by emptywheel
Summary: In this post, I review the May 5 hearing, in which there is an extensive discussion about Rove. Libby's team wants all materials relating to Rove and the Wilsons, particularly as it relates to conversations with journalists. But Fitzgerald insists he doesn't have to turn over those materials. He won't call Rove as a witness (though Wells says Libby's team will call Rove), and the materials don't pertain to the central charges, whether Libby lied in his testimony to the FBI and the grand jury. I think--but am not sure--that Rove has the goods on someone else leaking to Novak (probably, but not definitely, Libby), and that Fitzgerald is hiding those goods for the moment.
Not to beat a dead horse or anything, but I think it worthwhile to return to the May 5 hearing, because it may offer insight on why Rove won't face charges. But before we get there, remember that Karl testified on April 26, less than two weeks prior to the May 5 hearing. At that time, Luskin gave an even more tortured explanation about Rove's legal jeopardy than he did yesterday:
Karl Rove appeared today before the Grand Jury investigating the disclosure of a CIA agent's identity. He testified voluntarily and unconditionally at the request of Special Counsel Patrick Fitzgerald to explore a matter raised since Mr. Rove's last appearance in October 2005. In connection with this appearance, the Special Counsel has advised Mr. Rove that he is not a target of the investigation. Mr. Fitzgerald has affirmed that he has made no decision concerning charges. At the request of the Special Counsel, Mr. Rove will not discuss the substance of his testimony. [my emphasis]
Then, less than two weeks later, Rove was one of the subjects of an extensive discussion at the May 5 Libby hearing.
This is the passage where Walton and Wells and Fitzgerald attempt to work through whether Fitzgerald has turned over all the materials on witnesses that Libby is entitled to--all without mentioning any names. It appears that Ari and Armitage and Rove may all appear in this discussion.
Fitzgerald cedes that he has to turn over materials on anyone he will call as a witness. And he says he has given over materials that relate to the Wilsons in general, and not just conversations about the Wilsons with Libby. But then Walton asks about people the government won't call as a witness.
THE COURT: Okay. If there are individuals, and again I don't know if anybody fits in this category, who also had discussions with Mr. Libby and had discussions to the press but who will not testify, where do those individuals fall? I assume the discovery request would encompass individuals who would fit within that category also. Again I don't know if anybody fits in that category. But if so, what is the government's position about documentation regarding those individuals?
To which Fitzgerald responds he would only have to provide materials reflecting conversations directly with Libby.
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 relevant to 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.
Wells immediately assumes this person is Rove, and he asserts that Rove will be called as a witness.
MR. WELLS: I would submit that if Mr. Rove, for example, who is likely to be a witness --
Yet Walton responds that Fitzgerald has said he won't call Rove as a witness.
THE COURT: The government said he won't but maybe you will call him. The government said he will not be a witness for the government.
Wells at first assumes that Fitzgerald is sitting on some of this material (that is, material related to conversations with journalists, yet unrelated to a conversation with Libby) because the investigation is ongoing.
MR. WELLS: If they don't call him, we're calling him. With respect to Mr. Rove, we believe there is no exception in the case law that says Mr. Libby's discovery rights are diluted because the government has an ongoing investigation. The government controls the timing of its indictment. It could have waited until it finished the whole thing. Just because the government says there is a continuing investigation, it cannot hold back on discovery materials.
But then Fitzgerald says he's not withholding information because of an ongoing investigation. He's withholding it because the material is not relevant to the case in chief (that is, to Libby's indictment). He's basically saying that, since Rove's conversation with Novak doesn't affect whether Libby lied about his conversations with the other journalists, Libby is not entitled to receive details of it.
MR. FITZGERALD: I would disagree in the following respect. We are not withholding evidence or discovery on the grounds that we think that Rule 16 has a continuing investigation exception that dilutes his rights. Our point is much of what they're asking for is not Rule 16 material. Rule 16, as Your Honor has found, is material to the preparation of the case in chief. If a witness is not being called by the government in the case in chief and isn't part of the substantive case and doesn't have, doesn't shed light on whether Mr. Libby lied about his conversations in the grand jury, that is not material to the preparation. Sometimes, often in this case, we've taken material that's not discoverable in the benefit of the doubt and given it to the defendant. [my emphasis]
But then Wells and Walton try to puzzle through whether Libby should get this material anyway, since Wells has stated that Libby's team will call Rove in any case.
THE COURT: But what if a witness is going to be called, you know ahead of time based upon what Mr. Wells just said regarding Mr. Rove, you know that the defense intends to call a witness. The government has information about that witness and there is clear case authority that says that if that witness then testifies and the government is able to then catch him in a lie, knowing full well that they have this information at their disposal, that that is a problem as it relates to Rule 16. For example, I mean if you had, you know that he's going to call Mr. Rove to say X and you have information that would indicate that actually Mr. Rove previously said something that was Y, and then if he testifies, you catch him in a trick on cross-examination and discredit his credibility, the law says that they have a right to know about that so that they don't, you know, step in that mine field.
MR. FITZGERALD: Let me just be clear that whatever I say in my remarks, I'm not talking about Mr. Rove one way or the other.
THE COURT: I understand. I only use that as example because he did.
But Fitzgerald reiterates, he doesn't have to turn this material over for defense witnesses.
MR. FITZGERALD: Okay. If the defense is calling a witness and, with all due respect, he's not bound to call a witness so at a pretrial discovery phase defendants often decide to call lots of witnesses that don't appear. My understanding is that under the law, 3500, Jencks and Giglio, we don't have obligations to turn over materials pertaining to defense witnesses and so my point is --
Now apparently, Wells has submitted some case references pretending that Fitzgerald does have to turn over this material. But after taking a recess to review the case, Walton discovers Wells has tried to pull a fast one on him.
THE COURT: You are good, Mr. Wells, because you actually got me to take a position that's totally incorrect. The witness in Marshall was actually a government witness, not a defense witness.
But Wells persists, claiming they have a right to any materials dealing with Rove.
But if they have, let's take Mr. Rove, if they have emails and other documents dealing with Mr. Rove's activities, I have a right to get that material.
And goes further to suggest he should get anything that would warn him not to make a particular argument.
MR. WELLS: No. If I put my case on and respond, that is Rule 16. Putting Giglio and Jencks to the side, that is the carve out. But to the extend there are documents that would be relevant to what I put on in my case or make sure I don't have a pitfall. In other words, if you think about the pitfall argument, that is the law of this circuit, the pitfall is really to make sure in great part that when I put my evidence on or when I open or close, well, really open, and set forth a theory that I just can't prove, I shouldn't even go down that road because he has material. That's why I should get that material. I'm not even sure Mr. Fitzgerald disagrees with me.
THE COURT: During the government's case-in-chief or during your case?
MR. WELLS: Either one.
THE COURT: Do you agree with that?
Fitzgerald doesn't buy it. Requiring him to turn over all this material would be tantamount to making the defense's case for them.
MR. FITZGERALD: Not at all. I'm responsible for the government's case and Brady and turning over my obligations. I am not responsible for preparing the defense case. And the case law, and Your Honor cited it. It is material defined by the indictment and the government's case-in-chief. You just can't say I'm going to call 20 witnesses so give me everything about them. We then would have effectively open-file discovery or beyond that and I don't agree with that reading of the law.
So long as it doesn't pertain to the charges in the indictment, Fitzgerald asserts, he doesn't have to turn it over. Now, Walton puts off deciding the issue.
THE COURT: As I say, there is going to be probably a week or so before I issue because I'll wait until I get the government's submission regarding those articles. But it will probably be a week and a half or two weeks before I issue a definitive ruling. If you have cases that specifically support that, I would like to see them. I am just not familiar with that.
It doesn't appear he has decided it since ... though I will go back and review the interim documents. It would, of course, be hugely significant if Walton ruled on this issue on Monday, because it might explain why Rove doesn't face charges. Though we'll have to wait for the transcript.
Where Did that Take Rove?
It has been over a month, of course, but yesterday we got a description of Rove's new status that is almost as tortured as the one that Luskin gave after Rove testified in April.
