The Two Redacted Pages

by emptywheel

As I said earlier, the most interesting part of the Tatel opinion is the two-page section that remains redacted (thanks again to Jeralyn for making the opinion available), explaining why Fitzgerald suspects Rove perjured himself in his testimony about Novak and Cooper. I believe that section includes:

• An assertion that Rove lied when he testified that he responded to Novak's story about Plame by saying, "you heard that too?"
• A description of some way that Rove's testimony contradicts Novak's description that Rove promised to declassify the CIA report on Wilson's trip
• A description of Rove's presumably changing testimony about Cooper--and possibly a description about the magically rediscovered Rove-Hadley email
• A description of one more piece of involvement on the part of Cheney

The passage comes after the long passage explaining the Miller subpoena. That Miller passage follows this logic:

• Describes the two Miller calls
• Asserts that, given the other reasons to distrust Libby's testimony, he may have lied about the Miller conversations, too
• Describes the Russert/Libby discrepancies--including the quotes from both men's grand jury testimony that lays out those discrepancies
• Describes proof Libby knew of Plame on July 8 using the Fleischer conversation
• Describes the potential discussion of Plame on Air Force Two and Cheney's other involvement
• Shows that Miller may provide the final piece of evidence for a perjury charge

One important point here is that the quotes from Libby's, Russert's, Ari's, and Cooper's Libby grand jury testimony are all used to support Tatel's argument that there is evidence of perjury. They're very narrowly selected quotes that pertain directly to the case on perjury. Therefore, it's safe to assume that the grand jury testimony that was unsealed today (including quotes from Novak, Armitage, and evidence pertaining to Cheney) also support an argument of evidence of perjury.

Which brings us to the passage on Rove that has just been unsealed. It starts by setting up that, according to both Armitage and Novak, Rove was involved in the Novak leak, all the while admitting that Armitage was also involved.

Although uncontradicted testimony indicates that Novak first learned Wilson’s wife’s place of employment during a meeting on July 8 with Deputy Secretary of State Richard Armitage (see 8/27/04 Aff. at 18), Novak said in grand jury testimony that he confirmed Plame’s employment with Rove (II-153-54), a longstanding source for his columns (II-121-22). According to Novak, when he “brought up” Wilson’s wife, “Mr. Rove said, oh, you know about that too” (II-154) and 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” (II-158). In an October 2003 column describing his sources, Novak identified Armitage’s comment as an “offhand revelation” from “a senior administration official” who was “no partisan gunslinger.” (II-20.) He referred to Rove simply as “another official” who said, “Oh, you know about it.” (II-20, 209-11.)

Upon reading Novak’s October column, Armitage recognized himself as Novak’s source and, as he told the grand jury, “went ballistic.” (II-859-60.) He contacted Secretary of State Colin Powell to offer his resignation (II-862-64) and spoke the next day with FBI and Justice Department officials investigating the leak (II-878-79). “I was very unhappy at myself,” Armitage testified, “because I had let the President down, I’d let the Secretary down, and frankly, I’d let Ambassador and Mrs. Wilson down. In my view inadvertently, but that’s for others to judge.” (II-860.) [my emphasis]

Now this passage does two things. It lays out all the details thus far presented to the grand jury by Armitage and Novak, though not Rove. And it provides some explanation for why Armitage was not charged with an IIPA violation, but it does not say as much. Alternately, it could lay the groundwork for an argument that Novak was lying when he said Armitage was his first source (which would explain why Tatel included so much detail about Novak's sourcing)--but I'll assume for now it doesn't since the passage says that uncontradicted testimony says that Novak first learned of Plame from Armitage.

The following two pages are redacted, and the paragraph following the long redaction reads:

In any event, as with the Miller subpoenas, the evidence sought from Cooper appears essential to accurate understanding of events and could obviously provide information unavailable elsewhere. Thus, again, the special counsel has shown that this evidence is crucial to accurate decision-making by the grand jury.

