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November 03, 2005


My Novak theory raises another reason why Fitz may have held off on the Rove indictment.

Novak's testimony, if he has in fact flipped, is going to be central to any indictment of Rove. But right now, Rove doesn't know whether and to what degree Novak has testified. Fitz may be seeing what Rove will give up before he reveals how much he learned from Novak.

Also, it might explain why Judy's testimony not central to any of the indictments against Libby. I've assumed it's because Fitz still thinks she may be lying. But it's just as possible if he indicted based on Judy's testimony, it would reveal some of the Novak goodies. So you hold off. In which case, superceding indictments might be a reality.

superceding indictments might be a reality

Let it be so!

So in this scenario, Fitzgerald's press conference was a carefully calculated step in an ongoing process and the depressing sense that nothing more is likely to come would be misdirection on his part. Do you see anything in the press conference that would shoot down this hopeful interpretation?

from: WaPo (VandeHei & Leonnig)

While Rove faces doubts about his White House status, there are new indications that he remains in legal jeopardy from Special Counsel Patrick J. Fitzgerald's criminal investigation of the Plame leak. The prosecutor spoke this week with an attorney for Time magazine reporter Matthew Cooper about his client's conversations with Rove before and after Plame's identity became publicly known because of anonymous disclosures by White House officials, according to two sources familiar with the conversation.

Fitzgerald is considering charging Rove with making false statements in the course of the 22-month probe, and sources close to Rove -- who holds the titles of senior adviser and White House deputy chief of staff -- said they expect to know within weeks whether the most powerful aide in the White House will be accused of a crime.

You know, if Andy Card wants Rove out as much as he appears to, he could be one of those leakers. Anonymous leaking--aside from the irony of it--would be the way to help along the Karl indictments but work to preserve a White House Administration to be employed at.

Is Card thought to have reasons for wanting Rove out other than the idea that Rove's presence is damaging the public perception of Bush?

Well, if Rove's gone than Card can rule the world.

I don't know--but I think that's how these people think.

Am I right to think the following? ...

The beauty of this case is that the 1st Amendment issue is not as complicated as it has been made out to be. If you tell a reporter something and then you lie under oath about what you told the reporter, whatever confidentiality you had (about the lie) is lost. The reporter must be free to confirm or deny what you say under oath.

Hey but WaPo says Rove doesn't have any enemies in the White House (snark alert).

Boy I sure like your Novak theory. I too have long felt Novak had some memory prodding from Mr. Fitzgerald, around the time of his CNN meltdown. He new the bs train was over, he was either going to have to rat out his buddies or swing, and there goes his premium access to precious White House "leaks." (guffaw)

The sign-in log thing has always been unsatisfactory for me, too. Would Judy budge off her lie just because Fitz could prove she met with Libby? That always seemed a stretch.

Good work, EW.

Thanks Jane,

I think the Novak thing answers a lot. I now wonder whether it is apparent to Libby (and therefore Rove) that Novak flipped. Fitz hid most of that. But maybe he wanted to make that apparent to Rove--to put a little fear of god into him.

And if you think that Andy Card might be one of the leakers to WaPo, then prospects of some real fun get really good.


Nice post. However, I wonder about the accuracy of this statement:

"In his grand jury testimony he didn't claim that he hadn't mentioned Plame's status to anyone. He said simply that he had learned of Plame's status from journalists."

I believe that Libby told the grand jury that he first learned of Plame's status from Cheney and other government sources. He simply claimed to have forgotten that fact when he talked to Russert and other reporters. Thus, Libby's lies relate to what he said to and heard from reporters, not to the original source of his information about Plame.


Yes, you're right. I should have specified. In his interviews with the FBI, he said he learned of this from Russert. Then in his grand jury testimony, after Fitz had gotten his notes, he said he had learned of it from Cheney, but then forgot.

How did Fitz learn about the Official A/Libby conversation unless Novak told him about it?
That conversation is key.
Fitz knows the substance, but does not know the exact date.
That would make sense if Libby called Novak on 12 July with the lead in "Karl told me you were writing a story about Joe Wilson's wife".
But (and correct me if I'm wrong) that makes it hearsay. Not good enough.
If Fitz can prove that conversation took place he has his concert party and his conspiracy.

There is NO DOUBT Novak flipped because he is looking at serious penalties. Not only did he leak Plame's name and CIA affiliation on 14 July, but he compounded the offence when he outed Brewster-Jennings on October 3. That's a pattern which burns him under the IIPA.