On June 12, 2006, Special Counsel Patrick Fitzgerald formally advised us that he does not anticipate seeking charges against Karl Rove.
[snip]
In deference to the pending case, we will not make any further public statements about the subject matter of the investigation. We believe that the Special Counsel's decision should put an end to the baseless speculation about Mr. Rove's conduct.
As with before, Luskin and Rove aren't going to say a thing about the testimony or the investigation. Though this time, Fitzgerald "does not anticipate" seeking charges.
What Does This Suggest?
Here's my take on this. It's not clear to me whether Libby's team really intends to call Rove as a witness or not (after all, how would he help to support Libby's side of the argument?). But they seem awfully interested in getting all the materials relating, presumably, to Rove's conversation with Novak. They sure seem interested in knowing what Rove said, and whether they can make certain arguments without Rove refuting those arguments. Or perhaps Rove and Novak (who, remember, has also testified since November) know something more--a third source, in addition to Armitage and Rove. Perhaps Rove really was the confirming source for a leak. But perhaps Libby had a conversation either before or after the Rove conversation, providing more details ... Plame's name, her covert status, the works. There are, after all, at least three pieces of evidence that Libby had a conversation with Novak.
- Instructions to Judy that she shouldn't mention a Novak conversation
- A Jeffress mention that Libby learned of Novak's source directly from Novak
- A Freudian slip in Libby's grand jury testimony referencing a conversation with Novak
So there may have been an opportunity for Libby to provide the great substance of the leak to Novak.
Then why doesn't Fitzgerald just issue a superseding indictment against Libby, this time for the IIPA violation? And why is Libby's team so interested in Rove's testimony, in a case designed to be the bulwark protecting Dick? And what is Fitzgerald planning to do next? Why hide Rove's testimony, if it does incriminate Libby, rather than revealing his hand now?
If I had to guess, I'd say Fitzgerald has Libby conversing with Novak, possibly even has the full IIPA violation. But that he's holding off to try to get to Dick.
Or that's what I hope, anyway.
Posted by: emptywheel | June 15, 2006 at 00:22
I know we've been around on this before, but I can't remember where it ended up, if anywhere definitive, but my understanding has been that Fitzgerald has to go for all the charges on the basis of a set of events and the evidence relating to it at one time. Meaning, if Fitzgerald had the evidence of a Libby-Novak conversation at the time of Libby's indictment, and he judges it evidence worthy of an indictment, he can't really hold back. Either he goes for it, or he doesn't. Put differently, how do superceding indictments come about?
I would definitely think Libby's defense would be very interested in Rove's account of his July 11 conversation with Libby (which i suspect was consistent with Libby's version, but not specific enough to be super-helpful). But Rove already has that material, I would think.
I want to mention that Rove is fully working to justify himself entirely and rebuff all those questions as the way he puts this entirely behind him. Look at the NYT and the WaPo stories for tomorrow. And Rove is depending on some rather remarkable casuistry to make his case. This must be repeated loud and clear: Rove was one of two senior administration sources for Novak's column. Rove was a source for Novak. Period. And this should be said in mockery of Rove: when he insists he didn't leak her name, and that is somehow decisive, which is what he and his allies are doing, just quote Robert Novak himself saying that once you know about Wilson's wife's CIA employment, the question of her name specifically is meaningless. It can be found in Who's Who. So not leaking her name, only leaking her identity and CIA status is all you need.
Posted by: Jeff | June 15, 2006 at 01:14
interesting
but I worry that the disccussion jumps from the events of 2003 to the legal situation now
didn't Libby and Rove discuss the events between July and Fitz appointment
didn't Libby and Rove discuss the situation in 2004?
what secrets could we expect them to have from each other?
You and Jeff do a great job of analysis, and I am always fascinated by your posts.
But never satisfied, of course! So I have to keep coming back day after day, looking for more clues.
Posted by: jwp | June 15, 2006 at 05:10
The question in my mind is whether Fitzgerald has announced his lack of interest in pursuing Rove because (1) he hasn't been able to find sufficiently convincing evidence, (2) outside pressure (e.g., the offer of a judgeship), or (3) Rove has cooperated in busting other folks, hopefully, folks in addition to Libby. With regard to (3), I'd be interested to know all there is to know about case 06 CR 128, which Jason Leopold says was filed in the U.S. District Court for Washington D.C. Under which judge was it filed? When? What documents does it contain, i.e., what are their names and categories? Who filed them? When? Who can access them? Anything?
Obviously Fitzgerald has considered the possibility of a conspiracy suit, which is often easier to prove than the actual crime. It would make sense to let Rove off if he has facilitated such a case.
Posted by: lefty | June 15, 2006 at 08:03
Jeff
I'm suggesting Fitzgerald didn't know all of this. I'm suggesting the "something that came up" on April 26 had to do directly with Libby. And that it in some way made his jeopardy with Novak much greater.
Consider: one of the last things Rove is said to have testified to, last Fall, was that Libby was his source for Plame's identity (I think there's a VandeHei article saying this, for example). That's getting closer to Libby. Now if something else "came up," if Fitzgerald suddenly found evidence that Libby spoke directly with Novak--and Novak told Rove about it on July 9, then it might explain both the April testimony, the May concern (not exhibited before, wrt Rove, from Libby's team), and the June no charges.
jwp
Yes on all counts--they discussed this, and found a way to cover-up. That's what I was most bummed about this morning. That's what I've been most bummed about since Monday.
But I am fairly certain that Rove is not just going free because Fitzgerald couldn't take the case against him. Luskin's (and York's) statements have been WAY TOO CIRCUMSPECT--they're clearly trying to keep Turdblossom in Fitz' good graces.
But it's fairly clear Rove testified to something new in April. It's fairly clear Libby's lawyers were worried about it in May. That suggests, to me, Libby knew that Rove could get him in trouble, and had been confident up to that point that Rove wasn't going to do so.
Posted by: emptywheel | June 15, 2006 at 08:12
One more point about this.
Here is the scenario I'm proposing.
This scenario would do two things. It would suggest that Rove's and NOvak's lies were less onerous--that Rove really was just a confirming source, that Libby was the real second source (remember, I've suggested that if Novak had only two sources, Armitage's testimony would allow Fitz to use process of elimination to assume what Rove had said, but if there were three sources, this would result in misleading hypotheses). They're still lies, but if Novak testified fully to Libby's role, then it would look less intentional (and get harder to prove). And it would explain why Rove has been told he won't face charges.
(But damn do I want Fitz to stumble across cover-up evidence!)
Posted by: emptywheel | June 15, 2006 at 08:26
I'm having a hard time following ew's interesting speculation. At the May hearing, Fitz would presumably know everything he thinks he needs to know. Despite this, he still says he's not going to call Rove. Doesn't that undercut all of this speculation?
Or are you saying that in the weeks since that hearing, Fitz has changed his mind and will be calling Rove?
Posted by: Jim E. | June 15, 2006 at 08:50
The answer to all your questions:
Greymail.
There is no way he can do anything more than he is doing at this moment b/c the WH won't let him declassify the documents he needs to make the cases.
Or more accuraatley to meet his discovery obligations
Posted by: Looseheadprop | June 15, 2006 at 08:53
Emptywheel, that was a very interesting and thoughtful analysis. I enjoyed reading it.
Full disclosure: I am a conservative, not a liberal or moderate. With that said, good analysis can be had on this subject from both sides, and this subject interests me.
Nevertheless, I have a couple of comments. You said:
I suspect the answer to this lies in the hurdles to proving an IIPA violation. The IIPA is a highly techinical statute and really isn't designed to cover situations like this. This opinion piece published in the Washington Post back in January of 2005. It is written from the perspective of explaining why a reporter like Robert Novak couldn't be sucessfully charged under the IIPA, but most of the same problems apply to charging Libby under it as well.
Leaving aside the reference to Cheney, I think that is a very good question. It looks to me like they may be preparing for the possibility of putting Libby himself on the stand. If so, Fitzgerald may want to use Rove to impeach Libby. I would suspect the defense would want to be well prepared for that eventuality, and fear a minefield if they have to do it blind.
