What Libby Gets

by emptywheel

Thanks to Tom Maguire for getting Judge Walton's decision on what Libby will be granted from his journalist subpoenas. The short version is, not much, beyond a draft article that will apparently make Judy look bad (go figure) and the drafts of the Matt Cooper's "What I Told the Grand Jury." So it seems that Libby will be able to:

• Impeach Judy based on her interview with other NYT reporters
• Slightly impeach Cooper based on inconsistencies in his draft version of the story
• Not impeach Russert directly, one way or another

Update: After thinking about this, I think I'll rephrase this--I think Libby gets more. He will be able to:

• Impeach Judy based on her interview with other NYT reporters and possibly gain secondary information about her other sources or at least what she knew when
• Impeach Cooper to some unknown degree based on inconsistencies in his draft version of the story
• Not impeach Russert directly, one way or another

I'll review his decisions below.

Judy and NYT

Judy personally gets off scot free from Libby's subpoenas, but I suspect that's because some of the evidence Libby sought may be available in the NYT documents he will be granted. So Walton can grant Libby evidence that he can use to impeach Judy's credibility without having to turn over her remaining notes and calendars.

Walton also dismissed Libby's fishing expedition request (in this and all other cases):

6. All documents reflecting communications by any employee or agent of The New York Times concerning former Ambassador Joseph Wilson prior to July 14, 2003, with any of the following persons: Ari Fleischer, Mark Grossman, Eric Edelman, Bob Grenier, Cathy Martin, Joseph Wilson, George Tenent, and Bill Harlow.

Walton argued that none of these people connected directly to Libby, and there wan't something specific Libby sought.

Libby does get the drafts of the NYT articles on Judy's testimony--and they're admissible as impeachment evidence. Here's what Libby asked for.

3. All documents prepared at any time by Judith Miller, or by any other employee or agent of The New York Times based upon information received from Judith Miller, that refer or purport to describe any part of any conversation between Judith Miller and I. Lewis Libby on June 23, July 8, or July 12, 2003, or any telephone calls between Judith Miller and I. Lewis Libby at any time during June or July 2003. This request includes but is not limited to drafts of an article entitled “A Personal Account: My Four Hours Testifying in the Federal Grand Jury Room” published October 16, 2005.

And here's what he can have.

In fact, The New York Times has produced these documents—draft articles—to the Court for its in camera review, and it is clear from the Court’s examination that the documents responsive to this specific request are not only relevant, but will clearly be admissible as impeachment evidence.

And he also gets a bunch more information that may reveal some of Judy's other work on this.

1. All documents prepared or received by any employee or agent of The New York Times (including but not limited to Nicholas Kristof and Judith Miller) prior to July 14, 2004 that refer to the wife of Ambassador Joseph Wilson, whether by name or otherwise.

2. All documents, whenever prepared or received, indicating or suggesting that any employee or agent of The New York Times (including but not limited to Nicholas Kristof and Judith Miller) was aware, prior to July 14, 2003, that the wife of former Ambassador Joseph Wilson was employed by the CIA.

5. All documents rereflecting or pertaining to a conversation between Judith Miller and George Freeman concerning Valerie Plame, described in the Vanity Fair article published in March 2006 under the byline of Marie Brenner, in which Ms. Miller is reported to have told Mr. Freeman, inter alia, that she talked to many people in the government about Ms. Plame before and after Novak’s article.

In other words, there is evidence there, and it may reveal that Judy knew of Plame's identity through someone besides Libby.

The documents sought by the defendant in requests one, two, four, and five contain information that go to these critical matters. For example, if there exist documents responsive to requests one and two that indicate or suggest that Miller was aware of Ms. Wilson’s affiliation with the CIA before her first conversation with the defendant, then it is at least arguably more likely that Miller, and not the defendant, interjected the topic into the conversation. The same is true for documents responsive to request five, which seeks documents “reflecting or pertaining to a conversation between Judith Miller and George Freeman concerning Valerie Plame . . . .” Documents responsive to this request would demonstrate that Miller may have known Ms. Wilson’s name before her conversation with the defendant. For these reasons, and after reviewing the documents submitted for the Court’s in camera review, the Court concludes that documents responsive to requests one, two and five are relevant.

Though Walton doesn't reveal what these things are, or whether they definitely are relevant.

Sadly for me, Libby doesn't get the one thing I wanted him to get--the document describing whether or not Judy proposed writing an article on Wilson, which Libby asked for.

4. All documents, whenever prepared or received, reflecting or referring to any request or recommendation by Judith Miller, prior to July 14, 2003, to Jill Abrahamson or any other employee or agent of The New York Times, to pursue a news story or investigation relating to former Ambassador Joseph Wilson’s trip to Niger or his claims concerning that trip.

