Why Libby's Defense Relies on Richard Nixon

by emptywheel

Update: Title changed to reflect the importance of Scooter Libby's defense lawyer's past history as counsel to Richard Nixon. Don't bury the lede, emptywheel. It's Nixon Nixon Nixon. What's old is new again!!

I was a little confused, at first, when I read Eric Lichtblau's article on Libby's First Amendment defense.

At Mr. Libby's arraignment this month, his lawyers alluded to using a First Amendment defense in fighting the charges, but they have declined to say what that strategy might entail.

Oh sure, I understand how Libby has played the First Amendment like a fiddle thus far. Getting Judy to go to jail in the name of protecting the First Amendment so that whistleblowers can have protected conversations, when all she was doing was protecting the criminal behavior of a guy lashing out a whistleblower and therefore making it less likely the press would expose the wrongdoing of the powerful in the future. And now Libby's buddy Mr. X has gotten in on the action, getting Bob Woodward to sit on a story for two years, all in the name of protecting the First Amendment that is supposed to ensure stories get told.

''I explained in detail that I was trying to protect my sources. That's job number one in a case like this. . . .

So yeah, Libby and his co-conspirators have played the First Amendment masterfully, so far.

But I was confused, as I mentioned, when I read Libby's defense team wanted to expose everything in the journalists' notes:

In interviews, lawyers close to the case made clear that the defense team plans to pursue aggressively access to reporters' notes beyond the material cited in the indictment and plans to go to the trial judge, Reggie B. Walton of United States District Court, to compel disclosure as one of their first steps.

Defense lawyers plan to seek notes not only from the three reporters cited in the indictment - Tim Russert of NBC News, Matt Cooper of Time Magazine and Judith Miller, formerly of The New York Times - but also from other journalists who have been tied to the case.

I mean, the First Amendment has helped them so far. But imagine what would happen if Judy's notes were all open to the public? It would expose the extent to which Libby, cooperating with Judy and Ahmed Chalabi and Harold Rhode and everyone else in the war party, staged a massive fraud on the American people, lying to get us into war and then lying again about the justification for it. Killing thousands. Ruining the American military in the process. Fitzgerald would drop those puny perjury charges in a second and go after treason, conspiracy, fraud, the works. Libby can't allow Judy's notes to get exposed, because it would bring down the whole charade.

But all my confusion vanished once I did a little more research into Libby's lawyer William Jeffress. You see, in addition to having the advantage of working with Bush consigliere James Baker, and in addition to already representing one of the key players in this drama, Jeffress once won a case before SCOTUS for a high-profile Republican crook. You may have heard of this crook. Richard Nixon. Ring a bell?

<rant>What the hell has happened to the press corps in this country? You've got the highest-ranking administration official in a hundred-some years indicted, picking a new legal team. And your bios on the second of these lawyers doesn't extend beyond the "corporate law yadda yadda." But this lawyer, mr. yadda yadda, won a case before SCOTUS for Richard fricking Nixon. Richard Nixon!?! You ever heard of him?? Not only that, but he won a case before SCOTUS about media access to trial evidence.You think that might be relevant to this case? Media access, in a trial in which journalists are going to be star witness one, two, and three? Just maybe? Richard Nixon? Don't you think maybe that's relevant????</rant>

Well, it turns out the Richard Nixon case just might be pertinent to US versus Libby. Because Jeffress' Nixon case, you see, managed to limit press access to some of the Nixon tapes while the case was being appealed. From the decision:

Considering all the circumstances, the common-law right of access to judicial records does not authorize release of the tapes in question from the District Court's custody

[snip]

The release of the tapes is not required by the First Amendment guarantee of freedom of the press.

[snip]

Nor is release of the tapes required by the Sixth Amendment guarantee of a public trial. While public understanding of the highly publicized trial may remain incomplete in the absence of the ability to listen to the tapes and form judgments as to their meaning, the same could be said of a live witness' testimony, yet there is no constitutional right to have such testimony recorded and broadcast. The guarantee of a public trial confers no special benefit on the press...

Are you beginning to see why this case is pertinent, other than Jeffress' experience dealing with massive Republican crooks before?

Libby's defense team is planning on claiming access to reporters' notes. And to be fair, they will probably be able to make a very compelling argument that Libby can't prove his "every journalist knows" defense unless he has access to the notes from all the journalists.

But at the same time, they're going to use precisely this SCOTUS decision--argued for Richard fricking Nixon, no less--to argue for limiting the press' access to the press' notes. A neat trick, huh? That is, they're going to argue on one hand that they get access to the notes, but on the other hand that the press doesn't get to report on the contents of the notes, beyond what gets entered into the court record.

Are you seeing where this is going?

Comments

[eriposte]

Thanks EW...*NOW* their clamor for the reporters' notes makes sense...

[emptywheel]

Yeah, I kept thinking, "What are they THINKING?!?!?! Fitzgerald will go to town if he gets Judy's notes." Now I get it.

[tryggth]

emptywheel, its just a side-show.

