Those Eight Pages

by emptywheel

Geez, here I was, getting ready for the Super Bowl, having a great conversation about football, scratching my crotch, and drinking a beer. But obsessed and Sebastian Dangerfield say I've got to get back on the Plame beat and talk about the 8 pages of Judge Tatel's opinion that the court has unredacted (go to pages 31 through 39.

Ah well. Can't wait for Sunday. Go Steelers!

The Eight Pages include a lot of things we already know from Libby's indictment. They lay out the case for perjury, including details of Cheney telling Libby of Plame's employ, Libby mentioning Valerie Wilson to his CIA briefer, the conversation with Russert, and the conversation with Ari.

Conversation with Ari

I gotta say, far and away the most interesting part of this newly unredacted information is the passage on Ari's conversation with Libby:

For example, then-White House Press Secretary Ari Fleischer recalls that over lunch on July 7, the day before Libby’s meeting with Miller, Libby told him, “[T]he Vice-President did not send Ambassador Wilson to Niger . . . the CIA sent Ambassador Wilson to Niger. . . . [H]e was sent by his wife. . . . [S]he works in . . . the Counterproliferation area of the CIA.” (II-545-47.) Describing the lunch as “kind of weird” (II-590-91), and noting that Libby typically “operated in a very closed-lip fashion” (II-592), Fleischer recalled that Libby “added something along the lines of, you know, this is hush-hush, nobody knows about this. This is on the q.t.” (II-546-47.) Though Libby remembers the lunch meeting, and even says he thanked Fleischer for making a statement about the Niger issue, he denies discussing Wilson’s wife. (I-108-09, 156, 226-27.)

The passage resolves any notion that Libby explicitly told Ari to leak this information (Swopa, I hope you're reading this too). But the "weirdness" about it suggests that Libby may have hoped that Ari would leak it, or at least given some hints, which may be all that John Dickerson got. Note, too, that Libby didn't just tell Ari that Plame was CIA (as the indictment states), but that she was in Counterproliferation, which would have made it clear that Plame was covert. And the whole conversation attests to the fact that Libby was blabbing about classified information, something he didn't usually do. Ari will say, that is, that Libby's sharing of this information was not typical behavior.

Libby, of course, denies he ever mentioned Plame. Guess that explains why he spent last summer trying to impugn Ari as a witness.

Conversation with Russert

WRT the Russert information, we learn something the blogosphere had already figured out: Libby called Russert to complain about Tweety's coverage (recall that Tweety had said Libby was responsible for the uranium claims).

Nevertheless, Libby maintains that he believed he was learning about Wilson’s wife’s identity for the first time when he spoke with NBC Washington Bureau Chief Tim Russert on July 10 or 11 regarding coverage of the Niger issue by MSNBC correspondent Chris Matthews. (I-162-69; 8/27/04 Aff. at 9-10.)

And, finally, we get an account of Russert's side of the conversation. Reading through the Russert, we might get a sense of why he hasn't been more forthcoming himself.

Russert recalls this conversation very differently. In his deposition, describing Plame’s employment as a fact that would have been “[v]ery” significant to him—one he would have discussed with NBC management and potentially sought to broadcast—Russert stated, “I have no recollection of knowing that [Wilson’s wife worked at the CIA], so it was impossible for me to have [told Libby] that.” (I-43, 32.) Asked to describe his
“reaction” to Novak’s July 14 column, Russert said, “Wow. When I read that—it was the first time I knew who Joe Wilson’s wife was and that she was a CIA operative. . . . [I]t was news to me.” (I-433.) [my emphasis]

First, look at those two brackets. They may very well be innocuous. The first bracket may just be an explanation. and the second may have just explained the reference behind an unclear word. So it may have read like this in Russert's statement:

“I have no recollection of knowing that, so it was impossible for me to have said that.”

This is probably the most likely. But look at the next passage I've bolded:

Wow. When I read that—it was the first time I knew who Joe Wilson’s wife was and that she was a CIA operative.

Again, this could be innocuous, something along the lines of "I knew who Joe Wilson was, but never knew he had a wife." But it could also mean, "I knew Joe Wilson and but I never knew Valerie Plame, noted energy analyst, was Wilson's wife." No way of telling, but if the second is true, it might explain what Andrea Mitchell has been babbling about all these months. It also might explain why Russert would have responded with the lame, "wow." Is it possible that the security reporters all knew Valerie Plame? In any case, if this second possibility is true, it also suggests the brackets may obscure information, such as:

“I have no recollection of knowing Plame was married to Wilson, so it was impossible for me to have said that.”

Like I said, we have no way of knowing one way or another. Let's hope someone thinks of asking Russert some questions for a change. I nominate Barack Obama.

