Libby's Jury Instructions

by emptywheel

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There's a Libby filing (in addition to the four or five or six last-ditch bites at the greymail apple he filed) attracting a whole bunch of attention. Here's my take on it.

Immunity Deal
The filing confirms something we've long suspected--at least one of the witnesses against Libby has an immunity agreement. Odds on favorite for this witness is Ari Fleischer. (I speculated that Cathie Martin might have been granted immunity the other day, but I agree that Ari is still the most likely candidate, with Martin being second most likely). The question is--what would he have immunity for?

On that, speculation is mixed. He may well be Pincus' source (if he is, though, I'll owe Swopa a beer, so it would suck to be me), and it remains unclear how forthcoming Pincus' source was about revealing Plame's identity when he first testified. So, the argument goes, Ari (if he is Pincus' source) may have gotten immunity for a false statements crime in exchange for substantive testimony against Libby. In most statements, Pincus leaves details about the timing of his source's honesty ambiguous. Though he does say in this CJR article his source was "cooperating" with prosecutors, which would seem to suggest that he had already 'fessed up to being Pincus' source, whoever it was.

In mid-2004, Patrick Fitzgerald’s office issued subpoenas to Pincus and the Post, demanding details of the 2003 conversations. Pincus initially refused to cooperate, but Fitzgerald soon made clear that Pincus’s source was cooperating with the investigation, and that the source was willing for Pincus to speak to the prosecutors.

Ari would face slightly more jeopardy than Armitage in leaking to Pincus, having been told by Libby that Plame's identity was "hush hush," so it is possible he simply wanted immunity from any IIPA prosecution. The same is true regarding the comments to John Dickerson, pushing him to look into who sent Wilson--though I doubt it, since Dickerson was never asked to testify as to the the content of that conversation (that is, Fitzgerald never checked Ari's story, if in fact Ari admitted to this).

There is one more possibility (one I don't really understand very well). Recall that one of the things Fitzgerald had to subpoena was the July 12 press gaggle (and he did so in the same batch as he subpoenaed the Air Force One phone records). I have never seen a convincing explanation of why it was subpoenaed--the most suspicious passage in it was this one:

In fact, in one of the least known parts of this story, which is now, for the first time, public -- and you find this in Director Tenet's statement last night -- the official that -- lower-level official sent from the CIA to Niger to look into whether or not Saddam Hussein had sought yellow cake from Niger, Wilson, he -- and Director Tenet's statement last night states the same former official, Wilson, also said that in June 1999 a businessman approached him and insisted that the former official, Wilson, meet an Iraqi delegation to discuss expanding commercial relations between Iraq and Niger.  The former official interpreted the overture as an attempt to discuss uranium sales.

This is in Wilson's report back to the CIA.  Wilson's own report, the very man who was on television saying Niger denies it, who never said anything about forged documents, reports himself that officials in Niger said that Iraq was seeking to contact officials in Niger about sales.

While Ari's insinuations that Wilson was the Iraq-Niger go-between are nasty, they are not illegal. Unless, of course, the Wilson trip report really does say that Wilson was the go-between (in which case, they botched the report even further than I think). In which case, Ari would be leaking illegally. In any case, the conjunction of this subpoena with the one for Air Force One call records suggest Fitzgerald may have gone after Ari early.

Finally, one more possibility. If there were open discussions about leaking Plame's identity (as descriptions of Adam Levine's and Dan Bartlett's involvement in Hubris seem to suggest), Ari may have wanted immunity from being involved in any conspiracy. We know Ari was getting talking points on this issue. If he got a talking point related to Plame, if he was in discussions related to outing Plame, he may have sought an immunity deal to avoid any implication from simply hearing of a deliberate campaign involving Plame, then pushing Dickerson to inquire about her.

The Scope of the Investigation

Apparently, Libby will argue at trial that, when he was interviewed by the FBI (October and November 2003), the scope of the investigation was different from what it became.

Because the focus of the investigation at the time Mr. Libby was interviewed by the FBI will apparently be a disputed issue at trial, the Court should not instruct the jury in accordance with the government's view of the investigation alone.

This accompanies a lot of discussion over the meaning of the word "material" with respect to Libby's alleged lies. Thus, it seems that Libby's team is preparing to argue that:

1. When Libby was interviewed in Fall 2003, the focus of the investigation related exclusively to the Novak leak
2. Therefore, lies relating to leaks to Judy and Cooper are not material to the case, and therefore not worthy of False Statements or Obstruction charges

I don't blame Libby for this tactic. If he did, in fact, lie to obstruct the investigation, he did so to shield an IIPA charge. So he's probably pretty bummed that lies he told (if they are lies) to shift his own knowledge past the time when Novak learned of Plame are now getting him into trouble wrt leaks to other journalists. It's a tough game, I guess, trying to anticipate which lies you should tell...

The NIE

Libby continues to try to hide that even he did not know whether, when he leaked to Woodward and Sanger, he was authorized to do so. He is trying to rule out any evidence relating to the pre-July 8 leaking.

As explained at the December 19th hearing, Mr. Libby will not offer any evidence that he discussed the contents of the NIE with reporters prior to his July 8, 2003 discussion with Judith Miller [ed. No, really? I'm so surprised] ... the government has indicated that it is very unlikely to raise pre-July 8 discussions either. ... As both sides agree that pre-July 8 disclosures have no real relevance in this case, and to avoid any further confusion or conflict on this issue, Mr. Libby requests that the Court issue a pre-trial ruling that evidence regarding pre-July 8 disclosures is inadmissable at trial under Fed. R. Evid. 403.