OK, so if there was a whole gaggle of rightwing reporters at the June meeting, wouldn't their names also show up on the sign-in log? And if so, wouldn't that mean there's more than one extra witness to this meeting, in addition to Novak? If that's true, why would it have been so essential for Judy to testify?


I'm still trying to figure out that bit. It's possible that Karl told him about it, in his bid to avoid indictment. It's also possible someone else knows about it, and it is vague to hide that person's identity or because the person really doesn't know better. But I doubt that Libby called Novak on the 12th, because if he had, Libby wouldn't have said what he said to Judy. In other words, I think he has shielded this conversation from reporters at least (but presumably not Fitz) because it was outside the range of time when Fitz subpoenaed conversations. Then again, if Novak testified right away and admitted to this conversation, I guess we wouldn't have heard of it either.


Well, I'm assuming Novak flipped this past summer, well after the time Fitz subpoenaed Judy. So for starters, Fitz may not have learned about it until well after he had already been to the Supreme Court and back with her. Also, these people are probably the people Tom Maguire lists here, bloodthirsty partisans who would lie to save Libby's ass. With Judy (unlike with these others) Fitz had a way to perjury trap her into corroborating Novak's story of the meeting.

Thanks EW, this is *so* great.

This clears up a lot regarding the importance of Judy's testimony, if you're right about the VRWC meeting at the OEB (well at least the Libby/Novak/Miller meeting). Does this not now open up the possibility of conspiracy charges vis a vis IIPA (at least for Novak/Libby/Judy?).

And it also clears up to me the importance of reporters generally testifying in this case. This [the testimony of reporters like Russert and Cooper] was never generally about leaking Plame's covert status to reporters as an offense under IIPA, because the general leaks in July had nothing to do with that, rather they were part of the "Get Wilson" campaign. Even if the leakers mentioned the CIA bit, it was still possible to claim "but we thought she was an analyst" or "the reporters told us that," as a defense to get away from IIPA.

Instead, there were two layers of leaks, one to the concerted cadre they could trust (the "Aspens" if you will) in June (shortly after learning about Plame's true identity), and the general Washington beltway boyz in July. Meanwhile, the Aspens themselves may have been leaking to the beltway boyz, at least the "Wilson's wife is CIA" bit, which may explain Woodward's assertion that the whole case is a big game of telephone. (heh, maybe he's just pissed cause he wasn't in the loop). And the "Reporters leaking to reporters" meme gave Rove and Libby plausible deniability to their cover story (we heard it from reporters) because it is likely that some of the journalists (I've opined that Matthews might have been one of them) actually did blab back to Libby and/or Rove that they heard Plame was at CIA.

In fact, if it's all about the "A" gang leaking to the "B" gang, I think this gives us great insight into why Fitzie subpoenaed the guest lists of various DC-area soirees in late June-early July. Might he be threatening various reporters with obstruction charges unless they testify as to who told them what when? Cause if that's true, oh boy is the WH screwed.

1) We know that Fitz has the timeline down (it's in the indictment)
2) He may have evidence of this gang "A" meeting at the OEB, and testimony from at least Novak
3) He may be using the other reporters to flip on the "A" gang and then use the "A" gang to flip on Libby and Rove and find out what was said.
4) If enough reporters from the "A" gang flip, he will have multiple corroborating stories enough to convince a jury beyond a reasonable doubt that...

Rove and Libby definitively knew of Plame's CIA status before the July leaks (a slam dunk for the false statments charges), were lying to the grand jury (well at least Libby was, since Rove may have "corrected" himself) and thus are guilty of perjury and obstruction of justice. And if Rove flips on Libby, conspiracy to obstruct justice.

Then the ball's really in Scooter's court. He can take the fall and likely go to jail for a long, long time (there may be superceding indictments for more obstruction charges coming from Judy's testimony, or maybe even IIPA, and possibly conspiracy to obstruct justice if Rove flips).

I mean, at some point, the number of obstruction counts are going to be ridiculous (each of which I think is max 10 years, no?). Short of getting a pardon, he'd be looking at lots of jail time.

"In his interviews with the FBI, he said he learned of this from Russert. Then in his grand jury testimony, after Fitz had gotten his notes, he said he had learned of it from Cheney, but then forgot."

Emptywheel, I'm afraid that's still not quite right. According to the indictment paragraph 26, Libby told the FBI that his information about Plame came from the VP:

"During these interviews, LIBBY stated to FBI Special Agents that:
During a conversation with Tim Russert of NBC News on July 10 or 11, 2003, Russert asked LIBBY if LIBBY was aware that Wilson’s wife worked for the CIA. LIBBY responded to Russert that he did not know that, and Russert replied that all the reporters knew it. LIBBY was surprised by this statement because, while speaking with Russert, LIBBY did not recall that he previously had learned about Wilson’s wife’s employment from the Vice President."