Judy's Version

Now we get into what the newly unredacted materials tell us about Judy. First we know (well, we already knew this) that Fitzgerald was not yet after the June 23 conversation. And that the sole things he needed to answer about Judy's conversation were:

• Had Libby mentioned Plame at the July 8 meeting? (Libby says no, Judy says yes)
• Did Libby explain that Plame was covert in either the July 8 or the July 12 conversations? (Libby says no, Judy is, um, probably lying)

Now, it's worth returning to the lying Judy (painful, I know) just to clarify this point. The opinion basically says Fitzgerald's IIPA case (which he appears to have been considering) rested largely on Judy's testimony:

What’s more, if Libby mentioned Plame’s covert status in either conversation, charges under the Intelligence Identities Protection Act, 50 U.S.C. § 421, currently off the table for lack of evidence (see 8/27/04 Aff. at 28 & n.15), might become viable.

This is pretty stark. If Judy admits that Libby told her Plame was covert, Libby gets hit with an IIPA violation. If not, he gets off.

So let's quickly review Judy's version. In their first meeting, Judy describes learning the following:

Soon afterward Mr. Libby raised the subject of Mr. Wilson's wife for the first time. I wrote in my notes, inside parentheses, "Wife works in bureau?" I told Mr. Fitzgerald that I believed this was the first time I had been told that Mr. Wilson's wife might work for the C.I.A. The prosecutor asked me whether the word "bureau" might not mean the Federal Bureau of Investigation. Yes, I told him, normally. But Mr. Libby had been discussing the C.I.A., and therefore my impression was that he had been speaking about a particular bureau within the agency that dealt with the spread of nuclear, biological and chemical weapons.

Very vague, huh. Then, during the July 8 conversation, Judy describes:

At that breakfast meeting, our conversation also turned to Mr. Wilson's wife. My notes contain a phrase inside parentheses: "Wife works at Winpac." Mr. Fitzgerald asked what that meant. Winpac stood for Weapons Intelligence, Non-Proliferation, and Arms Control, the name of a unit within the C.I.A. that, among other things, analyzes the spread of unconventional weapons.

I said I couldn't be certain whether I had known Ms. Plame's identity before this meeting, and I had no clear memory of the context of our conversation that resulted in this notation. But I told the grand jury that I believed that this was the first time I had heard that Mr. Wilson's wife worked for Winpac. In fact, I told the grand jury that when Mr. Libby indicated that Ms. Plame worked for Winpac, I assumed that she worked as an analyst, not as an undercover operative.

Finally, Judy mentions nothing about Plame's status regarding the July 12 conversation (although she does talk about that Victoria Wilson crap).

Now, I have no idea whether Judy knew that the IIPA violation rested entirely on her testimony. She could probably guess. But looking back at it, I find it rather convenient that Judy describes the "bureau" as the one that "that dealt with the spread of nuclear, biological and chemical weapons." Sounds a lot like Counterproliferation to me. Plus, I'm not sure whether in espionage lingo one would refer to something as the WINPAC bureau (I've never seen it). But Counterproliferation bureau?

For now, anyway, that one line about WINPAC saved Libby's ass. We know he learned that Plame was in Counterproliferation on June 12. And the day before he had the WINPAC conversation with Judy, Libby had told Ari that Plame was in Counterproliferation. Now, particularly given the fact that Libby trusts Judy more than he trusts Ari (and, according to Judy anyway, shares classified information with her), why do you suppose he would tell Judy Plame was WINPAC? Why indeed.

Which may explain why Fitzgerald went after the June 23 conversation. Honestly, I wouldn't be at all surprised if Judy had first learned of Plame's identity even earlier, and that the remaining meeting were all fine-tuning about what she should and shouldn't say, if NYT would ever let Judy write pure tripe again.

Judy, thus far you have managed to save your best-entanglement-friend's ass. But don't count Fitzgerald out yet.

Other Redactions

Now, let's look at the remaining redactions, to see if we can't speculate what Fitzgerald is still hiding from us, the tricky guy.

The first redaction appears on page 32. It clearly pertains to Libby's July 12 conversations, per the lead in. Just after the redaction, the opinion describes LIbby calling "several journalists." Who, Tatel, who?? This redaction almost certainly refers to the strategy session Libby, Cathie Martin, and Dick had on Air Force 2, regarding how they were going to respond to journalists (which probably explains why the remaining calls didn't include Judy leaks). If I'm right, it means there's still something about that July 12 session that we don't know yet. What did the Vice President say and when did he say it?

