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June 20, 2006



So my biggest question, after having written this, is why didn't we see Pincus and Kessler in Libby's indictment, if Libby lied about what he said to Kessler? I know folks have suggested that Woodward's pre-indictment hiccup made Pincus' testimony unusable, but I don't think I buy this.

Just guessing, but I wonder whether Fitzgerald used the implication of Pincus' source in this as pressure to get that source to turn against Libby, or to testify about the larger case. We think Cathie Martin had already testified by this point, so it's unlikely to be her (and Fitzgerald has turned over both Kessler's and Pincus' testimony to Fitz, which he'd be unlikely to have done so soon if it discredited Martin. SO I think it's someone besides Martin.

Which makes me wonder if it is someone like Hadley, who then "Big C cooperated" with Fitzgerald. It might explain why Hadley said he thought he'd be indicted.

Do you think there was "Big C cooperation" this early? I doubt it, but by the same token, I've had the hunch that Fitz was working from an insider's playbook, perhaps from e-mail records or notes. Maybe it will turn out to be a smoking gun in the form of a person.

I don't know if you say the Frontline story tonight, but it was brilliant. If I didn't know any better, I'd thought you produced it. Finally someone to put the CIA leak into context.

Great job as usual EW.

What is the end game of the Fitz investigation into the CIA leaking of Plame? Libby is indicted on perjury; Rove is off the hook. Is this the end or are there yet to be divulged possibilities?

Could Cheney be Pincus's source?

1) The phrases used, including "boondoggle", are Cheney's words.

2) He is high enough in government that Pincus wouldn't think of any leak of confidential background information from him as being criminal, "but only practicing damage control by trying to get me to stop writing about Wilson".

3) Cheney was also hot about Iraq possibly getting nuclear materials (1% chance = certainty)... and he probably still believes that wishes are horses.

4) We don't know when Bush told Cheney (if he ever did, where's the document) that Cheney had declassification power, or if Cheney has simply assumed authority all along.

Just a thought.


Yes, I think Cheney is a possibility, which I'm happy to speculate about, but certainly am not confident enough about to put into this narrative.

Cheney makes sense for several reasons.

1) It would be logical for the July 12 leakers to have attended the strategy session on AF2. So if it's not Libby and not Martin, Cheney is all that's left.

2) It would explain why Libby lied about Kessler to hide this leak.

3) Coverage of the 12th seems to be very careful, as if there's another shoe to drop.

4) The WaPo scrubbed Gellman's story on the 12th; some speculated to hide Pincus' source (though that was what suggested Martin).

5) It might explain why Pincus and Kessler didn't show up in Libby's indictment, but why Fitz willingly gave their testimony to Libby, particularly if you buy the argument that Fitz is trying to demonstrate to Libby where he's heading. (Though why not include Libby's Kessler lie in the charges?)


I don't have TV right now, so I missed it. I'm hoping they'll put up a stream.


I'll confess to a bias: I still think that Plame was the target and Wilson the collateral damage.

If the goal is to create a "democratic" and America-serving empire over the oil and gas lands, having somebody who could disprove Cheney's lies about the need for war would be an impediment. Plame's operation, which took 20 years to set up, needed to be discredited and disabled and dismantled.

"In 1996, during his Halliburton tenure, Cheney made the wry observation that "the good Lord didn’t see fit to always put oil and gas resources where there are democratic governments." [Petroleum Finance Week, April 1, 1996]"

Proving intent and motive wouldn't be difficult. Proving access to information wouldn't be difficult... Cheney would know whether or not Plame was considered covert by her Agency, especially if Tenet gave him the information directly. Proving conspiracy to commit a treasonous act is trickier.

Another question... Cheney has assumed the power to order military planes to shoot down civilian aircraft, and he has assumed the power to declassify documents, has he also assumed power to issue pardons? With all our concern for Bush's power grabbing, we need to be aware of what perogatives Cheney is amassing for himself.

:deep sigh:

How can you expect me to concentrate on this, when Arianna has a hard hitting interview with Rita Wilson?

As 3.6 ripens, here are three links to formal statements which might anchor the credenza:
US Senate Judiciary Committee July 20, 2005 statements by Cooper; Floyd Abrams; October 19, 2005 statement by Miller. There are other presenters' statements there as well.

emptywheel: Great post, as usual. Also, the PBS website says of the recent Frontline, "Watch the full program online: Coming Thursday at 5 p.m. ET."

emptywheel, your work is awe-inspiring. Please archive your research and conclusions securely. they may well come in handy at some future time.