He's still lying about what Russert told him, but not about where he originally got the information. My theory is that he's just confusing Russert with Cooper. I set this theory out in a comment at TalkLeft, http://talkleft.com/new_archives/012960.html
(Nov.1, 2:45 p.m. -- sorry, I haven't figured out how to post a link). In essence, what Libby said about his conversation with Russert is pretty close to his actual conversation with Cooper.

Well, this is another fine mess you've gotten us into, emptywheel. :-)

You have a great point about Libby apparently believing Russert's cover story ... but it seems like there are simpler answers to the questions you raise than your Novak-in-June scenario.

Couldn't Fitzgerald have surmised Judy's pre-July 8 knowledge of Plame by being tipped off by an NYT coworker who either knew of her Libby meeting or heard Miller gossiping about Wilson's wife?

In general, I'm inclined to distrust scenarios where all the evildoers get together in a group and plan their malicious actions...

Then again, if Novak testified right away and admitted to this conversation, I guess we wouldn't have heard of it either.

Here's the thing. I believe Novak turned VERY early.
To understand the legal jeapordy he found himself in you have to look at the entirity of his offences.
Very little attention has been paid to what happened in late September/early October.

On September 26 the DoJ began its investigation.
On October 3 Novak broadcast the name Brewster-Jennings on CNN.
On October 4 Novak did the same thing in his townhall colunn.

The name was classified.

The man is a serial offendor. He is a slam dunk under the IIPA.
Fitzgerald is not interested in putting journalists, however odious, into the slammer. But he's had Novak by the short and curlies from the start.

antiaristo, I believe that, to be guilty under the IIPA, the leaker must have had authorized access to classified information. I don't think Novak could be charged under the Act (conspiracy, perhaps).

On the other hand, when subpoenaed he must testify, and when he testifies, he must tell the truth. I think that's the leverage Fitzgerald has over these reporters.

I'd appreciate clarification on this. My analysis was based on this excerpt from the David Corn article of July 16 2003

This is not only a possible breach of national security; it is a potential violation of law. Under the Intelligence Identities Protection Act of 1982, it is a crime for anyone who has access to classified information to disclose intentionally information identifying a covert agent. The punishment for such an offense is a fine of up to $50,000 and/or up to ten years in prison. Journalists are protected from prosecution, unless they engage in a "pattern of activities" to name agents in order to impair US intelligence activities. So Novak need not worry.


I don't think this says there's a whole mess of people involved. I'm not even sure I believe Judy and Novak were at a meeting together.


Honestly, I think the earliest Novak would have flipped would have been in January, when Fitz came on. It's possible that Ari talked to him the week of July 8 and Novak learned that Ari had flipped and so did himself before then, but I'm not sure I buy it.


I'm making a couple of arguments here--you're collapsing them into one, which I'm not positive I'm ready to do.

First, if you believe Libby was coaching Judy (and I think there's a LOT of evidence to suggest he was), then why did he appear to be coaching her about Novak, as well? And why did he seem to specify journalists in July? The most logical answer is that Judy knew of an earlier Novak meeting. You can argue he wasn't coaching her about Novak, but frankly, the most telling way to figure out these guys' actions is to note how they're trying to cheat, so I'm not sure I'd buy that.

Which brings you to the quesiton of how Fitz knew of the June 23 meeting, and I agree, there are several explanations for that. My first--and still favorite--guess is that there is evidence at NYT because Judy tried to write a story in June. I think the Novak and Judy story is a possibility because it would explain two things that need to be explained ... but I agree there are other possibilities.


Yeah, I guess you're right again. I've always thought the Libby notes appeared later (that is, that the forgot about the VP was a later lie to coverup for the notes). But it appears to have been operative from the start. Geez, what a bad liar.

Bravo! EW


Subsections (a) and (b) of the Act are slightly different in describing the way the leaker learns the covert identity, but both require that the leaker have "authorized access to classified information," which I think would exclude Novak.

Subsection (c) does not require authorized access, but it does require a "pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States," which again would appear to let Novak off the hook. Note that while subsections (a) and (b) refer to a single agent, subsection (c) refers to agents (plural).

great analysis, emptywheel, explains a lot to me.
and I for one am looking forward to a good number of future indictments.

you must/should/could be a murder mystery/espionage novelist at heart!

I think Novak learning in June is very interesting, but...

it may be worth remembering that Novak was a paleocon, not a neocon - he did not initially support the war.