The redaction that most confounds me is the one that appears on page 33. The lead-in refers to Cooper's conversation with Libby (and seems to be part of the same paragraph). The following paragraph summarizes the case for perjury. So there appears to be something more going on with the Cooper-Libby conversation. Did Libby tell Cooper of Plame's status? Did he say something to make Cooper disbelieve he was just confirming her status? Did he tell another lie? There's nothing in Cooper's account of the conversation that would logically fill in this blank. Perhaps it's just further evidence that Libby was following whatever orders Dick gave him on Air Force 2?

There's a huge chunk still redacted on Cooper's testimony, pages 34 through 37. This almost certainly includes evidence about Cooper's Karl conversation, plus some evidence from Novak. Poor Karl, he doesn't know much more about his case now than he did before.

There's a redaction on page 38 with the lead-in,

In addition, Libby said that Plame worked in the CIA’s counterproliferation division (I-53-55, 245-46),

This one I'm fairly certain on too. I'd bet the remainder of the sentence (and probably one more, given the space), makes the case that someone in Libby's position would know, beyond any doubt, that someone who worked for Counterproliferation at the CIA was covert. This accords with the following sentence, which describes Bill Harlow's efforts to keep Plame's name secret (and, incidentally, I think the Harlow testimony is the one "new" witness Fitzgerald said we'd get). So it seems likely that Tatel was establishing the case that Fitzgerald had proven Libby knew of Plame's status.

The redaction on page 39 starts about four characters from the margin. The opinion is fully justified, so we know there are probably 3 letters there. And then on line remains blank below. So I'd bet some money that the unredacted passage reads:

Thus, given the compelling showing of need and exhaustion, plus the sharply tilted balance between harm and news value, the special counsel may overcome the reporters’ qualified privilege, even if his only purpose—at least at this stage of his investigation—is to shore up perjury charges against leading suspects such as Libby and Rove.

There's not space to name Libby, Rove, and Hadley. And the rest of the redacted evidence (relating to Cooper) relates to Rove. So at least early last year, Fitzgerald had a fairly well-supported case for indicting Rove on perjury.

Well, that's it. I'm going to go open a beer and head downtown for some Superbowl fun. Anyone want to spring for the $3000 tickets for me?

Comments

[peanutgallery]

ew-

counterproliferation, the bureau, nonproliferation, Winpac are beginning to work here like valerie, victoria, flame, plame, wilson, wife to give wiggle room and deniability, it seems to me. but I'll return to a pet peeve of mine - nonproliferation and counterproliferation are different processes probably being handled by different agencies - VP worked in non-proliferation, Judy was into counterproliferation (see the title and content of her August 2003 Aspen strategy paper. )

and back to the football, its the only hope of getting mainstream america able to talk about emergent, dynamic complexity

[emptywheel]

Well, that wiggle room worked. At least so far.

Aren't they both in Counter-proliferation. Certainly VP's job was to stop people who WERE proliferating. Judy's job? Besides stenography?

[CaseyL]

If all Fitzgerald needed to indict Libby on IIPA charges was for Miller to confirm that Libby told her Plame was covert, and he believed going after the June 23 conversation would provide him with that confirmation... then either Miller lied during her 8-hour tete-a-tete with Fitzgerald... or she didn't lie, and Libby didn't, in fact, reveal Plame's status to her.

I put no faith in Miller's veracity at all, but wouldn't it have been an awfully dangerous thing for her to do, continue lying to Fitzgerald after he'd already had her thrown into jail once? If he confirms from any other source that Libby told her Plame's status, Miller has got to be aware Fitzgerald will not hesitate to indict her for perjury.

Unless he's holding back, and plans to have Miller reveal that last bit on the stand, during Libby's trial. But I don't see how that makes sense, tactically. If Miller did confirm that Libby violated IIPA, why wouldn't Fitzgerald have asked for an indictment on IIPA grounds? What does it get him to hold that in reserve?

I can hazard a guess that he wanted to avoid the very discovery-fishing expedition Libby's lawyers are now attempting, and maybe use the threat of IIPA charges to flip LIbby - but that argues a prescience I hesitate to attribute even to someone as smart and canny as Fitzgerald. Esp. since we don't know if Walton will see things his way: Walton threw out the whole Sybil Siebold case on "national security" grounds, which doesn't auger well for Fitzgerald's chances of denying the fishing expedition. (And, also, since Libby has thus far proved unflippable.)

I don't know the tactical value of having Miller suddenly do a "Je accuse!" from the stand, either. Fitzgerald has used courtroom dramatics in the past, but nothing that dramatic.

[emptywheel]

CaseyL

Don't know if you read my Reading Judy post. But I think Judy very deliberately testified to what her notes SAID, and not what Libby said. So, for example, I'm quite suspicious that her version of hte entire June meeting turned Libby's cover story into what Libby presented as the truth.

