The Silence Surrounding Novak's Testimony

by emptywheel

This post follows on my wildarsed guess that one of the things that appears in the two-page gap is discussion of Libby's and Novak's super-secret July 9 meeting. I'd like to point out--and speculate on--several weird bits in Novak's trial testimony. Full credit: Jeff Lomonaco identified several of these in a conversation with me, but I happen to know he's at an undisclosed location with crappy Toobz access, so I'm going to run with it and he'll just have to call in any comments!! Jeff and I have discussed some of these at some length, but I think they make more sense if, indeed, the Libby-Novak meeting is mentioned in the two-page gap.

To make it up to Jeff, here's a link to his book, from which I'm transcribing these bits.

Fitzgerald Objects

The first weird bit is a successful objection Fitzgerald makes when Wells tries to get Novak to say he testified--before the grand jury--that Libby hadn't told Libby anything about Plame. Ted Wells is trying to establish that Novak testified willingly at all times, including about his conversation with Libby. Novak has just laid out how he agreed to discuss Armitage, Rove, and Harlow in an interview after the prosecutors brought waivers from those three people. Then Wells moves to Rove's grand jury testimony:

Wells: I'll show you a copy of your Grand Jury testimony, dated February 25--

Fitzgerald: We'll stipulate to the date, February 25, 2004.

Walton: Very well.

Now, reading this with some distance, it appears that Fitzgerald is trying to prevent Wells from handing Novak his grand jury testimony. I seem to recall, though, that this exchange was a response to Novak's earlier (in his discussion of the interviews with Fitzgerald) claim to have forgotten dates, so it may be entirely innocuous.

Throughout this exchange, however, watch Wells' language. It's never clear (and he seems determined to ensure it remains unclear) whether this grand jury appearance was Novak's only appearance.

Wells: The government has stipulated that you testified before the Grand Jury on February 25, 2004. Is that the first time you testified in the Grand Jury concerning Mr. Armitage and Mr. Rove?

Novak: Yes, sir.

Wells: And you told the Grand Jurors that Mr. Armitage had been your primary source and Mr. Rove your secondary source?

Novak: Yes, sir.

Wells: Did there come a time when you received a waiver with respect to Mr. Libby?

Novak: Yes, sir, at some time I did receive a waiver from Mr. Libby indeed.

Wells: Do you recall when that was?

Novak: No, I don't.

Let me make several points about this. Notice, again, the ambiguity on the date of this waiver. Novak won't give--and Wells doesn't press--for even a rough guess of when this is. One reason for this, I suspect, is that Novak didn't admit to his conversation with Libby until forced to do so later in the case, after his February 25 grand jury appearance. And Libby never admitted to the conversation in his grand jury testimony, so Team Libby doesn't want to provide these details, either. Furthermore, the whole exchange appears to obscure key details about the waiver. In a November 2006 filing, Team Libby suggests that Novak treated his Libby conversation with Libby differently than he did his Rove, Armitage, and Harlow conversations, in which he testified solely based on their written waiver.

Messrs. Kessler, Pincus, and Russert testified about their conversations with Mr.
Libby in reliance on the waiver.

Kessler, Pincus, and Russert testified based on the waiver and verbal reassurance from Libby's lawyer. The other two journalists who testified about Libby, in addition to Novak, are Judy and Cooper, both of whom insisted on direct reaffirmation of Libby's waiver from him. In other words, this line either seems to suggest that Novak stood on his earlier insistence that he only be asked to testify about the three people he described as his source, but then had to testify otherwise. Or, he spoke to Libby personally and got an okay to testify. Wouldn't that be news, given how long both of these men hid this conversation, if Libby got to send Novak some kind of verbal aspen letter before he testified?

Back to the trial, though. Wells tries to get Novak to testify that he didn't give Libby any information about Plame, but Fitzgerald objects.

Wells: And did there come a time when you testified in the Grand Jury concerning Mr. Libby?

Novak: Yes sir.

Wells: And you told the Grand Jury that Mr. Libby had not given you any information--

Fitzgerald: Objection, Your Honor.

Wells: --about the wife?

[Bench Conference]

Wells: We're going to work out a stipulation.

Here Novak was about to say he had told the Grand Jury that Libby had never told him anything about Plame. Fitzgerald objects--and his objection is apparently sustained, because Wells drops this too. As I noted in the liveblog, Novak appeared really pissed about the interchange. Now, as you read the following exchange, keep in mind that the Defense never did get a stipulation to whatever they were trying to elicit from Novak. I suspect some of what follows explains why the Defense dropped that attempt.

