Libby's May Mystery and Other Timing Questions

by emptywheel

Tom Maguire is busy counting the number of PDBs and tracking the dates the judge has deemed relevant to Scooter Libby's case.

The dates:  June 7 to July 14, 2003; Oct 12-16, 2003; Nov 24-28, 2003; Mar 3-7 2004; and Mar 22-26, 2004.  I see from the opinion that Libby testified twice to the grand jury in March 2004.

And why June 7, and not May 6 as Libby had requested?  The judge explains that, per para. 4 and 5 of the indictment, Libby only learned that Valerie Wilson was Ambassador Wilson's wife on or about June 9.  OK - the indictment leans towards June 11, but the defense presumably wanted the extra couple of days.

These days basically make sense. According to the indictment, Libby first got information from the CIA on Wilson on June 9, so the judge gives a two-day grace period. The October and November dates provide two-day windows on either side of Libby's FBI interviews, listed as October 14 and November 26 in the indictment. And the March dates provide two-day windows on either side of Libby's grand jury appearances, listed as March 5 and March 24 in the indictment.

But as Maguire points out, Libby asked for the PDBs going back to May 6.

But Libby is not the only one interested in materials dating back to May 6. In a response to Libby's Iran-Contra and graymail lawyer regarding Cline's request for all of Libby's notes, Fitzgerald revealed the following:

Your request, however, seeks copies of all notes of Mr. Libby for the time period of the eleven (11) months from May 6, 2003, through March 24, 2004. We did not seek (and thus did not obtain) all of Mr. Libby's notes from that time period. Instead, we have sought (and thus presumably obtained) from the Office of Vice President all of Mr. Libby's notes for the time periods May 6 through May 10, 2003, June 1 through July 25, 2003, July 28, 2003 and July 29, 2003, and September 27 through October 13, 2003.

Note that, in a recent decision, the judge has granted Libby--and therefore Fitzgerald--access to all his notes from this period; so Fitzgerald will be getting new evidence on Libby.

That said, what drove Fitzgerald's selection of dates?

May 6 is actually easy. That's when Kristof's first column using Wilson as a source appeared. Both Libby and Fitzgerald appear to believe the Get Joe Wilson campaign started in response to Kristof's column (and, apparently, got underway within four days of the column). It's worth noting that this conflicts with Joe Wilson's book and recent reporting by Jason Leopold which says the campaign began earlier, in March, in response to Wilson's CNN appearance. In any case, the May 6 date seems to indicate the beginning of the narrative as Fitzgerald knows it, yet does not include any information relevant to the leak itself.

Then Fitzgerald got Libby's notes starting on June 1. This date makes less sense. After all, we know Libby asked Marc Grossman for information about Wilson "on or about  May 29." This suggests the May 29 date comes from Grossman, not Libby. It also suggests Fitzgerald might still find some additional goodies in Libby's notes (assuming someone transcribes them accurately) from before June 1.

In any case, Fitzgerald got Libby's notes from that point until July 25, plus two more days in July. This would cover the period after OVP realized they may have screwed up and violated the IIPA. It would cover the time when Andrea Mitchell told Wilson Plame was the story. It would cover Hadley's admission of responsibility for the 16 words. It would cover Schumer's request that the FBI investigate and CIA's report to Ashcroft of possible violations of the law, both on July 24. And ... what else? What happened on July 28 and 29 that sparked Fitzgerald's interest?

Finally, Fitzgerald got Libby's notes for the period when an investigation was announced almost up until the eve of Libby's first interview with the FBI.  These dates coincide with any cover-up period, when there were apparently phone calls between Rove and Novak and other Administration officials. And they coincide with McClellan's denials that Rove, Libby, and Abrams were involved. Also during this period, Pincus and Allen received a leak from administration officials about the content of Plame's 1999 W-2 form. Again, though, I'd ask why Fitzgerald obtained the notes for the period up until Libby's testimony. And frankly, why Fitzgerald stopped short of the publication of David Cloud's article leaking details of the INR memo.  What happened between the obvious backtracking around October 1, the further leaking about Brewster-Jennings in early October, and Libby's testimony on October 14?

Obviously, I've got more questions than answers. But this comparison of dates suggests a few things. First, if Libby transcribes his notes accurately, then Fitzgerald may find new relevant information in the more expansive release of Libby's notes. Before now, Fitzgerald seems to have been guided by reasoning about dates that remains obscure. And finally, while Libby will have his notes for the period covering the possible cover-up, Libby won't have all the materials for the period of the cover-up. If Fitzgerald is still pursuing charges related to the cover-up, then Libby won't get all the materials related to it.