Such a document, I hoped, might explain who was responsible for Judy, who oversaw her probation, and how they stopped her from producing an article on Wilson. But Walton's only going to give it to us if Libby can somehow justify asking Judy whether she tried to write a story on Wilson.

In fact, the only possible way documents responsive to this request could be relevant is if the defendant, during his cross-examination of Miller, is permitted to inquire into whether she sought to pursue a story on Ambassador Wilson and his trip to Niger. However, unless something occurs during the trial which the Court cannot currently envision, it is virtually inconceivable that this line of inquiry will be permitted.

And then a footnote:

Because the Court has in its possession the relevant document, it will reserve ruling on this request until after Miller presents her direct testimony.

One document. So presumably one request to write a story?

Here's one key item about the evidence against Judy. Unlike the impeaching evidence against Cooper, Libby won't get the evidence impeaching Judy until after she testifies and then only if she contradicts herself.

Nonetheless, the responsive documents will only become admissible after Miller’s direct testimony has been presented by the government.

[snip]

Therefore, this Court cannot accept the proposition that pre-trial disclosure of documents responsive to requests one, two, four, and five is warranted. This is especially true here because after reviewing the subpoenaed documents (the draft articles and transcripts) and comparing them to the indictment and other news articles reflecting Miller’s anticipated testimony, there is no indication that Miller’s trial testimony will deviate in any way from her prior written statements.

So we don't get to learn what kind of impeaching statements Judy made to her colleagues until next year.

Andrea Mitchell, Russert, and NBC

Russert fares even better than Judy, though probably because there's no there there. First, as I said, Walton dismissed Libby's fishing expedition request.

6. All documents reflecting communications by any employee of NBC News concerning former Ambassador Joseph Wilson prior to July 14, 2003, with any of the following persons: Ari Fleischer, Mark Grossman, Eric Edelman, Bob Grenier, Cathy Martin, Joseph Wilson, George Tenet and Bill Harlow.

But in this case, he notes that NBC has something, but that it's not directly relevant to Russert. Not surprising, I guess, since NBC has tons of reporters and it'd be hard to avoid public affairs people like Ari or Cathie Martin.

Walton also dismisses Libby's requests for documents relating to the Libby-Russert call.

3. All documents prepared at any time by Tim Russert, or by any other employee of NBC News based in any part upon information received from Tim Russert, that purport to describe any part of a telephone conversation between Tim Russert and I. Lewis Libby on July 10 and/or 11, 2003, or that reflect actions or communications by any NBC New employee during July 2003 as a result of that conversation.

In a statement that will surely drive Tom Maguire nuts, Walton says that these are just emails that basically parrot the same old unchanging NBC party line.

These documents consist solely of email communications involving NBC employees. The vast majority of these emails simply forward, with minimal commentary, NBC’s publicly available statement and other related publicly available news articles. None of the emails reflect comments or notations made by Russert. These emails therefore simply have no relevancy to whether the defendant’s account of

Walton leaves the questions relating to Andrea Mitchell in a bit of limbo, since unlike Judy, Russert, and Cooper, it is not certain she'll be called to testify. Walton indicates clearly that nothing in the Andrea Mitchell materials regarding her conversation with Libby would in any way impact Russert's credibility.

Additionally, the Court will not require the production of the documents relating to Mitchell. Having reviewed Mitchell’s handwritten notes, there can be no plausible argument that they are relevant to this case. Not only do they have no bearing on any issue relevant to this action, but there is also no basis for them being used to challenge Russert’s recollection or credibility.

Gosh. Maybe NBC is telling the truth and Russert really didn't know? But Walton does allow the possibility that emails relating to Mitchell's hot and cold claims of prior knowledge of Plame's identity would be relevant, if she testifies. Here is Libby's request.

5. All documents prepared at any time by Andrea Mitchell or by any other employee of NBC News that purport to discuss or explain the statement by Andrea Mitchell on CNBC’s “The Capitol Report” aired on October 3, 2003, as follows:

Question: “Do we have any idea how widely known it was in Washington that Joe Wilson’s wife worked for the CIA?”

Answer (by Mitchell): “It was widely known among those of us who cover the intelligence community and who were actively engaged in trying to track down who among the foreign service community was the envoy to Niger. So a number of us began to pick up on that. But frankly I wasn’t aware of her actual role at the CIA and the fact that she had a covert role involving weapons of mass destruction, not until Bob Novak wrote it.”

And here is what Walton thinks of the request.

The remaining emails, while technically responsive to category five, would only be admissible if Mitchell testifies and if her testimony is inconsistent with the statements made therein. Unlike Miller, Cooper, and Russert, there is no clear indication that Mitchell will even testify during the trial. Accordingly, these documents do not fall within the category of documents producible under Rule 17(c).16

So Libby can have these emails, apparently, if he can rationalize calling Mitchell to testify (and if he's willing to do so without knowing what he'll get in discovery).