So the redactions must logically bridge from Rove's involvement in the Novak article to his leak to Cooper. There are several things that must appear in the two redacted pages.

Probably, the paragraph immediately following the newly unsealed material makes some statement that says, "the Special Counsel could not prove that Armitage knew Plame was covert," which would remain redacted as a charging decision. (Or, if Tatel does suggest that Novak's description of Armitage as his source is questionable, the next paragraph would say that.)

It also must include Rove's version of the Novak conversation (which would be protected under grand jury secrecy. This must differ from Novak's in some way. Novak has already said, publicly, that his version, "oh, you know about that too," differed from Rove's in that Rove said, "oh, you heard that too." Clearly, in his subpoena Fitzgerald made a case that this discrepancy--whether Rove claimed to "know" or merely to have "heard" of Plame's identity--was an example of Rove lying. Let me point out that that means Rove's lie about what he said to Novak precisely paralleled Libby's lie, in that Rove appears to have been telling a story about having heard from journalists.

But note the other bit quoted from Novak's testimony: that Rove discussed declassifying the CIA report and that Rove said the report "wasn't an impressive piece of work or a very definitive piece of work." In other words, Rove said something in his testimony about the report--or denied saying anything about the report at all--that Fitzgerald took as evidence that Rove lied. This is really fascinating and possibly quite significant. After all, Rove has claimed not to have known Plame's name when he spoke to Novak. But if Novak testified that Rove mentioned the trip report, it might be a way to place Rove in conversations that address Plame specifically. In other words, this may be the way to prove that Rove learned of Plame from Libby ... or Cheney.

As I said, a significant portion of this redacted space must lay out Rove's testimony about Cooper. It probably tells how Rove initially claimed he never spoke to Cooper, and then, just as Cooper was subpoenaed a second time, Rove magically found the email he wrote to Hadley reminding himself that he had, in fact, spoken to Cooper. It would be positively delicious if Fitzgerald also described the circumstances regarding the discovery of the email--particularly if that email was not disclosed in response to the initial subpoenas. Generally, though, this section would rehearse all of the reasons to believe Rove had lied in grand jury testimony about Cooper.

Finally (and here's my wildarsed guess), I think this redacted passage includes another reference to Cheney. As I noted in my first post on this opinion, two of the longest passages newly unsealed pertain to Cheney's involvement.

Libby testified that while flying back from an event in Norfolk on Air Force Two, Vice
President Cheney dictated several statements relating to the sixteen words controversy, some to be given to reporters on-the-record, others on background and deep background. (I-193-201.)

[snip]

Also, though Libby now claims not to remember Cheney telling him to discuss Plame’s
employment, he told the FBI during a preliminary interview that it was “possible” that he received such instructions. (I-201, 391.) Perhaps indicating the issue was on Cheney’s mind, the vice president’s copy of Wilson’s op-ed, which Cheney cut out and kept on his desk, carries the following handwritten note: “[H]ad they done this sort of thing before[,] send an
ambassador to answer a question? [D]o we ordinarily send people out pro bono to work for us? [O]r did his wife send him on a junket?” (I-308-12.)

But the newly unsealed information doesn't tell us why it included that Cheney information. It doesn't say what I've always said when referring to these details--that Libby was lying in order to cover up Cheney's role in this. It is a seeming non-sequitur. In the same way that there is almost certainly some sentence that gives closure to the Armitage quotations in the Novak passage, there must be some kind of statement that explains the meaning of these Cheney references. But since that explanation appears in the Rove section, then presumably there is some evidence of Cheney's involvement in Rove's lies. Get it?

There's one more piece of evidence to support my wildarsed guess. Look at Tatel's discussion of why what appears to be a perjury case overcomes the reporter's privilege.