He goes on to try to strike the language from jury instructions that they should not speculate whether the NIE leaks were "proper or improper." Effectively, they are trying to rule out proof from Libby's own testimony that the earlier leaks may have been improper, and then strike "improper" so as to give the impression that all earlier NIE leaking was proper. But then Libby goes further in his attempt to pretend all his NIE leaking was legal. Here's his proposed instruction:

You have heard evidence regarding discussions Mr. Libby had with reporters about material contained in the October 2002 National Intelligence Estimate. There is no dispute that the President has the power to declassify previously classified material and to authorize its disclosure to the press. Nor is there any dispute that the President had exercised that power with respect to the NIE at the time Mr. Libby had those discussions. In other words, there is no question Mr. Libby acted properly in having those discussions and you are hereby instructed not to speculate otherwise.

Notice that swift application of uncontested facts regarding the July 8 leaking to all the leaking? Nice try, Scooter.

FWIW, I suspect Fitzgerald may only want to keep the NIE available in case Libby is able to call Woodward as a witness. Libby, of course, would love to have Woodward, because it gets him to testimony about Armitage. But he'd be a lot safer calling Woodward if he didn't risk having to admit that he was leaking stuff to Woodward he may not have been authorized to leak, so I suspect this is the core of the disagreement.

Later Misrecollections

Finally, Libby seems to want to exclude any discussion relating to later misrecollections. They're asking to strike the following instruction:

False or inconsistent statements that a defendant makes in explanation or defense, after a crime has been committed, do not create a presumption of guilt. You may consider evidence of such false or inconsistent statements, however, as tending to prove the defendant's consciousness of guilt. You are not required to do so.

Libby rejects this, explaining,

Given that Mr. Libby is charged with making false statements and perjury, and the chronology of events of this case, this instruction unnecessarily risks confusing the jury. Mr. Libby told investigators and the grand jury more than once that Mr. Russert mentioned Mr. Wilson's wife. To the extent that Mr. Libby's recollection of this point is incorrect, he argues that it is due to a perfectly innocuous reason--a natural failure of memory. This instruction would mislead jurors into thinking that Mr. Libby's subsequent misrecollections to investigators and the grand jury may be considered as evidence of consciousness of guilt.

I'm really fascinated by this. It's like Libby is trying to prevent the same lie from being used as evidence that he told it. But I also suspect this has to do with later, contextualized references to Russert. Therefore, if asked if someone else mentioned Plame, and Libby reverted to the Russert story, he doesn't want that as being taken as evidence of guilt. Curious.

Please Don't Mention the Former Hill Staffer

This is, IMO, the funniest request. He asks the court to read this instruction:

You have heard testimony that Mr. Libby and other witnesses spoke to reporters under various conditions, such as "off the record," on background" and where one's comments are to be attributed to a particular job title. There is nothing improper with a person being interviewed to request, or a reporter agreeing to grant, these interview conditions in order to maintain the confidentiality of the person speaking with the reporter. [my emphasis]

This instruction would effectively bar the jury from considering the fact that Libby asked--and Judy agreed--that their July 8 conversation be attributed to a "former Hill staffer" as evidence of guilt. Because, you know, I should be able to attribute illegal information to whatever attribution I want. Next time I leak highly classified information, I suppose I'll just attribute it to "someone who might be named Scooter Libby." Because Scooter Libby sees no problem with giving misleading attributions to leaks, you know.

All in a days work.

Comments

[emptywheel]

Btw, the reference to the Adam Levine and Bartlett involvement in Hubris is as follows. First, Levine directed Novak that the two people pushing the Wilson campaign were Rove and Libby (this is after they describe the way Rove launders leaks).

Novak called Adam Levine, the White House press aide who had become something of a Rove protege, and complained that Rove wasn't calling him back. Levine promised to talk to Rove and see what he could do. In the course of the conversation, according to Levine, Novak asked him, "What do you make of the Wilson thing?" Levine replied, "I'm not working on that. You've got to talk to Scooter or Karl." (262)

Effectively, this shows that the Wilson thing had been discussed, and it was clear that Rove and Libby were the pointpeople.

Later (after his return from Africa), Bartlett talks about shifting away from a focus on Wilson and Plame, reflecting a knowledge that she did play a part in the response:

In a White House meeting that week [after the Novak column], communications director Dan Bartlett, just back from Africa, talked about redirecting coverage away from Wilson and his wife--and stopping the Wilson bashing. It was unproductive and demeaning, he suggested. Bartlett, according to Adam Levine, was "against the idea of the wife as a talking point." (291)

[njr]

thanks again ew,
needing to take your work in small steps...
does Team Libby know whether the government witnesses have immunity?

[perris]

I'm thinking rove could be the person with immunity guys, I can't really think of any other reason fitz didn't indict

[emptywheel]

njr

Yes, this comes from a Libby filing. They got Jencks (all the details regarding the testimony of government witnesses) on December 22. And they mention the Jencks, saying they discovered there that at least one immunized witness will testify. Though they've suspected this for a long time, since at least April, I think.

perris

It is possible it is Rove. But back in the spring (admittedly before Rove got off), Fitz said he wasn't calling Rove. He also said that Ari would be the only WH witness he would call (so no Adam Levine, and no Rove, and no Hadley--at least not called by the government). So for it to be ROve, Fits would have had to change his mind about calling Rove and communicated that to Libby's team. Also, if Rove were to testify, it probably would have come up in the December 19 hearing--and no journalists have reported on it.

[perris]

good points emptywheel, I guess it's just wishfull thinking for me to think rover rolled over, though I can see some scenario's where fitz would try to get scooter to call rove leave immunity on the table for information rove and continue to gather information from him without expecting to call as a witness

rove might have earned immunity even though he's be scheduled to testify for the "just in case it comes up", so long as his information proves accurate

[freepatriot]

how does the focus or the investigation have any bearing on the truth of scooter's testimony ???