Cooper and Time

Cooper and Time won some--but probably not the most damaging--of their points. Time will not have to turn over the notes from whichever Time reporter interviewed Wilson for the big group articles. Here was Libby's request.

1. All documents prepared or received prior to July 14, 2003 by any employee or agent of Time Inc. (including by not limited to Matthew Cooper, John Dickerson, Massimo Calabresi, Michael Duggy and James Carney) that refer to the wife of former Ambassador Joseph Wilson, whether by name or otherwise.

And here is Walton's response.

There is one document responsive to request one. As discussed during oral argument, this document consists of the notes from a Time reporter of an interview with Ambassador Wilson. While these notes might be relevant on the question of Cooper’s credibility, this would only be the case if several theoretical possibilities could be established; no other basis for their admissibility has been provided by the defendant. And as the document’s evidentiary value would only be for impeachment (contradiction), since there is no clear indication that this reporter will even testify during the trial (unlike Miller, Cooper, and Russert), there is no realistic possibility that this document would be admissible.

Correct me if I'm wrong, but this suggests Wilson's wife came up in some context, doesn't it? I assume, having read the document, Walton knows what he's doing. But what kind of mention of Plame would come up that wouldn't be relevant?

Update: Jeff helpfully reads the original so I don't have to. Here's his explanation:

If you look at the TIME article, I think you can discern that when Calabresi interviewed Wilson after Cooper had heard about Plame, he asked Wilson about it:

In an interview with TIME, Wilson, who served as an ambassador to Gabon and as a senior American diplomat in Baghdad under the current president's father, angrily said that his wife had nothing to do with his trip to Africa. "That is bulls__t. That is absolutely not the case," Wilson told TIME. "I met with between six and eight analysts and operators from CIA and elsewhere [before the Feb 2002 trip]. None of the people in that meeting did I know, and they took the decision to send me. This is a smear job."

Presumably Walton is sufficiently convinced that Calabresi learned from Cooper, and not from Wilson himself.

Where Libby does get what he's looking for is in Cooper's own drafts. Here's what he asks for.

3. All documents prepared at any time by Matthew Cooper, or by any other employee or agent of Time Inc. based in any part on information received from Matthew Cooper, that were prepared in anticipation of or that purport to describe any part of a telephone conversation between Matthew Cooper and I. Lewis Libby on July 12, 2003. This request specifically includes, but is not limited to, drafts and internal correspondence concerning the article “What I Told the Grand Jury” published in the July 25, 2005 edition of Time Magazine.

And here's what Walton has to say about what he's getting.

As for the documents responsive to category three, they consist of drafts and internal correspondence concerning the Time stories “A Question of Trust,” “What I Told the Grand Jury,” and “What Scooter Libby and I Talked About.”

[snip]

Moreover, after the Court’s examination of the documents, there is no question that they are relevant, as they recount the conversation between Cooper and the defendant, which is the basis for several charges in the indictment.

[snip]

However, upon reviewing the documents presented to it, the Court discerns a slight
alteration between the several drafts of the articles, which the defense could arguably use to impeach Cooper.

[snip]

This slight alteration between the drafts will permit the defendant to impeach Cooper, regardless of the substance of his trial testimony, because his trial testimony cannot be consistent with both versions.

And here's the rub. Since Walton has determined they will impeach Cooper one way or another, Libby gets the documents now.

Let's see whether Libby's sieve-like defense team can keep impeaching material confidential for 8 months.

Comments

[free patriot]

that's why we love you, ew

I've been pondering an oddball question:

could Fitz call Cheney to rebut a rebuttal witness without raising cheney's 5th amendment rights

here's how I could see it happening:

Fitz introduces the annodated Wilson Column, scooter presents a rebuttal witness to dispute the origins of the annotations

could Fitz call cheney in that narrow window without involving cheney's 5th amendment protections ???

[Jeff]

From one quick read, the Walton opinion puzzled me on several counts. But one I think I might get has to do with Calabresi from Time. If you look at the TIME article, I think you can discern that when Calabresi interviewed Wilson after Cooper had heard about Plame, he asked Wilson about it:

In an interview with TIME, Wilson, who served as an ambassador to Gabon and as a senior American diplomat in Baghdad under the current president's father, angrily said that his wife had nothing to do with his trip to Africa. "That is bulls__t. That is absolutely not the case," Wilson told TIME. "I met with between six and eight analysts and operators from CIA and elsewhere [before the Feb 2002 trip]. None of the people in that meeting did I know, and they took the decision to send me. This is a smear job."

Presumably Walton is sufficiently convinced that Calabresi learned from Cooper, and not from Wilson himself.

I don't get the ruling on the Times. And slight seems like a weird way to characterize an alteration that Team Libby could use to impeach Cooper. I guess maybe "small but arguably significant" would be too Libby-friendly, to say nothing of less concise?