Did Libby help plot the use of journalists as an alibi? Almost certainly: Libby was clearly fascinated by journalistic confidentiality long before the leak. Here's Libby speaking in a rare radio interview with Diane Rehm in February 2002:

LIBBY (speaking just after the 9 min mark): "The Constitution sets up two co-equal branches with enumerated and sometimes overlapping responsibilities. The President has the right to seek advice from advisors, to receive that advice, to seek counsel from outside sources, and to, in our view, hold that information confidential. And that is for the proper functioning of the Presidency. Reporters, for example, claim the right to interview sources, and to hold those names, not just the information, but the identity of people, private. And the reason they do that is because they believe there are people who will not come forward and tell you what they really think unless they can keep their identity confidential. Courts have recognized that privilege because it’s sort of a common-sense notion, and they believe reporters serve an important function. Here we have both a constitutional set-up and an area where the President should be able to receive the same type of confidential information informing his views...."

Obviously, Rehm has asked Libby why the Vice President won't surrender guest lists of his Energy Policy Task Force. I'm not pretending the context isn't different here: I'm only noting Libby's prior interest in the subject, which comes up in the interview almost like a non-sequitur. You don't have to read The Apprentice to know that Libby has a mind for fine plot turnings, and was perhaps already musing on a legal loophole which could one day be exploited by the Bush Administration.

(Also, if you listen to the interview, check out Libby's description of his job responsibilities in the White House: it's at the 7 min 15 sec mark. Libby says he reports directly to the President as well as to the Vice President. In other words, Bush was Libby's direct boss. That's why the talk of Bush pardoning Libby is so unseemly. Who is to say Libby wasn't keeping Bush in the loop?)

Some comments about that Libby comment, QS. First, I know he's being specific to GAO, but isn't it 3 coequal branches?

Also, note he's asserting that journalists can hold the information confidential. That makes an absurdity of the entire concept of First Amendment. Which just goes to show how awkward his analogy is here.

Plame and the CIA's 'culture of access' may be why America went through the NSA leaks(etc.)-Plame was studying domestic political groups, 501s, possibly using NSA assets only to find her retired CIA friends there-but, that is no longer an issue since the CIA analysts are moving over to NSA(DIA) under the new 'Air Force Director' of CIA. This is alot like the NASA Executive Program moving over to Langley a few years ago. The new Director is 'taking care of' other federal employees. CIA Operations Officers will 'operate independently,' possibly working more coups in the US and abroad.

Plame - her old boss is taking the CIA analysts over to NSA(DIA) as a job; possibly a favor to Fitzgerald for not indicting Plame, but, alot like what happened domestically after Rove was 'freed' and internationally when Plame went to 'Vanity Fair' and admitted she was a CIA operations officer, paramilitarily trained - it may be impossible to follow this type of logic other than the MSM due to the 'culture of access' in the Defense Community and American Intelligence Community as they become one entity; Defense(DOD) losing it's ability to do its job - actual goal.

Two coequal branches, three coequal branches--who cares? It's just a number, after all.

Also, is Libby saying that if Bush summoned me to advise him on some issue--as an "outside source"--that he could prevent me from discussing the advice I gave? From repeating my own words later? I'm not sure I understand. It makes sense that Bush could gag an official White House advisor because I'm sure they agree to waive some of their 1st Amendment rights when they take the job. But how can Bush argue that advice from outsiders is confidential? If I talk with Bush and later decide to write an op-ed about the conversation, does he think he could stop the column?

Here's an interesting quote in a Pincus/VandeHei article just before indictment day.

By July 12, however, both Rove and Libby and perhaps other senior White House officials knew about Wilson's wife's position at the CIA and, according to lawyers familiar with testimony in the probe, used that information with reporters to undermine the significance of Wilson's trip.

The previous paragraph is from Pincus (it relates to his June interview with Libby). Not sure what it means, though.

The idea behind the deliberative process privilege is that the persons who advise the Pres or other officials can't be compelled in court to divulge what they said to the official. Otherwise the Pres or other decisionmaker wouldn't get candid advice; everything would be "scrubbed" so as not to later offend someone if it came out.

I have never heard the assertion that the gov'tal official could gag the adviser. &y's question exposes the assumption that the person giving the advice would police themselves, on the understanding that if they didn't, they wouldn't be invited to give any more opinions, or, indeed, be invited to anything.

