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March 16, 2006

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The atttorney-client privilege is deemed waived if there is a third party in the conversation. If there is a joint defense agreement, then it could cover the third party. Was Judy always represented by the Times attorneys? Did she have a personal lawyer? I know you will have the answer at your fingertips, but that is presumably what the privilege question would turn on. The Vanity Fair article would seem to be in another category altogether.

The attorney-client privilege belongs to the client, and the client is the one who may waive it. It sounds from your article below that Judy related many details of some of her conversations with Freeman, in which case the privilege would be deemed waived. (Even though, technically, it may be the Times' privilege, it can be waived only by individual people. Her waiver may have been unauthorized as to the Times, but it puts her in a weak position in asserting it against Libby.)

Mimikatz

She was represented by Freeman and Abrams. Then at some point--it's not clear when--she added Bennett as her personal attorney. From what you're saying, it sounds like the Bennett conversations would be covered? But not the Abrams and Freeman conversations?

Btw, Abrams was representing Cooper AND Judy for a period of time, until it became clear their interests were not the same.

CNN is not always so reliable, but they've got a report up that adds a few intereting detailed variations to the story. The most interesting is that a source familiar with the subpoenas, who would seem to be on Libby's team though it could be someone at the Times, told CNN that Libby's lawyers

are also seeking notes and documents regarding Miller from Times columnist Nicholas Kristof.

I have a feeling that could be a mistake, that CNN misunderstood a pronoun or something, and what Libby actually wants are notes and documents from Kristof regarding Plame. But if it's not a mistake, it suggests Libby's team suspects Miller heard about Plame from Miller, or vice versa, right?

CNN appears to suggest that the four reporters targeted for subpoenas may be all that have gotten them so far. In any case, Jeffress tells CNN that there are more to come, which is not surprising.

Just to add to the (or my) confusion over the status of Kristof's stuff Libby is going after, the latest AP report says

The subpoena to Miller seeks her notes and other materials, including documents concerning Plame prepared by Miller and Times columnist Nicholas D. Kristof.

The subpoena to Miller seeks documents concerning Plame prepared by Kristof? Is that just a mistake, and the Times' subpoena includes Kristof's material? It's pretty clear that Kristof himself didn't receive his own subpoena. Is it possible that his notes and documents somehow belong to the Times in a way similar to the way Cooper's did with TIME and Miller's did not? Or at least that Team Libby are going after the Times for the Kristof stuff because the institution is more likely to cave sooner than Kristof? I doubt that's it, since I doubt they want any caving anytime soon. Anyway, I'm confused.

Hmmm.... Could it be that Libby knows (from Miller) that Miller talked to Kristof about Plame? Actually, confusion is exactly what Libby's team wants. These folks are masters of the ambiguous leak as an attempt to establish false memes.

Conversations among Times staff with an attorney for the Times would be privileged. I was more thinking of the statements that are apparently in the Vanity Fair article (reporter is a third party) that relate what Judy discussed with Freeman. If Judy tells someone else what she and her lawyer (or the Times lawyer) discussed, she has waived the privilege as to anyone else, like Libby, and probably waived it as to more than just what she told the VF reporter.

Jeff and William

This confusion surrounding Kristof and Plame (anyone checked Maguire lately, because this might get him a little TOO excited) might mean that Kristof is one of the reporters' names that is redacted in Fitz' most recent affy. To be able to go after Kristof in any sense, they must have reason to believe there is something responsive. And they know that Fitz doesn't count Kristof among the 5 reporters who knew of Plame's ID. But there was a late Kristof report on Plame working at State--I'll try to go find it.

Mimikatz Thanks. I'm (obviously) NAL. So by blabbing to VF, Judy may have made her conversation with Freeman fair game? Won't NYT love that, since I'm sure they tried to insulate themselves from further "entanglement" in this story with the Judy severence agreement.

Here are the details Libby may be after. Did Kristof share any of these details with Judy, and when did he share them with her?

First, the C.I.A. suspected that Aldrich Ames had given Mrs. Wilson's name (along with those of other spies) to the Russians before his espionage arrest in 1994. So her undercover security was undermined at that time, and she was brought back to Washington for safety reasons.