The real crime is that people have been sent into a death-trap (Iraq). Just like the poor dopes put into helicopters over Afganistan had to deal with Stinger missles (Where are those puppies now? Last I heard there were about 500 missing.), Our brave boys have been deployed to an an area in a formation which leaves them open to the new reality that armour doesn't matter.

[eriposte]

There is one aspect that I wonder about though. If they go berserk asking for all kinds of reporters notes, there is no stopping Fitzgerald from asking for all kinds of notes relating to the White House, including classified reports and such. Or am I just being naive about this assumption?

[Malvolio]

Fascinating, EW... Looks like the Libby crew will be covering their fire with no end of smoke. So much to look forward to...

Regarding James Baker, I counsel restraint in over-linking him with Bush II. Baker was against this Iraq War, and is personally much more aligned with the Scowcroft camp. I doubt Baker and Jeffress share much of anything besides letterhead.

And there may be something to the rumors that Bush I and II aren't so conversational these days.

Somewhat relatedly, over at FireDogLake, Tom Maguire tosses the suggestion that Armitage could be Woodward's source. Which sounds interesting. Is this conceivable?

If Libby's camp maneuvered Woodward into his present tight spot, it would certainly help the neocons to drag in their semi-nemesis Armitage, a semi-realist aligned with Powell...

Perhaps the Neocon v. Realist faultlines shall be emerging more distinctly, before Fitz heads back to Chicago.

[emptywheel]

Armitage couldn't be Woodward's source. He was out of the country. In fact, it's not clear that he had read the INR memo at the time of the Woodward leak. He knew of it, I think, but didn't actually see it until he got it from Carl Ford on July 7.

eRiposte

I think that's why this is a First Amendment campaign. The classified stuff is still protected by executive privilege, which I'm certain BushCo will make extensive use of. But the reporters won't have any privilege, because their sources will have all waived privilege. And as a journalist, you can't really make a case for keeping your notes private.

I'm suggesting they're going to use a very selective process of publication (and why wouldn't they? It's what they do best!). Showing things like Novak's notes (maybe he did hear of this from a journalist first). But hiding the parts of Judy's notes that would be lethal for this administration.

[orionATL]

whether they will go through with this gambit i dont know.

whether the courts will agree with their reasoning, i dont know. one case is a precedent, but not much of one. judges nowadays might think twice about shielding political misdoings, particularly if there was great public anger at the time.

but what i can see, now that you have laid it out like this, is that this gambit will tie the overly ethical, analytically-challenged editors of the washington post and new york times in knots. how can we expose our reporters notes? will we ever again be given access if we do? wo will trust us?

many, many large tears will be shed in the editorial pages. much angst and hand-wringing by abrahmson, keller,collins, hyatt, downie and woodward.

and that's just for starters. maybe cnn, fox news, and la times will join in.

ethics, like partiotism is the last refuge of scoundrels. this i learned from observations of the academic world, but the same clearly applies to news organizations.

what a nice way to see that things are reported your way or at least that the press is a little more sympathtic to your case, or paralyzed about how to report it.

[QuickSilver]

EW, do you think Fitz knew about Woodward the whole time? Fitz's 11th hour call to Wilson, just before Miller's testimony, is quite interesting. "Hey Joe, was this particular detail something Woodward was saying, or something Miller was saying?"

Fitz could never have nailed Judy if he had gone after Woodward first (or concurrently).

I suspect that Wilson's friend, who pigeonholed Novak on the street in Washington, was no coincidence. Remember, Wilson knew the smear was in the works...he was tracking it, probably with the help of his buddies. Even before the July 6th editorial, Wilson knew he was going to be outed along with his wife, the CIA employee, who sent him on a "boondoggle."

Maybe I'm in a minority, but I just don't think Woodward kept quiet. With that Pincus admission, he's all but said that he told other people, too, and that he didn't think the information was classified...

[umzuzu]

Emptywheel -
The mechanics of this back and forth shuttling of information require a blueprint. Jeffress is clearly part of the santitation engineering team with practical experience from watergate days...and the only other technical expert with a good blueprint overview of the White House, press corps, intell plumbing is strangely - Pincus. Am I wrong?

[umzuzu]

Emptywheel -
The mechanics of this back and forth shuttling of information require a blueprint. Jeffress is clearly part of the santitation engineering team with practical experience from watergate days...and the only other technical expert with a good blueprint overview of the White House, press corps, intell plumbing is strangely - Pincus. Am I wrong?

[emptywheel]

QS

I don't really know. I think Fitz probably got to a point where he had indictments on enough people he thought he'd jump to loosen up more information. I do think some people (possible including Hadley, who had said he would be indicted and is reputed to be Woodward's source) may have thrown a few things Fitz' way to stave off indictments.

That is, Fitz may genuinely have decided he couldn't draw a full picture until some heat were on. THe smoking them out theory.

If Fitz wants to eventually take an IIPA or Espionage case, he's got to be absolutely positive that he knows who leaked first. His indictment of Libby has gotten him significantly further down the road of understanding that. Which, presumably, will make it significantly easier for him to indict on espionage in a way that will stick.