There is the odd incident of Novak meeting Wilson's friend on July 8 and talking about Wilson's wife. Why do that, if he had known since June? Because Wilson was suddenly in the news?

And if Fitzgerald knew of a June 23 meeting, when did he learn about it, and why did he not ask Libby about it?

Libby's last go with the grand jury was in March 2004. What evidence did Fitzgerald get after that, other than the reporters he subpoenaed?

Well, I mainly want to see the Russert post - if you have more dirt than I do, you have a mountain.


Great questions.

You raise a really good point about Novak--it does seem unlikely for Libby to go to him first. Rove, sure. But not Libby. Maybe Rove was involved in the pre-July meeting, if one happened. Plus, remember that Novak was on Meet the Press with Wilson on July 6. I think they clashed a bit there. Might explain why Novak got especially incensed.

I tend to believe that if Novak flipped, it was between the time the Waas article appeared insinuating obstruction and when he stormed off the CNN set. Which would put it in July/August of this year. But it may have been earlier, around about June, when Fitz appeared to be looking into conspiracy (on the outing, not on the coverup). In any case, I think you don't let Libby get another shot after Novak's testimony because it prevents you from getting the conspiracy, if there is one. Plus, Libby couldn't clean up the perjury in this case because it is central to the case.

What I'm really interested in, if Novak really has flipped and testified a lot, is whether Rove knew that for his most recent GJ appearance. It seems that Novak's a more central witness to Rove's crime.

I may have convinced myself out of the Russert post. I'm stewing on it right now. But if I do it, it's really very simple. I just come to your place for the mountain of stuff on Russert. I don't produce it myself (no need to double up on tasks here, after all).

Oops. I mean it wouldn't be unlikely for ROVE to go to Novak first. It would be unlikely for Libby to do so.

Indeed, Novak is not a neocon. Far from it. Novak has a long history of being loathed by the neocons -- who've accused Novak of anti-semitism and anti-Israelism for decades. So, extremely "unlikely" for Libby to have been a direct Novak source.

Ironically, with anti-war Novak as lead-stenographer, a more formidable blow was visited upon Wilson/Plame, with fewer eyebrows raised regarding neocon involvement.

Novak had more credibility... and a good deal of gullibility. The oddly matter-of-fact tone in his original article suggest he didn't fully grasp the situation.

Just stretchingly possibly..... If Libby was the linchpin, he was all-too-aware of the explosion that would follow a Plame exposure, so he kept aspen roots pal Miller from formally writing about it, while finding an indirect way to drop the shell in enemy Novak's lap...

Just possibly explaining how Libby and Rove's interests in the case have diverged... trying to pin the tail on one another... with Rove thus far in the lead, thanks in part to his long-time ally Novak.


it would help the general public to have an idea of the universe of reporters in the Libby/Rove world

how many. what cliques. who used for what.

why would Woodward be left out? Why were Novak and Miller the main choices (if they were)

how was the division of labor decided regarding who would contact whom, and when

if you know

"pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States,"

I agree with your analysis, but where I disagree is whether Novak qualifies. I think he does.
Yes, he outed Valerie, and we've covered that in depth.
But he was ALSO responsible for outing Brewster-Jennings on CNN on October 3 and his column on October 4, 2003.

You will search in vain for any reference to this front company in the public domain prior to October 2003. And it IS a classified secret.
That makes Novak a serial leaker, one who demonstrates a "pattern of activities".

What happened in October 2003 was AT LEAST as vile as what happened that July.


Go back and read that original column. Compared to Judy Miller's work, it's almost balanced. Well, it prints all the WH talking points almost verbatim. But it does talk about WH finger pointing and admitting error, which given the climate of that week, is somewhat surprising to read now.

How about Kristol as a likely candidate? He's been known to parrot talking points. And it seems to me that he had been keeping a lower profile for the past year or Maybe a leak like this actually scared him. He's definitely smart enough to be scared of Fitz. Also, this is the kind of leak that would kill a small publication like Kristol's if he had to fight a big legal battle, whereas the other journalists all work for big organizations. Kristol wouldn't have printed that leak, but I doubt that Libby would have thought about that.

abtiaristo & emptywheel,
Have you considered the possiblity that it was ROVE who gave up the "Official A" conversation to Fitz (para. 21 of the indicment)? Why would we assume that Novak would be the source of that information? How would *Novak* know what Rove told Libby on 7/10 or 7/11? Unless there was more than two people in on that Libby-Rove conversation, the infomation could only have come from Libby or Rove. (Outside chance that Fitz knew about it from hearsay, but I wouldn't put something key in an indictment unless I knew I had admissible evidence on it.)
If true, this could (a) explain the story about "new information" coming from Rove that (at least temporarily) headed off his impending indictment (cuz it damn sure wasn't the Levine e-mail); and (b) would fit very well with Rove's ruthless profile and with the idea that the WH has definitely written off Libby as a casualty -- and perhaps was their way of trying to make him the one and only Elisha Cook, Jr. figure here (see penultimate scene in the Maltese Falcon, where Spade (Bogart) convinces Gutman (Greenstreet) to give up Gutman's toyboy Wilmer (Cook).