Assuming I'm close on your previous question, I'm guessing Rove doesn't have anything particularly incriminating to add to Fitzgerald's case. In other words, he thinks he has a solid case without Rove, and by not calling Rove he may be able to lay a big, fat trap for Libby if he decides to testify by placing some of the discovery off limits. It will certainly make the defense a lot more uncomfortable about calling either Rove or Libby to the stand.
Remember, since Rove is unindicted and has no deal with the prosecution, defense impeachment of his testimony will be difficult if he is called to rebut Libby. Libby cannot afford having a "clean" witness like that providing testimony that substantially differs with him on even small details - if they jury thinks Libby is lying about anything, I suspect he will be on his way to a conviction.
Posted by: Truzenzuzex | June 15, 2006 at 09:06
Jim E
That's what I'm still trying to figure out.
I think there are a few possibilities.
First, Fitz didn't have the IIPA or whatever he's after sewn up, not until Monday. He doesn't want Rove to testify in the perjury trial because it serves no purpose--it will give Libby an opportunity to impeach Rove, but won't do anything to strengthen Fitz' case. But there's also the possibility that Rove is more rope, that by letting Libby call Rove, Fitz can get Rove on the stand without going through as much discovery (this actually served Lawrence Walsh well in Iran-Contra).
Then there are two more possibilities--that Fitz is holding the Rove testimony and the IIPA back to see if Libby will implicate Dick. Or that Rove already more closely implicates Dick, so that Fitz is now just finalizing an IIPA + conspiracy to IIPA against Dick and Libby.
lhp
I thought Fitz said he HAD gotten everything he needed (in the hearing on Monday)? One of the suggestions I made the other day was that, the ease with which the WH has released the documents, suggests they're willing to let Libby take this in the interest of freeing up Karl's time to steal an election. Well, I didn't say it like that, but that's what I believe they're doing.
Posted by: emptywheel | June 15, 2006 at 09:08
Truzenzuzex
We like conservatives here, if they engage in smart conversation like you do. Welcome.
I think your points are really good, honest. The biggest rebuttal I'd add is that 1) Rove said something on April 26. Don't know what that was, but I've been reading more of the court documents this morning, and it seems like Libby's team got a lot more urgent in matters relating to Rove around that time (though I obviously don't know whether the sealed affidavit Wells submitted pertains to Rove and when he submitted it). In other words, Libby's team seems to be concerned about Rove's April testimony.
And I agree, the standard for IIPA is very high, and Fitz so far hasn't claimed to have definitive proof (beyond the Ari conversation and the Dick to Libby CP conversation) that Plame was covert. I'm not entirely sure he's going after IIPA--he may be able to go after the intentionality of all this, and tie in Dick. I'm still sorting through this, really.
Posted by: emptywheel | June 15, 2006 at 09:14
I believe that Fitzgerald is supposed to turn over evidence he has about conversations Libby was directly involved in. I would assume that would cover a Libby/Novak conversation. I'll look for that in the filings.
It makes complete sense that Libby's lawyers are interested in Rove's testimony. Matt Cooper is one big reason. Also, Libby's lawyers have made it clear they are interested in getting information about conversations other people had about Wilson/Plame, and is seeking to prove (or offer) that people besides Libby (and outside of Libby's chain of information) were talking about it. The 5 witnesses they are saying they'll bring forward to show Joe Wilson talked about Plame is one example. Evidence about Rove's conversations with Novak may provide information to Libby about how, exactly, Novak came to know about Plame. You can quibble about whether that is a good defense strategy, but it is clearly one of their strategies at this point.
The White House cooperating *could* show it is willing to let Libby take this. But it *could* show it doesn't feel it has anything to hide (in this case).
Posted by: MayBee | June 15, 2006 at 09:43
Emptywheel:
Thanks very much for the welcome and your kind remarks.
Hmmm. It's hard to speculate about that. My experience is that things often arise in grand jury testimony that causes the defense to go into panic mode but that the prosecution isn't really all that concerned about. Libby's attorney's have not made their defense strategy very clear (at least to me) in pleadings, which I generally attribute to good lawyering.
I will speculate that Fitzgerald has not substantially added to the strength of his case against Libby since the end of last year. Instead, he has been tying up loose ends and making sure he knows what is coming down the pike before voir dire begins. I believe he is trying to scare the defense off of calling Rove, because he thinks Rove can help Libby.
Despite all previous commentary from both sides, it appears from the little we actually do know that Rove has fully cooperated with Fitzgerald and it is possible that Fitzgerald doesn't want his testimony as a defense witness. The fact he is unindicted with no agreement works as a two-edged sword - if the defense does call him and it works out well for Libby, Fitzgerald will not be having any fun at all trying to impeach him. If Fitzgerald thinks that will happen, it is in his interest to make it as unappealing as possible for the defense to call Rove, which appears to me to be exactly what he is doing.
To sum up: I think Fitzgerald is determined to keep Rove off the stand, except as a Hail Mary. By putting a good chunk of Rove's testimony off limits to discovery, he'll have a huge advantage if Libby tries it. And without Rove, I think Libby's situation is considerably more difficult.
Posted by: Truzenzuzex | June 15, 2006 at 09:45
Truzenzuzex
There are at least three new pieces of information Fitz has gotten since the indictment. First, he has gotten Woodward's testimony, which has helped him to challenge Libby's claim that he was ordered to leak the NIE to Judy, because his earlier leak to Woodward undermines his claims about his concern about that leak.
And he has learned more about the authorization, which Libby originally said took place on July 2, but then said took place earlier, in time for the Woodward leak. Fitz is closing in on a July 2 conversation.
And Fitz has a bunch of new emails. The whole Rove conversation here discusses emails, so there may be something important in that.
Does that change the case? Well, yeah. It gets Fitz a lot closer to prove that Libby not only lied about Russert on the 10th, but he lied about what the "leak to Judy" comment in his notes pertained to.
I'm curious, though, how you think Rove could help Libby? For the life of me, I can't imagine how. If Rove testifies to talking to Cooper, that only reinforces the case that Libby lied when he said he had been the first to tell Cooper about Plame (it seems likely that Libby's lies were designed to hide the ROve conversation). Rove can't testify to the absence of Libby's knowledge; he could testify to Libby not mentioning Plame (though if Rove has in fact testified to learning of Plame's identity from Libby, as VandeHei has reported, that's not going to be very strong). And if Rove really has testified he learned of Plame's identity from Libby, it makes their July 11 conversation utterly useless to Libby, because Rove would have already testified that he and Libby had already had a conversation about Plame before July 9, before Rove's conversation with Libby.
A lot of this depends, of course, on VandeHei's reports that Rove has admitted he learned of Plame from Libby. But if he testified to that effect, then I just don't understand how he could do anything but hurt Libby.
Posted by: emptywheel | June 15, 2006 at 09:57
Is there a transcript from Monday's hearing? That might have some clues about very recent events (maybe the judges ruling?). I did read a report somewhere saying nothing interesting happened though.
Maybe once Card left the WH Rove was more able (encouraged by Fitz? Boulton?) to be more forthcoming about the missing emails?
Posted by: kim | June 15, 2006 at 10:03
EW,
I can't remember if I've seen your analysis of the probability of that sealed vs. sealed is dangling over Rove's head. Is your take that the chance is zero?
Posted by: John Forde | June 15, 2006 at 10:03
John Forde
It mostly feels like a gimmick to me, invented by some to retain some credibility.
If Fitz is going to let Rove off of charges in order to have him testify, it would in no way negate all the evidence Fitzgerald already has on Rove. So it strikes me that, if he has a case now, then he'd still have the same case if Rove crossed him during the trial. Besides, it'd be a lot easier to prove that Rove committed perjury if he perjured himself about something he had already testified to the GJ about. FInally, even if an indictment IS sealed, I presume that would have to be releaved to Libby's team if Rove testified.
So sealing an indictment wouldn't do much good in this case.
Posted by: emptywheel | June 15, 2006 at 10:07
kim
I haven't seen a transcript yet. I know everyone said nothing happened--though I think it very significant that Fitz said the WH is not preventing him from turning over the evidence Libby needs. But the reporters covering the hearing were probably not that interested in whether Fitz has to turn over the Rove stuff, because it didn't matter that much.