Of course, we don't know whether Judy testified as she said she did. But I think she did, down to the number of "I don't recalls." I'm quite certain she testified to the bear minimum.

Yes, it's dangerous. But Judy has no real sense of what she's up against, and she has a big incentive to help the cabal. She didn't think she'd get caught with the June 23 meeting. I have a feeling she'll be caught once more before this affair is done.

[Jeff]

A few random additional notes:

p. 31: It's nice to have confirmation that, at least as of August 27, 2004, Fitzgerald was still pursuing a possible underlying crime, the improper disclosure of national defense information, by Libby. But I take it that since that part is unredacted, he has no expectation of pressing such charges in the future against Libby.

p. 32: do we know which other journalists Libby called on July 12? Were they non-Plame calls to Kessler and/or Pincus? I can't remember.

p. 38: Tatel's account makes more clear to me than had previously been the case just how Harlow sought to strongly warn Novak against publishing.

pp. 38-9: I wonder if there's a hint about Cheney in the reference to impairing Fitzgerald's identification of culprits.

[emptywheel]

CaseyL

Or let me put it this way. There's no chance Judy didn't know Plame was covert. That's probably what her parsing in meeting one was about. She as much as said so, when she said she was pissed Novak got the scoop on this story. THe "Story" to Judy is Plame's identity.

I also think it probable that Judy knew some of this BEFORE June 23.

[Jeff]

What does it get him to hold that in reserve?

My understanding from my lawyer-friend is that Fitzgerald actually can't do such a thing. If he's ready to go on the basis of some set of information about a set of events, he's gotta charge all the crimes at once. (If new info comes to light, that's a different story.) Which makes sense, since we don't want the government able to go back and bring new charges again and again for the same set of doings by someone.

Again, I take it that, as far as Fitzgerald is concerned, he's done with charges for Libby, barring any really new information.

[CaseyL]

Wouldn't it be pretty, because I strongly suspect - faced with long jail time, for perjury - Miller will flip harder than a dismounting Olympian gymnast.

But in order to prove she's lying, Fitzgerald needs evidence from someone else, somewhere else. Maybe in those indecipherable notes Libby has to retype? Betcha he'll be real careful deciding what the squiggles mean. So easy to take the line "Told M: not WINPAC, but CP" and change it to "Told M: WINPAC, not CP" to buttress his claim that he didn't tell Miller Plame was covert.

I wonder if Fitzgerald's already let a handwriting analyst, or a cryptographer, or a pharmacist (*G*) loose on those notes. It'd be a real treat to see Libby caught dead to rights falsifying his own transcription. The Wrath of Fitz would be a wonderful, terrible thing to behold.

[Meteor Blades]

Once again, blogmate, thanks for presenting the evidence with your speculation labeled as speculation and giving us your rationale for coming to conclusions - however tenuous - without saying See! See! here's what's really going on. Utterly delightful in the midst of wwwLand's general tendency toward hysteria.

Muchos Kudos.

However ...

Seahawks!

[Sebastian Dangerfield]

CaseL: Yeah, what EW said. It certainly is dangerous to toy around with the truth when faced with a dogged prosecutor, but Judy did it the safest way, by feigning lack of specific memory. That's because an "I don't recall" lie is overwhelmingly difficult, next to impossible, to prove -- as opposed to a "he didn't say it" lie. So Judy hewed to her notes, gave Fitz the bare minimum by authenticating them, likely suspecting that she was hanging him out on perjury, but wouldn't give him the real goods. All the while she threw out as many lifelines to dear Scooter as she could.

[emptywheel]

Jeff

Yeah, but I'm arguing, first of all, that Fitz doesn't have the confirmation about the IIPA yet, not solidly enough to go to trial. Might he get it if Rove flipped, or someone else? Yup. Also, he can't charge a conspiracy of ANYTHING yet, until he gets two people conspiring. He's not ready to nail Rove yet.

[cathy]

Could their be some exchange between Miller and Libby in those deleted emails? That would be juicy.

I'm a Steelers fan too, and I have to say, I'm very dissappointed in Lynn Swan's (sp?)republican persuassion. I loved him in the 70's when he played.

[Jeff]

I've been trying to figure out Russert's deposition statements, including brackets, which look strange when you put them beside what Russert has said and the NBC news statement from when Russert testified. My guess is that Russert was asked, ""Did you know that Wilson's wife worked at the CIA?" Or, "Did you tell [or: is it possible you said to] Libby that Wilson's wife worked at the CIA?" and responded, "I have no recollection of knowing that, so it was impossible for me to have said that." Fitzgerald and Russert better both hope that's the way it went. Rather than: "Did you tell Libby that Plame was a CIA operative?"

