Libby's Nixon Lawyer Gets Punked

by emptywheel

My profuse apologies to William Jeffress, Libby's Nixon lawyer (as distinct from his Iran-Contra lawyer). I said the other day that his statement...

There is no truth at all to the story that Mr. Libby's lawyers have advised the court or the Special Counsel that he will raise a defense based on authorization by superiors. Indeed, there has never been any conference call between Mr. Libby's defense lawyers and Judge Walton. We do not know who reporters are relying on as sources for this story, but any such persons are neither knowledgeable nor authorized to speak for Mr. Libby's defense team.

...was complete and utter horseshit. It wasn't. It was just a really hamhanded attempt to bury controversial information about Dick ordering Libby to leak classified information. Which served only to give that controversial information more publicity.

You see, I thought Jeffress was responding to Murray Waas' or Carol Leonnig's articles confirming that Cheney (among other superiors) had ordered Libby to leak classified information. Only, those articles make none of the claims Jeffress seemed to be saying they did. But Jeff has found the likely culprit. Apparently, on Thursday night's Hardball, David Shuster bolloxed his reporting on Waas' story and implied that the Libby lawyers were consulting with Fitzgerald and Judge Walton on their defense strategy. The beginning of the Shuster quote sure seems to imply just what Jeffress suggests it implies:

Legal sources in case, Chris, are telling us that this came up recently in a conference call with the judge in the case and Prosecutor Patrick Fitzgerald.  There was a discussion about evidence and requests by the defense, by Scooter Libby to get classified documents and it was during this conversation, according to lawyers, that Scooter Libby‘s lawyers said that part of their defense is based on the idea that Scooter Libby was acting on orders by his superiors, including Vice President Cheney. 

Sure makes it sound like Libby's lawyers are sharing their defense strategy with the enemy, huh? But as we read further, it becomes clear that Shuster is, um, confused.

Now this conference call was a follow up to an exchange of letters between Prosecutor Patrick Fitzgerald and Scooter Libby.  Again, they are battling over classified information and Scooter Libby‘s lawyers wrote to Patrick Fitzgerald and they said, quote, “as we discussed during our telephone conversation, Mr. Libby testified in the grand jury that he had contact with reporters in which he disclosed the content of the national intelligence estimate in the course of his interaction with reporters in June and July 2003.  We also note that it is our understanding that Mr.  Libby testified that he was authorized to disclose information about the NIE to the press by his superiors.”

We know he's confused, because we reported on the passage he cites on February 1, eons before this was supposedly scooped by Murray Waas. Here's the passage from the letter in question:

At this time, we do not intend to offer any evidence of "other crimes" pursuant to Rule 404(b). As we discussed during out telephone conversation, Mr. Libby testified in the grand jury that he had contact with reporters in which he disclosed the content of the National Intelligence Estimate ("NIE") to such reporters in the course of his interaction with reporters in June and July 2003 (and caused at least one other government official to discuss the NIE with the media in July 2003). We also note that it is our understanding that Mr. Libby testified that he was authorized to disclose information about the NIE to the press by his superiors. We expect that such conduct will be the subject of proof at trial in that we intend to introduce Libby's grand jury transcript in evidence and Mr. Libby has testified that the purpose of his July 8 meeting with Ms. Miller was to transmit information concerning the NIE. Our anticipated basis for offering such evidence is that such facts are inextricably intertwined with the narrative of the events of srping 2003, as Libby's testimony itself makes plain. (6)

The problem is, Shuster says "Scooter Libby‘s lawyers wrote [this] to Patrick Fitzgerald." As is very clear (to me, anyway), this passage appears in a letter from Fitzgerald to Libby's lawyers. I don't think we've seen the request this responded to (I think it is just a response to the actual conference call). But it seems to be a response to a question delving into whether or not Fitzgerald would introduce evidence of other crimes in the trial. And Fitzgerald, tricky guy that he is, just happened to slip this doozie into the paper (and now public) record of the case.

It was Fitzgerald saying he was going to enter the evidence that Dick (and Bush, I still suspect) ordered Libby to leak classified information to Judy Miller, not Libby's lawyers. This letter doesn't indicate how Libby's lawyers responded to the news that Dick's leaky ways would be publicized during the trial. Given the tricky way Fitzgerald is introducing it (as evidence that Libby lied about the context of his Judy meeting, directly relevent to the perjury charge, and not in any national security context), I rather suspect Libby's lawyers wish he wouldn't mention it.

