Still Fighting the War about the War

by emptywheel

I gotta tell you, Mr. High-Priced Lawyer Ted Wells does not come off that well in the most recent Libby hearing. (Thanks to Jeralyn for saving us from a month's wait for the latest Libby court transcript.) He's making a desperate gambit to widen the scope of Libby's crime so he can apply precedents that don't, apparently, really apply, so that he can turn the trial into one about Joe Wilson's actions, rather than Scooter Libby's actions.

Take this passage, where Wells tries to pretend that Joe Wilson made the allegation made in an indictment that Patrick Fitzgerald wrote, that Plame's identity was not known outside of the Intelligence Community.

MR. WELLS: I wouldn't be trying to undermine [Wilson's] credibility. I would be undermining the allegation in the indictment that Mrs. Wilson's identity or her occupation at the CIA was not known outside of the intelligence community. He has made the allegation. I can put five witnesses on the stand, without Wilson, to say, I knew about it, the husband told me, and then I can stand in front of the jury and say that allegation is just plain wrong. What he would do then, he'll call Mr. Wilson on rebuttal. Okay. But I have a right to attack that allegation.

The only logical way to understand this statement is if Wilson were the one writing the indictment, not Fitzgerald. Remarkable feat, the aggrieved husband writing up the indictment to avenge his wife.

And the judge ain't buying it.

In this post, I'll go through random thoughts about most of the hearing. But I'm leaving aside the NIE material for now, because there's some real dirt in that and I need to bill some hours before I get to that dirt.

Splitting the Case

Now, Wells tries to argue there are two cases here, the case pertaining to journalists and that pertaining to government officials.

MR. WELLS: Your Honor, the case is really in two parts. You have the reporters piece of a case. That's a separate piece. Put the comments to the three reporters for a moment to the side. Then you have the piece of the case that deals with what Mr. Libby was told by government officials about Ms. Plame. That's a whole separate piece. They ultimately become interconnected. And I am concerned because when we started -- because we filed the reporters' piece first because we were concerned about the Rule 17 issues and we didn't file it jointly, I have always been concerned that we might have created some misimpression on the court's part that the case was just about the reporters.

The best way to look at it is put the perjury count and the false statement count to the side. Just look at the obstruction count. The obstruction says that the way the grand jury was obstructed was Mr. Libby did not disclose to the grand jurors how he learned about Ms. Plame and then what he said to reporters.

Wait a second Mr. High-Priced Lawyer. I can read. That's not what the obstruction charge is about. It's not just about how he learned and then what he said. It's about how and when he learned about Plame, and whether and when he disclosed it.

i. When, and the manner and means by which, defendant LIBBY learned that Wilson’s wife was employed by the CIA;

ii. Whether and when LIBBY disclosed to members of the media that Wilson’s wife was employed by the CIA;

You've completely forgotten the when and the whether there! You're doing this as an excuse to attack the Grossmans and the Fleischers of the world. But you're also totally obscuring what is at issue. Did Libby know about Plame on July 10, when he claims he "learned it as if it were new"? Apparently you're not even denying that anymore. (Wells is also making a stretch with this splitting the case theory, since Judy's testimony is as important because it shows that Libby knew of Plame consistently in the month of June and July, and just two days before he supposedly "learned it as if it were new," as it shows that Libby leaked to Judy.)

Grossman's Timing

But he is presenting a curious argument about Grossman. Wells indicates he will argue the dates related to Grossman are wrong.

I will try to establish that, in fact, that the dates, in fact, may be wrong. But the indictment itself has, as one of the key witnesses, him telling Mr. Libby about what he has learned about the trip.

And he returns to this later in the hearing.

MR. WELLS: Well, if I'm trying to show that Mr. Grossman should not be believed and I can show that what Mr. Grossman says he told Mr. Libby that either he could not have learned it by that particular date or it was wrong --

Whoa. What is significant about the dates being wrong? Well, obviously, if it is wrong, it's an attempt to question the main thrust of Grossman's testimony, that he told Libby about Plame in early June (and details about Wilson in May). But Libby thinks he can prove that didn't happen. There may be other issues here (such as whether Grossman told Libby before or after Mr. X leaked to Woodward, or whether Grossman told Libby before or after Dick told Libby about Plame). But the point, at least partly, is to suggest Grossman's testimony is wrong.

Here's one of the biggest ironies about this line of argument. Libby tries to argue that Grossman is biased, that he's a long-term friend of Wilson's, and therefore can't be trusted. But one central issue that Libby was trying to refute was that Dick had sent Wilson to Niger. That is, purportedly, why Libby wants to introduce the whole lead-up to war. So if Libby were trying to undermine Grossman's credibility, you'd assume that Grossman refuted Libby's claim that Dick hadn't sent Wilson.