I wonder whether Russert has been so careful and evasive with his statements because he in fact learned that Wilson's wife worked at the CIA some time between his conversation with Libby, when he really didn't know, and July 14, when Novak published.

[emptywheel]

May the Steelers win this weekend so Swannie doesn't have to (and, so there are new Steelers to cheer on).

Big Ben for Senate!

[JohnLopresti]

Judge Walton has set January 2007 as the voir dire timeframe, preceding the Libby trial. This likely means Libby's pursuit to the right to a speedy tial by jury of peers should afford you a full year of parsing Judy's soprano dissimilations.

[viget]

EW--

Have you checked out Murray Waas's latest? I put a link in the previous open thread. He says that a June 17 2003 report was prepared for Tenet by CIA analysts completely debunking any Iraq/Niger uranium claims (I assume this was CYA for Tenet), and that Libby and Cheney were aware of this report. Also members of the SSCI and HSCI were briefed on this report on June 18 and 19, respectively.

Also of interest is that Waas's sources seem to claim that Cheney and Libby DID believe that Plame was WINPAC (though they clearly knew she was CPD, too) and that when they found out she might have been instrumental in sending Wilson, that only intensified their paranoia about WINPAC not sending them the intel they wanted to see. (which makes me wonder if Fleitz's role at WINPAC was to try to push the Bolton/NeoCon line with the other analysts.)

I'm still befuddled about the "bureau" line from Miller's notes. AFAIK, there's no subdivision of the CIA that's known as a "bureau". WINPAC is described as a "center" within the DI and Counterprolifertion is a "division" of the DO.

The only subdivisions that are known as "bureaus" are over at State. (INR, Nonproliferation, Near East, etc.)

Here's a crazy thought. Might Plame (as Victoria Flame, or whatever pseudonym) actually have been working in Bureau of Nonproliferation (Bolton's group) as a spy for CPD? It might explain why her CIA status itself was "classified" because no one really knew she worked at the CIA (or maybe she "worked" at WINPAC on loan from State as a reciprocal swap with Fleitz)?

Or maybe Libby just said bureau meaning division, I don't know.

[Trapper John]

Wow. That's some good blogging, EW. I'll buy you a beer next time I'm out that way. Kudos.

Go Seahawks plus 4 points!

[&y]

... a fact that would have been "[v]ery" significant to him--one he would have discussed with NBC management and potentially sought to broadcast...

Nice! I wonder if Russert's liberal editors at "NBC management" would have run with the story.

[janinsanfran]

Steelers!

[p.lukasiak]

re: "bureau"...

I'd put money on this theory....

Plame was "transitioning" from NOC to "official" cover. Her "official" cover was going to be working for the State Department; specifically the INR "bureau".

The whole "WINPAC" thing is, IMHO, bullshit. WINPAC was where the "aluminum tubes" guy worked -- and WINPAC was where WMD data was "analyzed". Libby knew that Plame was CPD, not WINPAC -- but WINPAC was the fall guy in the "blame the CIA for bad WMD intelligence".

[kim]

Raw Story has an interesting article noting that Fitz tells Libby he is aware that Libby's superiors authorized the leak (hat tip to Talk Left). !

[JohnLopresti]

Waas agrees trial date set for January 8, MMVII; plenty at the Wass site for eRiposte; Waas is linking to Froomkin today, as well, on the same subject.

[Ron Brynaert]

Excellent work. Especially the "charges against leading suspects such as Libby" redacted part. Unless they removed a comma, too (which seems unlikely)...I think you nailed it.

[jwp]

convincing

especially the bit about Judy lying to protect Libby; probably will work

From a much greater distance, and based mostly on hunch, I think Fitz has made an unsentimental decision to fight a narrow battle. I doubt he worries much about flipping more people or getting to the ultimate truth -- at least in court.

To the extent he has a "political" concern, my bet is that his concern is to vindicate the ability of DOJ to oppose corruption with teeth. DOJ types don't like to be scoffed at.

My bet is that Fitz's biggest concern is a prosecution that peters out -- like Iran Contra -- with everyone getting away (and coming back into Govt after a brief interlude of a few years). Given the resources of this crowd, and the difficulties of any prosecution in an area where there is classified info, that concern is well justified.

Back in November, I think, I speculated on Firedoglake that the Fitz approach is engineered to stymie a pardon. By keeping the charges narrow, and avoiding classified info, I speculated, Fitz wanted to push the case to trial long before Jan 2009. This would avoid a pardon in the name of "ending the nightmare" gone on too long.

Anyway, whatever about that, but the main point is to get a clean win. Make it tough for revisionists to come back and say it was all a wayward crusade by the misguided. Make it tough for Libby to beat the rap.