Fitzgerald Gets Novak's Lies on the Record

During his cross-examination, Fitzgerald starts by raising what I suspect are two matters of inconsistency in Novak's Rove testimony.

Fitzgerald: Did you have any feeling when you left the green room that you didn't like Mr. Wilson?

Novak: Well, what I--can I give my feeling of how I felt about him when I saw him?

Fitzgerald: Sure.

Novak: He was, usually in the green room people are circumspect, reading papers, reading notes. He was giving his opinion at some length on how things had been done in the Clinton administration versus the Bush in a very loud voice. I thought that it was kind of an obnoxious performance even though I kept it to myself.

Fitzgerald: Did you share that experience and your views with Mr. Rove when you spoke to him that week if you recall?

Novak: I think I might have. I'm not a hundred percent sure, but I believe I might have.

Now I've always believed this Novak story was an attempt to invent an explanation for why, when Novak ran into Wilson's friend on the street on July 8 at a time when Novak claimed to have not yet spoken to Rove or Libby, he called Wilson an asshole. In other words, this seems like Novak's explanation for animosity to Wilson that, in all probability, actually comes from Libby or Rove. And note--three times over the course of questioning, Team Libby tries to get Novak to state that his Rove meeting happened on July 9; all three times, Novak stated he was unsure of the timing, and the first time the date came up, Novak said he thought it was July 8. So Novak seems to be really determined to sustain the ambiguity on the timing of his conversation with Rove, ambiguity that may also pertain to Novak's testimony surrounding that run-in with Wilson's friend.

Next, Fitzgerald raises the 1999 trade delegation to Niger--watch the way this is described.

Fitzgerald: Do you know if, during your conversation with Mr. Rove that week, you discussed anything about a 1999 trade delegation from Iraq to Niger with Mr. Rove?

Rove Novak: I think I did because that was part of the whole issue of the question of whether there had been an attempt to buy yellowcake uranium, an Iraqi attempt to buy yellowcake uranium from Niger.

A couple of points about this. First, Fitzgerald doesn't say whether this is the Mayaki part of the Wilson report, or whether it's the al-Zahawie intelligence tied to the Niger forgeries. Remember that both Libby (on July 8, to Judy) and Ari (on July 9, in public) appear to have conflated these two reports. Further, this is something Novak includes in his column, though in botched form (Novak used 1988, instead of 1999, which if there were a deliberate attempt to conflate the two reports would place an Iraqi-Niger trade delegation at a time when Wilson was in Baghdad). From Novak's column:

Wilson made an oral report in Langley that an Iraqi uranium purchase was "highly unlikely," though he also mentioned in passing that a 1988 Iraqi delegation tried to establish commercial contacts. CIA officials did not regard Wilson's intelligence as definitive, being based primarily on what the Niger officials told him and probably would have claimed under any circumstances. The CIA report of Wilson's briefing remains classified. [my emphasis]

Now this question is incredibly significant given the bits of the Tatel opinion unsealed yesterday. For in the newly unsealed material, Tatel includes a quote from Novak's testimony that he appears to be setting up as support for the argument that Rove was lying.

According to Novak, when he “brought up” Wilson’s wife, “Mr. Rove ... promised to seek declassification of portions of a CIA report regarding the Niger trip, which Rove said “wasn’t an impressive piece of work or a very definitive piece of work”

Tatel appears to believe this is statement supports an argument for perjury; so either Rove testified he said no such thing, or there is a discrepancy about what was said. But consider another really important aspect of this. On July 8 and 9, when Rove is reported to have had this conversation, this report was still classified (as Novak's column makes clear). Yet, Novak says, Rove discussed it and--from the content of Novak's column--someone gave him details of it. This issue is all the more interesting as it would mark Rove as having seen the classified report from the CIA, even while he claimed not to know about Plame. In either case, either Rove leaked details of the report even as he told Novak the report was still classified, or someone--Libby--leaked Novak those details after the Rove conversation.

In other words, this question, from Fitzgerald, appears to be him forcing Novak to repeat testimony that got to the core of the inconsistencies between Rove's, Libby's, and Novak's testimony, inconsistencies that go straight to the question of who leaked Novak classified information.

Fitzgerald finishes off by getting Novak (I'm guessing) to recant some grand jury testimony he has given. Here's the exchange:

Fitzgerald: As you sit here now, is it fair to say you have no specific recollection of discussing Ambassador Wilson's wife with Mr. Libby that week?