Having been involved directly in some controversies of this nature at the state level, it is a VERY appealing doctrine for governmental decisionmakers, and often is upheld. I've also seen some very embarrassing stuff come out when the assertion didn't work.

I have never heard the assertion that the gov'tal official could gag the adviser. &y's question exposes the assumption that the person giving the advice would police themselves, on the understanding that if they didn't, they wouldn't be invited to give any more opinions, or, indeed, be invited to anything.

OTOH, governmental employees can have their speech stifled at least somewhat, per the courts, as a condition of their employment.

Not as he explains it later on in the interview. He says if advisers want to go out and tell what they said, they're free to do so.

Of course, given that they're well paid petroexecutives, what are the chances of that?

Mimikatz: Isn't the deliberative process privilege held by both the advisor and the advisee? I believe it is. (It doesn't make sense for the privilege to be held only by the advisor with the person that the privilege is most relevant to -- the advisee -- trusting the advisor to assert the privilege.) In that sense, then, the official can "gag" the advisor -- by jumping in to assert the privilege, as Cheney (and the Executive Office fo the President) did in the Energy Task Force case.

The WaPo scrubbed Gellman's story on the 12th; some speculated to hide Pincus' source (though that was what suggested Martin).

FWIW, the scrubbed line was "the vice president instructed his aide to alert reporters of an attack launched that morning on Wilson's credibility by Fleischer, according to a well-placed source."

Martin may have been the "well-placed source" for Gellman, but the passage implies it was Fleischer to whom reporters were being referred on July 12.

And as you've posted, the point of the Air Force Two strategy session was to have Libby speak to the press instead of Martin (with, per the above, instructions to refer reporters to Fleischer).

How you get from this information to Martin (or Cheney, or really anyone besides Fleischer) as a source for Pincus is hard to understand.

Here's another curious detail, this time from a VandeHei/Leonnig article close to indictment day.

Fitzgerald talked to Cheney personally near the beginning of the investigation, though according to a person familiar with the case, he has not questioned him since.

June 2004, when it was leaked that Cheney had been interviewed, is not that close to the beginning of the investigation.

Damn Swopa, what have you got, a bell that goes off anytime someone gets close to your 1X2X6 theory? It's become downright Pavlovian!

Mimikatz, I could have framed that interview quote from Libby better, so my apologies. My basic point was this: why is Libby thinking, back in February 2002, about the special privileges of reporters? Is it because he's thinking of ways to use reporters' privileges to his advantage, to use Judy Miller as a cut-out (for example) with bogus intelligence stories used to take this country to war? That would happen just a few months later, and given the remarkable success of that media campaign, it probably felt quite natural that Libby would enlist reporters in the (later) plot to discredit Joe Wilson.

In other words, the Plame outing and cover-up grew out of an existing OVP practice of misusing journalists and leaks. This one, however, got away from them.

Here's another interesting tibbit, from a Fitzmas morning article.

At the same time, White House Deputy Chief of Staff Karl Rove began assembling a public relations team in the event that he is indicted.


Mark Corallo, a former spokesman for the Justice Department, would be part of the public relations defense team, according to a person familiar with the plan.

So, as far as we know, Rove is not indicted. But he hired Mark Corallo anyway?

Sorry, I should say, "as far as we know, Rove was not indicted." I'm not suggesting he was more recently, either.

I'm just curious why he hired Corallo anyway?

Bush advisors trying to cover up for CIA? Bush is not sane here. He still backs CIA and they are committing espionage in the US. He made it clear he avoids any close realtionship because of his father, but the real answer was to close CIA and Congress tried. So, Rove might have been a in the middle. He had the correct answer, but out of loyalty to Bush, could not act on it.

Adviors have to be close friends. Plame is why.

CIA and DEA are two places that 'evil doers' attack Bush. It's like having a dad who is a cop, someone is going to get you into trouble - just to get even.

So, it's Air Force Director and Plame's old boss moving the CIA analysts over to NSA(DIA) to take care of CIA, but they are not worth it and using the military to hold them will just degrade our (DOD)intelligence. The new director of the CIA analysts at NSA is a Russian(Plame's work in Iraq and Iran)specialist, just like Aimes. This is quite natural.