All we get is Libby on perjury. But we establish in the public mind that there is no doubt that he (they) did it.

The collateral damage for the Bushies, in my view, is likely to come from information brought to light by the defense in an effort to spring Libby. My bet is that Libby's lawyers will outsmart themselves -- as lawyers locked up too long with a case so often do.

I hope the trial happens next January.

Just think, the Giants will be in the Superbowl, and Libby will be in the dock.

[Steve]

I really can't envision any scenario that actually includes a trial of Libby in Jan '07. They have him dead to rights, and he has nothing to gain by going to trial.

[jwp]

Steve,

I think Libby is a true believer. Plus, I do not htink he has the courage to admit what a corrupt, murderous cabal he has devoted his life and reputation to.

I think he'll take the fall, and do time.

But maybe you're right.

[Jeff]

Apparently one of Fitzgerald's affidavits was also released. Does anyone know how to get access to it?

[MarkC]

I like the speculations of viget and p.lukasiak. It sure would explain the confusion around Plame's status if she actually did have more than one affiliation over the period in question.

[emptywheel]

going back to viget's and p luk's speculations.

My version of that would be that the June 23 meeting (which, recall, I think is probably a second meeting, not the first, on this issue) Libby explained how he knew what he knew about Plame. He was basically saying she has done some work in the Nonproliferation bureau at State. Of course, you don't want ot say this, because it would expose that Bolton/Wurmser/Fleitz are involved. I'm more skeptical of the INR cover because it seems like she'd be too senior for the positions there (save the head of that department).

[viget]

EW--

I think you're right. I think if she had "official" cover it would be at Nonproliferation, not INR, since INR is full of more junior people who are analysts. Plus, how is working for INR "cover"? If someone knew you were involved "officially" with an agency of the Intelligence Community, wouldn't they be rightly suspicious of you abroad? Unless INR also has the equivalent of "case officers" (my understanding, though is that they are simply an intelligence analysis group)?

I also like this idea of Nonproliferation being her "official" cover for two other reasons: a)it would still satisfy IIPA, as no doubt she would have been going abroad seeking intelligence on WMD proliferation and reporting back to CPD and b)I would have loved to see the look on the 'stache's face when he realized that he had a CIA spy in his office. Plus, it also potentially offers a tie-in to the Edmonds case (as Edmonds has sort of hinted at) as she could have also been observing Grossman's (and maybe Armitage's?) actions at State.

It would also potentially resolve EW's spec about the brackets from Russert, if Plame went by a pseudonym and was often an anonymous source for news orgs at State for WMD analysis.

Another way to look at the June 23rd meeting (and possibly a previous meeting as EW speculates) is that it wasn't so much about discrediting Wilson as it was about who Plame really was. Now that Libby and Cheney knew by this point that Plame was CPD, they were trying to figure out where she came from, what she was doing, what her contacts were, etc. Perhaps Miller was relaying info Bolton had discussed with her about people under his command that might have been suspicous, and it was during this meeting that Libby started to put two and two together and realize that Plame was a spy for CPD on Bolton/OVP/Grossman's schemes vis-a-vis the Iraq war and possible "planting" of WMD.

In fact, Miller may have been working with Libby for quite a while, because I think the whole purpose of her MET alpha trip was to be there to "document" the finding of WMD's (even crazier idea: she may have been there to "lead" the team to the appropriate place). When none were found, she started to get suspicious and started investigating who might be foiling the plan (note that this lines up in time, Judy's articles stop around late April, Plame is first "outed" in early-mid June).

So the subsequent meetings were to shore up the story they wanted to present to the press. Clearly they couldn't say she worked at State, as EW rightly points out, that implicates Bolton/Wurmser/Hannah. Why would Bolton and his gang be involved in sending Wilson?

So they went with the WINPAC lie, which is probably quasi-true (maybe she and Fleitz worked together at some point). Meanwhile, they're trying to do a damage assessment on what info Plame may have gleaned about whatever Bolton was up to, and they find out about her previous network and her current work at State, and realize that she's been watching them for a long time. She needs to be neutralized. But how to do it?

I think BJ may very well have been compromised by this point, but Libby and others knew her State work wasn't known and was still classified, so I think they thought they could avoid IIPA by only blowing her previous cover (it could have been more than 5 years by this point). Plus, the original leak was just the Wilson's wife worked at CIA. Maybe they thought some enterprising reporter would just run with that in the hopes that would be enough to "quietly" end her CIA career.

But they didn't count on the ambiguity of the term "covert agent" IIPA defines a covert agent as someone whose employment status with the CIA is classified (Plame's was) and who had served overseas within the last 5 years. So Plame, even in her "official" cover capacity would have clearly met that definition. And maybe they were also hoping on the "but her cover was blown" defense, who knows.

