Random Details from the Presentencing Memo

by emptywheel

Jeff argues that the most important news in the presentencing memo is that Plame was covered by the IIPA statute.

First, it was clear from very early in the investigation that Ms. Wilson qualified under the relevant statute (Title 50, United States Code, Section 421) as a covert agent whose identity had been disclosed by public officials, including Mr. Libby, to the press. (p. 12)

Here are some other tidbits of interest.

It's All About Dick

First, there are the several times when Fitzgerald suggests that Libby's lies served to protect Dick. First, this mention, where he doesn't name Dick.

First, they made impossible an accurate evaluation of the role that Mr. Libby and those with whom he worked played in the disclosure of information regarding Ms. Wilson’s CIA employment and about the motivations for their actions. [my emphasis]

This one where he points out that Dick may be behind the whole thing.

Moreover, in assessing the intent of these individuals, it was necessary to determine whether there was concerted action by any combination of the officials known to have disclosed the information about Ms. Plame to the media as anonymous sources, and also whether any of those who were involved acted at the direction of others. This was particularly important in light of Mr. Libby’s statement to the FBI that he may have discussed Ms. Wilson’s employment with reporters at the specific direction of the Vice President.

This one where he suggests Libby and Cheney coordinated Libby's story.

The evidence at trial further established that when the investigation began, Mr. Libby kept the Vice President apprised of his shifting accounts of how he claimed to have learned about Ms. Wilson’s CIA employment.

And my favorite, suggesting "coordination." You know, as in conspiracy...

To accept the argument that Mr. Libby’s prosecution is the inappropriate product of an investigation that should have been closed at an early stage, one must accept the proposition that the investigation should have been closed after at least three high-ranking government officials were identified as having disclosed to reporters classified information about covert agent Valerie Wilson, where the account of one of them was directly contradicted by other witnesses, where there was reason to believe that some of the relevant activity may have been coordinated, and where there was an indication from Mr. Libby himself that his disclosures to the press may have been personally sanctioned by the Vice President.[my emphasis]

Given all those mentions who do you think Fitzgerald was thinking of when he wrote this?

Peremptorily closing this investigation in the face of the information available at its early stages would have been a dereliction of duty, and would have afforded Mr. Libby and others preferential treatment not accorded to ordinary persons implicated in criminal investigations. [my emphasis]

See also, "Shorter Fitz: No One Is Above the Law."

Comstock's Tripe

Then there's the bit where Fitzgerald gives Comstock her due. (Doo? Doo doo?) He doesn't mention the standing ovation Libby's shills gave him last week. But he does note the tripe posted on the Libby Defense Fund website.

These arguments mirror comments made by the defense’s public relations team and posted on the defense website, www.scooterlibby.com, before, during and after the trial. The submission of these arguments on Mr. Libby’s behalf is well known to Mr. Libby and his attorneys, and while they have not to date explicitly embraced these arguments, neither have they disavowed them. The government submits that these arguments are completely at odds with the kind of contrition that normally is a pre-condition to leniency.

As I sit here, Jane's working on a post on this passage. And no one--no one besides Digby, anyway--does Comstock justice like Jane does. So look for that post. Oh, here it is.

Why Armitage and Rove Didn't Get Charged

And for wingnuttia, Fitzgerald provides this explanation of why Armitage and Rove didn't get charged:

Finally, it remained to be determined whether the accounts of various persons who disclosed the information to the media were truthful, and, if not, whether any false statement made could be proven to be intentionally false.

Huh. You mean a lawyer isn't going to charge something he doesn't have a lot of confidence he can prove? Go figure.

Judy's Success Story

Finally, this passage deserves some close reading.

While not commenting on the reasons for the charging decisions as to any other persons, we can say that the reasons why Mr. Libby was not charged with an offense directly relating to his unauthorized disclosures of classified information regarding Ms. Wilson included, but were not limited to, the fact that Mr. Libby’s false testimony obscured a confident determination of what in fact occurred, particularly where the accounts of the reporters with whom Mr. Libby spoke (and their notes) did not include any explicit evidence specifically proving that Mr. Libby knew that Ms. Wilson was a covert agent.

Here, Fitzgerald is coming as close as he ever has to commenting on whether he believed that Libby violated the IIPA statute. In the guise of explaining why Libby wasn't charged with the IIPA (Fitzgerald makes no mention of the difficulties in prosecuting an IIPA case given Libby's ready access to one of the best greymail specialists in the country), he says that "the accounts of the reporters with whom Mr. Libby spoke (and their notes) [that would be Judy] did not include any explicit evidence specifically proving that Mr. Libby knew that Ms. Wilson was a covert agent."

"Explicit evidence specifically proving."