You'd assume that, but you'd be wrong. Grossman provided Libby (at least in the public narrative of what happened) with the best evidence supporting Libby's argument! Grossman is the one who told Libby that Plame was involved in sending Wilson!!

INR Memo, Aborted Blame Game

There's also an interesting bit that seems to shine new light on the INR memo, on its purpose. Wells implies that someone put together information to prove that Wilson didn't know anything about the forgeries.

I'll be able to show that because the response was on the merits. That's why the NIE was declassified and disclosed. That's why people put together information to show that the forgeries, that Mr. Wilson didn't know anything about the forgeries, that Mr. Wilson had not been sent by the vice president.

Hold on. People put together information to show that Wilson didn't know anything about the forgeries? When did they do that? How did they do that? Is Wells suggesting that the INR memo is supposed to be proof that Wilson is not the one who told the INR that the Niger documents were forgeries? Now that's an interesting perspective on it.

This memo summarizes what we have been able to discover about the role that Ambassador Joe Wilson played in the Niger/Iraq uranium story, especially the allegations that INR played a role in his early 2002 trip to Niger and the (non) dissemination of reporting on what he learned.

{snip]

What is clear, however, is that INR was not Ambassador Wilson's point of contact in either the Department or the Intelligence Community. INR did not meet with Wilson after his trip and did not receive any information on his trip and what he learned except what appears to be his reporting cable (his name is not mentioned) disseminated throughout the intelligence and policy communities by CIA. The reporting we have from his trip makes no mention of documents, fraudulent or otherwise.

This passage makes it appear that Marc Grossman and Carl Ford (or Thomas Fingar, who signed off as drafting the memo) were most concerned with proving INR was not responsible for not informing Dick about Wilson's trip. Is that what Libby and Dick (and presumably, the CIA) were claiming at the time? That INR was responsible? It'd fit their MO. Blame the guys who were right. And while you're at it, claim that Wilson told INR the Niger documents were forgeries, so you can make the claim that it wasn't blatantly obvious they were forgeries, that they didn't need a playboy on a boondoggle to tell them!

It's not clear one way or another. But Fitzgerald does provide one new detail on the INR memo. Grossman had it prepared separately. Fitzgerald makes clear, for example, that Grossman did not distribute it (or, seemingly) include it when he briefed at the White House.

Mr. Grossman separately has a report prepared all about the trip and the substance of it the so-called INR report which Mr. Libby never sees. We don't intend to offer the INR report. We produce it in discovery. But we are not going down the road of trying the case of whether or not Mr. Wilson is right or Mr. Libby is right or whose view of this. It is simply whether or not Mr. Libby told the truth.

I'm sure I'll come back to the revelations about Grossman and the INR memo--and they may relate to Libby's claims that Grossman's timing is off. But for the moment, know that the INR memo did not serve exclusively, or even primarily, to prepare Grossman for his White House briefing. Huh.

Status Questions

The hearing, not surprisingly, reassesses Plame's status at the time of the leak. Judge Walton seems to be buying Fitzgerald's arguments about Plame's status so far. He asks:

THE COURT: On the issue of whether she was, in fact, whatever her status, covert or whatever you want to classify it was with the CIA, whether she was or not is that really relevant? Isn't what is relevant as to what he thought her situation was?

It's a point I've been making. Plame's status is irrelevant, so long as we have evidence that Libby believed her status was classified (or covert). But I think Fitzgerald will go further than that. Fitzgerald introduces a curious point in his discussion about Libby's handing of (I'll argue) other classified information.

One of the articles that came out in the New Republic in June of 2003. There was some discussion in there. After that article a witness spoke to Mr. Libby by telephone who was describing what it is that some of the problems were about Mr. Wilson's trip and the person said, can you make some information public, and Mr. Libby said, we can't because there are complications at the CIA which he didn't further explain, and he said, we can't talk about it on an open telephone line.

This witness, we know, is Eric Edelman. But the context here, with New Republic article, is new. And it's important because (as Wells points out) Plame is not mentioned in the New Republic article.

MR. WELLS: Your Honor, that article he referred to is discussed in paragraph 13 and it doesn't discuss the wife at all.

This is where Wells stops "getting it." After all, he's been arguing though the whole hearing that Plame is minor. But he doesn't realize that Libby also leaked classified information on Wilson, not just Plame. Fitzgerald admits he doesn't know for sure what classified information Edelman was talking about leaking.

I agree with Mr. Wells the New Republic article does not discuss the wife. There is an ambiguity about what Mr. Libby and this person are discussing on the phone afterward as to what the complication is.