Novak: I don't have any specific recollection, as I said in testimony. I might have raised it, but I am not sure. I don't have a specific recollection.

Fitzgerald: The one thing you are clear on though is that you did talk to Mr. Libby that week?

Novak: Yes, sir.

Fitzgerald: So it would be accurate to say that you and Mr. Libby spoke that week?

Novak: Yes, sir.

Fitzgerald: And inaccurate to say that you did not?

Novak: Yes, sir.

Given the earlier dust-up over Well's planned stipulation that, in his grand jury testimony, Novak said he had not spoken about Plame, I suspect Fitzgerald is forcing Novak to admit that in one of his grand jury appearances (presumably his first) he gave inaccurate testimony. That is, I'm guessing that on February 25, 2004, Novak testified that he hadn't spoken with Libby. And then when he was forced, in a later grand jury appearance, to admit that he and Libby had had a significant conversation on July 9, he recanted his earlier testimony.

The Missing Libby Conversation and Tatel

This is why my wildarsed guess that Tatel included details about Libby's Novak conversation is so interesting (well, to me, anyway, and if you've read this far ... !). In the trial, there are a lot of weird exchanges that make a ton of sense if 1) Novak lied in his first grand jury appearance about his Libby conversation, then 2) under some duress and after receiving a verbal waiver from Libby, Novak did testify to correct his earlier testimony that he hadn't spoken to Libby yet  3) there are inconsistencies remaining in Novak's story pertaining to:

• Why he called Wilson an asshole before, he says, he spoke with Rove and Libby
• Who leaked him still-classified information from the CIA report on Wilson's trip

Comments

[ab initio]

Does all this mean that Novakula and Rove and Darth could still be indicted????

[Cranky Observer]

Fascinating, but still leaving us with the question of why Fitzgerald didn't ask the grand jury to indict anyone else besides Libby. What did Rove say in that magic 4th grand jury appearance that suddenly seemed to make all the problems go away for everyone except Libby? How much of Rove's e-mail (esp. that stored on the RNC server) did (and does) Fitzgerld have?

Cranky

[freepatriot]

I'm thinking that maybe Fitz ain't the sharpest tool in the shed, and I'm thinkin I shoulda went to law school, cuz I'm thinkin I could make a damn fine case for an IIPA violation against kkkarl and scooter, just based on what is revealed in the novakula testimony above

and ew, I'm SURE you shoulda went to law school

ever thought of becoming a congressional aid, kinda like Bobby Kennedy was ???

I'd sleep a lot better is you was sitting behind some congresscritter during some of these hearings, handing him notes containing questions to ask the witness, exposing these criminals and liars in front of a camera ...

but there's a dark side to that too, and I hope I don't have to say it's name ...

[emptywheel]

ab initio and Cranky

No, first of all, I suspect that Libby, not Rove, leaked the trip report. Libby already had leaked it, to Judy (then again, he also had already leaked Plame's ID). And I find it implausible that Rove would leak the contents of the report, AND stress that it was classified waiting to be declassified. This also mirrors what Rove did with Cooper--set him to asking for it, but not leak it itself beyond saying--as Novak says he did--that it was inconsistent. Furthermore, if (as Apuzzo reported--though as always with Apuzzo, I'll wait till I see the documents for myself) Fitz was working on an Espionage charge when he wrote the affy to the Appeals court, it may well have related to leaking the indubitably still-classified trip report to Novak.

As to Rove, we still have the problem with the fact that we don't have reliable witnesses (Novak and Armitage) against Rove's primary lies.

As to Cheney, we still have to prove that he ordered Libby to leak Plame's ID and the trip report to Judy and Novak.

[obsessed]

To make it up to Jeff ...

thank you for confirming my long-held suspicion!

[Maeme]

Marcy:
On the 1999 question posed by Fitzgerald - shouldn't it be Novak: (for the response)
instead of Rove: -- maybe, I am not reading that correctly.

[Ishmael]

Freepatriot - I feel compelled to stick up for Patrick Fitzgerald and his incredible lawyering skills. Following EW's liveblog from the trial should be required reading for aspiring courtroom lawyers, he is absolutely superb as a courtroom lawyer, as was all of Team USA in fact. As a fair to middlin' trial lawyer, I was awed by how good he was - as Eliot said so admiringly of Ezra Pound, .... "il miglior fabbro".

