Handicapping Journalistic Shame

by emptywheel

DemFromCT helpfully sent along this Anne Marie Squeo article that suggests that Libby, no doubt bolstered by his new, competent defense lawyers, has decided to ditch the "I forgot" defense and will instead pursue a strategy of discrediting the witnesses against him. No matter that the most important witness against Libby is Ari Fleischer (in any case, I think Libby and Rove have been hard at work on impugning Ari as a witness all summer). Squeo concentrates on the journalists. The real fireworks in the case are sure to come when Libby puts Cooper, Russert, and Judy on the stand and starts ripping their credibility to shreds.

But legal experts say Mr. Libby's attorneys, like any attorney trying to impugn the testimony of a witness in a criminal trial, will likely try to blunt the prosecution by challenging the reporters on their other sources, their memories of events in question and their own reputations.

While the judge in the case, U.S. District Judge Reggie Walton, would be able to limit the grilling of witnesses to what is relevant to the case, criminal-defense attorneys say he will have to allow at least some questions that go to the credibility and professional ability of key witnesses, which in this case are the reporters. That could include performance reviews, corrections on previous stories and internal correspondence related to the reporters or their stories.

"It's Mr. Libby's right to a fair trial versus editorial privileges, and that isn't a close question," said one attorney closely involved in the case. "Most judges will say the right to a fair trial wins. ... We're over the hump of the identity" of secret sources, the attorney added. "Now we're talking about credibility" of the reporters.

Is this "attorney closely involved in the case" Ted Wells? Much more substance than Tate used to give us in his leaks. Wells could be a welcome change from Tate.   

Squeo goes on, effectively, to handicap odds for major embarrassment on the part of the journalists.

The only thing she finds against Cooper is his "double super secret background" comment. If that's all Libby has, it's going to be tough to discredit Cooper, since the statement suggests Cooper's skepticism rather than his credulity.

Squeo also suggests Russert may have an easy time of it.

Mr. Russert may be the toughest witness for the defense to shake. Not only is he a household name but he also has a strong reputation. Mr. Libby told prosecutors that he learned Ms. Plame's identity from Mr. Russert. The television newsman says Mr. Libby called him to complain about another NBC show and the conversation was brief. Mr. Russert even mentioned the conversation to at least one other person, so the prosecution potentially has a supporting witness.

This sounds like journalistic narcissism to me rather than a real assesssment. "Russert's the Dean of DC journalism, therefore it'll be hard to discredit him." Not that I know how Libby would discredit Russert (I don't watch teevee so I'm not so good with teevee "journalists"). But if there's a way to impugn Russert, I'm sure Tom Maguire will find it.

Squeo makes brief mention of Novak, without revealing whether she thinks he'd be called to the stand for Libby's trial. (He only appears second-hand in the indictment.) If the charges remain as written, I doubt he'll show. But as I've suggested, Libby may have talked to Novak after all, in which case Libby might have the opportunity to slam Novakula for us. Will Libby bring up the time Novak bought now-convicted spy Robert Hanssen's leaks?

It should surprise no one that I think the real possibility for fireworks will come when Judy comes to the stand--and I don't think Libby will be focusing on performance reviews (although we know Keller and Abramson had to repeatedly forbid her to write security stories because her sourcing was so crappy, so Judy's performance reviews may be a piece of work). Now, presumably, Libby will stay away from the vast number of times he leaked Judy crappy information; he might even have to refrain from mentioning Chalabi, because that too would implicate Libby.

What I think Libby will attempt to do, instead, is prove Judy's own complicity in this affair. Libby, better than anyone, knows how hard Judy was trying to "get" Joe Wilson. And, given that Libby obligingly did more research for Judy on this story, he will somewhat plausibly be able to argue that Judy, not Scooter Libby, was the one intent on outing Valerie Plame and Joe Wilson. Indeed, Libby may even know the whole history of how Judy was not allowed to write solo-bylines; he can talk about how hard Judy tried to circumvent those restrictions.

The narrative, then, will be that "Judy Miller bears primary  responsibility for this leak. She told Prosecutor Fitzgerald whatever he wanted to hear, all to get out of legal trouble herself. How can you believe her when it's clear she's just trying to blame someone else for her own crime."