Comments

[obsessed]

So, EW, do you think that Fitzgerald is planning to play out the entire Libby trial before deciding whether and when to indict Rove and possibly others? Or do you think this painfully long dearth of non-Libby Fitz/Grand Jury activity is due to the second GJ reviewing the information?

Isn't there some prosecutorial code of ethics that would guide him not to "leave dangerous criminals on the streets to commit further crimes"? It seems to me that as long as Rove remains in power he's commiting further crimes on a daily basis and doing further damage to the country and, ironically, to national security. I get the sense that Fitzgerald is playing this chess game so many moves ahead, focusing so intently on winning the final battles in the courts, that he's lost sight of the real reason the laws are there - to protect the public. These crooks are gutting the treasury and putting the nation at greater and greater peril and I'd rather see them out of power now than rotting in jail later, as appealing as the latter sounds from an emotional standpoint.

[emptywheel]

obsessed

I suspect the only Libby-related pause is to see if, after disclosure, Libby decides to deal. Frankly, the way disclosure is working out seems to undercut Libby's potential defenses. The PDB summaries is an adequate way for Libby to refresh his memory, and it's not going to help his case (and if Libby doesn't use it now, it's going to piss off Walton). And Fitz has given Libby the transcripts from addition journalists who didn't speak to Libby--I suspect Andrea Mitchell, Cliff May, and maybe Tweety. So Libby's not going to be able to play the subpoena the journalist game, because there is already testimony out there proving such testimony wouldn't help his case.

I suspect Fitz is working on the cover-up (include possible charges from Libby). But he's got to try to flip some new people, in the WH IT department. That, plus Fitz' other responsibilities in Chicago, and I'm not surprised it's taking this much time.

One more point. DOn't forget how much people attacked Independent Counsel Walsh during Iran-Contra. Fitz is no doubt painfully aware that he needs to appear to be working in good faith. SO he's not going to indict Karl until he has him good and nailed.

[obsessed]

Okay ... the (empty) wheels of justice turn slowly ... if at all!

What about the danger of Walton's history of being greymail-friendly? And, if you had to guess, when do you think the next indictments, if any, will come down?

[emptywheel]

You'd probably have to ask ReddHedd about the greymail. But Walton's reference to the judge who tried the CIA-related Iran-Contra trials is comforting. And I really don't think there's a legitimate cause, now, to hold up the PDB summaries. Moreover, he has intimated that if BushCo balks at that, he might be friendly to an obstruction charge against BushCo. Since they have released similar items in the past, there is no reason not to do so now.

I have no idea when the next indictments will come down. But look at it this way: BushCo don't either. They will presumably only get about 2 days warning over the rest of us. So I'm willing to trade my own lack of certainty about the dates for Rove's and Cheney's et al. My lack of certainty isn't going to mess with my ability to cope on a daily basis. Cheney's lack of certainty might induce Cheney to shoot a few more lawyers.

[KM]

"But he's got to try to flip some new people, in the WH IT department."

If you're right, EW, that would change the status of the missing e-mails line from one of p. lukasiak's punitive "bomblets" in response to greymail or ocean-of-motion tactics to something publicised as an end in itself.

Which, if true, would in turn make one wonder about the other "bomblets" -- e.g. the NIE leak bit.

[emptywheel]

KM

Hopefully p luk will show up to explain what he meant, but are you saying he thinks those two revelations were just meant to cause Libby aggravation?

I think they were intended to do that, but also to give Fitz some breathing room to continue his investigation. If people think Fitz has presented another GJ with evidence because he couldn't get the last one to indict Rove, they're going to begin criticizing him again. But if they know he's investigating clear evidence about Cheney's involvement (the NIE) and obstruction (the emails) they may give him more space to work, as those are "new" crimes.

I also think they're intended to exert subtle pressure on someone (probably not Libby, at least not exclusively) to start talking.

[KM]

Lest I mangle Paul's argument any further, here's the original version.

[emptywheel]

Gosh, that was easy. Right here in front of me the whole time, huh?

I guess I'm not sure WHY Fitz put the bomblets in. And it may differ, based on the bomblet. That is, the NIE thing may be a message to Cheney. But the missing emails might be a message for Rove.

If Libby's team is supposed to suss out what evidence Fitz has, secretly, then he can make their approach useless by making the big bits of news public.

[obsessed]

I'm curious as to everyone's take on how many of Libby's actions from the beginning were bumbling mistakes and how many were shrewd anticipations of the endgame. Did he intentionally set himself up for the perjury and obstruction indictments as part of a broader damage control plan? Are his current moves now just attempts to control the timeline prior to his assumed pardon?