The only thing missing from the trial, as I'm sure Jane Hamsher felt after she heroically rose from her sickbed, was Fitz getting a hold of Big Time in the witness chair - how great would this scene have been (and JH is just the person to get it right in the movie!):

Fitz: Did you order the Code Red (against the Wilsons)?
Big Time: YOU'RE GODDAMN RIGHT I DID!

and the Marshalls leading Dick out of court into custody!

[Mauimom]

Marcy, any chance we can get a "round-up" of the importance of all of this info that's leaking out in dribs & drabs, getting brilliantly analyzed by you, but creating a big jigsaw puzzle that we're trying to put together without a picture on the boxtop? I read TNH every day, and I still can't follow more than 40% of it.

Maybe a once every few weeks or so [like when the Critters are out on recess] summary of "what we've learned since last time; where we are now."

[emptywheel]

Maeme

Yes, you're right--thanks.

[BearCountry]

I'm sorry if it is nitpicky, but under the heading "Fitzgerald Objects," the second line has "Libby hadn't told Libby...." It just throws the flow off enough to make the less well versed person (me) say "whaaaa?"

[ecoast]

EW - Re your question about why Novak called Wilson "an asshole" to the man in the street,
Wilson's NYT op-ed on June 6th would have been enough for him. You need nothing more to set rightwinger Novak off.

[orionATL]

freepatriot-

patrick fitzgerald is as sharp and principled a prosecutor as you will find in the united states.

but you probably knew that.

he is also, in my opinion, a superb, disciplined tactician.

think of joe montana at the height of his competence.

none of this is a one-man/woman show.

[Boo Radley]

OT regarding Fitzgerald, his "day job," was as the US Attorney for Illinois. We all now have a better understanding of how important it was for all US Attorneys to "keep their numbers up." Ken Starr never had to worry about that.

[kim]

So maybe the famous Novak meltdown, with Carville (Aug 05), had to do with the "inaccurate" grand jury testimony by the Dark Prince... Carville knew from Matalin that Novak got Plame's name from Libby maybe (my best ad lib of my memory of the issues)??

Glad to see the Plame fires still burning.

[KLynn]

EW,

Thank you so much. After your two earlier postings, I went back to the FDL archives on the Libby live blog to copy this testimony. You got to it and did a great piecing together in this write-up. Hats off to Jeff too. Going back through the archive live blog, many thought Fitz was just okay with his cross on Novak. If you are correct in your last graph (which I think you are), then of course, he was better than okay - he was brilliant, subtly of course! Tatel has been following this better than I expected...That's a big plus...Fitz and his Novak lack of madness, madness,madness really did make sense. Tatel is carefully weighing every GJ word against the trial. For this we can all be thankful. I think Tatel is mindful of his call and the historical significance of his part in this decision.

[pdaly]

I still wonder about the fact that Fitzgerald never puts Novak's name or article outing Plame in his Libby indictment. Fitzgerald does use the publication DATE of Novak's article in the Libby indictment to delimit the investigation of the leak. By contrast the dates, authors and titles of other relevant newspaper articles and editorials are meticulously documented in the Libby indictment.

To a (future) reader looking at this indictment in a vacuum, the (unmentioned Novak article) date in the indictment appears to be arbitrarily chosen--at least unexplained.

As I wrote before, I have no idea how this would help or hurt Team USA (and/or Libby) to include this extra detail, but I assume it does because it was a conscious decision on Fitzgerald's part to leave Novak's name and title of the outing article off the Libby indictment.

[pdaly]

BTW, I think I like the word 'indictment.' It doesn't get used often enough ;)

[Jeff]

Will I lost the link to the book if I acknowledge that the vast majority of this originates with you anyway?

A couple of more mundane explanations for those bits of questioning by Fitzgerald. Several of them, it seems to me, may have been Fitzgerald laying the groundwork for questioning either Rove or Libby, just in case either of them ended up testifying. Getting Novak to acknowledge that he told Rove about his reaction to Wilson in the green room helps to bolster the argument the prosecution made in its closing that Libby's memory was extremely precise when he wanted it to be - he was able to recount in great detail what he heard from Rove on July 11 about Novak's response to Wilson in the green room. (The question of whether this is all or part bs is, of course, another story that was suspended for the purposes of the trial.) It also sets up a possible line of questioning showing that the administration had an animus against Wilson, one of the things Libby was at pains to sort of deny in his gj testimony.