You're right, Grandpa. I absolutely missed that bit about Libby's FBI testimony. The "I forgot" story was operable early on.


Yeah, I have considered that. I actually think it's one of the most likely possibilities--probably more likely than Novak. Because, as you point out, Libby saying to Novak "hey, I heard you're going to write a story," would be hearsay. Plus--and I'm still puzzling through this--if Libby spoke to Novak, we need to explain how it has escaped attention (although we don't know that it escaped Fitz' attention, just the MSM), and I think a pre-July 6 date would be most likely.

Here's a question. How does someone like Robert Novak get selected for MTP? Does the host (who on July 6 was Andrea Mitchell) get final say? Did they set it up to make sure that Robert Novak would be on the same show as Joe Wilson? That would necessitate bringing him up to speed significantly before July 6--and advance knowledge Wilson was going to do his op-ed on July 6.

I tend to think that if Libby spoke to Novak, we would have seen it in the indictment. We certainly would have if that discussion had anything to do with Wilson's wife. Fitz very deliberately piled on every single communication he could find in which Libby discussed Wilson's wife, so as to make an overwhelming case that, from the outset, makes risible any notion that Libby might have forgotten where he got the information from or somehow was just confused about whom he had heard the information from. The comments above -- pointing out that Novak is something of a persona non grata among the neocons -- also seem to make a lot of sense to me (although he still got an invitation to this year's Forstman Little Munich Beer Hall conference).

two things:

1) new article by John Dean

Having read the indictment against Libby, I am inclined to believe more will be issued. In fact, I will be stunned if no one else is indicted.

2) Firedoglake has a long thread lambasting the WSJ for attempting to force Fitzgerald to make the 8 redacted pages public. Can you explain to me why I'm wrong in my immediate reaction that this would backfire horribly and that Bush would be destroyed by the public dissemination of the information that led the judges to talk about the "gravity of the suspected crime" and "plot against Wilson"?


I couldn't disagree more. As I pointed out here there are a whole bunch of people not mentioned in this indictment. In fact, only those who Libby probably already knew were cooperating are mentioned. There is no mention of any information that reveals that--or to what degree--Novak is cooperating. And there is no mention of a good deal of evidence we know exists (such as discussions in Bolton's office).

In other words, Fitz did anything but put every single communication in here. Rather, he put in only the communication that supported these rather narrow indictments for lying. Fitz didn't tip his hand at all as to what he's got relating to conspiracy.

And if Fitz plans to come back for a conspiracy charge (which, of course, he can only do if someone else is indicted), Novak will be a big part of that case (particularly if it relates to the conspiracy to obstruct justice that occured in September 2003).

Furthermore, there is a lot that Fitz doesn't detail here for other reasons. We barely see the evidence presented by Judy. I tend to think that's because Fitz knows she hasn't told the truth yet. But just maybe it's because she has--and he doesn't want anyone to know it.

No, I think the one mention of NOvak here (the conversation about him) is just a hint, a deliberate one, that Fitz has a lot more where that comes from.

Nice, obsessed. I'm not a huge fan of Dean (he seems a little too distant from the facts of the case, a little too stuck in the 1970s). But he makes a very good point, which is where I was going with my Russert post (which I may resucitate). There are two main facts that matter in this case: that Libby knew of Plame before Russert, and that he actively acted on it before then. That means his notes and Ari Fleischer are the most important pieces of evidence.

But once you have proven those pieces of evidence in court (whether or not the Russert lie holds up, although I presume it will, because of the way the indictment is written), then you've got a smoking gun in Dick's hand, his passing on the news that Plame was covert.