I'm betting that Fitzgerald is obscuring the significance of this, for the moment. But I think this is evidence that Libby was aware that the CIA report on Joe Wilson's trip was classified at this point. We know Libby leaked this to Judy, among others, and it appears it got declassified later in the week of July 7. But I suspect the New Republic/Eric Edelman scenario isn't important as it pertains to Plame, but as it pertains to passing classified information when he leaked details of Joe Wilson's trip.

In this vein, Fitzgerald raises another piece of evidence I'm not sure we have heard of:

So the issue of potential damage from discussing it may come up. In a different conversation that Mr. Libby was present for, a witness did describe to Mr. Libby and another person the damage that can be caused specifically by the outing of Ms. Wilson. It was before the grand jury. It was back in July of 2003.

Who is this witness, who briefed Libby and someone else (Dick??) on the damage that could be caused by outing Plame? Is it Libby's CIA briefer? The only mention of anything remotely resembling this in July is the conversation between Addington and Libby on July 8. In any case, Fitzgerald still has a surprise for us. And that surprise may lead us directly to an IIPA charge.

Karl Rove, Mystery Man

There's an utterly fascinating exchange where Wells attempts to find out what he'll get from Fitzgerald, presumably (but not definitely) about Rove.

MR. WELLS: Your Honor, could you ask Mr. Fitzgerald if he is saying with respect to a particular individual who is the subject of a sealed affidavit by me, is he saying he's given us everything concerning that individual's conversations with the press?

THE COURT: I don't know what individual you are talking about and I'm not asking counsel to reveal that since it is under seal but --

MR. FITZGERALD: I'm not revealing Jencks Act material or Giglio material so let me take a case removed from this case so I could just be vaguer. If there were a person with a cooperation agreement or impeachment material and had a long rap sheet with six arrests and they gave a 302 for an FBI interview and they went in the grand jury, I wouldn't turn that material over now. But if that same person was someone who had spoken to Mr. Libby, spoken to the press and was being a witness and at the time they wrote down an email that said, just had a meeting with Mr. Libby, sent it off to someone and we looked for the email and we found it and we had it or they wrote a memo to file at a time which was not an FBI interview after the investigation started but a memo to file at the time or handwritten notes and we have that, we've given that over. We are not sitting on documents or emails or other things calling it Jencks because it was created at the time of the events. We would only sit on Jencks/Giglio.

Let's assume, for the moment, that Fitzgerald's response pertains only to Rove (Judge Walton and Wells use Rove's name later in the exchange, though Fitzgerald never does, which I think is significant). If so, I think Fitzgerald is saying,

I've given you everything I've got about the July 10 or 11 conversation between you and Karl, particularly his email (could this be the Hadley email?!?!?!) and a memo that he wrote contemporaneously that we've just found. But there is other stuff, including documentation from after the investigation started, that we haven't handed over, because this is the matter of an ongoing investigation. And we also haven't turned over what kind of deal we've arranged with Karl so he flip flip flip like a roasting pig.

But then, Fitzgerald is not naming this person, so he could well be talking about Novak or Hadley or Fleischer. In fact, he goes on to make a caveat that appears to suggest he's referring to Mr. X and Rove.

MR. FITZGERALD: Your Honor, let me be general here and I will rethink the remarks. If I need to clarify it, I'll clarify it to you with a copy to counsel. My understanding is in those situations, not saying whether they are singular or plural. I don't want too much read into my words. But we would give over documents reflecting the conversations with Mr. Libby.

We would not be turning over materials if the person is an innocent accused or a subject of an ongoing investigation. We would not be turning over a conversation if there was a document about a conversation with a reporter necessarily as to what they said to the report. But if there is a document that would be the conversation with Mr. Libby such as an email saying I just spoke to Libby or even a calendar entry saying that they meet with Libby, that sort of thing was turned over.

This is where Walton basically says, "don't worry, Karl will be indicted within weeks." But I couldn't help but hearing Wells issue this whiny, "But I want it nooooow, Daddy! I want my Golden Goose nooooow!"

Renegade Scooter

Finally, one of my favorite lines comes in the middle of Wells' rationalization that, by showing how the rest of OVP had decided to respond to Wilson, Wells was showing something pertinent about Libby.

THE COURT: But what if [Libby] was a renegade?

MR. WELLS: But he wasn't.

THE COURT: I know that's your position. But just because other people may have had discussions outside of his presence about what the strategy was going to be I don't see how that would shed light on whether or not he kept to the company line.

He he! Renegade Scooter. That'll make a great title for the cartoon version of this story!!