Posted by: emptywheel | June 15, 2006 at 10:10
ew-
Rove and Cooper have/had a dispute about what Rove said to Cooper.
Libby and Cooper have a dispute about what Libby said to Cooper.
Cooper has notes that (slightly) differ from what he has said previously.
Libby's side only needs to convince the jury there is reasonable doubt that Matt Cooper remembers accurately enough to convict Libby of perjury based on his word. The veracity and preciseness of Cooper's testimony is very important, and that's one area Rove might help Libby.
Posted by: MayBee | June 15, 2006 at 10:13
Fitzgerald first mentions the email in his 1/23/06 letter
This letter is in response to both a January 5, 2006 from Libby's counsel and a January 18, 2006 telephone conference. I don't know how the request by Libby for destroyed evidence was put to Fitzgerald. It is not clear to me if Fitzgerald has the email at the time he wrote the letter.
Rove appears in Libby's 3/17/06 filing
Rove puts it out that he is confident he won't be inidcted.
I don't think these leaks never appeared in the MSM, but the timing is interesting. The next day 3/28/06 it was announced that Card would resign.
This from Clemons is in ths comments as a response to a question from Jeff.
Clemons is referring to the Rawstory article citing Pentagon sources that Rove "According to one source close to the case, Rove is providing information on deleted emails, erased hard drives and other types of obstruction by staff and other officials in the Vice President's office. Pentagon sources close to Rove confirmed this account.".
Fitzgerald responded to Libby's 3/17/06 motion on 4/5/06
If Rove did provide information that lead to the discovery of the documents from the OVP and EOP, he did it before 1/23/06.
Posted by: pollyusa | June 15, 2006 at 11:11
I still go back to that moment during the campaign when Rove laughingly threw himself on the ground in front of the plane wheels -- it's an image that's so revealing of the role (he at least thinks) he's played here.
And it's been all so "one big happy family" -- with the Libby Defense Fund -- but Libby's attorneys seem kind of unsettled about whether it's going to stay that way. (As Libby himself did when he gave the talking haiku to Scotty.)
And the only chance for this thing to break apart, seems to me, has been for the unitary defense to break down. Hence the concern about Rove's recent testimony, and the pressure at the Monday hearing to know when Fitz would finish his investigation.
I've always wondered whether Fitz would need to get the perjury/obstruction conviction -- or Libby to flip -- in order to take the case to another level -- and that until either of those things happened, we weren't going to hear a lot more.
Posted by: mk | June 15, 2006 at 11:14
Emptywheel:
Good point. Here is how I see it:There are three big, fat lies alleged in the indictment: Russert, Cooper, and Judy Miller. Presumably, all three of these reporters have specifically and explicitly refuted Libby's sworn testimony. To have an absolute slam dunk on the law, Fitzgerald needs to show only that 1) no press person knew about Plame before the Novak column, or 2) assuming such a person does exist, he never spoke to Libby about it before July 10th 2003 and 3) Libby knew 1) and 2). That forecloses the "Maybe it wasn't Russert, but some press person told me first and I was sooo confused..." defense. The other two will fall as "he said, she said" if Libby is able to score on the first, because Libby's sourcing will have to be considered accurate regardless of witness testimony about the actual wording of the conversations.
Now, let's suppose that Libby was ordered by Dick Cheney or even President Bush himself to leak the NIE info to Judy. Does that fact allow Libby to later lie about the disclosure to the grand jury and FBI at his discretion? No way. In other words, "My boss told me to" is a jury nullification (appeal to equity) argument. I doubt it will be effective, and Fitzgerald needs only to stick to the facts to defeat it. Does Fitzgerald need to prove that Libby was not, in fact, ordered to disclose? Not at all. Oh, it would be nice if Fitzgerald could assert the defense was advancing a lie as an argument and then prove it, but reality must intrude. I doubt if Fitzgerald can prove Libby told Woodward about Plame and this WaPo column also seems to forclose that possibility, so I'm not sure what you mean there.
The prosecution is trying to prove perjury, not a violation of the IIPA. The way I see it, it doesn't matter when or if Rove told Libby about Plame. The prosecution already has evidence that Libby knew about Plame prior to his conversation with Russert from at least 3 different sources. It isn't relevant who was the first person to tell Cooper about Plame, as long as it occured after Libby found out about her from somebody other than a reporter. As far as I can tell, nobody can testify otherwise.
Rove's testimony is a powerful jury nullification weapon that Fitzgerald is trying to defuse. Rove can testify as to 1) how busy Libby was (critical to an "I forgot" defense) 2) muddy the waters as to who he talked to when, and allow the defense to suggest that maybe Rove's and/or Libby's workload confused them about the actual timing of who told what to whom, and 3) force Fitzgerald to argue in jury nullification territory, rather than on the facts of the case where he is more likely to win.
The defense is going to want to call as many witnesses as possible who can give testimony that tends to suggest a) somebody in the press knew about Plame or b) Libby's confused state of mind during the whole affair, or c) the whole affair was trumped up and Libby was a victim of a malicious prosecution. Remember the old lawyer's saying, "If you have the facts, argue the facts. If you can't argue facts, argue equity. If you can't argue equity, just pound the table." I suspect the defense will not be able to win on facts. That leaves the other two, and Rove helps in both scenarios.
Posted by: Truzenzuzex | June 15, 2006 at 11:31
Man, polly, you are so valuable.
I was looking for that third motion (the St. Patty's day one) this morning and was like, Geez, I don't have it, I wonder where it's linked. And voila, you're here!
I'm not sure whether Rove led to that discovery directly. I'm increasingly convinced (as Jeralyn has maintained) that Rove started cooperating (for real, I mean) last Fall. But did he reveal the source of the emails?
In any case, there was clearly something "new" that pertained to both Novak and Rove that came up since then, though it's not clear when.
One more really random note--Vivnovka spoke to Luskin between Rove's (sometime in February) and Libby's first GJ appearances.
Maybee
Like I said, I don't see any way Rove can help Libby on the Cooper conversation (which is the least supported in the indictment, at least given what we've seen). Rove can only make Libby's lie bigger, since he has now admitted to maybe telling Cooper.
But he might help Libby based on what he testified about the July 11 conversation. If he could testify that Libby told him he learned this crazy thing, that Plame was covert, then he would help Libby, a lot. Though I doubt he can do that, since he already testified that Libby had told him.
mk
Yeah, I was just thinking about that stunt. Someone has already written a column complaining that Rove succeeded in gaming the election. I think that's right. Even if you believe Rove never once lied (which I don't), he gamed this "slow-walk cooperation" perfectly to get him through the Presidential and maybe beyond.
Posted by: emptywheel | June 15, 2006 at 11:32
Emptywheel:
As an aside, I have an alternative theory on that. I believe Libby is trying to drag out his trial to near the very end of Bush's term. That will reduce the possibility of him actually doing any time in jail before Bush pardons him.
Posted by: Truzenzuzex | June 15, 2006 at 11:45
Truzenzuzex
Your 11:31 comment is an excellent summary of the case against Libby. I part company on the Rove as a jury nullification weapon theory.
EW
I have started to document the Legal Filings. I was having trouble finding what I was after as well and seeing what was a response to what.
It's not complete, but here is a good rundown on the Legal filings organized by motions with responses and rulings.
Posted by: Pollyusa | June 15, 2006 at 11:48
What a narrow line for Rove to trek down, however -- to satisfy Fitz AND to make sure that Libby doesn't feel hung out to dry -- make Libby feel that he still can make a compelling case for innocence even if his lawyers can't make the case about the outing rather than about the perjury.
And it's not at all surprising that Libby and his lawyers might want to make real sure that Libby's posterior is still covered at least as well as it was at the start of the investigation.
At the same time, the administration's first goal has to be to make the sword of Damocles over Rove's head disappear. If they can do that, then the unitary defense might stand -- as long as Libby believes that he'll be taken care of.
