Gag Disorder

by emptywheel

I come down somewhere between Jeralyn and Jane on the issue of whether Judge Walton ought to issue a gag order in the Libby perjury case. Libby's lawyers make a reasonably good case that the few times they admit to leaking to journalists served to correct misunderstandings about the case (thanks to Jeralyn for making the filings available). For example, Fitzgerald's mis-statement about Libby's representations of the NIE contents was a very damaging mistake. I don't blame Libby's team for making Fitzgerald's correction public as soon as they received it, in time to make the evening news.

I'm less sympathetic to the second leak they admit to, correcting Jim VandeHei's or Jeffrey Smith's understanding of something Fitzgerald had filed. The filing notes:

It appeared to Mr. Jeffress that the reporter’s misunderstanding of Mr. Libby’s contention was based on a reading of the government’s Responsive Brief rather than Mr. Libby’s motion, and he decided to return the reporter’s call and attempt to avoid publication of an erroneous and prejudicial story in the jurisdiction from which trial jurors will be chosen.

I'm less sympathetic, for starters, because this is just an attempt by Jeffress to present a really convoluted argument as if it were self-apparent. But it's not--it's a convoluted argument, and that's the source of the misunderstanding. Besides, as Jeffress himself admits, all he had to do was send the WaPo reporter to Libby's filing, rather than going on the record with a statement that is extrajudicial.

But my sympathy begins to sour when I look at the way they've presented these two examples. Libby's team don't say--but they strongly imply--that these two examples constitute the entirety of their leaks to the press. They say:

Similarly, dozens of print journalists from a broad array of newspapers and magazines, and even certain enterprising bloggers, have attempted to pry information about the case loose from defense counsel. We have refused almost all of these invitations to comment about the case. On the rare occasions when defense counsel have disseminated information to the press, we believe that such communications have not run afoul of the local rules or our professional responsibilities to the Court.

For example, after reading this statement, Jeralyn wrote:

Shorter Libby: Team Libby admits to two disclosures, explains and justifies them, (quite well in my opinion) and opposes a gag order.

But these aren't the only two times when the Libby team has commented on the case. On at least one occasion, Jeffress issued a press release to correct a mistake made by journalists, in that case, when David Shuster mis-read a Fitzgerald filing. Should we also assume Jeffress issued press releases to correct the errors mentioned in footnote 3--particularly since he notes one of the errors was later corrected? The thing is, we have no way of knowing. They present their leaks as "rare," but don't tell us what they consider "rare" to mean. For that matter, are you only counting the cases where you go on the record in that "rare"?

Also, by presenting these two examples, they suggest they've only leaked information to correct misunderstandings.

As described above, defense counsel are flooded with inquiries from reporters, and, in almost all of these situations, we do not respond to such inquiries. However, on certain occasions, when reporters have asked us for assistance in finding or understanding information in the public record, we have felt it proper and appropriate to provide such assistance. Our practice is never intentionally to release non-public information, never to comment on a ruling by the Court, and never to make statements that could fairly be regarded as a violation of Rule 57.7.

My sympathy is beginning to curdle. This is Scooter Libby, maestro of the controlled and completely bogus leak, complaining because journalists aren't smart enough to read a court filing. You know what? Yes, a lot of mainstream journalists are either too dumb or too busy to read these closely. Just like they were too dumb or too busy to rebut the lies coming from OVP to justify a war. You go to court with the Fourth Estate you've spent five years corrupting, not with the Fourth Estate you'd most like to have.

And finally, my sympathy shrivels and dies when I realize the real point of Jeffress' motion.The same legal team that has spent five months repeatedly and publicly trying to rebut the case that there was an organized plot to leak Plame's identity now complains that the media is also ignoring the charge at hand, perjury and obstruction.

But the media has not reported exclusively on the crime charged. Instead, journalists and commentators have focused on, among other subjects: (1) intelligence failures prior to the war in Iraq; (2) speculation that the White House “leaked” classified information; (3) allegations of a campaign at the highest levels of government to punish a war critic by revealing his wife’s employment at the CIA; and (4) the news media’s own role in the events and the investigation giving rise to the charges against Mr. Libby.

You see, Jeffress would like to have the unrestricted ability to refute allegations that Libby leaked Plame's identity ... but he doesn't want the media to talk about related allegations. Curiously, the two examples he highlights in this filing speak directly to the perjury case, but the two errors mentioned in footnote 3 as well as the press release I linked to above all relate to the larger issues, the multiple leaks of classified information, including (possibly) Plame's name.

Jeffress isn't only complaining about misunderstandings. He's trying to squelch the evidence about the larger leaks--leaks which Libby doesn't deny, but leaks which are destroying the approval ratings of his other clients in the cabal.

Comments

[KM]

You go to court with the Fourth Estate you've spent five years corrupting, not with the Fourth Estate you'd most like to have.

Simply beautiful.

He's trying to squelch the evidence about the larger leaks--leaks which Libby doesn't deny, but leaks which are destroying the approval ratings of his other clients in the cabal.

Indeed. Virtually every statement Team Libby makes serves to reinforce the early suspicions that its primary responsibility is to everyone but Libby himself.

[John Casper]

Well said KM.

[lukery]

i thought it was funny that Fitz doesnt care whether there's a gag or not.

he probably learns/imputes things from TeamLibby's leaking/spinning.