Plame Affair: Some Notes on Notes

by emptywheel

When everyone read the tea leaves Fitzgerald put up on his shiny new website the other day (which I imagine is being prepped for an onslaught--imagine being the webmaster that manages a web that will go from zero to millions in traffic overnight), they fixated on one letter (PDF). The letter specifically authorized Fitzgerald to investigate things he, in theory, had already been tasked to do in Comey's original direction. The letter said Fitzgerald's mandate:

includes the authority to investigate and prosecute violations of any federal criminal laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; to conduct appeals arising out of the matter being investigated and/or prosecuted; and to pursue administrative remedies and civil sanctions (such as civil contempt) that are within the Attorney General's authority to impose or pursue.

As Walter Pincus points out, that letter was probably written in response to something Fitzgerald had already found.

According to a lawyer familiar with the case, the current speculation about such charges eventually arising appeared to have occurred to Fitzgerald in the first months of his inquiry.

[snip]

"The fact that he [Fitzgerald] asked for authority that he probably already had, but wanted spelled out, makes it arguable that he had run into something rather quickly," Washington lawyer Plato Cacheris said yesterday.

Pretty much the theory that all the tea-leavers came to. But they further fixated on just two details of that authority--perjury and obstruction of evidence--most likely because that's what the naysayers believe Fitzgerald has been left to prosecute in this case, rather than the larger issue of outing Plame. But there's more there, that bears attention. That, and the fact that we can already see the outline of perjury (Rove and Libby failing to admit to some discussions of Plame) and obstruction (Libby's aspen letter).

But there are a few more details there that--using Pincus' logic--Fitzgerald may have already stumbled across by February 2004. The ability to conduct appeals and impose civil sanctions seems to be preparation to call journalists. As soon as Comey appointed Fitzgerald, Comey seemed to be preparing the ground to subpoena journalists.

Comey also said Fitzgerald, who is a close friend and former colleague, will enjoy greater independence than an outside special counsel, who would have been required to seek approvals from senior Justice Department officials on matters including media subpoenas and grants of immunity.

As we saw, subpoenaing journalists was going to cause a firestorm. So reinforcing his authority to do so was probably smart.

But then there's those last two bits:"destruction of evidence, and intimidation of witnesses." I hope to return to intimidation of witnesses at a future time (although keep in mind this came at a time when Fitzgerald was getting Bush to call for blanket waivers from everyone involved).

Which leaves destruction of evidence.

Now consider some of the pieces of physical evidence we know Fitzgerald has subpoenaed and used  in this case: press briefings (he was preparing to subpoena one that had been taken down from the WH website), Air Force One phone logs, emails (including a Rove ond about Cooper and--I suspect--some Rove/Libby/Hadley ones relating to Tenet that appear not to have been released immediately), a Ford birthday party invite list, White House phone logs and Old Executive Office Building visitor logs.

And Scooter Libby's (and--for that matter--Judy Miller's) notes.

Now, by February 2004, I would imagine Fitzgerald had ample reason to be concerned about the destruction of all of these pieces of evidence. Something about that press briefing, after all, had raised enough concern that the WH had not only not turned the briefing over, but had ham-handedly flushed it down the Memory Hole.

But I'm particularly intrigued by the centrality of Libby's notes in this case. We know Libby keeps meticulous notes. We know they supposedly provide the best record of the efforts of WHIG. We know Fitzgerald showed copies of those notes to people during questioning.

And we know they're hand-written.

Emails, after all, are really difficult to alter or destroy. Which is probably why Rove leaked news of his email to Hadley before Cooper testified, to try to spin it in a way that made it less incriminating.

But handwritten notes are a bit easier to alter or totally destroy. Consider that Judy Miller admits the Valerie Flame notation was written at a different place in her notebook--and at a different time--than her notes from her interviews with Libby. She's already got cover in case her notes can be proven to have been written at different times. Did she write Flame before or after the CIA started an investigation in this leak?

Consider, too, that the story we heard the other day--that Libby learned of Plame's relationship to Wilson via a conversation with Cheney--based on a description of Libby's notes to journalists, not on a review of the notes themselves. The NYT wanted to make that point so clear that they even changed the title from "Cheney Told Aide, Notes Show" to "Cheney Told Aide, Lawyers Report." We don't know what the notes show.

And we ought to wonder whether Fitzgerald has reason to distrust the integrity of those notes.

Comments

[yam]

If he can look into the destruction of evidence, then I wonder if the head start Abu Gonzales gave Andy Card would probably come up too.

Sad, that...

[emptywheel]

That's part of what I'm thinking. Which woud make it harder for Bush to appoint Gonzo in Miers' stead.

[kainah]

Two theories about why the notes (apparently) weren't destroyed -- and, hopefully only one posting of it tonight:

1) Libby's a writer. So is Judy. And writers are loathe to destroy their notes. It's just part of the personality traits that compel you to write in the first place. He probably had little memory of exactly what was actually in the notes -- they're there for reference, so you often forget what you wrote. Plus, he might be an overly zealous notetaker.

which feeds into theory 2:

2) they had a lot of stuff to destroy. Even with 24 hours notice, there was only so much time. They got all of (or most of) the "official" stuff cleansed but they missed enough little pieces between them that Fitz could piece a likely scenario together.

And, when you're busy cleansing a bunch of other stuff, and you're a writer and diligent, probably overly zealous, notetaker, one of the last things you think about destroying are your notes. You are so used to taking notes, to having notebooks around, that you think of them more like a natural extension of you. You certainly don't have much knowledge/memory of what is in them.