Comments

[Jim E.]

That's a nice first stab at the transcript.

Is it noteworthy that there might be contemporaneous evidence that Rove met with Libby? As you excerpted above, Fitz said that "if there is a document that would be the conversation with Mr. Libby such as an email saying I just spoke to Libby or even a calendar entry saying that they meet with Libby, that sort of thing was turned over."

One thing that has been debated is why Rove admitted to talking to NOvak, but not Cooper. From this transcript, we learn that there may have been documentary evidence of a conversation that took place between Rove and Libby. If it's an e-mail, perhaps it discusses Novak's column. Perhaps the existance of that e-mail forced Rove to cop to the Novak conversation from the get-go. But maybe I'm reading the transcript incorrectly.

On pg. 36, Jeffress says teh defense is not going to issue further subpoenas of reporters. I find that surprising. What about all of the Washington Post reporters?

[emptywheel]

Yes, I think there is evidence. But it appears that Fitz is saying they didn't get it at first, so that probably isn't why Rove admitted to the NOvak conversation. I wonder whether the famous Hadley email included details ALSO about the Libby conversation. That would be particularly damning, because it would mean the email was from July 11, which would mean Rove almost certainly ALSO told Libby about the Cooper call, which would mean they both lied their asses off when they tried to suggest Rove didn't talk to Cooper.

But it could be a second email. (Also note the reference to memos.)

Jeffress may have given up on the reporters. Doesn't look like he'll get too far on the ones he has already subpoenaed. And at some point, the only justification they'd be able to make for relevance would rest on their knowledge the reporters knew. And that would only be true if they had told the reporters.

[Jim E.]

"It appears that Fitz is saying they didn't get it at first."

Where are you getting that impression?

[William Ockham]

We know that Wells submitted a sealed affidavit concerning Fleischer because it is mentioned in his reply on April 12, 2006 (footnote 4). I read that conversation as being about Fleischer and it implies he has a deal with the prosecution.

[emptywheel]

Jim E:

If you assume Fitzgerald is trying to refer to real details without naming names when he says:

But if that same person was someone who had spoken to Mr. Libby, spoken to the press and was being a witness and at the time they wrote down an email that said, just had a meeting with Mr. Libby, sent it off to someone and we looked for the email and we found it and we had it or they wrote a memo to file at a time which was not an FBI interview after the investigation started but a memo to file at the time or handwritten notes and we have that, we've given that over.

We looked for it and we found it sounds an awful like it might refer to one of the recent 250 emails, IMO.

William,

Thanks for that, I'll go check that out. Do you know which affy that is? I agree that it sounds like the beginning section here refers to a plea deal or immunity. And if the affy is on Fleischer, then it certainly suggest Ari got some kind of immunity. Maybe I'll have to resucitate my Ari as Mr. X scenario!

But I think Fitz is deliberatly vague about how many people he is talking about so that he is covered for not having turned over material on Rove, Fleischer, and maybe Mr. X (if Fleischer isn't X).

[William Ockham]

emptywheel,

The reply memo is titled: REPLY MEMORANDUM OF LAW IN SUPPORT OF THIRD MOTION OF
I. LEWIS LIBBY TO COMPEL DISCOVERY
(Case 1:05-cr-00394-RBW Document 82-1 Filed 04/12/2006

The PDF file name is libbyresp412 and I think I got it from TalkLeft.

[JohnLopresti]

Hayden probably will remain solemn, but I would expect a few at the CIA are smiling, having turned the OVP request on its ear by keeping very tenuous and generic linkage concerning who exactly it sent and wrote the debriefings or summary, part of that compartmental sensibility of completeness. May be several stovepipes but more numerous hearths.

[William Ockham]

About the potential damage warning that Libby got, I'm going to make the following assumptions:

1. It happened between July 6 and July 14, 2003.
2. It relates to an event in the indictment.
3. It involved at least, and probably exactly, 3 people.

If those assertions are true, it seems very likely to me that the conversation in question occurred on Air Force Two on July 12. Since Fitzgerald says a witness described to Libby and another person the potential damage of the outing, I can only assume Cheney was doing the warning, but being warned (technically Cheney was never a witness before the Grand Jury). It sure doesn't sound like something Cathie Martin would do (and she the only person known to have been on that trip). So, the question is, who else was on AF 2 that day?

[emptywheel]

William, I was leaning toward the same interpretation. But I think it might actually relate to the mystery July 2 goings-on I talk about in my NIE post.

[emptywheel]

For those looking, here's the response in which the Fleischer affy is mentioned. Not long before they peddle the same old "Ari with the INR Memo on AF1" tripe, they include this footnote:

Further reasons why documents pertaining to Mr. Fleischer are material to the defense are set forth in the sealed Declaration of Theodore V. Wells, Jr., dated April 12, 2006.