QS' reminder recalls, as well, EW's brief dissertation on the mellifluous postmodern fib as art, though ew's actual title mentioned the theorist in whose school several of the administration figures are involved. Meanwhile, I continue fretting about the Specter Lugar Dodd reporter privacy rule draft which congress evidently would like to pass in 2006, having revised the 2005 initial attempts; reading some of the 'protections' reminded me of the flimsiness of Xerxes' wicker shields.

Just thinking outloud here.

One reason Rove may have hired Corallo is because Luskin lost some ability to leak, particularly as it related to the Vivnovka testimony.

Chummy bit of gossip in the NY Daily News featuring Cheney and Rumsfeld at some Ford Administration alumni function. And there's Tom DeFrank right there in the middle of it! I know my insistence that Cheney is DeFrank's main source hasn't helped us yet, but it will.

Will keep it in mind, Saltin. I'm working on VandeHei right now. Know who his main source? Oh wait. I think I know!

Deadpan from E&P staff: "Specific articles that were cited for excellence included a piece on George W. Bush's chastisement of Karl Rove during the Valerie Plame scandal in 2003, an article surveying Bush’s weakening temper, and a story detailing the troubled relationship of Bush and Cheney."

Quicksilver, I can't quite tell from the context, but I'm pretty sure they're saying that those were all DeFrank pieces.

Damn Swopa, what have you got, a bell that goes off anytime someone gets close to your 1X2X6 theory? It's become downright Pavlovian!

Just trying to help. Sometimes it seems like you get immersed in so many details that you spin yourself in circles.

Although I think we're still awaiting your masterwork in this regard: The Unified Armitage Theory where he not only was the WaPo's 1x2x6 whistleblower based on calls he got from reporters seeking confirmation for Plame leaks, but was also the initial leaker to each of the reporters. :-)


Hours of digestion ahead!

Quick footnote: My angle on this has been the close, too-close relationship the WH press corps has established with their sources...

Recently I came across an old copy of Woodard's book The Choice, which was a take on the Clinton vs Dole presidential campaigns.

A snooze it is. And will probably be buried like a B movie. However, noteworthy was the amount of insider detail that Woodard got together about the two. He could not have done it without being a little too closely connected to both candidates.

In addition, Ben Bradlee was interviewed @ two nights ago by Jim Lehrer, and the topic of anonymous sources came up. That is, because Bradlee, Woodard, and Bernstein invented the new age of anonymous sources. Bradlee, btw, said as much.

I am a big fan of the Sunshine Laws on political information; and though I don't delve too deeply into them, I believe they probably could be extended to how politicians "show their work." (You know, like on math tests: show your work or fail the grade....)

Now, it is apparent that Woodward was doing the same resident-WH-quasi-historian thing before the Plame story surfaced?

How did he report objectively, how did Miller or Cooper report objectively, while fighting to keep their sources talking and while hoping/working not to get used as mouthpieces as well?

If I spin the wheel, the reporters' use of the anonymous source, or the simple source, in journalistic "protocols" (is there such a thing, really?) appears to need some serious revision. Watergate is over. Pols are too sophisticated in knowing how to manage news (Reagan as proof). The protocols for attribution are a big stinking point in all of this.

If the chain from editor to reporter to politician were better supervised, we wouldn't have had this mess from politician to reporter? Where were the editors in all this? If Libby wanted to sneak a sting at Wilson for his Niger spin, the reporters should have reported to their editors that they were in the process of being used. Or, the editors should have looked at Miller's stories or Cooper's and been a little more skeptical/thoughtful. In Cooper's case, I would have demanded more perspective before his article was allowed to be printed... Not to mention Novak's original dippy story.

If you on the Left had wanted to see a collapse of the veil on the WH, then *there* would have been the critical turning point. Cooper says to his editor: "They are trying to use me to whack Wilson!" The editor could respond: Well, that's a story in itself. Let's run an additional background story about your meeting." It will mean burning the source, to a degree, but it's news! It would have certainly forced the WH to explain their position against Wilson more directly, warded off them using the backdoor, and brought a little more light (sunlight) into the process.

The counter argument is: don't be naive, it's only way it will work.

Hmmmm. Response is: The editors have certainly been naïve throughout. And until they clean up and sophisticate their handling of political news, we are going to get more of this kind of mess. Maybe the solution is that we just need more editors of Ben Bradlee's caliber...

Quicksilver and Sebastian--I think of the deliberative process privilege the way I do because of the way I was involved in it, and I think the way it generally comes up--usually someone sues (or investigates) the decisionmaker and wants all the documents, notes, e-mails etc. The decisionmaker typically asserts the privilege.