Second, as Mrs. Wilson rose in the agency, she was already in transition away from undercover work to management, and to liaison roles with other intelligence agencies. So this year, even before she was outed, she was moving away from ''noc'' -- which means non-official cover, like pretending to be a business executive. After passing as an energy analyst for Brewster-Jennings & Associates, a C.I.A. front company, she was switching to a new cover as a State Department official, affording her diplomatic protection without having ''C.I.A.'' stamped on her forehead.

Third, Mrs. Wilson's intelligence connections became known a bit in Washington as she rose in the C.I.A. and moved to State Department cover, but her job remained a closely held secret. Even her classmates in the C.I.A.'s career training program mostly knew her only as Valerie P. That way, if one spook defected, the damage would be limited.

I haven't returned to this article since we speculated that Plame's cover may have been in NP at State, which would mean Bolton and Armitage knew her much better than previously suspected. What other State department cover would you have, in DC?

Note, the date on that Kristof article is October 11. Two days before the last day for which Fitz subpoenaed Libby's own notes. Not that I think Libby would leak to Kristof. But maybe he did. Or maybe he leaked again to Judy and Judy shared this info with Kristof?

Nah. I can't imagine Judy and Kristof get along terrifically well.

EW--

Did you write a separate piece about Plame's possible official cover at NP in State, or was this just from the comments I and others made in one of the Feb. 2006 threads (I think it was the one from super Sunday, after the Tatel opinion release?)

If the former is the case, would you mind linking to it? I'd love to see your thoughts.

Nope, viget, it's the latter. I've been meaning to go back to this Kristof piece, which AFAIK is the only thing that says specifically her cover was State, to pursue it further. But I never did.

Larry Johnson actually mentioned this too, at some point in a CNN interview with Blitzer. I'll go see if I can track this down. Since he's also mentioned as a source for that Kristof column, it wouldn't surprise me if he told Kristof that.

But I know he specifically mentioned that she was in the process of transitioning to State and official cover on CNN. Booman highlighted this exchange on the front page of his blog not that long ago.

Also, this certainly puts Armitage in a new light vis a vis his motivations for leaking to Novak. If he was running some kind of a game over at State (remember: Sibel Edmonds has repeatedly asserted that State was the MOST corrupt department from her point of view (somewhat limited). And she worked for the FBI, no stranger to corruption itself.), and Plame was on to it, it might prove incentive to talk to Novak. Kill 2 birds with one stone you know, neutralize Plame and ingratiate himself with the administration.

Though I would agree that his exact wording would have been more along your proposed scenario. Gives him wiggle room when Fitzgerald comes calling.

Found it.

It was October 26, 2005, right before the indictment was handed up. Blitzer was interviewing Johnson on The Situation Room and was pressing him on whether Valerie was really covert.

Here's a relevant excerpt:

....

JOHNSON: His information -- his information -- his information on this issue has been repeatedly wrong. And, again, I'll bet Clifford May $5,000. Find the reference prior to Robert Novak's column in which that information was out there. It wasn't out there.

Not only that, when Valerie wrote that check to Al Gore's campaign as a member of Brewster-Jennings, she was living her cover. Not a single neighbor knew that she worked for the CIA. She protected that cover. She was in the process of moving from non-official cover to official cover, but, under the law, official cover still protected.

...


Hmmm, wonder how he was so sure of that. Did he work with Valerie at State maybe? (he said he was undercover too, but I surmise he never was NOC, only official cover)

'Wheel, just that. Another attorney and I once spent a great deal of effort to argue that a document sent to the (elected) head of our office was privileged, until it turned out one of his political aides has shared it with someone. Ooops. Motion withdrawn. Once the cat is out of the bag as to anyone, it is out of the bag period.

Man I would hate to represent Judy.

But then Bennett has dealt with his share of unmanageable prima donnas.

More updates from the AP. Check this out:

The subpoena to the Times also calls for:

_Documents of contacts between any Times employee and any of eight people, including then-CIA Director George Tenet and then-White House spokesman Ari Fleischer, regarding Joe Wilson.

_Documents concerning a recent Vanity Fair article in which Miller said she talked to many people in the government about Plame.

_Drafts of a personal account by Miller, published in the Times, about her grand jury testimony.

