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December 27, 2006


Apologies for the all-Plame all-the-time posting.

Yeah, we just hate it when you do that. Cut it out, will ya? Write a nice post about cottage cheese or something.

Or jelly.

We just drove back from Midland to Kalamazoo today, so hi from Michigan. EW, we're having chicken gizzards and barley for lunch tomorrow... I'll do a post about that if you want.

on-topic content: Why would the WSJ want to delay the criminal case against Libby? Do they have a vested interest, or are they just following orders?

Following orders, I imagine.

Didn't know you were from MI, smiley. You do know about the get-together at the Corner brewery?

Though some day we should head west and do it at Bells.

Don't discount the possibility that AP and Dow are just ginning up a justification for getting juicy details on Rove, presumably the subject of much of the Cooper-related affidavit. On the other hand, Dow at least has been quite adversarial toward Fitzgerald all along, I think. I see no problem with this, though the rationale is silly and ignorant, as you suggest. Furthermore, it's unclear if they realize that we've all seen the affidavit to do with Miller; it's also unclear whether they realize that the other reporter discussed in that affidavit is not Cooper, but probably Pincus. If they did realize that, why wouldn't they go after the affidavit and subpoena and so on for Pincus?

In any case, this will not be any delay to the trial, I imagine, and I sure hope the effort to get all that stuff unsealed succeeds.

Most of emptywheel's argument is just "Fitzgerald was justified in throwing Miller in jail because Fitzgerald said so." No point arguing with that logic. I will mention that Woodward says the meeting in which Armitage mentioned Plame was in mid-June, and according to Armitage's appointment calender he met for one hour with Woodward on June 13, 2003.

Well, I admit I missed emptywheel's point that because Fitzgerald didn't yet know about Woodward (nor the supposed "bureau of the CIA" June 23 conversation between Miller and Libby) he may have believed the first leak (by a few hours) was by Libby. I would think emptywheel would be chomping at the bit to have Fitzgerald's justification for subpoenaing Miller and Cooper revealed, as they no doubt establish how reasonable his actions were (just as I hope they're revealed for the opposite reason).


I thought about that as I posted this--that they might get something on Rove. Though if they do, it's almost certainly by accident. The most exciting thing to come out of this is, IMO, Fitz saying, "well, Libby appears to have been hiding this, and there is no other evidence on it, which suggests the WH was not responsive to subpoenas."


Congrats on catching that point--yes, when Fitz made his justification in August 2004, he didn't yet know that Rove was Cooper's source, much less about the earlier Armi conversation.

But my larger point is that half of this stuff is readily available, but the AP and WSJ are just too stupid to know it.

With thanks to cboldt's comprehensive blog at noeasyanswer.blogspot.com (via an MJW link at Tom Maguire's blog), this is the crux of the reason that Special Counsel affidavits and Circuit Court Opinion pages that are redacted, remain redacted:

"While some of the testimony discussed in these portions of the redacted pages has become publicly known as a result of public statements made by witnesses, this fact does not reduce the need for continued secrecy. Even if a witness's public statements about his own testimony standing alone were sufficient to justify the disclosure of such testimony in connection with an ongoing grand jury investigation, in this case, the references to such testimony contained in the redacted pages is so tightly interwoven with non-public grand jury matters that it would be impossible to disclose such testimony without revealing other details concerning the subjects and witnesses, as well as the strategy and direction, of the grand jury's ongoing investigation. See In re Motions of Dow Jones & Co., 142 F.3d at 505 (citing In Re North, 16 F.3d at 1242)."

- From the Special Counsel's response to the first November, 2005 Dow Jones & Company, Incorporated effort/motion to unseal information related to the investigation and the Libby case [emphasis added].

Yet with no new (public) indictments since, an apparently on-going grand jury investigation underway, and the Libby trial yet to take place next month, the Associated Press and Wall Street Journal's owners are now evidently claiming that such vital issues of grand jury secrecy are moot, in their new (12/20/06) attempt to get all redactions removed. To wit: “Recently the public learned that the special counsel’s pursuit of those reporters was entirely unnecessary for him to determine who leaked Ms. Plame’s name to Mr. Novak,” lawyers for the news services wrote. [This member of the public has learned no such thing, recently, or otherwise...]

In response to that first Dow Jones Motion to Unseal filed a year ago, a panel of the Circuit Court ruled in early February, 2006, in part [emphasis added]:

"Eight pages of Judge Tatel's opinion were redacted to preserve grand jury secrecy and to protect classified information...

