Live by the Leak, Die by the Leak

by emptywheel

Via firedoglake, I found the latest leak of legal correspondence related to Judy Miller's release, Fitzgerald's letter to Libby's lawyer (PDF) encouraging him to make Libby's waiver clear. My short take on the letter: Fitzgerald was making Libby's existing strategy of giving Judy no easy way out of her waiver very costly to sustain.

But that's not the aspect of the letter that intrigues me most. What intrigues me is Fitzgerald's use of newspaper articles to make arguments about opinions he either should not know or could not reveal. If Fitzgerald continues the practice in his indictments and his court case, there may be some Bush Administration officials who sorely regret their leaking about the case.

Best as I can guess, Fitzgerald is trying to make a case about why Cooper testified and Judy did not without breaking grand jury confidentiality rules and attorney-client privilege. Fitzgerald describes his assumption about why Judy won't testify:

I have assumed that Ms. Miller chose to remain in contempt either in spite of her awareness of Mr. Libby's waiver or because Mr. Libby had decided that encouraging Ms. Miller to testify to the grand jury was not in his best interest.

Then, he cites Murray Waas' August 8 article to support his case.

Ineed, there was press reporting to the same effect:

Sources close to the investigation, and private attorneys representing clients embroiled in the federal probe, said that Libby's failure to produce a personal waiver may have played a significant role in Miller's decision not to  testify ...

Later, he cites a Reuters article quoting Abrams as saying:

"She is there (in jail) for a reason. At this time, the reason is still there. She made a promise and, unless properly released form her promise by her source, she has no choice but to continue to take the position that she's taking," Abrams said.

Fitzgerald even cites an LA Times story to communicate what Luskin had apparently claimed about Rove's release allowing Cooper to testify.

Rove's attorney, meantime, took the view that contacting Cooper would have amounted to interfering with the ongoing court battle between reporter and prosecutor.

In other words, without quoting anyone directly, Fitzgerald describes the legal positions of Abrams and Luskin, then uses his description of those positions to undercut Tate's apparent justifications for not advising Libby to give Judy a further waiver to speak.

Pretty clever, in my opinion. But I've got a soft spot for Fitzgerald, so perhaps I'm not a good judge.

As I said, I think this letter completely undercut Libby's existing excuses for not giving Judy a further waiver. And this was mostly using sourced comments in the press--only Waas' article uses anonymous sources. But imagine what this tactic might give Fitzgerald in indictments or court arguments, particularly if he uses all the unsourced leaks that have been in the press. As I've pointed out before, Bush Administration officials have been working the press tirelessly, trying to make their case to the public. They have, almost certainly, lied in some of those leaks to the press. They have, probably, made some claims they don't necessarily want to defend in court. And, as this letter shows, Fitzgerald (or someone who works for him) reads the press very very closely.

Used to be that Rove (and Libby and Cheney and Bolton) could assume the structure of media confidentiality meant you can leak with impunity.

Well, not any more. As Fitzgerald's success at getting Judy's and Cooper's testimony shows, that's not a safe assumption anymore.

And as Fitzgerald's skillful use of stories in the press shows, it doesn't even take subpoenaing a journalist to give leaks some power in a legal case.

Comments

[Meteor Blades]

Thanks, once again, for keeping this story front and center (if that can be said of a blog with nothing but a front and center). D'ya suppose they'll give you a press pass at the trial(s)?

[dksbook]

Well, somebody from NH should get a press pass. And who will write the book? The three stories I find exhaustively covered here are the Plame story, especially the press-Rove part, the Supremes, and the Flu. Bad news all around, except maybe for The Plame Thing. So that is why I so avidly check in with emptywheel two times a day. It is the closest thing to possible good news I see.

[emptywheel]

Ha! Do you hear that DemFromCT? Kagro? I'm the good news.

Hope I don't let you down, dksbook.

[firedoglake]

Very interesting, emptywheel. If anyone is holding their breath waiting for the press to bust "anonymous sources" who lie to them, they'll probably be there for a while. If Fitzgerald can scare the crap out of faulty leakers and give real consequences to their actions, the faux-First Amendmenters who have been whoring for Judy and whining about all the damage Fitzgerald is doing to a free press should just STFU and say thanks for a valuable public service.

[dksbook]

Now, now, settle down - there's plenty o' love for all y'all in mah Texas heart. It's jes' that some days Ah jes' cain't handle all the bad news...