_Documents regarding Miller's interactions with a Times editor in which Miller may have been told to pursue a story about Joe Wilson and a trip he made to Niger on behalf of the CIA.

Obviously the first and last are the most interesting and new. Regarding the last, I suspect once again it may be a mistake and "not" left out. But presumably the editor is Jill Abramson, unless it's not.

As for the first, I take it this more or less tells us that it was Tenet who told either Libby or Cheney or both. I assume the eight people are eight people the indictment plus the defense thinks knew about Plame.

Jeff

Why do you say that narrows it down to Tenet? Just in the sense that we know who at CIA told Cheney?

Also, I think it possible they meant "pursue," not, "not pursue." There was a time when Judy was allowed to pursue this. But then it stopped. It may very well have everything to do with the changing lines of command at the time.

Here's a link to the AP story.

I'd love to know who those other 6 people are, in addition to Tenet and Fleischer. If Armitage isn't on there, for example, it would scotch the Mr. X theory (or maybe make Fleischer a leading contender). And did Libby put people that Judy likely talked to--but who are presumably part of the conspiracy (people like Bolton) on the list? Or are they just fishing for info on people who aren't tied to the cabal but are known to have passed on the information?

Does Fitzgerald already have all of the material subpoenaed by Libby, or will he get a copy of all of anything supplied to Libby's defense team?

ew - My assumption is that there has to be some basis for believing the eight people had contact with the Times, and that basis is the indictment plus other documents from Fitzgerald plus, of course, Armitage. So I figure Tenet is on there because he is either the senior CIA official the indictment mentions telling Libby or the source for the information Cheney relayed to Libby (as has been reported, and sorta not really denied by Tenet's folks), or both. I don't mean he was the first to tell either or anything like that. Just that Tenet was one of the sources for Cheney or Libby or both, so Tenet knew about Plame so he was in a position to tell other reporters. My guess as to the other six, then, is that the list includes Grossman, Martin, Armitage, maybe Addington, Edelman, and Libby's CIA briefer (though those last three are doubtful). Would they dare put Rove on there? But if they don't?

As for Miller's pursuit of a story, I know it's hard to know what to credit in what Miller says, but my understanding is that Miller's claim is that she was never pursuing a story since she wasn't allowed to. She wanted to -- and de facto was, of course -- but this was never authorized by anyone at the Times, as I read what she has said.

LOL, Jeff, I realized these were probably the other 6 just as I woke up. But you're already there.

I don't buy that version of Judy's story for two reasons. First, she has always spoken of "editors", even though Abramson is the only one she or the NYT mentions. Someone else is involved, either Lelyveld or Cohen, I'd suspect.

When she or the NYT refers to Abramson, it seems to have been in reference to the July time frame. Further, when Judy talked about her reporting on this, she talks about it in two chunks:

[in the July 8 meeting section]Mr. Fitzgerald asked if I could recall discussing the Wilson-Plame connection with other sources. I said I had, though I could not recall any by name or when those conversations occurred.

[snip]

[in the July 12 meeting section] Mr. Fitzgerald asked whether I ever pursued an article about Mr. Wilson and his wife. I told him I had not, though I considered her connection to the C.I.A. potentially newsworthy. I testified that I recalled recommending to editors that we pursue a story.

That is, she treats the question of talking to other sources as distinct from recommending--and getting turned down--to write a story. I strongly suspect she spoke with the other sources pre-July 8. She may have tried to submit a story to someone, perhaps Lelyveld himself, perhaps someone else. And then, the week of July 8, when Libby was pressing her to write a story, she tried again, this time with Jill Abramson. Abramson said no.

This scenario is totally consistent with everything we know of Judy--she was an expert at playing editors off of each other. Add in the tension involved in her status at the time (only allowed to write as part of a team), and I strongly believe there's more there than just the denial from Abramson.

In the bright light of day, I realize I may have been even more confused than I realized. It may be an incorrect leap from the two people named (Tenet, Fleischer) to the thought that the list has to come from documents involved in the case. I still assume Libby's lawyers have to have some basis for claiming that each of those eight people potentially had knowledge of the connection between the Wilsons. I would still guess that Grossman and Armitage are on the list, but it could also include Powell and who knows who else. And it probably doesn't include others in OVP.

ew - Too hilarious. You're buying in, I'm backing off my list.