I absolutely agree that Fitz didn't put everything he has regarding Libby (hell the 9/15 letter alone warrants its own count) in the indictment -- not by a very long shot. This indictment -- while saying more than strictly necessary -- is also very quiet on many points. But I still think that if he had testimony that Libby talked to Novak about Plame, it would be there along with the Cooper and Miller communications. I don't disagree lightly with you, who have plumbed the depths of the deep weeds as few (if any) others have, but, gulp, it's my story and I'm sticking to it. I only hope that we will be able to find out who was right on this -- and I frankly won't care at all who is.
I also very much agree that one or two muthah conspiracy charging instruments are likely sitting there in draft form, but that they have holes that need to be filled before they could be taken forward -- and that likely will depend on people flipping who might or might not be flippable.
A minor technical point, Fitz does not necessarily have to indict anyone else in order to charge a conspiracy, he would just have to be able to *prove* the conspiracy -- i.e., an agreement with another to accomplish an unlawful end or to accomplish a lawful end through unlawful means. Thus, if the killah conspiracy here is a Cheney-Libby conspiracy (with a few extra charter members here or there), Fitz *could* (if he has the evidence) charge only Libby if he wanted to, so long as he could prove the agreement or understanding between the two (I don't think he'll have much trouble proving overt acts in furtherance of the conspiracy). I'm not saying that's what he would be likely to do, just that it's an option.
One interesting thing to keep in mind when thinking about what might be happening is that under the operative rules, when it comes time to charge a conspiracy, you can't do it piecemeal (i.e., one defendant per indictment); a federal prosecutor has to join it all in a single whopper indictment (see, e.g., the Ryan/Warren indictment, a thing of beauty). Given the possible conspiracies (conspiracy to violate the Espionage Act, conspiracy to obstruct justice, e.g.) much, much powder must, to be sure, stay very, very dry.

If Rove gave it up he's hanging himself. He's providing everything F needs for a conspiracy charge that sticks.

If Rove spoke to Novak, told Libby and then Libby called Novak on the 12th using the lead-in "Karl mentioned the other day that you were going to write about Wilson's wife..." the situation would be as we see it.

Fitz would have the substance, but not the exact date.
He wouldn't name Rove because ir is hearsay. He would use "Official A".

Novak was turned VERY early. He transgressed TWICE. He is being shielded.

Don't think Novak turned early or easiliy. One thing about the people Fitz would name as witnesses in an indictment, according to a colleague of Fitzgerald's I spoke with a couple of days ago, is that they're probably all pretty unimpeachable. He isn't going to include anyone who's dodgy if he doesn't have to, and it appears he doesn't. The colleague said that Fitz would not want to put someone up there who originally said one thing and then got cornered into admitting another, because they'd have to give it up to the defense that this was what went down. Hence, if Novak was a lying sack, and Fitz could make his case without him, he would. Thus we can assume that most of the people named -- other than Official A and Cheney, whom he seems to be attempting to flush -- were apparently square with him.

depressed (formerly obsessed) -- the thing that is freaking BushCo. out and forcing them to make seventeen different kinds of blunders a day is that they do not yet know what Fitz has and can do neither damage nor spin control. They can't fight what they can't see. Forcing his hand takes away that very big advantage.

A week after Fitzmas and still so many questions! Once again, delightful intrigue here.

So, way up there, and kind of off-topic, emptywheel mentioned:

You know, if Andy Card wants Rove out as much as he appears to, he could be one of those leakers.

I think it's a safe bet that Andy Card is leaking. From the very beginning, he's been "chief of staff," but outside the Iron Triangle from Texas that everyone acknowledged had all the power. (Rove, Hughes, Allbaugh) Card, on the other hand, seems to be something akin to GHWB's baby monitor.

Now, the triangle is gone. And the only remaining member, Rove, is badly wounded. You don't get to the place Card is without having lots of ambition and self-interest. So, with the last member of the inner circle that has frustrated you for 5 yrs, are you gonna play nice? Hardly likely.

Of course, he supposedly does want the Treasury job. But maybe, if he can really play the CoS role, and not have Karl standing in the doorway, he'd be content with this job.


If Rove gave it up he's hanging himself. He's providing everything F needs for a conspiracy charge that sticks.

Rove knew at least an indictment was hanging over his head last week. More likely, severl indictments and, perhaps, for crimes above and beyond those with which Libby was charged. Under those circumstances, he may have really decided to come clean about almost everything in the hope that it would spare him.

When you're on your way to testify to a grand jury for the 4th time -- apparently at your own request and with knowledge that you're a target -- that's not a great time to decide to start telling new stories or concealing what really happened in the first place. If that's your plan, better just to stay home.

Have you reviewed what Novak did on 3/4 October 2003 (one week after the DoJ began its inquiry)?
That was the second time he'd published classified information. That fits the "pattern of activities" mandated by the IIPA.
Novak IS a lying sack. Fitz squeezed him for info, not for testimony. That's the reason for para 21.

If I were Rove I'd NEVER admit to that conversation under any reasonable circumstances.