Which ought to be enough to give Judy and Pinch pause. Pinch has been trying hard to find some way to silence Judy and hide the NYT's own complicity in this manner. But given how closely this line of attack on Judy's credibility aligns with the crime at hand, it will be very difficult to claim First Amendment privilege to shield this information. Moreover, Judy never wrote a story on this matter, Libby, better than anyone, is likely to be able to paint Judy's involvement as a malicious actor and not a journalist.

Maybe Pinch thinks Libby will spare them this aggravation because the NYT was so willing to hide Libby lawyer Tate's obvious attempt at witness tampering slide under the blanket of their First Amendment Martyr fiction. But I doubt it. I think, once again, Pinch may be over-estimating his ability to control information.

Comments

[yam]

Boy, oh boy. It sure is humorous watching the lapdog media corpse being treated like the bitches they are by this administration.

Shorter Libby: "Okay, you wouldn't use your press freedoms to cover for me, so now I'm going to shred your press freedoms to save myself."

See, this is what you get for your time in jail, Judy. Be sure to say "thank you" to the nice man after the trial...

[DemFromCT]

Arianna's been on russert watch, as have other blogs. If that helps Libby off, I think Huffpost would shut down in embarrasment.

[DemFromCT]

Highly doubtful, btw, buth irony abounds in this case.

[bz]

but but but, Ted Wells said "We're not going to conduct this trial in the press!"

[KdmFromPhila]

Who's going to have the advantage in this case, the prosecutor or the defense? Fitzgerald's indictment was well-docuemnted and detailed. In addition, the defense would have to discredit a lot of witnesses to create reasonable doubt. But Bell is a shark, I understand.

[Mimikatz]

I think this is just more of the same strategy employed in the original coverup--distract everyone by nusing reporters as a shield, knowing that they and their news organizatiosn will file motions up the wazoo, and before we know it, we are past the 2006 elections without Libby going to trial. Then, particularly if the Dems win one or more houses of Congress, opening the way for real investigations, Libby falls on his sword once again, cops a plea, goes to a Club Fed until bush can pardon him before he leaves office, and a grateful old Dick sets him up for life with some sort of sinecure.

[emptywheel]

bz

Guffaw. That's pretty funny.

[Pachacutec]

emptywheel:

Isn't all this defense team spin just PR smoke?

How can they possibly formulate a defense strategy if they have yet to get discovery, since they are waiting for security clearances.

I think all this stuff about a defense stratgy must be PR spin to put up some front of a credible defense, to serve at least as a placeholder.

Am I missing something?

[Newsie8200]

How does this help the case on perjury and obstruction of justice? What... "the reporters made me do it!" Besides, Fitzgerald apparently has other evidence that Libby lied. Not to mention, reporters have notes and take notes.

I guess this is just a PR strategy? Trying to influence potential jurors, I guess.

[RonK, Seattle]

It will get interesting if effort to impeach these journo's credibility on matters other than the questions immediately at hand.

A plausible strategy, a target-rich environment, and a Daily field day for the Howler.

[emptywheel]

Pach and Newsie:

Not sure if you read my bit on Ari, but it appears what they've been trying to do (I assume they figured out somewhere that Ari had flipped) is to leak that Ari was seen looking at the INR memo on AF1. That made a great counter-story for how the leak happened, particularly if it's true that Ari leaked to someone (Pincus? Novak?).

But what I read that as saying is, "Ari was actually the one who committed the crime. The reason he's saying I told him about Plame is to try to blame me for the leak crime. Why should you believe him, when unassociated witnesses have testified to the press that they saw him holding the smoking gun."

In Judy's case, it'd be, "Judy's obviously the journalist who told Russert, Novak, all of them. Haven't you heard we ALL heard this from a journalist. So the reason she said I told her about Plame is to get out of the guilt herself. That outofcontrol prosecutor Patrick Fitzgerald basically told her, if she said I had told her Plame's identity, she'd get off."

In other words, with Judy, I think you can suggests a motive and a means to be part of the leak. In which case, her word against Libby is called into question.

Although I think Mimikatz' point is a good one--this might just have the effect of stretching out the trial to a point where Bush can safely pardon.

[DemFromCT]

Bush can't 'safely' pardon. He's not Ford and he's not his father. There's no good will and no respect.