And I'm not going to argue with you on the Miller point. There is no question that as a matter of fact she was reporting aggressively on Wilson, and no doubt before July 8. (In this regard, it's probably worth revisiting precisely what she says she learned first from Libby, and what she thinks she did not.) So it is perfectly believable that she got the go-ahead from an editor; though it's also perfectly believable that she was operating completely on her own. But I'll go with your version, especially if the AP doesn't correct its story. So how would Libby's team know about this?

Jeff

Well, I think at the very least Cathie Martin will be on there. Libby is as interested in discrediting the most important witnesses against him as he is in finding out what really went on. And Martin is a critical witness against him. But I suspect Edelman and Addington might be on there too.

And as I review our exchange, perhaps I'm misinterpreting what you meant by Judy working on an article. I think it might have gotten to draft stage. And I think probably some editors at NYT were always opposed to Judy working on this. But there seems to be something else there that the NYT has been hiding. And it's likely that Libby may know about it.

Consider, Judy told Libby "The NYT wouldn't publish" her story about their July 8 meeting unless he gave her something new. That probably means they had a bit of a conversation about how and why she could publish at that point. So he likely does know some of the NYT politics.

Judy told Libby "The NYT wouldn't publish" her story about their July 8 meeting unless he gave her something new. That probably means they had a bit of a conversation about how and why she could publish at that point. So he likely does know some of the NYT politics.

Excellent point. I assume the key reference on this point is Waas' article from October 30 of last year:

During the breakfast, according to attorneys familiar with Libby's previously undisclosed statements to federal investigators, Miller insisted that Libby provide her with additional information on Wilson and Plame to bolster any story she might write. Miller testified to the grand jury that it was Libby who offered to find additional evidence to verify what he had told the Times reporter, according to legal sources familiar with Miller's version of events.

Obviously, that is imprecise with regard to Libby's version - Libby must have said she needed more information on Wilson and not Plame, since he denies talking with her about Plame at the July 8 breakfast. But the point is there's a very good chance Miller told Libby some about what was going on at the Times with regard to her reporting on the whole matter.

Another description of the Times' subpoena, from Reuters:

A subpoena delivered to The New York Times on Wednesday asked the newspaper to hand over notes, e-mail messages, draft news articles and all other documents that refer to Plame before July 14, 2003, when her identity was made public.

Presumably this explains why Kristof did not receive a separate subpoena, he's just swept in with the rest, while Miller's subpoena specified something about Kristof, just to be sure. I wonder if Miller might have said something to Libby about Kristof.

Recall that she mentions Kristof prominently in her own tell all. So it's quite likely. Or Libby may have asked Judy about Kristof, and Judy followed up.

Wheel, in case you come back to this thread. Do you have a link to any pieces you've written about Bolton's part in all this?

I've only written four full posts:

Evidence from the Bolton testimony from similar smears

Evidence from the Bolton testimony about how they may have gamed the Niger intell

Details about Fleitz from the Bolton testimony

Speculation about how Bolton might be involved

The interesting thing I just noticed is that Miller says she thinks the June 23 conversation was the first time she heard that Wilson's wife might work at the CIA. So her story at least is that she didn't hear Plame worked at the CIA from Kristof or anyone else before hearing it from Libby.

A couple of random Miller notes: the weirdest part of her account is that her memory was that she only heard Wilson's wife referred to as Plame - even though it turned out that she wrote Wilson in her notes for the July 12 conversation. What's that about? Why were the many government officials she talked to, before and not just after Novak's column, referring to Wilson's wife as Plame?

Then there's a piece of true Plamania trivia that adds a little bit of evidence that novelist Libby's carefully crafted letter to Miller ended by basically reminding her that they were on the same side of the important battles of our times. When Libby's artful letter to Miller was published, everybody focused on the aspens turning part of Libby's letter, and rightly so. Miller's slightly odd account of her response to Fitzgerald's question on this, recounting the very weird story of running into Libby in his rodeo outfit in Jackson Hole, looks a little bit different in light of something you noted about the vanity Fair article. Miller implies she's met Cheney without having ever interviewed him. Well, we learned right before Libby got indicted that Libby usually goes along with Cheney when he vacations in Wyoming. Wouldn't it be fun if Libby was reminding Miller of that great chat with Cheney she had on the subject -- probably wmd and/or terrorism-related -- of Miller's Aspen conference back in Jackson Hole?