Fitz apparently responded with his own sealed affidavit.

I'm not impressed. I think they're still trying to make their rotting red herring float.

[William Ockham]

The biggest reason I think that the "warning" came on AF2 is that it finally ties that event to the indictment. Many people wondered why that bit was in there, since the description in the indictment didn't mention Plame coming up in that conversation.

[windansea]

empty

before you revised this post you had a comment saying "I actually think we'll get the Rove indictment Friday (tomorrow)

There were 0 comments at the time and I quoted you about Rove and then wrote

I hope you are not holding your breath :)

now you have removed your Rove prediction and also my comment.

what's up with that?

[emptywheel]

windansea

Seeing as how I predicted several times recently that I think the indictments will be June 16 (or several weeks away at any rate), I don't think I wrote that comment. I certainly didn't delete your comment. Are you sure it wasn't some other blog?

[emptywheel]

Also, this post was written today, not posted until noon. You can see my comment to obsessed thanking her for the link to the transcript, from 11:00 am. At that point it was pretty clear there's no Rove fireworks today.

[windansea]

Ok I found it..it's in the Different Kind of Impeachment thread...sorry!

[emptywheel]

You scared me. That's from Sara, not me. I've been forgetful of late. But I don't think I've believed in Rove's imminent demise (soon, but not imminent) in any forgotten moments.

[windansea]

ah ok...my fault...

hey is that an admission that Libby's faulty memory defense has merit?

[Steve]

I really don't understand the first argument you make.

The indictment alleges "that Plame's identity was not known outside of the Intelligence Community." Since it's in the indictment, the defendant is entitled to try and disprove it.

You're the defendant. How do you disprove it? Why, of course, by putting on evidence that people outside the intelligence community knew. In this case, it's five guys who will testify "I knew, because I heard it from Joe Wilson."

And Wells speculates that once he does that, the prosecution will presumably call Wilson to testify that he never told anyone.

This all sounds very normal to me. I don't get how it only makes sense if Wilson had written the indictment. Fitzgerald made an allegation; Libby intends to disprove it; Fitzgerald may want to call Wilson as a rebuttal witness afterwards. What am I missing?

[emptywheel]

Steve:

It's a matter of the grammar in question. Keep in mind, Wells is explaining why bringing these 5 or Wilson wouldn't constitute undermining Wilson's credibility, which Walton finds irrelevant to the charges (which it is).

MR. WELLS: I wouldn't be trying to undermine [Wilson's] credibility.

So then Wells refers to the allegation in the indictment.

I would be undermining the allegation in the indictment that Mrs. Wilson's identity or her occupation at the CIA was not known outside of the intelligence community.

Now, of course, Fitz' evidence for that claim has as much to do with CIA documents and interviews of neighbors as anything else--I can guarantee you that Fitz didn't just take Wilson's word for it. Yet that doesn't prevent Wells from, immediately after mentioning the indictment, to talking about what Wilson himself has claimed.

He has made the allegation. I can put five witnesses on the stand, without Wilson, to say, I knew about it, the husband told me, and then I can stand in front of the jury and say that allegation is just plain wrong.

You undermine Fitzgerald's allegation by talking about what the intelligence community knew, what others knew. Not by talking about what Joe Wilson did or didn't say.

The only way for Wells to get from the specific indictments--about which Walton has said Wilson's statements have no bearing--to Wilson is to turn the classified allegation into one about Wilson's allegations.

[Patrick R. Sullivan]

Sheesh! emptywheel, not only is Steve's logic correct it is bleedingly obviously correct.

And yours is not only wrong, but laughoutloud wrong.

[emptywheel]

Funny, then, because it doesn't seem to have convinced the judge. I guess he's laughoutloud wrong too? Or he's just smart enough to see through Wells' bleedingly obviously specious argument?

[emptywheel]

I think you guys are arguing something totally different from what I'm arguing. Is it true that, if Wells put 5 people on the stand (2 of whom who have already been disproven) to say that Wilson told them Plame was a NOC, it would disprove Fitzgerald's claims about Plame? Arguably.

Is it true that Wilson's comments are in any way relevant to whether Libby lied. According to Walton, no.

My argument is about how silly Wells' effort to make that case is, wherein he conflates things that Wilson said with a legal argument drawn up in an indictment. It appears Walton agrees with me, at least so far.

[Tom Maguire]

Uhh, Patrick, please - I happen to think both sides are right here, but I'm sure our minds can meet even more graciously.