Seems to me that's a lot of what the current buzz is about -- where Dubya says airily that the investigation is over and Mehlman purrs about Fitz' serving justice. Reminds me of when Dubya heh-hehed over how impossible it would be to discover who was leaking. They're feeling more confident, to be sure -- but all the spinning makes me wonder (hope?) what's behind the curtain, if it's really all that sewn up.
Posted by: mk | June 15, 2006 at 12:00
Also of interest is that Fitzgerald filed GOVERNMENT'S NOTICE OF EX PARTE PRODUCTION on 4/28/06, two days after Rove testified.
Here is another source for the Legal Filings laid out in calendar form. This is not entirely complete, but I'm working on it.
Truzenzuzex
You certainly don't have to answer this question if you don't care to, but I was wondering if you are a lawyer. You comment as if you've been around a courtroom. I'm always interested in hearing from people who have experience in legal matters. Reddhead's analysis , for example, from the point of view as a prosecuter is always so interesting.
Posted by: Pollyusa | June 15, 2006 at 12:01
Truzenzuzex and Polly
Yeah, I would say the burden of proof is slightly different. First, there's the obstruction case, which says that Libby lied about how and from whom he learned of Plame's identity. This one is the slam dunk, IMO, assuming Libby can't impeach Ari and Cathie and everyone else too much. That is, it's not credible that he learned from Russert as if it were new on 7/10 if he told Ari about it on 7/7. And FWIW, a good chunk of the rest of this argument seems to pertain to Ari and mentions an email or a memo, which would suggest Ari may have documentation about their 7/7 discussion, which would be incredibly damning.
That said, the "My boss told me to lie" goes to the heart of the obstruction and motive questions (as does the question about Cooper's testimony). Because the specific lie Libby told was designed to shield Cheney's and Rove's involvement (as well as Pincus' source). So if you can prove the Dick didn't order Libby to leak the NIE (Woodward is important NOT because he proves Libby told him about Plame, but because he disproves that the hullabaloo surrounding the Judy leak pertained to the NIE), suggesting he ordered Libby to leak PLame, then you've got another lie that Libby has told to osbtruct the investigation from hitting Cheney.
With respect to Rove, I just think his testimony has already foreclosed a lot of the testimony that could help Libby. His interests depart far enough from Libby's that Libby can't rely on him to corroborate the "too busy" defense.
Also, wrt Libby's strategy. I agree, I think Libby would like to avoid jail time. But I also think his funders' priority is to avoid Dick the Aspen getting implicated in this. And that's where Libby's interests start to get complicated, because while he'd like to press the "my boss told me to" case, eventually that will land the criminal guilt on Cheney's doorstep.
Posted by: emptywheel | June 15, 2006 at 12:04
Polly:
Thanks for the compliment. As to parting ways on Rove, I can appreciate that. To call my comments a "theory" is to flatter them unmercifully. More like a highly speculative guess. You really are too kind. :)
I am not a lawyer, but I have been around a courtroom (far too often, I'm afraid). I was involved in a gigantic criminal case that went on for 6 years, when then spawned a large civil case which went on for another 4. I was a witness for everybody, and may be the only person who knew everything about the case. I wasn't a target or subject or anything like that, just a witness.
It was an experience I try daily to forget all about, but it does have the vitue of giving me an up-close and personal look at exactly how a federal prosecution works. I had to do a lot of research to help the defense, so I learned a lot of things.
Emptywheel:
I didn't suggest that Libby would use a "My boss told me to lie" argument - that will not happen. I was trying to characterize the defense as "My boss told me to leak". If Libby testifies that Cheney told him to lie to the FBI or the grand jury, there will be hell to pay. But don't hold your breath.As far as the Judy leak and the NIE are concerned, that is irrelevant to the prosecution. I mean, don't get me wrong - catching Libby in a lie, even one not specifically alleged in the indictment, would certainly benefit the prosecution. I believe Fitzgerald would only care about that if it is raised as a defense, which I don't believe will happen. Personally, I think the whole Cheney/Judy/NIE thing is a smokescreen to confuse Fitzgerald about what the defense strategy would be. It doesn't look likely to succeed in doing the defense any good.
Note that Fitzgerald doesn't need to establish motive to prove his case, but it is always helpful to do so. Motive is not an element of either obstruction or purjury, and his indictment makes a sufficient case for motive on its own (i.e. avoding a prosecution for disclosing classified material to an unauthorized recipient). Even if that was never alleged, the threat of such a prosecution provides sufficient motive for Libby to have lied.
If Libby lied to protect Rove and Cheney, well, he is an even bigger fool than I thought. A much stronger motive would be "He did it to avoid being prosecuted". Self-protection is something everyone gets without having a long explaination. As a juror, I would be a lot more skeptical of an argument that he risked perjury and obstruction to protect Rove. Cheney, maybe, but Rove? No.
Posted by: Truzenzuzex | June 15, 2006 at 12:44
Keep in mind, Fitz is the one who raised the NIE, not the defense. If they had their way, it'd disappear.
And however crazy it is, I'm fairly certain Libby's entire lie was designed to protect (in order of import)
Dick
Rove
Pincus' source (if he isn't either Dick or Rove)
There's no other explanation for the specific lie he told, which tried to hide his Judy conversation, Rove's Cooper conversation, and the involvement of Dick on 7/7 and 7/12. Had he lied to go free himself, he would have just said, "I don't remember" a hundred times, and he'd be in much better shape.
Posted by: emptywheel | June 15, 2006 at 13:28
ew,
Not sure if you've seen Byron York's latest. You're featured in it:
article.nationalreview.com/?q=MTE1OWVhYjNiZDlmMzcwOGMwZGU3MzdiOTkyZmViOTU=
Posted by: Jim E. | June 15, 2006 at 13:59
A footnote: Here is a well considered two page look at the grand jury, both state and federal; its composition, rules of evidence, and recent configuration.
Posted by: JohnLopresti | June 15, 2006 at 14:04
Sorry to interrupt with a little side note on the whole sealed vs. sealed issue. EW, you might be right.
I spoke to a good attorney-friend of mine. He is a criminal defense attorney for federal cases (he's also a former CIA agent). He has not followed closely this case, but I asked him about the sealed vs. sealed indictment. In general regarding sealed cases, he said that there are hundreds. Regarding sealed vs. sealed, he said its not common, but not uncommon either. He also noted that many times, the results of those sealed cases will never be known.
Continue....
Posted by: fireback | June 15, 2006 at 15:12
I think that as alluded to in http://talkleft.com/new_archives/015082.html this thing is going to fizzle out. No Rove. No Cheney.
My own personal hunch is that Libby will be pardoned sometime after the 2006 elections and before the Libby trial. Bush will take a hit then for the pardon, but the hit would be preferable over any potential big revelations.
Posted by: Pete | June 15, 2006 at 15:25
Thanks for the heads up, Jim E. All in all, not as bad I expected.
Though I must remember not to admit to obsessions in public.
Posted by: emptywheel | June 15, 2006 at 15:31
Emptywheel:
Right you are. I think I lost sight of that fact.
You could be absolutely right. I guess my point is that Fitzgerald is not making the same allegation you do as to motive, as reported here:
Does it really matter whether Libby was trying to protect just himself or himself, Rove and Cheney? Fitzgerald doesn't seem to think so.
Well, I'll agree to the extent he may have concocted a story he thought would protect him and everyone else as well. Let's face it, if you are going to make up a lie to protect yourself, why not make up one that will protect your boss, too? What's the old saying, "In for a penny, in for a pound"? It sure would apply here.
Not really sure why it matters, though. And it isn't likely he is ever going to 'fess up. Absent that, I don't see how we can ever know, do you?
Posted by: Truzenzuzex | June 15, 2006 at 16:01
fireback:
Just curious - why do you think Bush won't wait until the last year of his term to pardon Libby? After all, Libby might beat the charge, you never know. Why wouldn't Bush give him a chance to beat it before he pardons him?
The trial is set for Jan 8th, 2007. My experience suggests a continuance or two, probably they'll get to trial in, say, mid June. Eight weeks later, let's say Libby is convicted. We are now into mid August. Libby files a timely notice of appeal, and I expect a 2 year time frame for the appeal. Bush could wait until about June of 2008 before issuing a pardon. That'll give it time to die down before the election.