In other words, there was a good deal of evidence suggesting that Libby knew Plame was covert. Like the way he met Judy offsite and called her on a safe line and so on, not to mention his description to Ari that it was "hush hush" and his attempt to shush David Addington while he was inquiring about paperwork relating to Joe Wilson's earlier Niger trip. But Judy's testimony and her notes did not include any "explicit evidence specifically proving" that Libby knew Plame was covert.

That WINPAC ruse sure worked like a charm, didn't it?

Congratulations, Judy. In addition to helping drum up the biggest foreign policy catastrophe since the Greek expedition to Syracuse, you succeeded marvelously well at protecting your buddy Scooter.

Comments

[pwrlght]

Can I hope that Walton gives Scooter more than 3 years? He can - can't he?

[Bustednuckles]

God I love it when you get into the weeds.
Thanks Marcy.

[bmaz]

Heh Heh. Don't blow off all your steam just because the sentencing memo was posted today, a Friday before a holiday weekend. We have a full ten days until sentencing and we want the wrath to crescendo at the right moment and when the eyes of the judicial "decider" are focused. I want a report tomorrow on whether these sitting ducks pop up for slaying even in your sleep. My bet is they will. Enjoy your weekend.

[Ardant]

If 2 and 1/2 years is the best we can get here, with jail time during appeal processes, no appeal approval, and even with a pardon, I'll take it. These people are loathsome. They are proud of this and the rest of their destructive, selfish actions? They giggle at their "success".

ew If I remember correctly you live-blogged during the trial that Comstock (I think) had ashes on her phohead for Ash Wednesday. Good thing for me I was sitting down for that one. Ashes to ashes, dust to dust.

[Jeff]

I certainly think the Cheney stuff in the memorandum is significant. And I've also strongly suspected for a while that Fitzgerald did in fact believe that Plame was covert under IIPA, though to get there required some fairly acrobatic interpretation of the August 27, 2004 affidavit's 28n15. The significance here is that we've got a flat declarative sentence from Fitzgerald that they believed Plame was covert under IIPA. And that means that Toensing et al are simply flat wrong.

Because her argument is not that Plame was not covert, which I'm sure she'll somehow manage to keep claiming. Her argument has been that Fitzgerald and the investigators knew early on that Plame was not covert, and therefore IIPA could not even conceivably have been violated, and therefore the entire premise of the investigation was flawed and it should have been terminated immediately, thereby eliminating the very possibility of Libby committing the acts for which he has now been convicted and showing the inappropriateness of the whole thing.

But that is just simply wrong, we now can say with certainty. It is the premise of Toensing's argument that is simply wrong. Fitzgerald and the investigators became convinced early on that Plame was covert under IIPA, so the remaining questions were what the relevant actors knew about her status and what their intent was in disclosing classified information about her to reporters.

Oh yeah, Novak also threw a fit about whether Plame was covert under IIPA or not.

And of course since the definition of covertness under the poorly written IIPA is a statutory matter, to prove it, it would have to be proven in court. But we now know that the government believed that Plame was covert under IIPA. It undercuts a major criticism of the investigation from Team Libby.

[bmaz]

pwright - You can hope, but the odds are not good. My last merlot induced calculation had the sentence at 29 months. I am toying with amending that to 26 months. Many out there seem to feel I am being to optimistic as to length; but I have a feeling Walton still feels a little punkd by Libby and his team, as well as put off by their dog and pony show since the conviction. Keep in mind that Walton has known all along the true status of Plame and Brewster-Jennings and can see right through the disingenuous and duplicitous bunk to the contrary.

[bmaz]

Jeff - I fully believe that the Court long ago made a specific determination that she was indeed covert under IIPA during a pre-trial evidentiary consideration under CIPA, but it is not part of the public record. EW will undoubtedly comment on this, but that has always been my analysis. Additionally, if you are around good prosecutors, you learn to read between their lines. When Fitz made the statement at the filing og the charging document, he effectively stated that he had determined as a matter of fact and law (at least for his purposes as the representative of the US Government) that she was covert under the act.

[Markinsanfran]

EW, you gotta check this website: http://scooterlibby.org/

I was thinking about registering that domain, but someone got there first. It does appear to be for sale though...

[Albert Fall]

Before testimony, Goodling was the black box--we didn't know what was inside, and it was less than we hoped, but more than nothing.

Now, Judge Walton is a black box. He can take judicial notice of the corruption of the DoJ by the Bush administration, he can place the Plame case in the context of a larger abuse of power, he can note Libby's high status, and on all those bases can deliver a much longer sentence.

My vote for a sentence: "25 years, starting now, see ya."

We don't know what he will do. But he has the grounds and the authority to do as much as we would hope.

[Jeff]

When Fitz made the statement at the filing og the charging document, he effectively stated that he had determined as a matter of fact and law (at least for his purposes as the representative of the US Government) that she was covert under the act.