Of course, now that Waas and Leonnig reported on this story. And Shuster misreported on the story. And Jeffress, rather than letting it die down, sent out press releases saying, "No, we did not say that we wanted everyone to know that Dick routinely orders his lieutenant to leak classified information, we did not say that! We really don't want that information to be public! No we don't! Do you understand? We don't want that information to be public!!!" Now, folks are beginning to notice that our Vice President is ordering people to leak classified information. Golly, even the stupidest guy in the Senate has recognized the political advantage of calling for Fitzgerald to investigate Dick for leaking classified information!

I don't think anybody should be releasing classified information, period, whether in the Congress, executive branch or some underling in some bureaucracy.

And if the stupidest guy in the Senate is hip to the fact that Dick was leaking information, I gotta believe it's beginning to bother Dick, too. (Though, a good friend of mine once fished directly against Dick in the Jackson One Fly contest for an entire day, and she didn't have much to say about his fishing ability; maybe he's no better shot than he is a fisherman.) In fact, while I'm really sorry that I wrongly called Jeffess' statement horseshit, I'm rather amused that Fitzgerald's tiny little mention is beginning to snowball--through the competent efforts of Murray Waas and the incompetent efforts of David Shuster and William Jeffress and, now that I think of it, Barbara Comstock--into a big political issue.

Mr. Nixon lawyer? You're doing a heckova job.

Comments

[viget]

Ohh, this is MUCH better than I thought. I didn't realize at first what Fitz was trying to say with that revelation, but when you put it together with his little off-handed bit about missing emails it's beginning to make sense: either stop playing games now and let us finish our investigation, or we're going to throw a political s*itstorm on you at trial (which makes it all the more of a shame that the trial won't be until Jan 2007). It's political blackmail at its finest (and, dare I say noblest?).

I've got to wonder if these bomblets aren't being lobbed Karl's way. I just have a gut feeling that Fitzgerald thinks that he can indict Karl on a whole lot, but Karl is still playing games with him trying to run out the clock. I think Fitzgerald's finally done with these games and is showing some of his cards now to let Karl's (and Libby's?) superiors know how serious he is, give up Karl now, or face a helluvalot of blowback later.

[emptywheel]

Yeah, I'm a little astounded this letter even got released. After all, Judge Walton hasn't ruled on whether it is proper for Fitz to bring up the NIE yet.

Whether it was purposeful or not, I do think Fitz is contemplating ways to win the PR battle. ANd these tidbits sure helped. I'd bet money that George Allen was of the "well if it's just perjury, then why indict the man" persuasion a few months ago.

[SaltinWound]

One moment in all this that gets funnier and funnier to me is Judy helpfully speculating that, when Libby leaked to her, she may have still had her special classified clearance.

[SaltinWound]

Did anyone ever solve the mystery of Judy's clearance? Is it possible that her clearance consisted of Libby selectively leaking classified info to her (that is, she didn't really have one)? He told Judy the reason he could do this was because she had a clearance, and she believed him, but really they were just making this shit up as they went along?

[KM]

Paul Lukasiuk called that sentence one of Fitz's "bomblets" in response to the Libby team discovery requests, deliberately thrown in to make sure there were consequences for going to the judge. Not sure, but it makes sense to me, and appeals to the omniscient-Fitz motif I continue to cherish in the face of a less romantic reality.

[John Casper]

And Jeffress, rather than letting it die down, sent out press releases saying, "No, we did not say that we wanted everyone to know that Dick routinely orders his lieutenant to leak classified information, we did not say that! We really don't want that information to be public! No we don't! Do you understand? We don't want that information to be public!!!" Now, folks are beginning to notice that our Vice President is ordering people to leak classified information. Golly, even the stupidest guy in the Senate has recognized the political advantage of calling for Fitzgerald to investigate Dick for leaking classified information! ROFLMAO

[emptywheel]

I'm not sure if they were meant for Libby (after all, I don't even think Fitz would begrudge a defendent an honest attempt at discovery), or for someone(s) else. Like Rove and Cheney. And frankly, the media. It may take Fitz several years to pack up Dick in an orange jumpsuit. At some point (as George Allen's call for investigation shows, I think) it will become politically expedient for the GOP to start throwing Dick aside. And when that happens, he will be easier picking, since the bottomless moneybags will dry up, the unquestioning support for his policies, folks will stop ignoring the other constitutional abominations, and so on.