Posted by: Truzenzuzex | June 15, 2006 at 16:13
Truzenzuzex - you may well be right about the timeframe. My guess is that the pardon will come before anything of significance could come out of the trial.
I don't think that they will want to bet on Libby beating the charges even if they thought that he had a reasonable chance to do so.
Posted by: Pete | June 15, 2006 at 16:29
EW, your arguments don't make sense. None of the references you give point to Libby as Novak's source. Your account of the Jeffress transcription, in particular, is simply false. Jeffress mentions official one point blank as someone from the White House. He, Jeffress, does know the identity of that "official." It is obviously and indisputedly Rove. Go back to the court filing and read it again.
Posted by: tnhblog | June 15, 2006 at 16:32
Truzenzuzex
In the actual hearings, Fitz has been much more specific about proving motive (Pincus simplifies things somewhat). There are two things he has said. 1) Libby withheld from Bush his involvement, even while Libby was getting WH to exonerate him (the motive here is that he would get in trouble with Bush), and 2) Libby knew he had broken the law, so he wanted to portray it as something else (that's really what Pincus is getting at here--the proof that Libby was informed by CIA that the leak was problematic; also note, Libby was in the presence of someone else in OVP that may or may not be Dick). Mind you, those are Libby's motive for perjury.
But that's not really motive for obstruction. The obstruction investigation is about hiding real motive and knowledge of this case. From what we know about Libby's knowledge, that requires him hiding both Dick's involvement and ire (which would go to the intentionality of the IIPA) and how he learned of Plame (which would go to Dick's role).
But I'd go further with motive and suggest that Fitzgerald is not taking this case just to punish Libby for something. He wants to solve the big case. You're probably right, that Libby will never 'fess up. But by taking a perjury/obstruction case, Fitz has allowed himself to continue looking at precisely the issues that might eventually prove either IIPA or a conspiracy to out Plame, without getting into a greymail war with Cline.
One more point. I put a lot of stock in the notion that Libby was hiding specific acts because 1) otherwise it makes this admittedly brilliant man look remarkably stupid, which I don't buy, and 2) this fits the MO of Republican Administrations trying to prevent the scandal from hitting the bigger players. In this case, there are only three or four bigger players, at least two of whom are hiding right behind Libby's lies (and FWIW, given Rove's escape the other day, I do think he is less central to this scandal than Libby). Every Republican scandal response has set up a bulwark for the bigger players, and I think that's the best explanation for the sheer ridiculousness of Libby's lie.
Unrelated point. I think Walton is pretty intent on bringing this to trial in January. He allowed it to start because of Wells' schedule, so normally it'd have already started. Every other decision he has made (such as whether Libby can get Judy's drafts) he has crafted the decision so the trial stays on schedule.
Posted by: emptywheel | June 15, 2006 at 16:41
tnhblog
I think you're reading different quotes. I'm reading the one where Jeffress says Novak has told Libby directly who his source is (that is, that his source is Armitage).
That doesn't admit Libby IS Novak's source, but it admits that Libby had a conversation directly with Novak, though it's not clear when, one he hasn't admitted to as far as we know. Libby's Freudian slip does the same, suggest strongly that he met with Novak directly (and in this case, it appers to mean the week of the leak, after Rove spoke with Novak). The Judy reference is more tenuous (it's not an admission of an unaccounted for discussion from the person and his lawyer). But when you put all three together, they suggest Libby had an unaccounted for meeting with Novak. The rest is just speculation. Put it in with the kind of discussion they're having about Rove--this intense interest in learning the content of conversations between Rove and a journalist--it does raise suspicions.
Or let me put it this way. Novak has taken a lot of shit because a reporter like him would never normally count "oh I heard that too" as a source. In the narrative where he has two sources, Armitage and Rove, then he has committed really irresponsible journalism. But if he had Armitage, an offhand confirmation (Rove) and a more substantive discussion, then it's not irresponsible journalism. That's not necessarily Libby. But it might be.
Posted by: emptywheel | June 15, 2006 at 16:49
EW, "official one" is indisputedly from the White House and therefore Rove not Armitage. Moreover Rove's discussion of this with Novak had to occur on or about July 8. Libby's conversation with Noak therfore occurs after July 8. He is therefore definetly not the origianl source. Rove or someone else, not Libby or Armitage, is the origianl source.
Posted by: tnhblog | June 15, 2006 at 16:58
Pete,
I believe Truzenzuzex question above was for you, not me regarding your comment:
My own personal hunch is that Libby will be pardoned sometime after the 2006 elections and before the Libby trial. Bush will take a hit then for the pardon, but the hit would be preferable over any potential big revelations.
Posted by: fireback | June 15, 2006 at 16:58
Oops, missed your reply.
Posted by: fireback | June 15, 2006 at 17:01
tnh
Actually, Jeffress says official one is NOT from the White House. This is what he says in a discussion about official one:
Not Rove or Ari, almost certainly Armitage. But that doesn't matter. All that matters for this discussion is that Novak told Libby who official one was in a conversation, one Jeffress immediately changed the subject about.
And you're probably right that the conversation took place after Rove's conversation, probably even after the Rove-Libby conversation in which Rove told Libby Novak would write an article. But consider this scenario:
July 8: Armitage tells Novak that Wilson's wife (no name, no covert status), who works in WMD at the CIA, sent Joe.
July 9: Novak mentions that fact to Rove. He says, "oh you heard that too?"
July 11: Rove tells Libby that Novak will write an article.
July 11: Libby meets with Novak, tells him, "you should use the name Plame, not Wilson. And you should say she's an operative. And while you're at it, why don't you say that the Maliki discussion took place in 1988, when Joe was still in Baghdad, because we're trying to portray him as an Iraqi agent."
Then Novak writes his article. Armitage would be his first source. But Libby would be the one guilty of the IIPA violation.
One more thing that might support this story. Steno Sue once published that Rove's story was available on the wires on July 11. Since she has only written on this story when she was busy coaching witnesses, it is not unreasonable to believe that that story was also intended to serve a very specific legal purpose, to suggest Novak's story was already written when Libby met with him.
Posted by: emptywheel | June 15, 2006 at 17:11
Well, EW then Jeffress is contradicting himself. As I said go back to the court filing. Jeffress says specifically that official one is from the White House. Who this o"other person" is, is not Rove, and who that "other reporter" is, is not Novak.
Posted by: tnhblog | June 15, 2006 at 17:39
Truzenzuzex
I appreciate your response. Your experience with the courts sounds fascinating. With your knowledge of both the criminal and civil side of such an involved case you definitely have a unique insight into the system.
Posted by: Pollyusa | June 15, 2006 at 17:46
tnh
Um, I just cited that reference to the White House above, right from the court transcript. And he says it again here:
The chronology is very simple. Jeffress introduces Official One, says Official One has talked to two journalists, says he is the first person known to have talked to a journalist, says he is NOT in the White House, then talks about how one journalist told Libby that Official One talked about Ms. Wilson, while the government says the other didn't.
The only logical substitution there is that Armitage is Official One (spoke to two journalists, was the first to speak to a journalist). And then the only logical substitution for the second reference is that Novak told Libby Armitage spoke about Plame, but the government says Woodward didn't (which is, in fact, what Woodward said).
Admittedly, Jeffress quickly swallows the assertion, realizing it will get him in trouble with discovery. So maybe he misspoke (which is what I tended to believe until Libby misspoke the same way). But he did say it.
Posted by: emptywheel | June 15, 2006 at 17:53
Emptywheel:
If I understand you correctly about Libby's motive for perjury, it pretty much revolves around protecting himself from Bush's ire and legal jeopardy regarding his disclosure of Plame's employment. I think I can agree with that.
I think I can also agree that Libby's story about hearing about Plame from the media had the effect of hiding Cheney's involvement. Did he concoct the story with that intention? Maybe, but not necessarily. In any case, it is irrelevant to the instant case. Whether he was trying to protect himself, Cheney, and Rove or just himself, he apparently obstructed justice.