He can pardon, but there's no 'safe' about it.

[emptywheel]

Nor is it totally clear he'd want to pardon Scooter Libby.

Karl Rove, sure, he'd get a pardon for services rendered. But so long as Libby is the only one indicted here, I suspect he'll do his time.

[depressed (formerly obsessed)]

Unfortunately, once the 2008 elections are over, 0% approval ratings won't be much of a deterrent for a guy who doesn't read the news anyway. I think the press really needs to ask him -- every time they have the opportunity -- to publicly agree not to issue pardons. Assuming he ever has the nerve to hold another press conference.

BTW, any thoughts on the latest Raw Story Rove teaser?

[rasmus]

Also note that Cooper moonlights as a stand-up comedian, so the "double-super secret" comment is probably just a joke, making fun of Rove. Cooper's editor would not have taken it as something Rove actually said, but rather as an indication of the strenuous nature of Rove's admonition not to be identified as the source of the leak. The prosecutor will use it (or, rather, Cooper's testimony about it) to show Rove knew what he was doing was illegal.

[emptywheel]

Re: the Raw Story story (it's up, btw). Like several of their recent stories, it looks like it takes rewarmed CW and makes it look like its a scoop.

Which is better than some of its recent stories, which made no logical sense whatsoever. But still not news ... or terribly reliable.

For example, this statement:

According to the attorneys close to the case, the chips are still stacked against Rove, unless he decides to cut a deal before the probe wraps up.

Doesn't make sense with the rest of the article. What Rove is fearing is an obstruction charge, a conspiracy charge, a leaking charge. THEN things'd be stacked against him. But this article only collects existing pieces of data about when Rove may have issued false statements. If Rove were indicted just on false statements, I'd bet Bush would pardon him.

So what's the worry? Sure, he'd be out of the administration. But that's looking increasingly likely anyway.

[QuickSilver]

EW, do you think there's a chance that Judy actually testified truthfully about Cheney's role, and about the true origins of the "Valerie Flame" phrase, but didn't want to say so in print?

[Thad Beier]

This makes perfect sense. It had to go this way.

The devastating problem with the "I forgot" defense is that it has that pesky word "I" in it. Libby himself would have to get up on the stand and make that claim. Then, he'd be cross-examined until he was a quivering pile of jelly. In many cases, lawyers will attempt to prevent the accused from testifying -- but in this case it's an absolute necessity.

So, there has to be some other defense. Impugning the integrity of the witnesses is pretty standard. It might even work in the court of law.

Where it will not work, though, is in the court of public opinion. If the administration (through Libby as proxy) starts attacking the press as unreliable partisans, then you can easily forecast that there will be far more harsh coverage of the administration from said press. It will be a bloodbath, with the blood replaced by printers' ink.

I'm going to by stock in popcorn companies.

Thad Beier

[emptywheel]

QuickSilver:

I doubt it. Highly. After all, there's the Aspen reference which (as you know better than I) seems to point right at Dick Cheney.

But I also doubt Judy's do it--it's not in her character. It's so important for Judy to feel superior, to feel like she's smarter than those around her. A really key part of her identity is her inside track to big secrets. (Which is why she was such a shit to other journalists in Iraq, because she wanted to lord her special privilege over them.) Flipping on Cheney would be an admission that Patrick Fitzgerald got the better of her. Which I don't believe she'll admit, this side of a long prison term.

[emptywheel]

Thad, good point.

While Libby may be counting on the low credibility journalists have with the public, he may be overestimating the Administration's ability to control them.

Or, perhaps his smart new defense lawyer has pointed out that his interests and those of the Administration no longer coincide.

[depressed (formerly obsessed)]

It seems like Libby's lawyers would be obligated to encourage him to make a no-jail deal to implicate Cheney, Rove and others. If Libby refuses to do that out of loyalty, then wouldn't he also insist that other aspects of his defense also place the Adminstration's interests above his?

[zennurse]

I don't see how this defense will make any sense to a jury. It might shift the motive, but it doesn't really explain why Libby would lie so many times. Fitzgerald seems to have plenty of evidence that he did, so would Libby be using this to introduce reasonable doubt? Pretty flimsy, imo, I wouldn't buy it and from what I read, DC juries are pretty savvy.

