G did with what he heard from the State Department's lawyer Taft after Taft was called by Powell and Armi, then (3) the delay while Ashcroft went all farn from the combination of severe conflict and moral brain spasm before recusing himself (resulting in Comey receiving the authority to choose the Special Prosecutor), and finally (4) whatever-in-hell Abu G did before he passed on to the White House Fitzgerald's subpoena of records, there was more than enough time for Libby, and Rove as well of course, to delete their relevant files.

It strikes me that if someone like me knows about that computer data recovery program, then someone like Luskin sure as hell would; and so would know to advise his client of it. Rove impresses me as someone who would surely hide incriminating files and emails for as long as convenient, but would never obliterate them, because such information is currency in his world.

If the time came when Luskin felt he had to advise his client that he needed a miracle to avoid indictment, then just as Rove turned to a Democratic lawyer when he really needed effective legal representation, Rove would turn to the 'miracle' he had squirrelled away for such a very rainy day - his end of the email trial, or at least the location of the harddrive from which his files had been erased. If one has that, it no longer matters what the other party to the communications has done with his records.

Back to what's been going on in court. I've read some things that support this speculation (that is, consistent with, or at least not inconsistent with, the known facts), but I've been reading so much on this case lately I don't know if anything that hints of it has come up in or around the trial. I'd be happy to spend some time 'recovering my memory' on what I've seen, but that still wouldn't provide me comfort on what if anything is going on in court.

Final thought, somewhat related: Assuming Thing thinks at the keyboard, I'd sure want to have see all his drafts of his July 14, 2003 hit before it reached his standards for publication.

[Ardant]

Thank you pow wow.

[Fitzmas]

The Insanity Defense...

Clarice Feldman’s "live blogging" is certifiable.

Dishing on fellow bloggers and NPR:

"Jeralyn Merritt has been hands-down the most conflicted person covering this case, since she is both a Bush-bashing progressive and a defense lawyer with no natural affinity to prosecutors.
Jeralyn is a very pleasant, good natured person used to hearing 2 sides of things.

EW has to me the determined mien of an old time prohibitionist. I appreciate her stenography..the rest not so much.

Dishing on fellow bloggers and NPR:
Jeralyn Merritt has been hands-down the most conflicted person covering this case, since she is both a Bush-bashing progressive and a defense lawyer with no natural affinity to prosecutors.
Jeralyn is a very pleasant, good natured person used to hearing 2 sides of things.

EW has to me the determined mien of an old time prohibitionist. I appreciate her stenography..the rest not so much.

Dishing on fellow bloggers and NPR:
Jeralyn Merritt has been hands-down the most conflicted person covering this case, since she is both a Bush-bashing progressive and a defense lawyer with no natural affinity to prosecutors.
Jeralyn is a very pleasant, good natured person used to hearing 2 sides of things.

EW has to me the determined mien of an old time prohibitionist. I appreciate her stenography..the rest not so much.
Dishing on fellow bloggers and NPR:
Jeralyn Merritt has been hands-down the most conflicted person covering this case, since she is both a Bush-bashing progressive and a defense lawyer with no natural affinity to prosecutors.
Jeralyn is a very pleasant, good natured person used to hearing 2 sides of things.

EW has to me the determined mien of an old time prohibitionist. I appreciate her stenography..the rest not so much."

http://patrickjfitzgerald.blogspot.com/2007/02/insanity-defense.html

I would take this as a compliment if you are familiar Clarice. ;)

[Fitzmas]

oops, please delete that post

[pollyusa]

Then, on a long Bush trip to Africa, Fleischer and Bartlett prompted clusters of reporters to look into the bureaucratic origins of the Wilson trip.

Newsweek 7/17/05

Newsweek has the same information Dickerson reported that he received (look into the origins of the Wilson trip), probably from Lippert. Newsweek has Bartlett telling reporters as well as Fleischer .