[emptywheel]

Jeff

Ah, thanks--I'll move your explanation up into the text on the Calabresi explanation.

What don't you get about the NYT case?

I need to review the Cooper testimony again, but I suspect it is significant in that Cooper was literally changing the language he used to refer to something. But may not change the overall jist of his reporting.

[anon]

From an AP article re: Cooper's drafts ...

A person familiar with Cooper's drafts described the inconsistencies as "trivial." The person spoke on condition of anonymity because Walton has warned the case's participants against talking to reporters.

[emptywheel]

Well, that's good news. I rather suspected as much (not least because when I was doing the Anatomy post, I realized he worded the description of his two Libby conversations almost exactly identically in the two stories.

But it's good to hear from someone who has seen them.

[jane hamsher]

I was bummed about the NYT thing too. I was really looking forward to the whole Abramson/Keller/Judy thing being untangled.

Now our best hope is that Judy gets a bee in her bonnet and decides she needs some more attention.

[waiting in texas]

one thing I still don't understand - I have always thought all along that Judy was the mouthpiece for Libby and Cheney, so why is it that Libby would want to go after her notes? Wouldn't that just implicate him even more? and lets not forget her odd meetings with Ledeen especially in Iraq (there's a whole lot there not yet discovered - Ledeen is a behind the scenes kind-of-guy.

[BoyKott Kos]

PLEASE Pardon the interuption: I'm part of an effort to ask all daily kos bloggers to boycott the site until Markos demotes to regular user status a "frontpage" blogger who is an attorney that represents Walmart, Clorox and other frequent members of the "worst corporations" lists. In addition, this person is a partner in a law firm that boasts of representing over half of the United States largest corporations and even has a lobbying department to promote corporate special interests! On a daily basis, this firm fights against the same progressive issues that are promoted on Daily Kos. This person cannot reasonably be defined as a progressive and Dkos is supposed to be for progressives. This persons prominent presence on the site undermines the credability of not only dkos, but the entire progressive blogging community. Even though this person is obviously a public figure --he has openly "outed" himself and said his full name and the fact that he is an attorney in numerous media inteviews, including NPR's morning edition and The Majority Report-- I am honoring many people's sensitivity to this issue and not mentioning his name here.

[somethingsrotten]

OT - Please boycott sour grapes - at least until they make them like I like 'em.

Great post EW. I can't wait for Judy to testify. I luvs that diva.

[p.lukasiak]

Correct me if I'm wrong, but this suggests Wilson's wife came up in some context, doesn't it? I assume, having read the document, Walton knows what he's doing. But what kind of mention of Plame would come up that wouldn't be relevant?

point of information:

"information used to impeach the credibility of a witness" is not necessarily relevant to central facts involved in the case.

For instance, one draft of a Cooper article might say that he called Rove to ask about welfare reform, while the final piece says that while Cooper had called about welfare reform previously, it was not the subject of the call in question. This contradiction has nothing to do with the case against Libby per se, but because the conversation with Rove will be part of Coopers testimony (needed to set up Cooper's testimony on his confirming call to Libby), the difference between the two accounts can be used to raise questions about Cooper's credibility/memory.

In other words, Walton's statement in no way implies/"suggests" that " this suggests Wilson's wife came up in some context, doesn't it? " Any information that contradicts/raises questions about what someone testifies to is admissible for impeachment purposes.

[emptywheel]

p luk

That refers specifically to subpoena item 1, which is anything of the other Time writers have that "refer to the wife of former Ambassador Joseph Wilson, whether by name or otherwise." So it's definitely Plame. But I think Jeff explains it away well.

[JohnLopresti]

On balance Walton appears to have produced a measured response.
I still have questions about the timing of last week's blizzard of Judy authorship in other media outlets, and wonder if that was preframing her authoritativeness in the region and on the topics involved, restating her own bonafides as a counterweight to whatever she senses Libby's folks are attempting to discover.
I wonder if Vinovka will have an opportunity to help muddy the waters by repudiating slanting facts and even impeaching Luskin's own imagery artistry.
I do not know about Andrea as category five. Anyone in the witness pool named Katrina?

[Discovery]

They found the Canadian diplomat in Italy. His credit card was being used by a Nigerian. That's where the foregeries were and the two Nigerian operations officers were found too?

He enjoyed internet cafes............

[hauksdottir]

I STILL think that Judy got her information about Plame/Flame from David Kelley... her ol' gossip-buddy. Kelley's unmasking and death during this July interval is an essential underpinning to the framework.

When she first got the name and possible activities involving WMD, she might not have linked Plame to Wilson. I doubt if she did basic research, but probably got the gossip from the conventions and panels as to who was working on what. Libby might have made the marital connection for her.

Judy's notebooks would make fascinating reading... as much for what they missed as to which dots got linked.