Maybe you are right, but frankly, I think you are giving Fitzgerald too much credit. My experience with federal prosecutors is that they are generally only willing to go where they can win, and "wheels within wheels" are rarely in their thought process at this point in an investigation. I believe Fitzgerald has concluded that there is no IIPA violation that he can prove, doesn't expect to find one in the trial, and is moving to shore up his case and end the investigation.
I guess my response is that, once again, I think you are giving somebody more credit than he is due. I don't believe that Libby is either brilliant or stupid, but that he apparently either underestimated the determination of the prosecutor or just panicked. I just don't get the impression that Libby is that subtle.
I won't comment on your remark about Republican administrations except to say that way lies biting sarcasm, and I have no interest in going there. This conversation has been interesting and informative, and I don't wish to offend. :)
I agree with you 100% that Walton appears very determined, but once again my experience must intrude. I have never seen a trial of this profile go "by the numbers". Maybe this one will break new ground, but I'll stick with my earlier speculation that we are looking at Spring of '07 at the earliest.Posted by: Truzenzuzex | June 15, 2006 at 18:01
Truzenzuzex
I can accept those points. My only remaining comment would be that, I don't think Fitz believed he could get to IIPA on this trial. I'm not sure if he will pursue further, as he has done in the past. And I'm not sure if he will pursue higher, as he has done in the past. I do get the feeling that Fitzgerald has gotten some new evidence since he last laid out something solid, so his ability to go after IIPA may have changed. Then again, it may not.
Anyway, thanks for joining us--it was an enjoyable discussion.
Posted by: emptywheel | June 15, 2006 at 18:10
Polly:
Thanks Polly. I don't know if my insight is unique, but the experience was certainly an uncomfortable period in my life and lasted a long, long time. I am just glad it's behind me.
The criminal investigation included three of the world's largest defense contractors. About 25 individuals and one company were named defendants in various indictments spanning several circuits. One of the defense contractors was involved in the civil case. More than 150 individuals and 30 companies in several countries were debarred by the federal government as a result of that investigation.
In short, it was a mess. I wouldn't wish that experience on my worst enemy.
Posted by: Truzenzuzex | June 15, 2006 at 18:15
Emptywheel:
Thank you for the wonderful debate and your thoughtful insight. I enjoyed it immensely. This seems a very classy blog, and I wish you all the best.
Posted by: Truzenzuzex | June 15, 2006 at 18:17
Regarding when Novak's story went to press, The story wasn't on the wires exactly, it was available to the newspaper clients. It wasn't on the AP for example.
There were two references to the timing of the release of Novak's column in the WaPo and one source of information at TLC.
It matters for several reasons, first at what point in time was Novak's column frozen when was he was no longer able to make changes and second could Cooper or anyone else have read the column on the 11th and therefore say that they were telling people after they read Novak's column.
First Schmidt
Then WaPo with Schmidt contributing to the article
The exact timing is unknown, but I think Fitzgerald knows and he certainly thinks Cooper's email on the morning of the 11th is in play.
Novak didn't have the Tenet Statement which was released on the evening of the 11th.
Posted by: Pollyusa | June 15, 2006 at 18:29
I was mistaken, EW. Here is the relevant passage:
And here is a key person, the first person that we
00029
01 know of, according to the evidence, actually discussed Mr.
02 Wilson's wife's employment with a reporter and not only did it
03 then but did it again with a separate reporter later. This is
04 some person not in the White House. And, Your Honor, this is
05 information that is, of all the information, it is key.
06 THE COURT: This other aspect of the issue you said
07 in reference to Mr. Libby saying that he had heard this
08 information, is that what you indicated?
09 MR. JEFFRESS: Mr. Libby said that he had heard this.
10 One of the reporters told Mr. Libby offical one discussed Ms. Wilson.
11 The government says one of those didn't tell him that. However,
12 the government in the indictment has revealed another person
13 who did tell him that. So you know we have two people but the
14 government specifically alleges in the indictment that when Mr.
15 Libby said that he was hearing this from other reporters that
16 was part of the lie that's charged in this case.
17 THE COURT: Do we know in what form it was where Mr.
18 Libby says he heard? Was it at the White House?
19 MR. JEFFRESS: He heard it, well, what he testified
20 that is public in the indictment but I can tell you, Your
21 Honor, yes, he heard from another official at the White House
22 who reported to him that a reporter told me today that he knew
23 that Ambassador Wilson's wife worked at the CIA. That's one
24 source from which he got it. Knew that it came from a
25 reporter. That's one. Mr. Libby was told it came from offical one.
So it wasn't Novak who told Libby. It was the other official at the White House-Rove. When Walton asks in what form Libby heard, Jeffress says: Mr. Libby was told it came from offical one. So does this say that the first reference, see line 10, to a reporter who told Libby that it came from official one, was really a sly way of avoiding saying that it came through the intermediary-Rove? In which case it is only Rove's word that the reporter heard it from official one.
In any case, we can rule out Libby as the original source. That leaves Armitage and Rove. If Armitage had a month to ascertain Plame's status and did not ask Novak not to publish, why isn't he in legal jeopardy? If he did ask Novak not to publish, why isn't Novak in lega jeopardy?
Posted by: tnhblog | June 15, 2006 at 19:22
tnh
Look more closely at the passage. The Rove telling Libby is a retreat off a claim that Novak told Libby personally.
09 MR. JEFFRESS: Mr. Libby said that he had heard this.
10 One of the reporters told Mr. Libby offical one discussed Ms. Wilson.
These two lines grammatically can only mean that Novak told Libby directly.
11 The government says one of those didn't tell him that.
This comment admits that Woodward didn't tell Libby directly (and since this refers to a direct conversation with Libby, it reinforces the idea that Jeffress meant what he said in the previous line, that the Novak-Libby was a direct conversation), which accords with what Woodward has written.
However,
12 the government in the indictment has revealed another person
13 who did tell him that. So you know we have two people but the
14 government specifically alleges in the indictment that when Mr.
15 Libby said that he was hearing this from other reporters that
16 was part of the lie that's charged in this case.
This is a bit of a word game. Jeffress is asserting that two people have told Libby that Armitage was the source. But it refers to Novak directly to Libby, and Novak through Rove. (It works, btw, only in the context of the Cooper discussion they had elsewhere in the hearing.)
17 THE COURT: Do we know in what form it was where Mr.
18 Libby says he heard? Was it at the White House?
19 MR. JEFFRESS: He heard it,
At this point, it looks like Jeffress is going to talk about when Libby heard it directly.
well, what he testified
20 that is public in the indictment but I can tell you, Your
21 Honor, yes, he heard from another official at the White House
22 who reported to him that a reporter told me today that he knew
23 that Ambassador Wilson's wife worked at the CIA. That's one
24 source from which he got it. Knew that it came from a
25 reporter. That's one. Mr. Libby was told it came from offical one.
But then Jeffress backs off what he was about to say, and reverts back to what is described in the indictment. And now that he has backed off, he's to just one person telling him. (And he'll go on to suggest he just forgot that Cooper was the other one.)
I admit this is inconclusive. It could be Jeffress fucking up. But when you add the two other data points, it becomes a pattern.
One more point--go back to my scenario. I suggested that when Armitage told Novak, he probably didn't say enough to trigger an IIPA violation. He probably said the same thing he did to Woodward, that Plame worked as an analyst at CIA. We don't even know whether Armitage knew she was covert. In this case, it's not so much important who was FIRST as who gave Novak the really damaging information--the name and status. If Armitage didn't know Plame was covert (unlikely) it wouldn't even be a violation of any sort.
Posted by: emptywheel | June 15, 2006 at 20:11
polly
And the conversation between Rove and Libby was purportedly just after the Senior staff meeting, which is probably first thing in the morning (8:00??). Which woudl give Libby some time to get to Novak--but before getting edited? I dunno.
Then of course, Steno Sue could be a big fat liar.