Finally, while it is true that on the current record the special counsel’s strongest charges are for perjury and false statements rather than security-related crimes, that fact does not alter the privilege analysis. Insofar as false testimony may have impaired the special counsel’s identification of culprits, perjury in this context is itself a crime with national security implications. [my emphasis]

He starts by making the argument about obstruction that I've been making for so long, suggesting that the lies Rove and Libby told even still might be preventing Fitzgerald from identifying culprits.  That's a particularly curious formulation since Fitzgerald had two suspects, Rove and Libby, in his sights, and if it referred to them you'd think Tatel might have mentioned intent, rather than culprit, which was one of two things preventing an IIPA indictment of them. But it mentions culprit, which suggests that Fitzgerald was prevented from identifying a different culprit--Dick.

And then Tatel goes on to imply that a perjury indictment might be one stage toward further indictments.

Thus, given the compelling showing of need and exhaustion, plus the sharply tilted balance between harm and news value, the special counsel may overcome the reporters’ qualified privilege, even if his only purpose—at least at this stage of his investigation—is to shore up perjury charges against leading suspects such as Libby and Rove. [my emphasis]

The allusion to potential follow-on indictments suggests that Tatel has seen the evidence of something more there. Perhaps it's evidence of intention on the part of Rove and Libby and maybe Armitage, which could lead to IIPA charges. Or perhaps it's evidence of direct criminal involvement on the part of Cheney. But there's something more there--and something in those two redacted pages must support the argument that there is something more. I happen to think it's Dick, but then I see Dick lurking everywhere in this story.

Comments

[emptywheel]

Here's one more interesting thing. Note that Tatel puts "brought up" in quotes when discussing Novak's testimony. Clearly, he felt it important to include that piece of testimony--does the redacted passage provide evidence for why Novak's a lying piece of shit?

[JEP]

"it could lay the groundwork for an argument that Novak was lying when he said Armitage was his first source.."

BINGO!!!

[JEP]

I can't figure why Armitage, from the Powell camp, would put so much on the line to protect Rove, Libby and Cheney...

He and Libby may have had a closer "neocon" relationship than is overt, but it still stumps me how Armitage got tapped to take the rap...

It could simply be that more than one congressinal/military/industrial complex interest had a stake in making this futile war happen, Armitage was one of their top soldiers, and it may well prove that the final impetus for it all was the potential for profiteering, and Armitage was protecting his own stake somehow in guaranteeing the bloody gravy-train would begin.

Forget WMD's, forget regime change, forget protecting Israel, and don't even consider 9-11, when the final decision actually came to go to war, there was one abiding common interest that fueled it; war profits. They knew before it started, the only result would be chaos, and the only beneficiaries would be those profiteers.

Every one else gets to suffer somehow, for their benefit, including, along with millions of refugees and a million dead, the American taxpayer and their precious children.

[Frank Probst]

What document is Armitage talking about that supposedly refers to Plame as a WMD managerial type?

[emptywheel]

Frank

The notes that went into the INR memo. It's a direct quote.

[Frank Probst]

I think there's even more in there than Marcy does. I'm still convinced that Armitage thought he was set up. You don't go ballistic when you fuck up. You sit down, you put your head in your hands, and you say to yourself, "What have I done?" On the other hand, if you think somebody just set you up and totally fucked you over, you would go ballistic. When Armitage found out Novak was calling him his primary source, he wasn't just upset, he was PISSED. It's possible he was just angry at himself, but I think it's far more likely that he suspected someone had fed him the fact that "Wilson's wife" worked at the CIA while deliberately obscuring the fact that she was a covert agent, knowing that Armitage wouldn't be able to keep his mouth shut about such juicy "gossip".

Which brings me back to my original question: What document is Armitage referring to? Who wrote it? And who gave it to Armitage?

[Frank Probst]

I think there's even more in there than Marcy does. I'm still convinced that Armitage thought he was set up. You don't go ballistic when you fuck up. You sit down, you put your head in your hands, and you say to yourself, "What have I done?" On the other hand, if you think somebody just set you up and totally fucked you over, you would go ballistic. When Armitage found out Novak was calling him his primary source, he wasn't just upset, he was PISSED. It's possible he was just angry at himself, but I think it's far more likely that he suspected someone had fed him the fact that "Wilson's wife" worked at the CIA while deliberately obscuring the fact that she was a covert agent, knowing that Armitage wouldn't be able to keep his mouth shut about such juicy "gossip".