I agree with a lot of what you said. I think, for the reasons Jane mentioned (which says more eloquently than I what I was trying to get at) you might not see Libby/Novak.

And there's one more reason you might not see Libby/Novak. If Novak only flipped recently--and if Fitz only got Novak's testimony about an earlier conversation recently, then it's likely to have happened after Libby's last gj appearance in March 2004. Which means Libby never got the chance to lie about it. Ergo, no perjury associated with it.

Also, one more thing that might factor into Rove's calculus. He doesn't appear to be the first leaker in any case. He doesn't appear to be the mastermind of this leak. He definitely didn't dig out the information--OVP did that. Suppose Fitz said: you finalize my espionage case, and you'll go with one false statements charge. Would you take it? If you knew that Novak could get you for conspiracy and obstruction, regardless of whatever else Fitz had in his pocket?

Couple of quick points, none momentous. You can be less cautious in saying that "[Rove] doesn't appear to be the first leaker." It was plainly Libby. Although the indictment doesn't say so, Fitz made clear in the presser that "Mr. Libby was the first official known to have told a reporter when he talked to Judith Miller in June of 2003 about Valerie Wilson." That's only a teensy bit more than we get from the indictment, but we have to take all the breadcrumbs that we can get.
Fitz also said "Novak was not the first reporter to be told that Wilson's wife . . . worked at the CIA" -- which, I believe, fairly interpreted, puts paid to the idea that Novak was present during the June 23 meeting at the OEOB (I just don't think that he's venal enough to use that language if the reality was that Novak was among a group who initially learned it all at one time).
I agree that Rove would definitely have plenty of incentive to help Fitz nail Scooter by letting Fitz know that he told Scooter about his Novak conversation and Novak's impending article and little disincentive. The fact of that conversation doesn't put Rove in any hotter water than he already is in, and giving it up certainy could be considered "substantial co-operation" if that ever becomes an issue.
BTW I've said it before, but I can't say it often enough. Excellent work.

Jane: They (WH) can't fight what they can't see. Forcing his (Fitz's) hand takes away that very big advantage.

That's fine if he's going to show his hand at some point, but I would take a prompt and certain political deathblow to GWB over a protracted and uncertain legal one. (Unlike most of you, Bush is the bull's eye for me. I'd even settle for President Cheney to get rid of W before 2009.)

question for Jane/EW/etc.: If the 8 redacted pages were published on the front page of the Washington Post tomorrow morning, what, IYHO, do you think the chances are that they would contain something that would fatally wound the Bush Administration?


Novak was not the first reporter.... Hmm. That's pretty compelling.


The 8 pages? I'm not all that convinced. Count up how many pages it takes to describe Judy's role in the indictment (which seems to hide a good deal of her involvement). Maybe 2-3 pages. Then add in 2 pages for Cooper. And some caveats. I just don't see that there's a lot of space for real scandal.

Wait ... I just realized that the 8 pages aren't Fitzgerald's evidence - they're the part of the judges' ruling that makes reference to his "voluminous classified filings". So they could contain something like: "As the classified submissions show that the White House Iraq Group, on the orders of the Vice President, clearly conspired to out Valerie Plame ...". So, if you had read all of Fitz's classified filings, you could write a single paragraph which would damn the whole administration beyond any possible redemption, in the eyes of the public if not legally.

Is Dow Jones just trying to get at the 8 pages, or the classified filings to which they refer? I still think/hope they're taking a massive risk by trying to get the pages released.

Also, since, as you point out, half of the 8 pages are devoted to Cooper, and since they ruled against Cooper as well as Miller, isn't that bad news for Rove?


Oh yeah, those pages are Fitz', they're Tatel's.

Which means WSJ would only get a summary of Fitz' case, not the whole thing.

Excellent EW post & related comments above. For an extra context or two below...

Scooter Libby was Marc Rich's lawyer for 15 years. During those 15 years, the ever-dubious Rich required considerable legal counsel. Perhaps the two became close.

Clinton's January 2001 pardon of Rich created a furore at the time. Though Libby did not represent Rich on the pardon issue, when Libby soon scooted into the Bush administration, he's on record stating he thought Clinton did the right thing.

One of the many who thought Clinton did NOT do the right thing was Robert Novak, who wrote a column sharply critical of Rich, Clinton and Israel: http://www.townhall.com/opinion/columns/robertnovak/2001/02/19/166535.html

Novak has probably retained the salient details of the Marc Rich track record -- along with who'd been his long-time lawyer. And Libby's detailed mind has probably retained Novak's general views on the matter. And Novak was never hip to the whole neocon Iraq War concept. So it's difficult to imagine Libby and Novak sharing breakfast at the St. Regis Hotel.