When Libby was interviewed in Fall 2003, the focus of the investigation related exclusively to the Novak leak Therefore, lies relating to leaks to Judy and Cooper are not material to the case, and therefore not worthy of False Statements or Obstruction charges

is there some alternate universe where the truth is subjectively based upon the focus of the investigation ???

doesn't really matter what Patrick Fitzgerald was investigating

scooter libby lied, no matter what the investigation was about

there might be a question of materiality if Fitz were investigating the price of tea in China, but given that Fitz was investigating the leaks, and scooter was testifying about the leaks, the fact that scooter lied about the Cooper leaks instead of the novakula leaks doesn't really change anything

[Stephen Parrish, CPA]

ew - Is a complete list available of the passengers in July 2003 on Air Force One and Air Force Two? Who preceded Susan Ralston as Karl Rove's assistant? Was Susan Ralston or her predecessor on either AF1 or AF2 in July 2003?

[emptywheel]

I've never seen such a list, Stephen. Are you thinking of the rumor that a former AO saw Ari reading the INR memo? Or something else?

[emptywheel]

I'm trying to think through how Ari could be immunized and be Pincus' source, without Dickerson having been asked to testify (oh Swopa! Where are you!?!?!). Here's my thinking:

One scenario is that Ari didn't tell about Pincus at first. Fitz had a notion that Pincus could be the WaPo leak recipient, but Libby had (apparently) told him that he had told Kessler. So he interviewed Kessler, found out that Libby had lied about Kessler (he didn't tell him), so knew that Pincus was the WaPo leak recipient. At that point, Ari buckled, told about being Pincus' source, got immunity, and told about the orders he had to push toward Plame. But still--you'd think Fitz would make Ari ask Dickerson to testify, so as to clear up any confusion about that conversation (as well as FIneman and others). Unless, of course, Fitzgerald had a way to know for sure that Ari had been ordered to push the leak as he did with Dickerson (Bartlett's similar move seems to suggest it was a talking point).

The other alternative is that Ari came clean early on, admitted to being Pincus' source. So why interview Kessler? To catch Libby in a lie? Then why not charge it, as it would be a more significant lie than the Cooper one? And there's still the likelihood that you'd want to talk to Dickerson, to rule out any funny business.

I may be over-thinking this (No!), but I can't think of a scenario where Ari gets immunity unless it's 1) not about Pincus, or 2) gets Fitzgerald to a whole lot more deliberate leaking strategy than we've seen so far.

[Stephen Parrish, CPA]

ew - I wasn't thinking of that rumor; I was thinking instead of parties to any conversations about the Wilsons on AF1 and/or AF2.

[looseheadprop]

freepatriot,

The scope of the investigation has to do with the matriality of the false statement. Not every false statment is perjury. The false statement has to be one that would tend to prove or disprove a crime.

So, if I am in the GJ and I am asked if Sam was the guy I saw commit the murder on January 25th and I aswer "yes, I saw Sam commit the murder on January 25th and I rememeber it was that day because it was my 29th birthday"

And the truth is 1) I did see Sam commit the meurder
2) I saw it on Jan 25th
3) January 25th is my birthday
BUT
4) It was my 49th birthday.

Why would it be perjury for me to lie about my age?

This goes back to why I was SOOOO angry at Clinto for not pursuing all his appeals for lying about fooling around with Monica.
Whether or not he had a consensual relationship with Monica was not material to civil case where he was accused of sexually harasssing (what's her name again?--the one who rushed out to get a nose job? The little one with the long dark hair?)

You know who I mean.

[freepatriot]

Thanks LHP, but that doesn't realy claer up my question

I understand the concept of materiality (I've been a defendant once or twice in my lifetime)

what I don't understand is how the concept of materiality affects this case

the way I see this claim, scooter thought that Fitz was investigating the novakula leak, so scooter felt that he was okay to lie about the Cooper leak ???

that doesn't make any sense

scooter is admitting that he lied about the Cooper leak, and claiming that Fitz can't prosecute because it isn't material to the novakula leak

that doesn't make any sense, especially when Fitz' mandate was to investigate the leaking of a NOC agent, and not the novakula leak specifically

IIRC, Fitz asked for a definition of his mandate, and was given a written order to investigate the leaks and any ancillory crimes that may have been committed during the leaking process

prior disclosure doesn't extinguish classified status, so ANYBODY who discussed Plame with ANY reporter falls within Fitz' mandate

scooter may have THOUGHT that he was safe lying about Cooper, but the scope of Fitz' investigation clearly includes the Cooper leak

so is scooter the dumbest person ever accused of perjury or what ???

[ocean]

Of course nothing seems guiltier than off-the-record-former-hill-staffer-double-super-secret-background.

Hope team Libby loses this instruction.

[looseheadprop]

Free patriot

Your analysis of both Scooter's position and reality are both, IMHO, correct.

SCooter is making the dumbest arguement in the owrld. He knows that the scope of Fitz's mandate was bigger than the Novakula leak, he is saying (in addition to misremebering things) that he misunderstood the scope of Fitz's investigation, thought it only had to do with the leak to Novak and therefore it is OK to lie UNDER OATH about all other leaks.

Insane. Crazy. Stupid.

[emptywheel]

Though I also think Libby's team realizes no one strategy will save Libby's ass. The memory defense probably won't be all that effective (except insofar as it allows them to talk about his very important job). So they need more to fall back onto. Materiality looks like it'll be a central strategy--they're trying to say that, even if Libby obstructed, he's a really nice guy, so he doesn't fulfill the evil aspect of corrupt. And they're trying to claim that the false statements were not material (they may also try to impugn one of the FBI people who will testify). They may even have the balls to argue that, since he first lied in a non-material way, but just kept lying the same lie, then those later lies don't really count. Voila, all five counts challenged in some way.

THe thing to remember, always, is that Wells is a brilliant courtroom lawyer. He has been able to do this before, so these are non-trivial attacks on Fitz' case, IMO.

[SaltinWound]

It's always bothered me that Fitzgerald didn't tie up the Dickerson thread. Trying to find a logic to justify it can lead to some contortions. Sometimes I fear the truth may be that this is a full time job, and Fitzgerald is already doing a full time job in Chicago.