[Tom Maguire]

Let's hope someone thinks of asking Russert some questions for a change. I nominate Barack Obama.

Harry B is not available?

Good point about Chris Matthews and the belated confirmation.

Just to be a skunk at the party - the opinion says that charges under the IIPA "might become viable" depending on what Judy said. Not exactly a slam dunk.

Good job on the "and Rove" typesetting analysis.

I have been advised that the real gold is in Fitzgerald's newly released affidavit in the Dow Jones case - the NY T imes mentions it, but I can't find it.

Help!

[emptywheel]

TM

True, not a slam dunk. But it seems like there's circumstantial evidence, and the question is whether Judy's testimony rises above circumstantial (it doesn't, as we know of it).

Re: the typesetting--you righties, you'll never give up your fondness for a little typesetting analysis! ;-p

[emptywheel]

TM

Is this what you're looking for?

[Jeff]

ew - Nope, that's not it. We're looking for an affidavit from August 2004.

[obsessed]

Someone who knows what they're doing might be able to mess around with this URL and get to this new Holy Grail.

http://www.usdoj.gov/usao/iln/osc/legal_proceedings.html

[obsessed]

Someone who knows what they're doing might be able to mess around with this URL and get to this new Holy Grail.

http://www.usdoj.gov/usao/iln/osc/legal_proceedings.html

Can someone provide a bit of background on the connection of the "Dow Jones case" to the Leak?

[Ron Brynaert]

speaking of looking for things...does anyone know where the "separate affidavit filed by Mr. Fitzgerald and disclosed Friday" can be found?

[Jeff]

obsessed - Though it should, as far as I can tell Fitzgerald's site doesn't have it. And Ron, that (mentioned in the NYT article) is the very document we're after.

[emptywheel]

obsessed

Dow Jones owns the Wall Street Journal. Under that guise, they petitioned to have the entire opinion be released, probably as a nice favor to their conservative overlords who are dying to figure out just what Bob Novak has told Fitzgerald.

[Tom Maguire]

There's a huge chunk still redacted on Cooper's testimony, pages 34 through 37. This almost certainly includes evidence about Cooper's Karl conversation, plus some evidence from Novak.

Through my DayQuil fog, I am baffled - IIRC, Miller and Cooper had their July 2005 dramas on the courthouse steps together - near-jail for Cooper, jail for Miller. And Cooper had, at that point (or the time of this opinion), not trstified about Rove.

Cooper did tell Russert that he had other sources, and that Fitzgerald knew what he knew. Since those "other sources" didn't seem to trigger a court fight, I have figured they might be the CIA press office (Harlow himself), or maybe even Novak.

But why redact that?

Cooper also said something in his first deposition (about Libby) that earned him a second subpoena, so maybe that merited a redaction. But as I recall, the Anonymous Liberal had a good case that Cooper did not name Rove in his first go-around, and that Cooper's second subpoena did not name the source about whom Cooper was to be questioned. (This all this in to whether Fitzgerald had been told about Cooper-Rove before Rove finally "remembered".)

[emptywheel]

TM

This is my logic for what happened (and remember, this is an opinion writtne between Cooper testimonies, after his Libby-related and before his Rove-related testimony, and his involvement in it pertains to his attempt to avoid testifying about the Rove conversation. So here's my scenario:

1) FBI gets phone records and notices a call from Libby to Cooper, July 12.

2) FBI asks Libby about conversation, Libby testifies as noted in indictment.

3) FBI interviews Ari-the-flipper, who testifies that he "walked John Dickerson up to the Plame leak but didn't give her name or role."

3) Fitz decides to go after what he believes to be a Libby to Cooper leak, subpoenaing Cooper. He agrees to settle for JUST the Libby stuff, because he figures Libby-to-Cooper plus Ari-to-Dickerson probably constitutes enough to say, "Administration officials have told TIME" as the original Time story did.

4) Once Cooper says Libby didn't tell Cooper, Fitz decides to go after Rove. [Question--why did he decide on Rove? Since he didn't have evidence of Cooper's call, why Rove and not, say Matalin or someone?]

5) Cooper AND Judy contest the subpoenas. This opinion is written in response. Therefore this opinion must include reasons why Judy has to testify about Libby and Cooper has to testify about Rove.

6) After Cooper loses his first appeal (this is a guess), Luskin "finds" the email that indicates Rove talked to Cooper.