Which brings me back to my original question: What document is Armitage referring to? Who wrote it? And who gave it to Armitage?

[Frank Probst]

Sorry about the double post.

Okay, so the document in question is the Ford-to-Grossman memo, which calls Valerie Wilson a "WMD manager". Did Armitage really think that Valerie Wilson was just some secretary who walked around with a clipboard tallying up the nukes? Even for a Bush Administration offical, I'm having a hard time imagining someone this stupid.

[Frank Probst]

Oh, and kudos to Fitz and the judges for pointing out that there's still quite a bit of information that's not out in the public domain yet, which is why there are still things that are redacted. The next logical step for Dow Jones/Wall Street Journal is to interview Armitage and Rove to find out what they haven't told us yet.

You'll forgive me if I don't hold my breath.

[Mimikatz]

I have also thought for a long time that Rove was Novak's first source, and that he steered Novak to Armitage, and then used him as a potential fall guy. But Fitz must have been convinced by Armitage's behavior, going to the FBI, that it really was inadvertent and/or that he couldn't prove Armitage knew she was covert (and maybe he didn't). But Cheney and Libby surely did.

Cheney's hands are all over this, and I still think it was originally designed to steer everyone away from the Niger documents themselves and what Cheney may have known (and when) about the origin and use of the documents. After all, we are now finding out just how much of this power grab and war were in the works before 9/11. He is truly an evil amn.

[Waiting for Truth]

F.P: Valerie Wilson is blonde, right? And attractive, right? And a woman, right? Then it must follow that she is a secretary.

[Mimikatz]

Evil man. So evil he makes my fingers get mixed up.

[freepatriot]

I guess we ain't gonna see a certain skidmark around here for a couple of days, since all the skidmark's pet theories have been destroyed and all

I'm kinda sad that our resident troll is losing so much material here

but on the bright side, now the skidmark is gonna have to come up with a whole new set of talking points, which means the "Laugh" factor is gonna increase exponentally

I always said the wheels of justice grind slowly, but they grind exceedingly fine

look at the skidmark's arguments, all crumbled to dust

what's a skidmark to do ???

[Jeff]

A few questions:

1. Could it really be true, as seemed to be the case, that Dow and AP are unaware that Fitzgerald's 8-27-04 affidavit has large chunks on Pincus, evidently bearing on Fleischer as well as Libby? For my money, that could be the most new stuff. In this connection, I wonder whether the Court might have directed Fitzgerald to unredact this stuff in light of what was disclosed at the trial, as they indicate he took a too-narrow view of what could and should now be disclosed.

2. But more immediately, is there yet any sign of the 8-27-04 affidavit on the public docket yet?

3. Yet more importantly, what about the 9-27-04 affidavit, whose existence I think has not been publicly known exactly until now (it's mentioned by Tatel in the newly unredacted portions of his opinion). I will personally be deeply unhappy if that thing has been sitting out there in some form all this time, just like the 8-27-04 affidavit, and we just missed it. But regardless, any sign of that now? It appears to focus on Cooper and Rove.

[emptywheel]

Jeff,

I'm not sure I understand what you're referring to on #1.

BUt yes, given Apuzzo's story, there was a lot that AP and WSJ were just fucking stupid as shit about.

[freepatriot]

I think the wapo and the ap were INTENTIONALLY "fucking stupid as shit"

come on folks

I could figure it out, and I ain't no rocket surgeon here

I'm on dialup, for pete's sake ...

and I was afraid of the innernets till 2003, so I ain't the swiftest poster in the tubez

you'd have to be a fricken moron to make that mistake ...