[John]

I think you should consider introducing "Someone who might be named Scooter Libby" as a nom de plume for the second run of "Anatomy of Deceit".

[smiley]

lhp: Paula Jones?

[lemond54]

After reading through Libby's filing, it's looking more and more like the Twinkie defense, or, in Scooter's case, the Kool-Aid defense.

[Jeff]

I think it is as foolish to underestimate Libby's defense as it is for righties to underestimate Fitzgerald's case.

I can't figure out the Fleischer immunized scenario with Pincus and Dickerson.

[John Casper]

Thanks to all for the very enlightening discussion of materiality and the "focus of the investigation."

[emptywheel]

Stephen

AF2 was supposed to be just Dick, Libby, and Martin.

Ralston wasn't on AF1 because she testified to events that went on in DC surrounding Cooper's call.

[clbrune]

I wonder what would have made Ari (or whoever) enter into an immunity deal. I mean, why not just tell the FBI "I don't know, I thought everyone knew...sorry guys I wish I could help you out."

What occurs to me is that the gov't has some piece(s) of evidence that is/are really unequivocally damning. Like an email from Ari to someone-not-Libby.

From: Ari
To: Mom

Hi mom, hope all is well. It sure is hot in DC this summer! It's making the Vice President's chief of staff (you'd laugh if I told you his name!), crazy. He keeps obsessing about an ambassador's wife.

Wish I could say more, gotta run!

Love,
Ari

You know...something like that ;-)

[emptywheel]

Well, I do think with Ari you get some kind of evidence like that--yes. Though maybe not to his momma. Maybe to his lawyer?

[Carl Heylin]

Carl here from JOM. Question for the author. Have you been able to find out the details of the letter that fitz said he sent to Rove's attorney?

Do you know what it says? And does your book have new stuff in it that we didn't read in the news?

[mk]

I still wonder where the copy of the Wilson op-ed with Cheney's handwritten comments on it came from. It was still lying on Cheney's desk when he and Fitz had their talk? Uh, I don't think so. But I'd wonder if Ari or Cathie coughed it up as they attempted to distance themselves from a potential conspiracy or IIPA charge. But then my son tells me every day, emphatically, IANAL. (he is)
But that's something I hope we do find out about at the trial.

[emptywheel]

Carl

Nope--the most I have heard was the Karl got off because Cooper became useless as a witness.

The book has nothing in it that would surprise Jeff, if that's a fair way to judge whether anything is in there. But that obviously doesn't mean it has gotten reported in the press.

[Carl Heylin]

would you please point out the part of the filing that says the witness was given immunity. I can't find it.

[Carl Heylin]

righto! thank you! I have ordered from B&N.

[emptywheel]

On page 23, under Miscellaneous Points, it says:

Mr. Libby notes that the government did not provide three of the instructions it lists as having provided: (1) 1.08 (Expert Testimony) (if applicable); (2) 2.23 (Testimony of Immunized Witnesses) (if applicable); (3) 2.29 (False of Inconsistent Statement by Defendant)(if applicable). ... Mr. Libby does not object to Instruction 2.23 as the Jencks material shows that at least one immunized witness will likely testify.

[freepatriot]

let's get something straight about the "Materiality" question

scooter libby is charged with two counts of lying to the FBI. Materiality doesn't apply to that charge

and scooter is accused of one count of Obstruction Of Justice. once again, there is NO QUESTION of materiality in that one

scooter is also charged with two counts of PERJURY, where the false statements must be material to the case in law before the court

since scooter told the same lie 4 fucking times, there is no way to seperate the lie into 4 easy pieces

even if the Court rules that the lies about Cooper are not material to the perjury charges in this case, scooter has just confessed to being guilty of the first two charges, which would logically lead to an assumption of guilt on the Obstruction Of Justice charge

the Obstruction charge is the BIG problem that scooter has. While Perjury and Lying to the FBI are suseptible to a 5 year sentence for each charge, odds are that scooter would be sentenced to "Concurent" sentences for those charges

Obstruction Of Justice has a 10 year maximum sentence

if scooter is convicted of all charges, and sentenced to the maximum time allowed, under concurrent sentencing laws, scooter is going to jail for at least eight and one half years in a federal pen

you have to be pretty stupid to admit guilt to the worst possible charge to avoid the penalty for two lesser charges

and in case you're wondering, a conviction on all charges, with a maximum sentence, under CONSECUTIVE sentencing, scooter is looking at twentyfour and one half years in prision

As I see it, the only way scooter would recieve a consecutive sentence on multiple convictions would be if scooter were to PISS OFF the judge, by, say, filing a bunch of idiotic motions

or maybe scooter is planning to plead not guilty by reason of insanity

[Carl Heylin]

is there any chance this immunized witness could be a journalist? Remember Vivica Novak?

[mk]

So, uh, why does Barnes and Noble tell me my book won't ship until 1/28?
EW -- do you have any updated info on when I can get one? I'll cancel my B&N order if your independent bookseller (or anyone else) will have them sooner.
Thanks!

[freepatriot]

yo, Carl Heylin

no, it's not likely to be vivica novak

the immunity is most likely granted for participation in the actual leak

the only thing Vivak could recieve immunity for would be lying to the FBI or Fitz, and known liars ain't the best witnesses to call

besides, i think the Vivak episode was mostly related to kkkarl, not scooter

[emptywheel]

BN is just saying that, as I understand it. They'll ship as soon as they get them. Books leave A2 on Jan 12.

[pollyusa]

25. On or about September 26, 2003, the Department of Justice authorized the Federal Bureau of Investigation ("FBI") to commence a criminal investigation into the possible unauthorized disclosure of classified information regarding the disclosure of Valerie Wilson's affiliation with the CIA to various reporters in the spring of 2003.
Libby Indictment

In this motion Libby claims that the following quote is "According to the indictment" and "tracks the actual language of the indictment". It doesn't, he added the word allegedly.