I can never decided if these guys are incompetent or diabolically clever. And the whole idea of outing Plame to get back at Wilson seems so unfathomable silly. If this were a political thriller, I'd complain loudly about the holes in the plot.

[emptywheel]

I think it was Howard Fineman who said none of the people involved in the (deliberate) leak thought they were breaking the law. I believe that to be true.

I think that there were a serious of scrambles to attempt to fix the damage (note the changing strategy, between August 2003 and October 2003, for example). But consider. If Judy and Russert hadn't testified, if Ari hadn't testified, then Libby's story might have stuck. It's not clear yet when Ari (and Cathie Martin) flipped, but it would have been after Libby's FBI interviews if it was in conjunction with a deal with Fitz. And at the very least, Libby's lies have severed Cheney's instructions from the actual leak, thereby providing Cheney with a good deal of cover.

I think the biggest incompetent in this was Joseph Tate. He was so clumsy with the Judy negotiations that he effectively gave Judy an out.

[Jeff]

It also suggests Fitzgerald might still find some additional goodies in Libby's notes (assuming someone transcribes them accurately) from before June 1.

Are you sure that Libby will be interpreting notes from before June 1 for Fitzgerald?

There's a new CJR article on Pincus out, and it finally seems to nail down definitively a couple of things that Pincus has been a little dodgy about:

This July 12 conversation, Pincus says, was the first time he ever heard of Valerie Plame's CIA employment. (In previous accounts, he has not been entirely explicit about that point.) He says he has no recollection of Woodward's mentioning Plame in the newsroom the previous month. He also says that while he was reporting the lengthy June articles on prewar intelligence, he discussed Wilson's Niger report with members of several federal agencies. Some of those sources criticized the report on various grounds, Pincus says, but "not one person mentioned Wilson's wife."

Pincus never wrote about Valerie Plame -- in part, he says, because he already knew a fair amount about the origins of Wilson's trip from various sources, including some in the CIA. He did not think it was true that Plame had arranged the trip; and even if that were so, he thought, it had little bearing on the merits or lack thereof of Wilson's report. After Novak's column ran, he says, "I talked to the agency people, and they said it wasn't true."

[Jeff]

Has anyone yet seen a copy of the transcript of the hearing from a couple of Fridays ago yet? I remain dying to see it, especially as it should clear up some things about the 250 pages of emails and Woodward's source.

[William Ockham]

emptywheel,

I can't believe you think Libby didn't know he was breaking the law. We know from the indictment that he knew that Plame was covert (Cheney told him and Libby wrote it down in his notes). How could he have possibly thought his actions were legal? He had to have known all about the IIPA.

I'll say it again. The most obvious explanation for the facts as we know them is that a group of people in the White House (known to include Cheney, Libby, and Rove) made a deliberate decision to break the law as part of a strategy to evade responsibility for the fact that there were no WMDs (especially no nuclear program) in Iraq. Smearing Wilson was just a small part of the overall plan (a hook to get reporters interested). The bigger goal was to blame the CIA for the WMD disaster.

Wilson's editorial threatened to derail the narrative. He had to be connected to the CIA and discredited. They were more than willing to break the law to achieve their goals. This shouldn't come as a surprise to anybody.

[John Casper]

Per ew's 17:03 about their beliefs about having done nothing wrong, I continue to suspect that before Ashcroft's recusal, January 2004, at least some WH witnesses, considered Ashcroft their shield and that they felt to varying degrees that they could be rather candid with the FBI. IMHO, it also seems that prior to January 2004, no one in the WH was actively tracking/ debriefing/concerned with what these witnesses told the FBI. Now Cheney has to use Libby to try to smoke out this information. This may be more evidence confirming ew's point, prior post, that the WH fails to do "what-if" scenarios. Neither Rove, Libby nor Cheney considered how "Ashcroft dependent" their cover-up was, he was the "single point of failure."

[obsessed]

Okay, William, but how on earth could they justify that kind of risk? Was it drunken recklessness or did the CIA, Comey & Ashcroft blindside them?

[emptywheel]

William

I don't mean Libby didn't know it was wrong. I mean no one thought there'd be a chance in hell of facing punishment for it. Consider, espionage has yet to be used for this purpose (Franklin notwithstanding). And the IIPA is relativley obscure, even for a guy who worked for Bush.

The Bushies--all governments--have been able to leak with impunity for a very very long time. Think about the Wen Ho Lee case, which has a lot of similarities, and may well implicate Governor Richardson. It has long been accepted that, so long as you didn't get caught, you leaked what you wanted to achieve your objectives. Sure, you tried to hide your tracks for POLITICAL reasons. But no one had ever been tried for this kind of leak before. So why would anyone think they might be at risk for prosecution this time?