The privilege was actually asserted twice on memos I had written (unsuccessfully, as it turned out, once because it came out that the decisionmaker's top political person had shared memo with someone outside gov't, which was held to have waived the privilege, and once just because of the highly charged circumstances. I was more successful asserting it in challenges to agency decisions, but those were less political situations. It may belong to both, but the advisee generally keeps his/her mouth shut unless s/he wants to become a whistleblower (or a leaker).

I don't think the editors are naive. I think they want to maintain access both to sources and to the cocktail parties, to say nothing of keeping their jobs, since most publishers identify with the GOP. That's been evident for years.

There is still a difference among the states in reporter shield laws, which is part of the ostensible interest in 'providing' a shield at federal level. I think deliberative privacy is worthwhile. In one of the precedents involving the current Supreme Court I have seen three interesting discussions, one generalist, and, another, part of a complete look at federal precedent, though the case recently decided, Ceballos, is mostly the view from within government. Though my views are individualized on these topics, appreciative of the leak and access culture as yet another expression of fairly-free-information-based society.

Hey Swopa,

Who do you think this might be? Armitage or Ari?

Additionally, one former government official said he testified that Rove talked with White House colleagues about the political importance of defending the prewar intelligence and countering Plame's husband, former ambassador Joseph C. Wilson IV. It was Wilson who accused Bush of twisting intelligence about Iraq's efforts to obtain nuclear material from Africa. The official refused to be named out of fear of angering Fitzgerald and the White House.

Or possibly Adam Levine...

> But I'll save the Aspens for the next installment.

Ooh I cannot wait. It is my favorite part of the whole sordid story.

Well, not favorite part exactly. But for all-out brazenness, it sure was something.

Maybe Jeralyn or Pollyusa have timeline. The way I would do it would be the index volume for all the depositions so you could reference the development of your case; a benefit of such a chronological view could be placing later events in their context; for example the article you linked in WaPo is the week after a Froomkin description of Rove's speechmaking upon his move to a new office in late May 2006 as Bolten settled into Rove's old surroundings. My thought was perhaps that kind of organizational meeting stirred some feelings about the changes, as Card had left about two months prior and the Rove restatement of his mission for the people who were still trying to configure the computers in his new office was a moment of reflection. Though, this is about the dateline of the article, not the timeline of GJ appearances. You need Swopa, Pollyusa, or Jeralyn for the latter.
Froomkin writes 2 weeks before the article you link.
Froomkin cites


I don't think the date of the article I cited is revelevant, except insofar as it presents obvious people for VandeHei to call. Which is why I lean toward Armitage (along with a few more reasons). But Armitage testified three times, presumably twice in the February 2004 range and once after Woodward's bombshell. So the testimony would be much much earlier, the impetus for VandeHei to call would be all that rumors surrounding Armitage at the time and Armitage's recently blabby mouth.

Mimikatz: Thanks for sharing your perspective. I actually spent a little time trying to nail down who it is exactly who holds the privilege for government advice/deliberations (and thus who might have "blocking rights") and found the question not at all easy to answer. I can't say that I exhaustively canvassed the issue (day job duties occasionally need tending to) but none of the key cases (the Nixon trilogy and the more importnt D.C. Circuit opinions) really treat with the question at all.
The cases I was thinking about in my initial response were, on careful review, complicated by the fact that the exeutive/presidential privilege analysis ws tied up with an analysis of the Federal Advisory Committee Act (FACA), which was plainly designed to make advice given to the executive by outsiders more freely available to the public than advice rendered by government employees, but which has been interpreted to mean something very different. The law ended up being interpreted very narrowly -- especially in the decision by the D.C. Circuit on remand from the Supremes in the Cheney Energy Task Force matter. The D.C. Circuit basically said that unless the private parties actually have a formal vote or veto power, they can't be considered real members of an advisory committee, and hey presto, the records don't need to be turned over, no regulation, no nuttin'.
It may be that the view attributed to Libby -- that private parties participating in a government task force/advisory committee, whatever -- is free to blab about what they said, but it still looks like the government could come in and prevent any compelled blabbing.
I know this is a tangential issue (my specialty) but I thought it worth a follow-up. It's been depressing to learn the extent to which the FACA has been gutted by the courts, so as to help enable secrecy when private parties and government officials are making policy together.

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