Incorrect. On the contrary, he was quite explicit about not touching the issue of her covertness with a ten-foot-pole. I defy you to show where in the transcript of Fitzgerald's statement he stated, effectively or otherwise, what you claim.

And out of curiosity, what is the basis for your belief that the Court determined she was covert under IIPA during the CIPA process?

[Jeff]

bmaz

Also, even if you were correct about reading between the lines, it's non-responsive to my point, which is that it is significant that it no longer requires reading through the lines to discern that investigators concluded early on that Plame qualified as covert under IIPA. There's just no denying it now from Toensing and the rest.

[bmaz]

Jeff - Agreed with your last. I am flat beat from my own ten hour day in the local justice system, if I can find the energy, I will go back and give you the basis for my statements. On the Fitz statement, I am certain you have seen the same thing I referred to; just interpreted it differently. Without going back and retrieving the exact language, it has always been my take that Fitz is VERY careful with his words and that was a carefully drawn statement and indictment and I firmly believe that he left that interpretation there in between the lines intentionally to combat the already high volume "no IIPA crime" tripe. I may be wrong, but I have thought that from the day it happened. Now for the rest of my diatribe that you challenge, I can back up that hypothesis, but unlike EW, I cannot do it off the top of my head. The thin basics I can recall right now are that there was an evidentiary determination or something to that effect in relation to Judy Miller's compelled testimony to the grand jury, refusl to comply and order to jail made long before the trial. It was made by a Judge other that Walton (Tatel?); may even have been a panel. At any rate, there was a sealed affidavit from Fitzgerald submitted in relation to the determination. By the way I read the decision at the time, and the subject matter at bar, I thought it was pretty damn clear that Fitz had to have avowed that Plame was covert in the affidavit that was sealed.

[MayBee]

bmaz- Judge Walton explicitly stated during the Libby trial that he had no idea what the status of Valerie's covertness was. I find it hard to believe that he would say that if he had in fact made a finding or knew of a finding regarding her status.

Jeff: no longer requires reading through the lines to discern that investigators concluded early on that Plame qualified as covert under IIPA. There's just no denying it now from Toensing and the rest.

I think as long as that goes uncharged and unproven in court, there will be legitimate denying of his current assertion.

EW: That WINPAC ruse sure worked like a charm, didn't it?
You mean the ruse where Foley was named as Valerie's boss in Wilson's article in Vanity Fair? Or do you mean the ruse where WINPAC is listed at Valerie's employer in the introduction to Joe's softcover edition of his book via VinceCannistraro

Contrary to the Senate Intelligence Committee’s reporting, former CIA official Vincent Cannistraro said that Plame worked undercover for the Center for Weapons Intelligence, Nonproliferation, and Arms Control, or WINPAC. (Wilson xl)

(via The Next Hurrah, Oct 2005)

[bmaz]

Boy, I have stepped into a hornet's nest here haven't I? Maybee, I don't think that is how Walton phrased it and I find it hard to believe that he would not know. Perhaps I am nuts, but I have thought you had to be willfully ignorant and dismissive of the available facts to not believe she was a covered asset under the IIPA from the time the CIA first promulgated their initial complaint. But that is just my opinion; which, coupled with 25 cents, won't even buy a phone call anymore.

[Jeff]

I think as long as that goes uncharged and unproven in court, there will be legitimate denying of his current assertion.

Oh please. What you can and I'm quite sure will go on denying is that Plame was covert under IIPA. What you cannot legitimately deny is the different claim that investigators determined early on that Plame was covert under IIPA. In denying the first claim, you're going to simply argue that the investigators, who had a lot more information than you or me, were wrong in their determination, and you'll point out that they never proved it beyond a reasonable doubt, and it's a statutory definition, not something that corresponds to anything in the reality of the CIA (where Plame was undercover, period). And that's fine. But crucial to Toensing's argument has been the denial of the second claim. That is, Toensing et al have argued the investigation was illegitimate because it had no basis because the investigators knew that Plame did not qualify as covert under the IIPA. And that is an argument that can no longer legitimately be made.

Again, Toensing et al will undoubtedly shift ground and argue that the determination by Fitzgerald and the investigators that Plame was covert under IIPA was itself a manifestation of their bias, or some such nonsense. But they can no longer argue that Fitzgerald himself knew that Plame was not covert under IIPA, and that therefore no violation of IIPA could even conceivably have occurred.

[Jeff]

emptywheel

called her on a safe line and so on

hmm.

[Jeff]

That WINPAC ruse sure worked like a charm, didn't it?

Do we know whether that was reflected in her notes?

[MayBee]

bmaz, according to several sources, including Marcy's liveblogging on January 29, here is what Judge Walton said:
1:48

Btw, Dickerson is upstairs in the court room, everyone wants to know why this is different than what he reported.

Now Ari has a kind of pouty face on.