Meanwhile, Libby's familiarity with the last-minute pardon process could be easing discomfort over the present Bulldog problem.

Speaking of discomfort, Woodward offers a curious Libby anecdote in "Plan of Attack," paperback, p.50:

"In the days after the 9/11 terrorist attacks, The New York Times ran a front page story on the debate in the Bush administration over whether to go after Iraq in the first wave of military attacks in the war on terrorism. Headlined 'Bush Advisors Split on Scope of Retaliation,' the story reported Powell to be opposed, while Wolfowitz and Libby were listed as pressing the case for Iraq. It was an unusual appearance of his [Libby's] name in the newspaper, and he was excruciatingly uncomfortable. The reporters had not called him for comment, and he felt the leak was 'scandalous.' He tried to tell others that the story was 'untrue.' Asked if it was 'totally untrue,' he responded with a lawyerly parsing of language: 'It's not totally untrue, but untrue.' He had not spoken about Iraq in the large NSC meeting but as he put it, 'there were confabs on the margins.' Libby went to see Armitage. 'I'm used to seeing Powell's name in print,' Libby said. 'I didn't like to see my name next to him, particularly in that context. And I don't have a dog in this fight.'"

Good one from Woodward -- no end of irony here -- but a few questions:

Why would Libby prefer NOT to be yoked with Wolfowitz on the neocon post-9/11 push against Iraq? Why is it that Libby does NOT appear to relish the limelight?

And If Libby was "excruciatingly uncomfortable" after that little NYT leak above, how might Scooter's sphincters be faring in the glare of the Plame mega-leak?

Libby preferred to see Powell's name in the headlines, and it was Libby who personally cobbled together the intelligence summariums handed to Powell for use in his fabled UN WMD speech. Which made quite a few headlines, and also the final definitive case for war, on almost uniformly false information.

Powell now happens to regard the U.N. episode as the absolute low-point of his career. Powell's enduring displeasure might have some focus around Libby's helpful contributions. And perhaps Libby's present discomfort is loosely connected to Powell's displeasure.

This is all conjecture of course, But Just Maybe, Libby has ended up too clever by half:

As mastermind of the Plame leak, Libby pulled the pin and lobbed the grenade in the general vicinity of Novak, a paleocon antiwar enemy whose career has been jeopardized.

As a mastermind of the Iraq War, he showered false intelligence upon Colin Powell, another antiwar enemy, who took just enough bait to the U.N. to botch his entire career.

At the moment, Libby is paying for his cleverness. But, should a last-minute pardon come his way, he will have been -- in a word -- brilliant.

In fact, those 8 pages would be like a set of Steely Dan lyrics. SD's approach was to come up with a storyline, but not tell you what it is, and then write the lyrics from the point of view of a person making (often sarcastic) comments about a situation to which the listener is presumed to be privy. Thus, each lyric is open to multiple interpretations because no one knows the underlying facts of the situation.

If we had the 8 pages, it might settle nothing but merely give us more tantalizing tidbits to parse and try to decipher.

I'd still like to see them, though, and I still think there's a reasonable chance that at the end of the day, the WSJ might deeply regret bringing that about.

So, there's been a lot of discussion about whether it's good or bad for Bush if the Dow Jones action to release the 8 pages succeeds, but:

QUESTION: What are the chances it WILL succeed, and if so, when?

Malvolio -- that was an utterly fascinating post. Do continue!

Yes, thanks for that, Malvolio, it's a welcome addition.

I think the odds of Dow Jones's motion succeeding has something between about .01 and .05 cahnce of success. I haven't yet been able to lay my hands on a copy, but just based on what we know, the D.C. Circuit is not going to be bossed around by the WSJ opinion page (which can't even get the actual court in which the motion was filed straight -- they referred to the district court, which is the trial court). At any rate, it is clear that the criminal investigation is not over (as much as the WSJ wants to pretend otherwise) and that is reason enough to keep the 8 pages redacted. the fact that the initial grand jury expired is of no consequence. Moreover, the gran jury secrecy rule does not evaporate once prosecutorial decisions are made. Some grand jury material is made available to the defense ordinarily if someone is indicted (such as relevant testimony) but any grand jury information about persons not charged with crimes will always remain sealed, and it is quite possible that Tatel's summary of Fitzgerald's showing talks about people and events that don't end up as part of an indictment. Dow Jones's motion is, in short, pure bullshit. It's a little PR ploy designed to try to make Fitzgerald look bad by oopposing the motion. I don't think that even the WSJ's lawyers think they have a ghost of a chance.

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