[emptywheel]

umzuzu

I'm not sure what you're asking. I think Pincus knows intelligence than anyone. But his specialty has never been primarily the WH. And certainly not this one.

[Mimikatz]

I think Libby's full court press on the press is a sideshow just like his "reporters told me" defense. It is designed to stall everything though various motions that will have to go all the way to the Supremes and then, after the 2006 elections, Libby plans to cut a deal.

Of course what Libby has to deal with depends on what moves Fitz makes between now and then and whether he has anything important left to sell.

And the outcome of the elections, and a lot of other things.

But I think it is a distracting strategy to get people whipped up and off the main topic, which is always and ever how they lied us into war, hyped the intel, have outsourced the intel process and are still trying to cover it all up with more coverups and misdirection plays.

[Meteor Blades]

Wow. If only I could have subpoenaed and indicted people in my journalist days: I would have had some really great stories.

Once again, EW, you've been right and I've been wrong. I figured Fitz was pretty much done after the Libby indictment. So, really, the only time I've been right in this whole affair is back around October 2003 when I was arguing on rightwinger sites that the Plame outing was going to be a very big deal. Come to think of it, I believe I've won some wagers in that regard that I haven't collected.

[emptywheel]

Mimikatz

I hear you. There is a very good chance this won't go to trial. But Libby hired to take this to trial. He hired two trial guys, not a plea bargain guy.

So long as this doesn't get to Cheney around Libby, then I think it will go to trial. It goes to trial, Libby's Nixon lawyer prevents the evidence used in the trial from getting out, and BushCO has successfully bottled up a wide conspiracy with one person going down or not (Libby's defense team is good, and as I understand Tweety will show tonight, there seem to be a lot of people willing to invest to make sure he gets a good defense).

[whenwego]

Emptywheel:
What if WOODWARD was the "original" source for all the WH leakers, so Rove, Libby, etc were right all along that they got it from the press, and they can show it? "original" in quotes as in Woody was set up to be that source by Mr. Y, as is not coming out. Now Mr. Y may be Mr. X, or Cheney, or even Bush? If it was Bush, then it would become a constitutional question of whether he can ever be prosecuted, while the rest go free. A truly Rovian play, n'est-ce pas?

[whenwego]

Emptywheel:
** CORRECTED SPELLING MISTAKE: "not coming out" -> "now coming out"
What if WOODWARD was the "original" source for all the WH leakers, so Rove, Libby, etc were right all along that they got it from the press, and they can show it? "original" in quotes as in Woody was set up to be that source by Mr. Y, as is now coming out. Now Mr. Y may be Mr. X, or Cheney, or even Bush? If it was Bush, then it would become a constitutional question of whether he can ever be prosecuted, while the rest go free. A truly Rovian play, n'est-ce pas?

[emptywheel]

whenwego

I don't see it. He's too much of a snob for one. And at least according to what he has said, he didn't get the leak--that is, Plame's covert status and her name. He got just a piddling old leak.

[John Lopresti]

You all saw yesterday the news Pincus' notes lost a motion to quash in the subpoena in the Wen Ho Lee matter, though I wonder what court that action is in. RCFP is reporting a tripling of subpoenas of reporters notes over the timeframe since Patriot became rule of the land. They should put it in bar graphs on their website, no pun intended.

[umzuzu]

Pincus and Wen Ho Lee's civil suit at http://www.washingtonpost.com/wp-dyn/content/article/2005/11/17/AR2005111701567.html. Not sure how its related, but since we're talking about first amendment and anonymity...

[depressed (formerly obsessed)]

Link to Time/Woodward article

From reading this, my feeble brain notes primarily that Woodward is saying that he, rather than Mr./Ms. X, instigated this latest turn of events in which Mr./Ms. X released Woodward and volunteered info to Fitzgerald.

How sayeth thee, great oracle of the empty wheel?

[John Lopresti]

Check the TruthOut site Waxman has a lot of current material including links and original investigative journalism; everything I reviewed thusfar is expansive; his site sprang to life after a long quiescence. You all are probably referencing that information hub, as well. He is good when he gets going. It seems like the news and events of this week have galvanized a few democrats in congress.

On the Pincus comment, right now it is true enough it is peripheral, but as Fitzgerald and SSCI enter their respective Phase IIs maybe his centrality in these matters will be relevant to both investigations. The only part of his setback that sounded a harmonic chord for me was the Libby-Rove adroit media attack. Ted Koppel took his leave this week after a long career. I worry about media fragility. I think EW has the Nixon Statue of Liberty play mapped to perfection. According to the Waxman articles, some of which I have read, little yardage is there for Libby to gain postWoodward news this week.

[Wademorris]

Oh the tangled web we weave....

Whats to prevent the reporters from publishing thier notes if they get subpoenaed? Er, maybe we should have kept Ms. Run Amok in house at the NYT where they could have forced her to....oh, yeah, nevermind.