According to the indictment, on or about September 26, 2003, the Department of Justice authorized the Federal Bureau of Investigation ("FBI") to commence a criminal investigation into the possible unauthorized disclosure of allegedly classified information regarding the disclosure of Valerie Wilson's affiliation with the CIA to various reporters in the spring of 2003.

This language tracks the actual language of the indictment and reflects the fact that the indictment merely alleges that information about Mrs. Wilson's status was classified...
Reply of I Lewis Libby in support of his proposed Jury Instructions

The indictment is not ambiguous regarding Plame's employment status. It states in paragraph 1f and 25 that her employment status was classified.

[Canuck Stuck in Muck]

Re: The Scope of the Investigation and the 'focus' of the investigation prior to December 30, 2003, wherein Scooter Libby contends that the lies he told at that time were justifiable, since the investigation at that time was 'restricted' to Novak's exposure of Valerie.

The real story, however, is that Scooter Libby lied in November because that was before Fitzgerald took over the investigation. Prior to December 30, when Fitzgerald was given the job, Libby would have thought that, with Ashcroft was A-G, there was no way in Hell that the investigation would ACTUALLY find ANYONE who leaked the information, and certainly not a member of VPOTUS's inner circle. Libby thought he could lie with impunity, and until 12/30/03, he was probably correct.

If I've just said something that goes without saying, please forgive me. I'm a bear of little brain.

[freepatriot]

no forgivness needed Canuck

that actually clears things up for me

scooter is saying that he shouldn't be charged with a crime because at the time he told the lies, he had no idea that anybody would actually enforce the law

there's a real winner of a defense if I ever saw one

I'm telling you guys the truth, scooter is either going for the insanity defense of an appeal based on incompetent council

no other answer works on this plane of reality

[Mary]

I think the issues on the NIE declassification and instruction/non-instruction are interesting aside and apart from the case in chief. I'll be interested in seeing what gets done with that by both Walton and Gov. I hand it to the Spec. Pros team that they haven't caved on this and just said the President does have the power to declassify the NIE, bc that would also include a power to declassify for use in the way it was used.

While the grants of discretion in the President with respect to classified information are pretty huge, I don't believe they are absolute. IMO abuse of discretion still applies, even at the Chief Exec officer in the Exec Branch slot.

So its interesting to see how that is being played out. Libby wants an instruction that will specifically say the President has no limits on his power to declassify, even an opportunistic, limited "leak to a reliable reporter" version of declassification which follows no formalities and is politically motivated and is cherrypicked to conceal and misinform.

The Spec. Counsel's crew has been sidestepping and simply saying that they will not be asserting that the disclosure was unauthorized.

I'm wondering how far this will go. Probably not much further, but its interesting to watch. I'm not sure it has ever been at issue formally - does the president have the same fiduciary and legal constraints to refrain from abusively exercising his discretion in self interest that is inherent in the rest of his administration and agencies?

I think he clearly does.

[Carl Heylin]

news media seeks audio of libby trial

http://news.yahoo.com/s/ap/20070106/ap_on_go_ot/libby_trial_recordings_2

[perris]

you know something?

now in hindsight it's been somewhat a blessing rove wasn't indicted.

if he had been indicted, the president would have been obligated to remove him from his position

then the most embarrasing defeat in the history of American politics wouldn't have been blamed on rove, we'd still be giving rove some kind of narketing credit

the way it stands now, with the loss of congress and the senate, roves legasy becomes an unqualified failure.

this is nice in itself, now if he gets implicated on top of that it will be all the more enjoyable

[Rayne]

Wow. Loads of questions after this juicy post and thread.

Q1 --

(2) 2.23 (Testimony of Immunized Witnesses) (if applicable);

Plural, with door open to more at the Jencks material shows that at least one immunized witness; what's the chances there are not one but at least two immunized witnesses, or one immunized and one with pending immunity? Could Ari and Rover both be immune?

Q2 --

Note the text of the 30-DEC-2003 and the 06-FEB-04 letters extending authority to Fitz by Comey and confirming that authority; what document precedes these two in defining the case and its direction/instruction (aiming at materiality here)? I guess I haven't seen it, wonder what fine parsing Scooter's team is using from that document.

Q3 --

to freepatriot specifically -- think about it this way, in addition to Canuck's comments: what if Libby wasn't really thinking at all about how long he'd have to serve for any count, only how long he'd have to serve between the time he was convicted and POTUS pardoned him (from his plane departing for Paraguay...)?

Q4 --

to Mary, in regards to NIE declassification: the NIE might be declassified by POTUS if he is the owner/supervisor, but the specific line items of NIE might not be able to be declassified by him if individual components of intel belong to other functions. I think this is the reason Fitz skirts this, too many cooks in the kitchen to have to determine who owns what data. Wouldn't it be easier for Fitz to simply focus on one piece of data that was not "owned" by the White House, could only be declassified by CIA, (in this case, Plame's ID)? There really isn't any latitude there and also removes the cooks from the kitchen.

[Jeff]

Mary

I agree the NIE issue is really interesting, but it's not the case that Fitzgerald has not

just said the President does have the power to declassify the NIE, bc that would also include a power to declassify for use in the way it was used.

That is, in fact, just what Fitzgerald has said. Or at least, he is not disputing that the president has the power to declassify, including for the way it was used on July 8. What he is unwilling to do is to stipulate that Libby was so authorized when he leaked to Woodward in late June and Sanger in early July. But as far as Libby's disclosure to Miller on July 8, Fitzgerald is okay with it.