Now that the grand jury has returned an indictment against I. Lewis Libby for perjury, obstruction of justice, and making false statements to federal investigators, amicus curiae Dow Jones & Company moves to unseal the eight pages--or, failing that, portions thereof relating to matters that are now public...
Although objecting to unsealing the opinion in its entirety, the special counsel informs us that nothing in the concurring opinion remains classified and agrees that portions of the redacted opinion may be made public without jeopardizing grand jury secrecy. We also asked the special counsel to tell us whether portions of the two affidavits he initially submitted to this court explaining the need for the reporters' cooperation may also be released to the public. In response, he filed an affidavit expressing his view that, consistent with the need for grand jury secrecy, portions of one of the two affidavits may be unsealed.

On our own initiative, moreover, we also unseal parts of one of the special counsel's affidavits upon which we relied in concluding that Miller's evidence was critical to the grand jury investigation. If the public is to see our reasoning, it should also see what informed that reasoning. But just as some parts of the record may now be made public, others must remain secret. After reviewing the special counsel's submissions, we agree that some information in the eight pages and in the special counsel's affidavits unquestionably remains grand jury material that Rule 6(e) obligates us to maintain under seal. Its publication at this juncture could identify witnesses, reveal the substance of their testimony, and--worse still--damage the reputations of individuals who may never be charged with crimes. That the special counsel's investigation is ongoing only heightens the need for maintaining grand jury secrecy, for the special counsel is entitled to conduct his investigation out of the public eye and with the full cooperation of witnesses who have no fear their role in the investigation will lightly be disclosed."

The two attorneys who filed the Motion to Unseal for Dow Jones & Company, Incorporated a year ago, were the attorneys who filed on behalf of Time, Incorporated to quash or modify the 17(c) subpoena issued to Time, Inc. by Libby, this May (Matthew Cooper used his own attorney to file a separate motion to quash, but adopted most of Time, Inc.'s arguments as his own). Those attorneys are Theodore J. Boutrous, Jr. and Thomas H. Dupree, Jr. of Gibson, Dunn & Crutcher, Washington, D.C. [Of course, Time, Incorporated was a party along with Miller and Cooper to the appeal that the Supreme Court declined to hear, and to which the redacted documents in question relate. Boutrous and Dupree were also the attorneys who filed an amici curiae brief in that appeal on behalf of "Magazine Publishers of America, Inc." et al in support of Miller, Cooper and Time, Inc.'s position. So Dow Jones & Company seems to have picked up the battle on behalf of said 'Magazine Publishers et al' (due to deeper pockets and political motivations, perhaps?) with their Motions to Unseal and hostile WSJ opinion pieces.] I don't know if the same two attorneys were part of last week's new Motion to Unseal, or not.

I agree with cboldt and Jeff that this is not something that should directly affect the Libby trial, because any oral argument won't occur until at least February, with a ruling perhaps a month or two after that. What it does do, however, is complicate the workload of the government team preparing for the Libby trial, who must respond to this motion in the midst of intensive pre-trial preparations, if not while the trial itself is in progress. This motion seems calculated to affect the overall investigation in some way (e.g., by ascertaining the status of the grand jury investigation, on someone's behalf, perhaps), and is using obviously disingenuous (especially to a court of law) arguments to make basically the same motion for unsealing made a year ago (not having access to the actual filing, I'm going on AP's press release of its own actions). Finally, with the Libby trial looming, and the obvious release to the public of at least some (now-sealed) information that such a trial will entail, I don't understand why this motion would, in good faith, be filed pre-trial rather than post-trial. Certainly, any government response may vary dramatically pre-trial vs. post-trial, with regard to the Miller and Cooper affidavits presumably most at issue.

Whatever this is, as emptywheel's post makes plain, this is not about reporting the news, unearthing the facts for the information of the public, or investigative journalism. It seems far more concerned with protecting the comfortable corporation-controlled flow of the pre-screened information that we are to consider "the news," and to resisting challenges to the methods and means of that corporate control.

I was assuming by the time Fitzgerald filed his Cooper affidavit - and we don't actually know just when that was, do we? - he had a pretty good idea that Rove was Cooper's first source. The affidavit might in fact have other evidence that led Fitzgerald to that belief - like the Rove-Hadley email, perhaps Hadley's testimony, and so on. I also wonder about something else. The Circuit Court's opinion, if I recall, was either late 2004 or early 2005 - in any case, well after Rove testified and admitted the Cooper conversation in October 2004. I wonder whether Fitzgerald submitted an affidavit to the Circuit Court that was distinct and updated from the one he submitted to the District Court. In Miller's case, he just submitted the August 2004 District Court affidavit to the Circuit Court. But maybe he submitted a distinct one for Cooper, reflecting the new information, to the Circuit Court.