[Grampa]

Emptywheel,

You quote Squeo as saying "Mr. Libby told prosecutors that he learned Ms. Plame's identity from Mr. Russert." Squeo is making a mistake here, a mistake I've seen time and again in reporting this story (Indeed, the same mistake was made in the TNR piece you quoted in your article about Ari Fleischer). As I've mentioned before, to the best of our knowledge, Libby did NOT assert to either the FBI or the grand jury that Russert was the original source of his information about Plame. What Libby said -- and what he's being prosecuted for lying about -- is that he TOLD SOME REPORTERS he had learned this information from other reporters. He also claims to have believed these statements at the time he made them. That is, he claims he had forgotten that he originally learned Plame's identity from government (classified) sources.

This story is important for two reasons. First, if at the time Libby leaked the information about Plame, he really thought that he had learned the information from reporters, he would not be guilty under the IIPA. Second, a story about what he believed at the time would be very hard to disprove.

I suspect that this will also be Rove's excuse. Indeed, it looks to me like the two carefully concocted a plan for leaking this information while making it difficult to prove criminal behavior. The first leak was from X (Ari?) to Novak. X might have been told the information was "not widely known," but probably did not appreciate that it was classified. Therefore X did not violate the IIPA. Novak then got confirmation from Rove. Confirming this information also would not violate the IIPA (although it could be a problem under the Espionage Act). Rove has now "heard it from reporters," so he can pass it on to Cooper without violating the IIPA. Now Cooper calls Libby, who confirms; again, no violation. I'm not sure where Miller fits into all of this, but since neither Libby nor Rove expected any of the reporters to actually testify, the overall story provides an arguable defense ("I heard it from reporters and just passed it on; I forgot that I had earlier heard it from classified sources.")

The problem is neither Libby nor Rove could keep their stories straight. Had Libby said he was told of Plame's identity from Cooper rather than Russert, the story would have been true. Had Rove said he spoke to Novak before Novak's article was published, and that he thereafter spoke to Cooper, he would not be lying. This, I think, is why Fitzgerald is going after them for lying and obstruction, rather than violating the IIPA.

Of course, another fly in the ointment is Miller. Libby's meeting with her on July 8 could arguably be explained away as occurring after Novak had been told about Plame, i.e., Libby was just passing on information he had heard from reporters. There is no way, however, that he can explain his June 23 discussion. I believe that Miller knew that this evidence could sink Libby, and that is why she withheld any disclosure of the June meeting until Fitzgerald forced her hand. In fact, I believe she spend 85 days in jail not to protect journalism, but to protect her friend Libby.

[emptywheel]

Grampa

Well said.

And actually you lay out the reason why the credibility of the journalists WILL end up to be important. I thought, at first, that Russert's veracity didn't matter, because of the way Fitz structured the indictment. But I don't think that anymore. Fitz might get one of the indictments (the generic false statements one). But otherwise he's really reliant on Russert.

[Malvolio]

Day in and day out, EW equally prolific and indispensable. It does amaze.

No matter what the WSJ noise, however, I wouldn't count on Libby proceeding contra Miller. Libby knows all-too-well Miller waged an heroic war on his behalf, buckling only after Fitz outsmarted them both -- a bolt out of the blue. Miller's partial surrender could not have been more grudging, and could not have been more transparently telegraphed in those absurd NYT explicatories.

It serves both Libby-and-Miller's purposes to spread the perception they are somehow AT ODDS. But aspen roots are thicker than water -- and the WSJ should seldom be trusted on anything neocon.

If Libby does end up launching into any particular media figure, I'd look to Russert, whom many in the WH would like to see taken down a peg.

Among other sins, Russert has been sticking up for Chris Matthews, behind the scenes. And I do recall Russert fairly hammering Richard Perle on the eve of the Iraq War -- asking Perle point blank if the upcoming war might be for the benefit of another country. Perle looked a lot like Dan Quayle, staring back at that one.

On another topic, as per an earlier EW comment, somewhere other than here, bells and whistles went off at the reference to John Kokal. Woah -- brilliant connection. Makes you sort of realize, the Yellowcake Road could be very very serious business. And it needs to be followed all the way to the end. And I don't think it ends in Kansas.