[pow wow]

Point of interest with regard to the trial timing:

Judge Walton has seven different non-Libby hearings lined up on the Court's schedule for Friday, January 19th:

9:15 a.m. Scheduling Conference in Courtroom 16 (a 2004 civil case)

9:30 a.m. Status Conference in Courtroom 16 (a 2001 civil case)

10:00 a.m. Sentencing in Courtroom 16 of three 2006 co-defendants

11:15 a.m. Status Conference in Courtroom 16 (a 2005 civil case)

11:30 a.m. Scheduling Conference in Courtroom 16 (a 2006 civil case)

2:00 p.m. Scheduling Conference in Courtroom 16 (a 2006 civil case)

2:45 p.m. Status Conference in Courtroom 16 (a 2000 civil case)

[There's also a typo for a "2:00 a.m." Plea Agreement Hearing for a 2006 criminal case]

Judge Walton has no other non-Libby hearings scheduled the rest of that week [16th-18th; the Libby jury trial is listed on the schedule as starting on January 15th at 9:30 a.m. in Courtroom 5; we've established that that date is an entry error that has yet to be corrected to the 16th, especially as Monday, 1/15 is the Martin Luther King Holiday]. He also has nothing scheduled for Monday, January 22nd, or anything of significance for the rest of that week. [The pre-trial 1/10 motion hearing/status conference is due to start at 9:30 a.m. in Courtroom 16.]

If this schedule turns out to be accurate, I think it's safe to say that opening arguments won't be starting on Friday, 1/19, as the Libby trial will not be in session, and that the odds have probably increased that only jury selection will be taking place between the 16th and the 18th (although the 18th could still end up being opening statements day).

[Dismayed]

Free,
I don't think Libby's going for the insanity or poor council defense. He's just going to drag this out as long as possible, try to stay out of jail on appeal, and hopefully get a pardon before he sees too much time in the clink. He's been a loyal soldier. He will get a pardon. Assuming of course he gets convicted. Which it seems he will, but as any lawyer will tell you, juries are very unpredictable. Does anyone see any likely outcome where Fitz leverages this, or finds a way to drive toward any outcome more satisfying than this one conviction followed by this certain pardon?

[freepatriot]

scooter ain't getting a pardon while Henry Waxman has the power to subpeona scooter without consulting any other congresspersons

one of the lingering repuglican House rules says that the Chairman of the House Government Affairs Committiee can issue subpeonas at his own discretion, without the approval or even notification of the Committee

anybody who has been watching Mr Waxman lately knows that Mr Waxman is wondering who to subpeona first

I think a pardon for scooter might just solve Mr Waxman's delemia

face it folks, scooter ain't getting a pardon while there is a chance of further investigation. A pardon would extinguish scooter's 5th Amendment protections

scooter is the only firewall that protects our numbnuts presnit from being charged with crimes against humanity

george is stupid, but he ain't stupid enough to hand Mr Waxman a defenseless witness

[freepatriot]

correction (from a new site dedicated to watching the House)

Rep. Henry Waxman, D-Calif., is chairman of the newly renamed Oversight and Government Reform Committee, which had been the Government Reform Committee only since 1999. Before then, it was the Government Reform and Oversight Committee. Waxman revels in his reputation as a watchdog over the executive branch.

U.S. House Digest

check it out, It works for me

and about that eye test thingy...

I ain't no spammer, I'm not suitable for polite company, but I ain't no spam

[Jeff]

polly

I think their point is that their language tracks the language of the indictment except that it inserts allegedly because her classified status is not proven and for some reason I do not quite understand Fitzgerald is not going to try to prove it. I think the reason for that is that he, with the help of Walton, backed himself into a little bit of a corner on the issue by arguing earlier that whether she was actually classified or not, or even worked at the CIA, was irrelevant, all that mattered was what Libby believed. So now Fitzgerald is stuck with the idea that her actual status at the CIA is irrelevant.

I think.

[cboldt]

for some reason I do not quite understand Fitzgerald is not going to try to prove [Wilson's wife's classified status]

Her status isn't an element of any of the charged offenses. Fitz has said he won't bring it up, but if Libby wants to challenge the investigation on grounds relating to Wilson's wife's classified status, Fitzgerald is ready and willing to meet the challenge.

The "what Libby believed" angle is one aspect of Fitzgerald's assigment of possible motive for Libby to lie to investigators. If he though he might be in trouble for outing (even if he wasn't in fact at risk for outing because Plame wasn't covert), that fear is part of the calculus to lie to investigators.

Anyway, as with the question of "materiality," the word "relevance"--and it's buddy, irrelevance--tend to conjur misapplication, misunderstanding, and heated argument.

[Jeff]

Yeah, cboldt, I knew all that, what I am trying to piece together is not merely a description of the state of affairs, but its explanation. And I don't think the fact that her status is not an element of any of the charged offenses explains it. Fitzgerald's intention was indeed to assert and prove her classified status. I think he has backed off - unless challenged as you say - because earlier Walton ruled some things out of discovery on the basis of the claim that what mattered was not whether or not her status was classified but what Libby believed about it. And now Libby's defense has effectively made the argument that, that decision having been made and discovery having been withheld, Fitzgerald can't turn around and simply assert or even prove that her status was in fact classified.

And I believe I was being pretty careful with my use of the word "relevance" though I'm not a lawyer and I may have goofed.

[emptywheel]

Rayne

Q1 --

(2) 2.23 (Testimony of Immunized Witnesses) (if applicable);

Plural, with door open to more at the Jencks material shows that at least one immunized witness; what's the chances there are not one but at least two immunized witnesses, or one immunized and one with pending immunity? Could Ari and Rover both be immune?

I think it highly likely there are two immunized witnesses, though I think it more likely that one is on stand-by (perhaps someone like Edelman). But I honestly think if Rove is being called to testify, we'd know about it. Or journalists covering the hearing are more monovision than I thought.

Q2 --

Note the text of the 30-DEC-2003 and the 06-FEB-04 letters extending authority to Fitz by Comey and confirming that authority; what document precedes these two in defining the case and its direction/instruction (aiming at materiality here)? I guess I haven't seen it, wonder what fine parsing Scooter's team is using from that document.