[Mimikatz]

I'm not sure what you mean here. In court, using something from a newspaper article is hearsay if offered to prove the truth of the statement, as opposed to being offered for some other purpose. Any statement by an out-of-court declarant is hearsay if oiffered for the truth of the matter stated, and is not admissible except in specific, pretty well-defined situations, such as to impeach a witness. ("Now you are quoted here as saying x, which is contrary to what you just testified to. Which time were you lying?")

He could ask something like "Scott McClellan said you weren't involved in the Plame leak. Did you ever give any statements to Mr. McClellan to the effect that you were not involved in the Plame leak?" This wouold not be offered to prove whether Rove was in fact involved or not, but whether he ever told a federal official something which the prosecutor can prove was not true--evidence of lying to federal officials.

This is a very tricky area which I'm sure Fitz knows backwards and forwards. but you are correct in your basic point, that people who go around telling too many lies are likely to be caught in their own web.

[DemFromCT]

Do you hear that DemFromCT? Kagro? I'm the good news.

So I'm the bad news. Sigh. Just shoot the messenger and put me out of my misery.

[Meteor Blades]

Hmmmm. This is nice:

"This is huge, huge, huge," said John Oxford, a professor of virology at St. Bartholmew's and the Royal London Hospital, who was not part of the research team. "It's a huge breakthrough to be able to put a searchlight on a virus that killed 50 million people. I can't think of anything bigger that's happened in virology for many years."

Glad he's so ecstatic. But what I can't find in that article you linked, DemFromCT - at least not directly - is whether this news makes it MORE likely that avian flu will make the human-to-human transition.

[DemFromCT]

It makes concerns about bird flu very real. One doesn't need to go through swine (a bird flu and a human flu simultaneously infect a pig, and the two exchange genes).

BTW, if any one remembers 'swine flu', and why everyone was told to get vaccinated back in the 70's... this is what public health officials feared.

Given enough time, it's great news for R&D.

Given enough time.

[Mimikatz]

People are getting concerned. A friend who had spent last week getting an earthquake emergency kit together asked me what to do in addition about avian flu. I said add Gatorade, Tylenol and ibuprofen, and be prepared to endure periods of isolation for 2-3 weeks and possibly intermittent outages of services. Also, wash hands and build up resistance. Get lots of sleep. If it comes, avoid public transit and places with a lot of people. Telecommute. What I learned from flu wiki and Alphageek's diaries on Kos. I also refer people to Boccaccio's "Decameron" for what it might be like--a bunch of aristos holed up in a country house telling stories to each other to pass the time during the Black Death (i.e., what to do if the TV goes out).

[Kagro X]

Everyone knows that you measure the seriousness of news by how bad it is. Everything else goes on Entertainment Tonight.

[Mike S]

Ot for DemfromCT

Did you see this post about the DHS guy in charge of the Pandemic Response?

http://www.transparentgrid.com/wordpress/index.php/archives/2005/10/05/1174/

[DemFromCT]

yeah... unbelievable..

[AlphaGeek]

Another suggestion regarding flu preparedness: institute (or lobby for) a mandatory sick-leave policy at work. (This is useful for cold/flu season in general, not just extreme circumstances.) The one I've implemented at my company states that you must stay home for a minimum of 24 hours after the onset of cold/flu symptoms, with authorization to leave work expeditiously if you start feeling ill during the day.

It Just Makes Sense when you think about it: if you're not too sick, you can work from home for your mandatory leave. (We're a software/services company.) If you're too sick to work, then you shouldn't be coming in anyway. This policy has reduced intracompany transmission of colds and flu in the last 2 years, judging by sick days taken and anecdotal observation of the number of ill employees seen at work.

[DemFromCT]

AG, companies did exactly that during the SARS epidemic.

[PaintyKat]

Meteor Blades and all - Mentioning of the Swine Flu from the 70s - Ah, the swine flu pandemic that never was. Classic case study for public admin students. Terrible public policy resulting from the scare and added nightmares for the Carter admin.

The pandemic failed to develop as predicted and the vaccine killed more folks than the disease. As I recall from the case study, the original data was flawed, contaminating the predictions, and resultant public policies.

There was some element of military involvement but it may have been as simple as deaths in military populations resulting from the vacs and no comparison the Bush proposed quarantines.

Warrants my refreshing my recall for sure. Pretty foggy recall. Can't remember which Carter principals were most involved in the fiscal and political nightmare.

On a personal note, the vaccine made me sick in the Spring of 1976. First and last flu vaccine for me.
Ann