Getting Novak to admit that he talked to Rove about the still-classified Wilson trip report sets up several potential lines of questioning and argument wrt to Rove and/or Libby. First, it enables the prosecution to argue, at least with regard to Rove, that the administration was playing fast and loose with classified information in their response to Wilson. It also sets up the possibility of questioning Rove and arguing about the chain of custody of that information - where Rove got it from. Also, along the lines suggested in the post, it opens up the question of how Novak got the substance of the information about the Iraqi trade delegation.

Separately, let me add that looking back at Libby's 3-5 grand jury testimony, around 110, it's clear Fitzgerald had testimony that Libby had considered preparing a timeline of the preparation of the SOTU for Novak - but it looks like he got this information from Martin, so it's not clear that he had heard from Novak about it at that point. Also of note is that from his questioning, it looks possible that Fitzgerald was at that hypothesizing that it was in that context that Martin talked with Harlow (as she did) and found out from him that Wilson's wife was a CIA agent, as she wrote in her notes, though we now know that that conversation appears to have taken place a month earlier, in June 2003. Recall too that Fitzgerald, in one of his recent filings or the sentencing hearings, mentioned that they initially had doubts about the truthfulness of Martin's testimony. In other words, it looks like in March 2004 Fitzgerald might have been hypothesizing that Novak talked to Libby and Libby agreed, at least provisionally, to prepare a timeline on the SOTU, worked with Martin on it, heard at that point from CIA via Martin about Wilson's wife, and may have communicated that to Novak. That's at least possibly what Fitzgerald was hypothesizing. Of course, it's also possible that by then Fitzgerald had already heard from Novak about his conversation with Libby, though I'm holding out for the possibility that Fitzgerald only went back to Novak about that considerably later.

The thing that completely baffles me is why Fitzgerald objected to the defense questioning Novak about Libby as a non-source for his column, and why that objection at least succeeded in the defense backing off questioning.

[emptywheel]

Jeff

My argument here is that they were depending too heavily on NOvak's GJ testimony, without also admitting the other content of that GJ testimony. In other words, I suspect that Fitz established, with his questions, to expose Novak as a lying shit. So they backed of his GJ testimony specifically.

It's a theory, anyway.

[Jodi]

The whole thing was a house of cards.

[Jeff]

emptywheel

Ok, now I see. But isn't that theory somewhat undermined by the fact that Fitzgerald's questioning of Novak comes after the defense's direct examination of him? Or is your point partly that in the sidebar when Fitzgerald objected, he effectively said, You want to start with Novak's grand jury testimony, I'll take you down an ugly road? Or something like that?

[Jeff]

Jodi

I think it's wrong to suggest tha the defense didn't do a good job of defending Libby.

[bmaz]

Jeff - I might have to disagree with you on the issue of the quality of the defense effort by Libby's team. I was extremely non-plussed by it on numerous fronts. Granted, I have an inkling that many of the tactical blunders may have been caused by micromanagement by Scooter, but there were many other areas that were not particularly slick either. For instance, the long, disjointed, rambling and histrionic statements by Wells, both on opening and closing. That is entirely on Wells, and it did not make for a very attractive nor effective presentation to the jury. I thought they made some poor decisions on voir dire as well; not to mention the pissing off of Walton. It may not have been a "bad" effort, but it certainly could not be considered superb.

[Swopa]

I'm a little squeamish about the entire let's-read-Fitz's-mind school of Plameology (especially since I'm not a lawyer), but it seems to me that since Libby was the one on trial rather than Novak, the point of underlining that Novak/Libby spoke was to impugn Libby's honesty in testifying before the grand jury, not Novak's.

The reason for asking about Novak's dislike of Wilson, and details from the trip report, could be to support the general picture of a personally motivated campaign to attack Wilson's credibility using classified information -- all of which relates to Libby's motivation for leaking about Plame.

[Swopa]

Oh, and regarding the Novak stipulation, Fitz presumably wanted to give as little oxygen as possible to the jury-nullification strategy of "Libby didn't leak to Novak, so why are we here?" -- especially since it's obvious to any reasonably skeptical observer that if Libby talked to Ari Fleischer about Wilson (and his wife) on July 7th, and to Judy Miller about Wilson (and his wife) on July 8th, he sure as hell talked about Wilson (and, presumably, his wife) to Novak on July 9th.

So Fitz would have a clear interest in limiting any line of questioning about let Novak repeat the "Libby didn't leak to me" claim, as well as emphasizing in cross-examination that they did talk (contrary to Libby's GJ testimony).