A good question. Not least bc it immediately gets you into things that Ashcroft oversaw. So it could be that the scope of the investigation was drawn narrowly in an attempt to hide the crimes that connect this back up to Dick et al.

Q3 --

to freepatriot specifically -- think about it this way, in addition to Canuck's comments: what if Libby wasn't really thinking at all about how long he'd have to serve for any count, only how long he'd have to serve between the time he was convicted and POTUS pardoned him (from his plane departing for Paraguay...)?

Pretty sure he's thinking of 1) beating the rap, 2) laying cause for appeal, 3) pardon. That is, right now he's primarily focused on drawing out appeals long enough to get to the pardon.

Q4 --

to Mary, in regards to NIE declassification: the NIE might be declassified by POTUS if he is the owner/supervisor, but the specific line items of NIE might not be able to be declassified by him if individual components of intel belong to other functions. I think this is the reason Fitz skirts this, too many cooks in the kitchen to have to determine who owns what data. Wouldn't it be easier for Fitz to simply focus on one piece of data that was not "owned" by the White House, could only be declassified by CIA, (in this case, Plame's ID)? There really isn't any latitude there and also removes the cooks from the kitchen.

Well, since intell is Executive Branch, you'd quickly get into constitutional issues. I'm not sure how that fight would end up, constitutionally (I suspect not in our favor).

[cboldt]

-- "Fitzgerald's intention was indeed to assert and prove her classified status" --

I read the opposite intention, from the start of proceedings. Walton's rulings in this regard have tightly tracked Fitzgerald's express wishes, even in the heretofore unexplored area of ex parte and in camera review under CIPA 4, where Walton's Court "handled" the CIA referral, and kept it out of Libby's hands.

One buzzword that all sides are using (and abusing) in this regard is "materiality," and the debate is playing out both in terms of whether or not the investigation had a legitimate object, and whether or not Libby had a motive to lie to investigators.

At the same time he aims to not make the legitimacy of the investigation an issue at trial (and Libby does aim to make it an issue at trial) Fitzgerald has asserted the presence of classified status regarding Plame's CIA employment, and also that if called to (by Libby asserting or implying otherwise), he is able and willing to prove it in Court.

[emptywheel]

pow wow

Thanks, that's helpful.

polly, Jeff, cboldt

I don't know that Fitz is in narrow of a corner as Jeff suggests. Remember that there is a document that resulted from CIPA asserting Plame was covert. And also, that Libby has documents that assert she was covert, even if he wants to cherry pick details from it to question that. Therefore, I think this needs to be treated as a bit of smoke until Walton actually rules on it.

After all, I would be surprised if Walton accepts Libby's intruction regarding classified sources, since one obvious incriminating thing is his attribution as former Hill staffer. So I suspect we'll see some changes before we get to the actual jury selection. I figure this is about where the two sides were on CIPA around about October. Which they worked out, eventually.

[cboldt]

-- "I was being pretty careful with my use of the word "relevance"" --

Oh, I was making a general comment, not throwing any darts. "Relevance" is a broad term, and were someone to say that Plame's working at the CIA was irrelevant, one could say in rebuttal, "Well, if she worked at Home Depot, then we wouldn't be having this trial, so in some sense, it is relevant."

I've seen persistent misunderstanding (and sometimes, I think, deliberate misapplication) of how the words "relevant" and "material" play in various aspects of this criminal prosecution - that's all I'm saying. It's not possible to remedy those (misunderstandings or deliberate misapplications), so I mostly joke around about the subject.

[cboldt]

-- "there is a document that resulted from CIPA asserting Plame was covert" --

Got a cite for that proposition?

[Jeff]

I don't know that Fitz is in narrow of a corner as Jeff suggests.

Looking back at Fitzgerald's 11-15-06 response to Libby's motion in limine regarding VPW's employment status, you might be right. Fitzgerald at least is trying to argue that he's not going to prove that she was actually classified because he doesn't need to either for motive or for materiality of the investigation.

But this stuff may come in anyway in light of (what we've now learned is) Libby's intention to challenge the materiality of his allegedly false statements to the investigation.

[Jeff]

Oh yeah, one other thing, not surprising but still interesting. Fitzgerald's 11-15-06 thing on VPW's employment status categorically asserts at 8n2:

These reporters [i.e. Russert, Miller, Cooper] were not made aware of any such information [known to other government officials regarding Ms. Wilson's employment] prior to their conversations with defendant.

Now, this is clearly a screw-up by Fitzgerald, but it's an uninteresting screw-up: Cooper was made aware of such information by Rove prior to his conversation with Libby. Beyond that, though, it's more interesting with regard to Russert and Miller, since Libby is almost certainly going to push the idea that Miller had such information prior to her conversation with Libby, and perhaps he'll do the same with regard to Russert. So it's most interesting to have this assertion from Fitzgerald with regard to Miller.

[Mary]

That is, in fact, just what Fitzgerald has said. Or at least, he is not disputing that the president has the power to declassify, including for the way it was used on July 8.

Jeff: I agree with you that there is the separate issue of whether or not Libby's disclosures, prior to the 8th, were authorized. Whether they were or were not, though, is outside of the Spec Pros. charging mandate and the narrow jurisdiction Walton determined, in the Motion to Dismiss, was transferred. So even if Libby wasn't authorized, Fitzgerald couldn't charge him on that misuse of classified info (his mandate is to investigate the leak of "specific" classified info and any violations of federal law arising out of that investigation - not leaks of other classified info that predated his investigatio). Which means that is a bit of an esoteric argument too and IMO Walton will be reluctant to let the Spec Pros team push on that too much. It is prejudicial to try to nail Libby for bad acts that they can't charge him with in front of a jury considering a separate matter. So IMO, what will go in on that will be fairly limited, unless Libby opens a door.