[mlk]

Wouldn't it be bad for Fitz if there is a Senate investigation and Rove & Cheney & Libby are granted some sort of immunity? Isn't that what happened during Iran/Contra? I just think we shouldn't get too excited about an investigation outside of Fitz's.

The media buzz is fun though.

[emptywheel]

Allen was suggesting an investigation WITHIN Fitz' larger investigation.

Plus, the Senate would have a tough time offering Dick immunity about this when they're going to try to go after James Risen and his leakees hard.

[mlk]

Oops, I didn't read this as closely as I should have.

With this Senate, I wouldn't put anything past them. If Dick says he was given permission in the AUMF, they'll just roll over and say ok.

[William Ockham]

Folks, I keep telling you: Watch for the pointers Fitzgerald throws out. You can tell the man is doing everything he can to adhere to the rule of grand jury secrecy while still letting us know the direction of his investigation. His visit to Bush's personal lawyer meant something. The rather direct implication of Cheney and crew in the Libby indictment was very deliberate. He had enough facts to demonstrate quite clearly that Libby was lying without dragging Cheney into the indictment at several important (can you say 'conspiracy'?) points in the narrative.

I wonder if Cheney knew that Libby had testified about being authorized to partially leak and lie about the contents of a classified document. This was a real blunder on Libby's part. It sure makes the conspiracy charge a lot more believable to a jury. If you reflect for a minute, you'll realize that the Cheney-Libby approach to the NIE was exactly like their approach to the Plame-Wilson connection. In both cases, they peddled to the press a toxic brew of classified half-truths and dishonest distortions to shift the blame for getting us involved in a pointless war. For this crew, the buck stops with whoever happens to be the most convenient fall guy.

[QuickSilver]

"We also note that it is our understanding that Mr. Libby testified that he was authorized to disclose information about the NIE to the press by his superiors."

Love that sentence! I absolutely agree with William Ockham (and the diarist, of course): this is a powerful clue to what Fitz has and what he's prepared to use.

Since Libby's two grand jury appearances preceded Miller's, I'm very curious how Fitz knew to ask Libby was spreading the classified NIE information and how Fitz knew Libby had discussed this with Miller (or perhaps others unauthorized to receive it). Any thoughts?

[emptywheel]

I think Libby said this of his own accord (perhaps in response to something in his notes, perhaps in response to questions about what paper he handed Judy).

[p.lukasiak]

Since Libby's two grand jury appearances preceded Miller's, I'm very curious how Fitz knew to ask Libby was spreading the classified NIE information and how Fitz knew Libby had discussed this with Miller (or perhaps others unauthorized to receive it). Any thoughts?

just a guess.... but I'd be willing to bet that Libby's accounts of his conversation with reporters included Libby relating stuff to reporters that were classified when they were being related. So, in a followup appearance, Fitz says "The last time you were here, you told us that you revealed FACT X to a reporter. Its turns out that FACT X was classified at that time. Why did you reveal classified information to reporters?"
"

[emptywheel]

p luk

To support your case, Judy's testimony was wrong, in that she testified the NIE had been declassified a few weeks before, when in reality it was declassified 10 days later.

[Jim E.]

EW wrote (in the comments): "I'm a little astounded this letter even got released."

Does anyone know about the legal protocol about this letter? Are their rules about what correspondence can and cannot be released? While the affadivit was officially released by the court, is the same true of this letter?

My two cents: if this letter wasn't officially distributed by the judge, we can rule out Fitz as its leaker. It would be unethical for him to do so and Libby's lawyers would scream and yell about prosecutorial misconduct. Therefore, Libby's team would be the leakers. Do you think Libby's lawyers are trying to send messages to the White House? But couldn't they find more discrete ways to do so? Or are Libby's lawyers trying to get the more eyebrow-raising disclosures into the public record so that it seems less shocking during the trial itself?

[QuickSilver]

P Luk and EW -- thank you both for straightening me out.

[herefast123]

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