In any case, though, I don't think Dow and AP will succeed in getting much out of the judges, since Rove has been wisely silent publicly on his role (and I suspect one of the reasons was because it would prevent this stuff from getting published); and while the investigation with regard to Rove may no longer be ongoing (barring new developments etc), I assume grand jury secrecy will still be deemed a trump here in guaranteeing secrecy to witnesses, decent treatment to non-charged subjects, and so on.

Thanks for all the info, pow wow. It's almost like you should write a book yourself. Unless . . .

Ditto the thanks pow wow--an interesting read on this. Might they also be digging for info related to the civil trial?


Yes, Fitz may well have known it was Karl by this point, though it is completely possible he did not (for example, he may not have had the email yet, Hadley may have lied, etc). THen of course, if Hadley is Pincus' source, then he may have gotten a little chatty right about this time...

Re: "Pre-trial" vs. "post-trial" timing of the filing of the motion and getting the ensuing debate underway, I don't think DJ and/or AP had any intention of mucking up the Libby trial - except to the extent that this Motion takes advantage of the news event that -is- the Libby trial. In the bigger interest (to them) of obtaining reporter shield legislation, having a story to piggy-back on (the Libby trial) provides greater public visibility than they would get if this Motion to Unseal tried to be a story on its own.

If Fitzgerald "makes an offer," and he may, that he'll be able to redact more of the material after the trial than before (because the witnesses will have testified, etc.), then I expect DJ and AP will agree to an extension of time for the filing of a Response (Opposition), and their Reply that would follow thereafter. If both sides agree to a delay of 30 days, the clerk of the Circuit Court can grant it.

Even then, I doubt the additional revelations will be exciting or newsworthy as far as illuminating who leaked what to who and when, beyond what we already know. I also don't see a revelation that the CIA referral was bogus, or that it was legitimate.

The most I see coming out of this is the possibility that Judge Tatel will use a change in his perspective, if he's undergone one (his February 2005 Opinion reads as though he thought Fitzgerald had evidence that Ms. Wilson's employment at the CIA was somehow protected information - and he may now find the opposite), as an example of where he would draw the line between compelling reporter testimony, and not compelling reporter testimony.

"Apologies for the all-Plame all-the-time posting."

Never apologize for that: it's the reason many people consult your site, because you do own this story.

Firedoglake did a good job, once upon a time, until it turned into an all-Lieberman all-the time blog.

There is nobody more inconsequential than Lieberman, and there is nothing as important to the future of the republic's constitutional system than rooting out all of the Plame-gate criminality.

Sincere gratitude to you for sticking with it.


But my larger point is that half of this stuff is readily available, but the AP and WSJ are just too stupid to know it.

I am going to side with Jeff but I doubt I can be as polite. Just for starters, if half this stuff is available, than half is not.

Dow Jones has been litigating this since the git-go. Also, from time to time one notices in the media expressions of concern about encroachments upon press freedom, over-aggressive prosecutors, and the like. As an alternative to the theory that, hmm, the AP and Dow-Jones are "just following orders", I would suggest that they are trying to complete the record on Rove and Libby and see whether the case can be made that Fitzgerald over-reached.

Personally, I would be fascinated to see how Fitzgerald justified the Cooper subpoena, and I am shocked (yet strangely unsurprised) by the defensive shell being tossed up here around Fitzgerald.


It's the half that is readily avaialble (that is, the Libby stuff) that I find particularly stupid. Really, some of the stuff they're subpoenaing is out there--so why muck up the courts? Subpoena the Cooper stuff (and Pincus stuff), I'm fine with that and frankly I'm confident Fitz doesn't need any protection on this count, given the judicial review that went through (that is, you'd have to argue Fitz, and a bunch of judges ranging in partisan makeup from liberal to conservative that all bought off on it, overreached).

I don't think this is an attempt to postpone the trial--it is separate from it. But the way it is framed betrays an absolute stupidity about the case and Fitzgerald's mandate that I find appalling in paid journalism. If they haven't read the public documents--which their description of the case would seem to indicate, why are they asking for more?

One more point.

If their interest really was in finding out why Fitz investigated (at all--obviously it wasn't his decision to continue after Armitage came forward), they ought to ask for the Novak subpoena first and foremost. After all, he, too, was subpoenaed. If the Armitage revelation really WAS enough, then that is where Fitzgerald first overreached. The Armitage revelation is unrelated to the Cooper and Judy subpoenas (which, as I've pointed out, relate to Fitzgerald's full mandate, which by itself explains the questions--why he subpoenaed THEM--raised in the the DJ/AP request).

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