Steve's point (with which I agree) is that EW is busting Wells for speaking with a vague pronoun. From the post:

Take this passage, where Wells tries to pretend that Joe Wilson made the allegation made in an indictment that Patrick Fitzgerald wrote, that Plame's identity was not known outside of the Intelligence Community.

EXCERPT:
MR. WELLS: I wouldn't be trying to undermine [Wilson's] credibility. I would be undermining the allegation in the indictment that Mrs. Wilson's identity or her occupation at the CIA was not known outside of the intelligence community. He has made the allegation. I can put five witnesses on the stand, without Wilson, to say, I knew about it, the husband told me, and then I can stand in front of the jury and say that allegation is just plain wrong. What he would do then, he'll call Mr. Wilson on rebuttal. Okay. But I have a right to attack that allegation.
END

The only logical way to understand this statement is if Wilson were the one writing the indictment, not Fitzgerald. Remarkable feat, the aggrieved husband writing up the indictment to avenge his wife.

For my money, there is a perfectly logical way to understand that excerpt - "*He* has made the allegaton" refers to Fitzgerald. Later, in fact, "What *he* would do then, *he'll* call Mr. Wilson on rebuttal" can only refer to Fitzgerald.

As intros go, I don't love this one - it amounts to saying "There is a way to read the trancript so that Welles sounds stupid, therefore he is stupid". Since an alternative, highly plausible reading is available which makes a lot more sense, I would give Welles a pass on the "He think Wilson wrote the indictment" theme.

That said, EW is right that the judge is not embracing the argument Welles is making.

Anyway, I have my own beef - hah!

On the Grossman question, EW says this:

So if Libby were trying to undermine Grossman's credibility, you'd assume that Grossman refuted Libby's claim that Dick hadn't sent Wilson.

You'd assume that, but you'd be wrong. Grossman provided Libby (at least in the public narrative of what happened) with the best evidence supporting Libby's argument! Grossman is the one who told Libby that Plame was involved in sending Wilson!!

Yes, but - Libby't testimony was that he did *not* hear about Plame from Grossman. (Leopold says there were at least "half a dozen" witnesses, so go figure.) So impeaching Grossman has become Mission Critical.

And their theme, if I may take a stab at inferring it, is that Grossman never showed Libby the INR memo, was a friend of Wilson's, had no reason to peddle a line that made Joe and Val look bad, and, in fact did not peddle that line.

Now, if Libby had been shown the INR memo, that would be a tougher sell. Or, if there were half a dozen people in the meeting, that might be awkward (Any takers on the "I must have been distracted by reviewing my Blackberry" defense?). But it is Libby's story.

[emptywheel]

Wells is playing the same game of pronouns to conflate Wilson and Fitz as Ari did to suggest Wilson was a Niger-Iraq go-between. So yeah, the second "he" is Fitz. But the underlying argument, that Wilson = Fitz, is a fairly desperate attempt to try to turn this into Joe v. Libby (which is what much of Wells discussion, where he did APPEAR stupid--I'm not arguing he is, tried to game for).

Your point is well taken, though, Tom. I don't know why Libby didn't mention Grossman (particularly if there were 6 witnesses, but I'll remain skeptical). If it was really at the WH, though, then the only point of contention is likely to be Plame, not the conversation (Gannon and Abramoff aside, I can't believe you can just take a meeting room at the WH without notice). Though, Mr. X's leaker, if it's not Armitage, might ruin that story for Libby, as might Andy Card.

[Tom Maguire]

On another topic, I am still fuming over this (since it means Shuster/Olbermann were right about the warning, and only comically wrong in attributing it to the defense:

So the issue of potential damage from discussing it may come up. In a different conversation that Mr. Libby was present for, a witness did describe to Mr. Libby and another person the damage that can be caused specifically by the outing of Ms. Wilson. It was before the grand jury. It was back in July of 2003.

The continuation is this:

So it goes directly to his state of mind as to being is there a motive to lie.

Well - if motive is the key, this conversation may have taken place after July 14 and not be referenced in the indictment. And it *may* be that "it was before the grand jury" means "it was before the investigation commenced.

I'm stuck on the fact that Fitzgerald is not exactly leaping forward to document Plame's status (which I assunme was classified), and that he did not indict Libby for perjury on his testimony that he did not know Plame's status - why, one wonders, hasn't the "What did Libby know" question been pinned down? (I sort of suspect a Grossman link here, as well, even though the dates are wrong and the numbers are wrong - could Grossman have claimed to have warned Libby about Plame? That would make denying their conversation more important, especially if Grossman is wrong.)

[Tom Maguire]

And for the lawyers out there - very good catch by Jim E on the "no more 17(c) subpoenas) statement by the defense.