But that wasn't the little piece of evidence. Here is exactly what Scooter wrote:

Out west, where you vacation, the aspens will already be turning. They turn in clusters, because their roots connect them. Come back to work -- and life

How about a little close reading? One of the weirdest things Miller has published is an item in the March 30, 2005 NYT that is a semi-autobiographical review (or something) of the newly opened Atomic Testing Museum in Las Vegas. It sets the slightly goofy-sounding museum in the context of the history of nuclear weapons, the terror and danger they have caused and their ambiguous roles in geopolitics. Near the end it evokes both the threat of Armageddon from nuclear proliferation and 9-11. Well, the article is called, "The Melted Dog: Memories of an Atomic Childhood." But guess how the deck or super-head reads? "OUT WEST, WAY OUT." Is it squaring the hermeneutic circle to say that novelist and artful rhetorician Libby was very economically reminding Miller of the nature and stakes of the joint battle they were in by starting off his now famous sentence, "Out west, . . ."

I won't even touch the final sentence's implication that if she doesn't come out of jail and testify (as Libby wants?) she will not come back to life.

Jeff

Cheney's big playground IS Jackson Hole. So if she saw Libby there, it's almost certain she saw Dick there, I've been saying that for a while. She was nuts to even mention her revised version, unless she was distracting from something more tangible (like the Forstmann conference in Aspen the weekend she would have gotten out for.)

I've been saying that for a while

Sorry, didn't realize I was reinventing the emptywheel, again.

She was nuts to even mention her revised version

What revised version are you referring to? What she said to Freeman about many people in government talking with her about Plame both before and after Novak's column? In any case, I was wondering, in light of your discussion above, if that wasn't a gift to Libby, or at least a hint.

Just thought I'd throw this out there: Armitage is evidently doing diplomacy in Taiwan on behalf of the Bush administration. And he's talking to the press, only it's the Australian press.

See if peanutG still has a webpage up about Wyo; pg had a lot more posted there than the abstracts contributed as 'umzuzu' in ew's threads on the topic around the time the aspens turning letter became public and JM's liberation from the hoosegow was imminent.

Usually am reading only casually on these matters dilettantishly, admittedly, so, I was surprised to read Judy's abject admission, obfuscation, at the time of her release from jail that one worry which drove her to negotiate terms for testimony, and thereby to obtain release from jail, was her concern about her possible status after a new GJ would be empaneled if one was: that Fitzgerald in the 2nd GJ term might keep her in jail much more interminably than the first 80-plus days.

Afternote. Months after it was broadcast I had my first occasion to hear the Garfield interview with Judy, though only a clip excerpted from a strident moment in their verbal interchange; the first time I had heard her voice ever, audibly; I agree there was tension in that voice of hers; jail was probably inordinately difficult for her. G tends to be a gentleman even while exerting the interviewer's pressure to elicit new information. That interview was discussed in summary in an ew thread, too.

...which will no doubt make Tom Maguire giddy

Oh, I don't know - I enjoy a sunrise, but I don't get giddy over the predictable and inevitable.

I loved this from the ubiquitous Larry Johnson:

Not only that, when Valerie wrote that check to Al Gore's campaign as a member of Brewster-Jennings, she was living her cover. Not a single neighbor knew that she worked for the CIA. She protected that cover. She was in the process of moving from non-official cover to official cover, but, under the law, official cover still protected.

IIRC, she wrote that check in 1999 - how long does that sort of move take, and why did Kristof say she was still underway in 2003 (as did the Vanity Fair article from Dec 2003)?

TM

To some degree it doesn't matter, since the time period for IIPA is 5 years, and 199 to 2003 is only 4.

But I don't find it unrealistic to think it might take a few years. You don't go from being an energy executive to a State Department employee overnight. You've got to be here involved in State-related stuff for the move to be plausible.

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