The reasons why Cooper has to testify about Rove probably read something to the effect of:

Rove has testified he didn't say anything about Plame, then that he only said something about Plame after Novak's article, then that he confirmed Plame's identity to Novak. This suggests he's lying. We also have XYZ evidence that Cooper called Rove. [Presumably, Fitz either already knew of the email, or edited his statements to incorporate them as evidence, so the email would be included in the XYZ by the time Tatel gets it.] Therefore, we need to talk to Cooper because he can fianlize the case that Rove lied.

So what is redacted is a chronology of how they learned Cooper talked to Rove, as well as a description of Rove's changing testimony in response to Novak's testimony, which was then the bulk of the case for perjury against Rove (now, you've got lying about Novak's conversation AND lying about Cooper's). The reason it remains redacted is because it tells Rove exactly what Novak said. Fitz can't even admit he got testimony from Novak unless he indicts using the testimony as evidence.

[Tom Maguire]

I'm going to have to reflect on that. I once had a theory for how Fitzgerald handled the second Cooper subpoena, but I want to re-think it.

Meanwhile, the WSJ has a link to the Fitzgerald affidavit.

[Tom Maguire]

On second thought, don't even start on that affidavit unless you want to ruin your Super Sunday - I am on p. 3 (of 38) and am absolutely fascinated by these redactions:

Thus, Russert could not have then imparted that information to Libby. Moreover, Libby has given accounts of conversation with two other reporters - [redacted] and Matt Cooper of TIME magazine - that are contradicted in many respects by the testimony of [redacted] and Cooper.

Well, given the time of this deposition (Aug 2004), the other reporter was not Woodward or Miller (who obviously had not yet testified).

That would seem to leave Pincus and Novak. Pincus claims he spoke to Libby, but not about Wilson's wife; Novak is a cipher.

So, did Libby claim he leaked to Pincus? Or was Libby a source for Novak, subject to a dispute with Novak? Would that explain why Novak has been implored to keep quiet about his version? But how did this all stay out of the indictment?

Kessler was also subpoenaed, but claimed he added nothing (highly plausible - he shared a byline with Pincus, and I think that is how he got swept up.)

Or might it be some other reporter who avoided a public brawl?

Hey, there might be an answer on p. 4. (It is this or Sudoku). Forewarned is forearmed.

[Jeff]

Mr Maguire thank you thank you thank you. I too am reading through and was stunned by that redacted other reporter who contradicts Libby. Not yet on p. 4.

[Jeff]

TM- You think it's Kristof?

[emptywheel]

TM

I'll check it out--I agree it can't be Woodward, because the redaction of the name isn't total, the stem of the first letter is visible, and it definitely isn't a W. Could be an N or a P, though.

Looking at the redaction space, I'd be inclined to say Novak. I don't THINK "Post" could fit on the line before the words "and Matt Cooper," particularly not as it'd be italicized. CNN could fit though.

Arguing against that though is the reference to Novak on page three, which references him as a syndicated columnist. All the other journalists (save Russert, interestingly) are introduced with descriptions of their employ the first time they appear. Which would suggest the first mention of Novak is that mention on page 3.

Anyway, I'm going to go shovel the walk. Will try to fit this in between shovelling and the super bowl.

[Tom Maguire]

Oh my goodness, that is not a 'close bracket' (which lacked an open bracket), that is a capital letter - P, N, M, something, wow.

[emptywheel]

wow

What are you, Tim Russert?

I gave my best shot at it here. It still doesn't feel right about it. Do you remember the basis for knowing that Novak's column was on the wires as early as late July 11? That is, why would Libby call Novak if the column was already effectively out there?

[viget]

It's gotta be Novak. Using a piece of paper, I ticked off the distance between the lower serif of the N in Novak, and the leftmost portion of the "a" in authored (see footnote 2). It lines up perfectly with the redacted space on p.2 before "and Cooper"

"Robert Novak of CNN" could also fit in the previous redacted space, with the CNN being just in front of "and Matt Cooper". The right margin is ragged, so I think "Robert Novak of" could fit above without being too far away from the margin.

Another strange thing I found. Check out footnote 15. In it, Fitz seems to indicate that IIPA is pretty much off the table at the time for lack of any evidence that Libby knew Plame was covert. Yet Tatel's opinion seems to think IIPA is in play if Fitz could prove that Libby told Miller about Plame.

Furthermore, in only what I can construe as totally bizarre, Tatel cites note 15 totally out of context (see p. 38 of Tatel's opinion) claiming that with it, Fitz is saying that Plame *was* covert and had reason to prosecute IIPA:

Addressing deficiencies of proof regarding the Intelligence Identities Protection Act, the special counsel refers to Plame as “a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years”—representations I trust the special counsel would not make without support.

So, what gives? Did Tatel just misread note 15 and think it applied to IIPA, when in reality Fitz is suggesting that Espionage Act is more applicable (18 USC 793)?