Moreover, there are a number of similar cases (the smear on Fulton Armstrong for one, the Chalabi Saad al-Janabi CIA insinuations) that show they were doing completely analgous things at the same time in other venues.

[obsessed]

Was Ashcroft really forced to recuse himself or did he break ranks to do so? And you'd think they could have pressured him not to.

[John Casper]

William, I had a similar reaction when I first read ew's Fineman statement. I think she means, and what Fineman meant, was that in their world-view, all the unbridled good things that were going to happen spontaneously as a result of the Iraq occupation vastly outweighed, some "narrow, technical" violations wrt to on CIA agent and her husband who did not have the "imagination" to grasp the "genius" of their vision. Snark alert.

[emptywheel]

John Casper

You're right, Ashcroft was another wall of defense. Though I don't think he was the only one, they certainly put a lot of faith in him to scuttle the investigation.

Jeff, the reference to Fitz getting the additional notes goes back a couple of filings; I'll try to find it (I think it's the hearing transcript that Pachacutec picked up). I think it implies that with the wider release of notes, Libby and Fitzgerald will get the notes. Technically, it seems they have to, if they're arguing that Fitzgerald (as the government here) is handing over Libby's notes.

[John Casper]

Excellent question obsessed.

[emptywheel]

obsessed

Keep in mind Comey is the one who made Ashcroft recuse himself. Same guy who refused to reapprove the NSA spying program.

I suspect Comey told Ashcroft that he had to recuse or Comey would do something akin to what he did with NSA--leak it. Leak that Ashcroft was in effect obstructing justice.

[William Ockham]

obsessed,

The answer is hubris (in the ancient Greek sense). These people have a violent disregard for the normal boundaries of our political and social structures. They believe that the appropriate response to opposition is the social degradation of their opponents. They will let nothing stand in the way of their pursuit of power. Look at the tools they choose: torture, law-breaking, smear campaigns, planting false stories, paying for propaganda, etc.

In their eyes, normal rules don't apply. It's beyond even "the ends justify the means". For this crowd, it's enough that they are the ones employing the means. The ends are really irrelevant.

[obsessed]

In the end, it may be the means that brings them to justice.

[jwp]

I suspect Ockham and Caspar are correct. They knew, never thought they'd get caught, counted on Ashcroft and a cowed bureaucracy.

On timing, I bet Fitz wants to declassify a bunch of stuff to clear away impediments to trial. Mundane stuff. That has got to take months -- even if people want to coopereate. Which I am not so sure is universally true -- though I am really just guessing.

What I wonder about is the CIA old boy network. Seemed to me that they got pissed. Seemed to me that they helped move things forward at various points. And I suspected their hand in various publicity efforts.

Aside from perhaps the unfathomable Murray Wauss (sp?), I haven't seen anything in a long while that made me think of them.

Maybe I am not paying attention. Maybe they are satisfied with how things stand. Maybe I imagined it all all along.

That seems curious to me though. Especially with so much that seems to be going radically wrong in the intellgence area. Porter Goss, this guy Dusty Faggo, Cunningham and the funky sole source classified contracts, and now Laura Rozen points to contracts related to domestic spying. I mean, it hardly seems that WH has slowed down with re-engineering CIA/off the shelf attachments. Must bother some of the old guard. But they seem more quiet now.

Oh, well, probably all in my imagination.

[punaise]

this has likely been pointed out already, but the word "redacted" has eight letters.

[lemondloulou54]

JWP wrote concisely: They knew, never thought they'd get caught, counted on Ashcroft and a cowed bureaucracy.

They also counted on the press not giving up any of its sources. I have to really credit Fitz with and the judges when it comes to the press side. Fitz clearly finessed the press into revealing their sources. The tragedy is that he had to take his time to do that--and in the meantime the nation re-elected the whole crew of criminals. But, remember, the nation had a pretty good idea that the RNC was behind the Watergate break-in and it re-elected Tricky Dick.

That the wheels of justice turn slowly can work to our benefit also.

[kim]

I've noticed that Ashcroft has eight letters... not likely our as mystery man though he was a SAO.

[lemondloulou54]

I just finished reading the judge's most recent opinion and order. It will be pretty funny if the PDB's are laundry lists of nightmares-to-be like "CPA may prove to be a disaster" ; "Al-Queda really coming into Iraq now"; and "Sunni-Shi'a discord brewing" and so on. And what does Libby ask the CIA for more information about? Who isJoe Wilson. The very selective nature of the judge's ruling may do more to help Fitz than Libby.

[Hero]

Hello ! This is very [url=http://www.google.com/bb497]good[/url] site !!