However - it seems to me that a 17(c) subpoena is referrng to books and notes, not warm, breathing people. So is the defense leaving open the possible subpoena of other reporters as witnesses here?

[Patrick J. Fitzgerald]

Official "A" - Feeling The Heat...

Did I forget to say "Happy Friday" today? ;)

Rove Informs White House He Will Be Frogmarched

"Within the last week, Karl Rove told President Bush and Chief of Staff Joshua Bolten, as well as a few other high level administration officials, that he will be indicted in the CIA leak case and will immediately resign his White House job when the special counsel publicly announces the charges against him, according to sources.

Details of Rove's discussions with the president and Bolten have spread through the corridors of the White House where low-level staffers and senior officials were trying to determine how the indictment would impact an administration that has been mired in a number of high-profile political scandals for nearly a year, said a half-dozen White House aides and two senior officials who work at the Republican National Committee.

Speaking on condition of anonymity, sources confirmed Rove's indictment is imminent. These individuals requested anonymity saying they were not authorized to speak publicly about Rove's situation."

"Late Thursday afternoon and early Friday morning, several White House officials were bracing for the possibility that Fitzgerald would call a news conference and announce a Rove indictment today following the prosecutor's meeting with the grand jury this morning. However, sources close to the probe said that is unlikely to happen, despite the fact that Fitzgerald has already presented the grand jury with a list of charges against Rove. If an indictment is returned by the grand jury, it will be filed under seal."

http://patrickjfitzgerald.blogspot.com

[SharonW]

Tom,

FWIW, before reading your comments, (and at the time I read it, it took me two reads) that's exactly what I thought as well. He *is* saying that this took place before the grand jury investigation commenced, and not that it occured "before" as in "in front of" the grand jury. It occured back in July of 2003.

EW,

With regards to the judge's comments about the ongoing investigation being complete "sometime in the foreseeable future," I simply did not read that at all as enthusiastically portrayed by reporters or you. Too be clearer, it didn't read like a couple of weeks to me. Only that it would conclude within enough time before Libby's trial commences to not present the same problem to Wells that it is presenting now.

As he says "So it seems to me as long as it is turned over sufficiently an advance of the trial so that is can be used that that would be adequate."

So what am I missing? How does "within weeks" come into play, let alone the press thinking in the next two?

[emptywheel]

SharonW

Well, I took June 16 in Jane's pool, so I'm kind of middle ground. And I do expect it will take longer than, um, today. But I'm fairly confident that Karl with either be indicted, or bring a lot of people down to avoid indictment. And frankly, I'll take either. Karl is smart. But not as lethal as Dick.

Tom

Yeah, I think you were wrong about Shuster. Or rather, I think he has good reason to report what he reported. But I think there is still (deliberately) some ambiguity there. It all comes back to that July 2 meeting, where Libby was directed to do something. I don't think Fitz is willing to say, unambiguously, that Dick ordered Libby to out Plame yet. But the implication is certainly there.

[Jeff]

So impeaching Grossman has become Mission Critical.

But is it more critical than any of the other alleged conversations Libby had with other government officials about Plame - including the exactly contemporaneous one with Robert Grenier - simply because Libby positively testified that he didn't hear anything from Grossman? Or is it just that he's an easier target, because he's an old pal of Wilson's, apparently, and also because he may (and I think this putting together what Libby's lawyers said about the documents they showed Walton at the hearing and what they say in their respone to Fitzgerald's reply to their third discovery motion) have produced documents that he talked about Plame with someone else in the government, giving Team Libby an opening to argue that Grossman deliberately or mistakenly conflated a conversation with Libby with a conversation with someone else? But if you're right, Tom, that Grossman is also the one who warned Libby and someone cough Cheney? cough? else about the damage from outing Plame, then it makes a lot more sense to really go after Grossman.

In any case, the suggestion that Libby and the Other were told about damage from outing Plame in July 2003 but after the Novak column is really interesting. I would have wondered whether it were Tenet who told them, but I believe Fitzgerald has already said he's not going to call Tenet, so that doesn't make sense.

As for why Libby wouldn't be indicted for his statement that he didn't know Plame was classified, I just suspect that Fitzgerald believes Libby knew but isn't convinced he has evidence beyond a reasonable doubt for a jury to convict, or evidence as slam-dunk as on the case he's making.

[free patriot]

prior disclosure does NOT extinguish classified status

get a clue people

it doesn't MATTER what people KNEW

It matters that the CIA was taking active steps to keep her identity SECRET

I didn't see the "Unless somebody else blabbs first" exemptions in standard form SF-312, or in any of the National Security laws that were violated

[Tom Maguire]

FWIW, before reading your comments, (and at the time I read it, it took me two reads) that's exactly what I thought as well.