Walton, In reference to the Witness' testimony about what he read in the newspaper. That testimony is only relevant as it relates to his state of mind was. It has no relevance to this case. I don't know based on what has been presented to me, what her status was. It's totally irrelevant to this case.

Now, you can say it is willful ignorance, but please keep the difference between other peopl'e willful ignorance and your own wishful thinking.

[MayBee]

That WINPAC ruse sure worked like a charm, didn't it?

Do we know whether that was reflected in her notes?

Do you think she got it from Cannistrano?

[Jeff]

MayBee

Any time you're prepared to respond to my response to you explaining why you're wrong about whether Toensing and you et al can legitimately claim that Fitzgerald knew that Plame was not covert, I'm ready for it.

In the meanwhile, let me note that while I don't think bmaz is right, it's worth noting that Walton was being emphatic for the purpose of making his point to the jury, but at the same time he slipped in an important qualification. What he actually said is:

I don't know, based upon what's been presented to me throughout this trial, what her status was. But in any event, whatever her status was, that's totally irrelevant to this case. That's not an issue that you should concern yourself with. And you cannot, in any way. Use that testimony in your assessment of Mr. Libby's guilt or innocence in this trial.

And of course I don't think Miller got it from Cannistaro. Don't you know that smart righties take the view that Libby took one for the team, and that Plame was indeed part of the story, and Libby was perfectly within his rights to raise her role with reporters?

[bmaz]

Jeff, thank you for saving me the keystrokes to respond to Maybee. As to the rest of your disagreement with my thoughts, you may be right and I might be wrong. Or not. I don't know, and I certainly don't claim that my thoughts are definitive in the first place. I actually think, based upon recollection, the interpretation of the Miller determination is much stronger than you might think, but cant' prove up my conclusion thereon because, ultimately, the affidavit is sealed. To be honest, this is a pretty interesting discussion, but I think we are in agreement in the greater scope of things, just for differing reasons. I certainly respect your thoughts, you are very informed on all this, and that is a good thing.

[MayBee]

Jeff-
I'm not going to make Toensing's arguments for her. They are not my own.

As far as Walton's statement, he made it several times in several different ways. Do you have transcripts? Can you quote all of the times he said it? I actually think that is unnecessary. He seems not the type to imply something without meaning it by making clever qualifiers. There was simply no reason to bring his own lack of knowledge into it unless he was making a strong, clear point.

And of course I don't think Miller got it from Cannistaro. Don't you know that smart righties take the view that Libby took one for the team, and that Plame was indeed part of the story, and Libby was perfectly within his rights to raise her role with reporters?

I really don't know what this has to do with Judy supposedly having some sort of a WINPAC ruse to cover for Libby, when many of Wilson's own supporters have tied Valerie to WINPAC.

[bmaz]

Well Maybee, I guess I'll field this one. To the best of my recollection, Walton indeed consistently parsed his words exactly along the lines Jeff indicated. As to your "There was simply no reason..." pronouncement, what part of maintaining jury neutrality on an irrelevant and immaterial tangential issue do you not understand? Clearly, you have spent little time in jury trial courtrooms, because trial judges engage in ruses of this very nature every day to keep the jury on the right track and off of tangents involving inadmissable and/or irrelevant evidence.

[Jeff]

I'm not going to make Toensing's arguments for her.

Ok, just to be clear then, when you responded to my initial argument against Toensing's position, and when you responded by citing one of my explicit citations of Toensing, you weren't taking her part in that argument. Ok. And furthermore, when you said

I think as long as that goes uncharged and unproven in court, there will be legitimate denying of his current assertion

you simply misunderstood what I was arguing against Toensing, right? You're just saying that it remains contestable whether Plame was in fact covert under IIPA, correct? You're emphatically not contesting the actual claim I made, which is that it is now incontestable that Fitzgerald himself determined and believed that Plame was covert, correct? Unless I hear from you otherwise, I'll take that as conceded.

Because at the moment that's good enough for me, since Toensing's entire argument falls apart on that basis.

As for the Winpac, I don't understand why you brought Cannistraro into it in the first place. And we know for certain that Plame worked not at Winpac but at CPD.

[MayBee]

Yes, bmaz, it is true that I have spent little time in front of a jury. However, you are making an assertion with no evidence. We can agree to disagree, but unless you can come up with more than your own gut feeling and recollection, I'm afraid I'll find you unconvincing. Find me something besides your own gut feeling, and I'll listen.

As for this: pronouncement, what part of maintaining jury neutrality on an irrelevant and immaterial tangential issue do you not understand?
no part. There is no part of your statement that I do not understand.

trial judges engage in ruses of this very nature every day to keep the jury on the right track and off of tangents involving inadmissable and/or irrelevant evidence.

Fascinating. I didn't find Walton to be the ruse type, however, and he had every ability to make his point without employing a ruse. I could be wrong. You could be wrong.