Posted by: emptywheel | June 15, 2006 at 20:14
Like I said, I don't see any way Rove can help Libby on the Cooper conversation (which is the least supported in the indictment, at least given what we've seen). Rove can only make Libby's lie bigger, since he has now admitted to maybe telling Cooper.
hmm. I don't think there's much substance to the Cooper charge, as you do not. It was more important when Fitzgerald believed Libby had started a chain of gossip about Plame and was just pretending to have heard it from reporters. With enough people talking about her (as Libby intends to show), it becomes a completely plausible scenario that one or both of them heard it from someone else, and are simply misremembering this particular conversation. There doesn't have to be much discussion about the substance of Cooper's conversations, just that he seems not to remember details well enough to be a reliable witness to perjury.
But he might help Libby based on what he testified about the July 11 conversation. If he could testify that Libby told him he learned this crazy thing, that Plame was covert, then he would help Libby, a lot. Though I doubt he can do that, since he already testified that Libby had told him.
Covert? When did we hear that Libby ever learned Plame was covert (or that she indeed was)?
Posted by: MayBee | June 15, 2006 at 20:49
09 MR. JEFFRESS: Mr. Libby said that he had heard this.
10 One of the reporters told Mr. Libby offical one discussed Ms. Wilson.
These two lines grammatically can only mean that Novak told Libby directly.
But Libby has never contended that Novak spoke directly to him-only Russert. We don't know of any other reporters that Libby has explicitly stated he heard the info from. And Russert has stated that he did not tell Libby anything of that nature. Why haven't Libby's lawyers named Novak as one of the reporters that Libby heard it from? We already know they named Russert. What is preventing them from naming Novak? Maybe because Novak did not actually tell Libby anything of the sort.
Posted by: tnhblog | June 15, 2006 at 21:56
Right.
My point is, he (may have) had this meeting, but hid its existence. Remember, he did the same thing with Judy.
The point was to tell a story that obscured who leaked to Novak. He would never admit talking to Novak!!!
The whole point I'm making is IF he had the meeting and IF he hid it and IF Rove revealed it then it might explain some things.
Posted by: emptywheel | June 15, 2006 at 22:42
He would never admit to talking to Noavak, but he would admit to talking to Russert? That is an inconsistency I'm pointing out in your hypothesis. I think the reporter referred in line 10 is Russert. This is significant, because it means we only have Rove's word that official one is Novak's source, and Rove may be lying.
Posted by: tnhblog | June 15, 2006 at 23:14
Um
Let me explain this very slowly.
Russert didn't publish Valerie Plame's name. Therefore, admitting--or lying--that he had a conversation with Russert doesn't implicate him in a crime.
Novak, on the other hand, published Plame's name and status. The last person who would want to admit that he spoke to Novak is the guy who actually leaked Plame's name and status to Novak.
You see, Libby was trying to describe a situation in which he could admit some things (his later conversation with Judy) without beind held responsible for THE LEAK. That's what this is all about, remember. Well, if he was responsible for the leak, and admitted speaking to Novak, wouldn't that make it easier to prove he was responsible for the leak??
Posted by: emptywheel | June 15, 2006 at 23:24
No one is contending that Libby leaked to Novak. You are contending that Libby got the info from Novak based on line 10. If you are correct we already know that Libby spoke to Novak, so how could he be trying to conceal it? There is no harm in Libby admitting that he got the info from Novak just as there is no harm in admitting that he got the info from Russert.
Posted by: tnhblog | June 15, 2006 at 23:46
The question is, why haven't Libby's lawyers named Novak as the reporter mentioned in line 10? The most obvious answer is that Novak is not the reporter mentioned in line 10.
Posted by: tnhblog | June 16, 2006 at 00:21
Could that reporter be Woodward? I did not follow the assertion why it only had to be Novak.
Posted by: Pete | June 16, 2006 at 01:11
There is only one reporter to whom Libby himself has admitted to talking about whom he got the info from. That is Russert. Line 10 most probably refers to him, but Russert has publicly contradicted this.
Posted by: tnhblog | June 16, 2006 at 01:25
Pete
I suppose that could be Woodward--basically saying that Fitz is wrong when he says Woodward didn't tell Libby. Interesting thought. Though there is still the Freudian slip and the Judy instructions about a meeting with Novak that suggest he spoke with Novak.
tnh
Well, if he did mean Russert, than this suggestion would already indicate he perjured himself with Russert.
You are confusing what Libby has said (remember, he's on trial for lying), for what court documents suggest really happened. I am not disputing that Libby hasn't said (except in his Freudian slip) he met with Novak. Once again, that is the point.
Posted by: emptywheel | June 16, 2006 at 07:55
Maybe I am completely misunderstanding this issue. Couldn't Woodward have told Libby after Libby was indicted (or around the time when Woodward went into "deep investigative reporting"), and Libby's lawyer be referring to that?
Posted by: Pete | June 16, 2006 at 08:18
Yes, absolutely. That's why I said it was an interesting possibility.
I will give it more consideration. As I said, there are two other suggestions of a meeting with Novak (the most compelling, though by far the least traditional type of evidence, being Libby's seeming "instruction" to Judy to say Libby hadn't met with Novak). But those are all dicey pieces of evidence, so the three bits could just be a big coincidence of unfortunately phrased comments.
Posted by: emptywheel | June 16, 2006 at 09:29
Isn't Scoots famous for his animus toward Wilson going back at least until March 2003 (did Wilson mention this in his book? maybe they were rivals, dating the same women in DC for decades earlier)?
Wasn't the WHIG, including Rove/Libby/Cheney and other infamous characters, also supposed to have been monitoring and discussing Wilson's activities throughout the spring of 2003? (Why their obsession with Wilson? I still don't get it.)
There must have been talk of Mrs. Wilson's employer within the WHIG much earlier than these events in June, Armitage's "gossip" probably reflects this.
Maybe the mysterious lost emails refer to earlier planning by the WHIG (Cheney) to attack Wilson and Plame - and Rove has explained to Fitzgerald this context for the leaking events in June/July?
Posted by: kim | June 16, 2006 at 09:58
Libby clearly knew of Wilson at least by May, possibly March.
It's not clear when WHIG got involved--Fitz only subpoenaed their notes from July 6 forward, so it appears he thinks they were involved in the response.
And Armitage almost certainly learned of Plame via other channels (can't imagine they let him hang around WHIG much).
But that's not the point. The point is that Libby's lawyers, when it suited them, claimed to know of Armitage via a direct conversation. That is not something that has appeared in the indictment, so it raises some interesting possibilities.
Posted by: emptywheel | June 16, 2006 at 11:04
You are confusing what Libby has said (remember, he's on trial for lying), for what court documents suggest really happened. I am not disputing that Libby hasn't said (except in his Freudian slip) he met with Novak. Once again, that is the point.
Okay, EW, but you cite Jeffress in support of your speculation and it doesn't hold water. Neither do your other two citations hold any water. Just pointing out some sloppy thinking. You can't go from line 10 to Libby is the actual source for "one of the reporters", when line 10 says exactly the opposite. That is an illogical specualtive leap.
Posted by: tnhblog | June 16, 2006 at 11:31
I'm not saying that, tnh. I think you're simply MISSING the logic. So here goes:
There are two (admitting Pete's point) or maybe three times when Libby and his team have either misstated or inadvertantly revealed the truth, that Libby met with Novak (the timing is unclear--it could be leak week or it could be later).
Two (or one) of those admissions admit Libby talked with Novak about the leak (that Armitage was the source).
That doesn't mean Libby is Novak's source. It means it is very possible that Libby met with Novak, and it's possible that Libby met with Novak before Novak finished writing his article.
Though, unless all three of these were misstatements, it raises the question, why would Libby hide this meeting for three years?
Posted by: emptywheel | June 16, 2006 at 12:24
Or here's one more bit that you seem to not get. Just because Novak and Libby talked about Armitage being a source--does that mean that Libby didn't say anything to Novak about the topic at hand?
I don't know that he did. As I've said, the conclusion one can draw from the suggestion of a meeting is just speculation. But it is not logically ruled out simply on the basis of the suggestion that Novak and Libby talked about Armitage.
Posted by: emptywheel | June 16, 2006 at 12:29