[freepatriot]

excuse me, I meant wsj, not wapo

but the statment applies to the wapo in some other areas, so this ain't an apology to the wapo, just the TNH crowd

[bianco]

freepatriot:
"what's a skidmark to do ???"

well it depends (heh) .. are the skids for love or money?

[John Lopresti]

Maybe the Novak memoire now in distribution channels has set enough things in concrete that a new increment of document releases is easier, given all the other redacted and unpublished parts of the body of evidence going as far back as judge Tatel's span presiding over the case.

[Jodi]

: )

I have got to confess I laughed at that exchange.

[radiofreewill]

Let's assume the Downing Street Memo (23 July, 2002) is correct - 'the intelligence and facts were being fixed around the policy' in order to justify BushCo's pre-emptive invasion of Iraq.

2/19/02 - Wilson debunks the Iraq-Niger uranium claim.

September 9, 2002 Hadley and Rice receive the Niger documents from Pollari in an attempt to get them past a skeptical CIA.

September 12, 2003 Bush at UN calls for invasion of Iraq.

Somebody at State pushed out a fact sheet in mid-Dec 2002, that pointed "to efforts to procure uranium ore from Niger, this despite the alleged objections of WINPAC."

By 1/12/03, the uranium claim had been pulled from Negroponte's statement, and State expressed concerns (de-committed) to CIA that the Niger documents were forgeries.

January 28, 2003 - the 16 words in the SOTU.

Powell didn't use the claim in his 2/5/03 UN Security Council Briefing. The INR memo makes clear that after "considerable back and forth" consultation between State, CIA, IAEA and the British, due to CIA concerns that the Niger Documents were forgeries.

March 3, 2003 IAEA declares the Niger documents obvious fakes.

March 20, 2003 Bush Invades anyway.

---

Assuming Cheney and Bush were told that the Niger documents were forgeries both before and after the SOTU - then, they knowingly took us to War under false pretenses.

Doesn't it make sense that Cheney and Bush would be hyper-sensitive to word getting out that he and Bush disregarded multiple notices that the info was fake?

And, wouldn't Cheney have believed that Valerie was in a position to KNOW, due to her WINPAC status, not only that the Niger documents were forgeries, but also the history of the CIA and the intelligence community telling BushCo that the intelligence was fake?

Cheney's worst nightmare in the summer of '03, when no WMDs had been found, was that he would get CAUGHT for having circumvented and disregarded the intelligence community with his nefarious OSP/WHIG operation.

Cheney was AFRAID that Joe - who was going to the papers - would have his wife as a Source, and that she knew the Truth about how BushCo stampeded us into a pre-emptive war of choice.

That's why they went after her.

[...]

i agree radiofreewill... that is a pretty good redition of the unfolding of events in the sequence they came out.. they had to go after her as they knew how shaky there position was and felt the need to protect it for at least a period of time in and around this same area.

[jthomas]

it would be nice if someone here were to recognize the efforts of Jason Leopold in all of this. Go back and read his stories, particularly the one's on Rove, pre the reported indictment and after, and it's clear Leopold was onto something. I think Joe Wilson said it best during his video interview with Leopold. In hindsight, I think leopold's reporting was totally on par with Waas' whether people believe that's laughable or not. History is starting to show that

[orionATL]

this is an exposition i could actually follow,

thanks ew.

why continued redacted?

maybe protecting "innocent accused"

fitzgerald's big on extreme fairness (scrupulosity) in using prosecutorial power,

unlike the u.s. attorneys in wisconsin and alabama.

maybe tatel is protecting info that will continue this matter some time in the future,

maybe just acting on a respect for the executive offices involved.

[Albert Fall]

Mimikatz at 18:55

I agree about Rove and Cheney both having fingerprints on the Plame outing.

Cheney is a skilled inside the bureaucracy guy, but the press was played with a great deal of finesse, which makes me think Rove set up that side of things just because he does it more.

Armitage and Scooter, and maybe others, were sent out to chum the waters in the press, with Rove administering the confirmation of the information?