SharonW and I are going to buy a lotterry ticket together - per subsequent filings, the warning came *after* Novak published.

Never underestimate the power of wishful thinking.

(I am down for May 19 with Rove Not wishful, needless to say).

[Steve]

I think Tom has managed to help clear up some of the confusion I had. I think maybe EW skipped a step in the analysis just because she's so familiar with the indictment by now. The thing is, Wells said:

I would be undermining the allegation in the indictment that Mrs. Wilson's identity or her occupation at the CIA was not known outside of the intelligence community.

So, if five people outside the intelligence community knew her identity (because Joe Wilson blabbed to them) the statement would be literally false, hence Wells' point that he's allowed to try and show that it's false.

But wait! The indictment doesn't actually SAY what Wells claims it says. The actual allegation in the indictment is:

Prior to July 14, 2003, Valerie Wilson’s affiliation with the CIA was not common knowledge outside the intelligence community.

So you can't disprove the actual allegation just by showing that a handful of random people knew the secret; you'd have to show that it was "common knowledge." Hence, why the proposed testimony is irrelevant to disproving any allegation in the indictment.

I still don't know that Wells was trying to play a game of pronoun confusion; for all we know from the written transcript, he might have jabbed a finger right at Fitzgerald's head when he said "he has made the allegation." The thing is, by Wells' opening sentence - "I wouldn't be trying to undermine Wilson's credibility" - he's already acknowledged that whether Joe Wilson is a big fat liar isn't a relevant part of the case. He's not going to be able to get evidence in merely because it tends to show that Wilson lied about Niger or whatever; thus, he knows he has to come up with a better basis for submitting evidence than the argument that it would undermine Wilson's credibility.

[emptywheel]

Steve

Good point on the pronoun confusion.

[windansea]

yes Steve

Fitz proved that when he had a few of Val and Joe's neighbors interviewed before the Libby indictment :)

[Fred in Vermont]

[Wells is] not going to be able to get evidence in
merely because it tends to show that Wilson lied
about Niger or whatever; thus, he knows he has
to come up with a better basis for submitting evidence
than the argument that it would undermine
Wilson's credibility.

What Wells wants are the things he asked for

"all of documents and information generated or received
by the State Department, the CIA, the executive office of
the president and/or the National Security Council
concerning Mr. Wilson's trip to Niger."

Wells wants this to overwhelm the jury with information about yellowcake and Niger and to suggest that Wilson is a partisan attack dog and that this case is really about attacks on our nation at war and not just a few misstatements by an overworked member of the government.   But the judge does not seem to think that any of this is relevant, unless of course the prosecution wanted to try to go into all of that to establish "motive".  But Fitz made it clear that he does not intend to do so in that way.

So as I read it, Wells' plan B is to suggest that since the indictment itself says Plame's status was NOT widely known outside the intelligence community Wells is free to attack that proposition and he intends to do so by putting on a lot of witnesses to say that they knew all about Plame and  that they knew because Joe Wilson himself told them. 

Because of this announced plan of his,  Wells is suggesting Fitz may want to call Wilson to rebut some of this testimony and, if he does, Wells deserves to have all that stuff because he would then need to challenge everything Wilson said about Niger and yellowcake in order to impeach this possible rebuttal witness.

That is where Wells is going with this, and it is not likely that Fitz is going to be willing at this point to say flatly that he would never call Wilson as a rebuttal witness no mater what sort of things defense witnesses said he had done or said.

It seems to me that the judge should put off ruling on discovery about potential rebuttal witnesses.  There would be no end to that sort of stuff.  Even if someone tells a lie about Wilson to try to show that more people than should knew about Plame, I don't see why that would compel Fitz to put Wilson on the stand.

[Fred in Vermont]

William Ockham: The reply memo is titled:

REPLY MEMORANDUM OF LAW IN SUPPORT OF THIRD MOTION OF I. LEWIS LIBBY TO COMPEL DISCOVERY

I just read this document and not only understand the transcript of the May 5 hearing a lot better but am much less skeptical of the ability of the defense to turn the trial into a big time circus that deals was a lot more things than the prosecution wants. 

There is good news and bad news in this.  The bad news is that it may make it possible to confuse the jury enough to acquit.  The good news is that in trying to do that the defense might not only fail but also generate weeks of headlines harmful to this administration at a moment when the newly empowered Democrats are attempting to gain popular support of their efforts to hold the administration to account for a whole lot of wrongdoings, some related to things that the Libby defense clearly wants to inject into his trial.