So I am still more interested in the fact that the Spec Pros continue to only say they will "not dispute" (which is very different from agreeing - which is a resolution issue) that Libby's leak of cherrypicked info for the political purpose of planting a misleading story with an "in the pocket" reporter was authorized. Both points are esoteric in the charging sense and it would be ez for the Spec Pros crew to take this issue off the table - but they haven't. IMO, that certainly leaves it up as fair game for a Congressional investigation into abuse/misuse of classification/declassification authority. So it's still the more interesting point to me - ymmv and if your focus is on the specifics of what Libby can be nailed with, your point is probably more interesting. I tend to look at this all as more a matter of what Bush (not CHeney, not Rove - but the Decider himself) has done.

[Mary]

EW - I don't believe you are correct on the statement that the POTUS cannot declassify for "individual components of intel [that]belong to other functions" The head of NSA cannot declassify something that even someone with much lesser rank in CIA classified; but the POTUS can - I think that is pretty spelled out in the directives and is inherent in the establishment of the Executive Branch chain of authority. You have a dicey situation where a Congressional investigation or staff GENERATES (as opposed to examines) info that is or could or should be deemed classified, but within the Exec Branch, all intel classifications are subject to Presidential authority to declassify IMO from the Exec orders.

I'm fairly sure the reason everyone is staying away from it is that it presents a very unique Separation and limits on powers issue. In general, under the law anyone who has the discretion to do or not do something (like a Trustee investing funds or not; a President giving a pardon or not; a policeman writing a ticket or giving a warning or neither; a prosecutor deciding to charge a crime or not; an administrative agency determining which places of business to investigate and which to not, etc.) that discretion can read as absolute and yet still be subject to limits under two theories. One being abuse of discretion and another being misuse of discretion.

Discretion to take or not take an action is a public trust and while the bar is high, there is a bar. If, for example, it can be proven that a prosecutor charged crimes SOLELY for poltical purpose; or if a trustee with unfettered investment discretion invests in a manner that no reasonable person could justify - even without a "bad purpose" in the second situation -then you could have claims for misuse (in the first) or abuse (in the other) of discretion.

You primarily see these equitable theories raised in administrative law, trust and fiducuciary settings and on rare occasions within the court system itself with regard to discretionary actions by a lower court.

So I'm pretty sure that everyone is staying away from it bc it opens the can of worms of breach of duty by the President of the United States. Intentional (misuse) or unintetional (abuse)(although sometimes they get interchanged). ANd also bc no one with the Spec Pros has a mandate on it and really its not likely that anyone with the AG's office ever would have - it's properly a Congressional review matter I believe.

[emptywheel]

Mary

Actually, I think you and I agree on this issue, as to Presidential power.

cboldt

Working on it.

[emptywheel]

cboldt

I overstated wrt the word "covert," but Libby does have two summaries of her status, which surely support the claims Fitz made in the indictment (otherwise Libby would have said so). Per this filing:

...allowing the government to withhold from Mr. Libby all information related to Ms. Wilson's employment status and any damage that may have been caused by disclosure of that status, save for two cursory "summaries" addressing each of those topics.(4-5)

Libby then goes on to cherry pick from some of the documents he did get (which reveals he got more than he let on in the rest of the filing), arguing they suggest Plame's status may not have been so clear--yet he does not make that statement, which which he surely would have if the entire documents supported the argument.

In other words, Libby has some documents. He doesn't have anywhere near the detail he'd like, to be able to challenge what he sees in the summary. But even though he has information that would seem to contradict the summary, he stops short of arguing directly against the summary.

[cboldt]

-- "I overstated wrt the word "covert,"" --

Fair enough. It would be a big deal indeed, if Fitz had asserted that Mrs. Wilson was "covert," ostensibly invoking the definition of IIPA. He's studiously avoided going one way or the other on that, thereby fueling rampant partisan speculation on both sides. ;-)

-- "even though [Libby] has information that would seem to contradict [Fitzgerald's summary that asserts Mrs. Wilson's status at the CIA was classified], he stops short of arguing directly against the summary" --

He wants to challenge the contents of the summary, or in a sense, put the government to the burden of proving that Mrs. Wilson's employment with the CIA had some sort of "protected" status. I think he's been searching for reporters who knew it, or other evidence that shows "common knowledge," as a way of illegitimizing the investigation. That theme has been steady since Miller and Cooper were compelled to testify, many months before Fitz handed down an indictment.

Anyway, I don't see clear signs that he has evidence that would convincingly rebut "the legitimacy of the investigation" (e.g., 100 people outside of the government knew that Mrs. Wilson worked at the CIA) - or if he does have that sort of evidence, he's saving it up for bringing a malicious prosecution case against the government.

I figure he's a good soldier for the administration, but will put up a good fight against falling all the way down on his sword. I seriously doubt he'd mount a malicious prosecution claim, and I'm sure he's in tune with the political ramifications of being bluntly honest.

[Carl Heylin]

Emptywheel, after reviewing this document you have kindly posted I must say that you are doing an incredible disservice to your readers by making it appear that there is a big player here who has been given immunity. See www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm00717.htm

If you look at federal statutes you will notice there are various types of immunity in federal criminal cases, none of which would apply to a key player in a drama such as this. You should really consult the expertise of a federal prosecutor or even an attorney before speaking about this with such authority and expertise.

Blanket immunity is rare. A simple search of the most well known federal criminal cases establishes this.

when it comes to the law you and the readers would best be served by conducting research

[Carl Heylin]

again, in regards to who is testifying we would know and will know when the witness list is produced which will likely be issued a week or so before trial begins. this is how it works. it is untrue that we would know anything at this point because the situation is fluid. there is no doubt that Mr. Rove will be testifying. Absolutely.

[cboldt]

-- "there is no doubt that Mr. Rove will be testifying" --

That would be a shift in the prosecution's early-on stated plan.

Because the government does not intend at this time to call three of these individuals -- Mr. Tenet, Mr. Hadley, and Mr. Rove -- defendant is not entitled to discovery based on the need to prepare to cross-examine those individuals.

Of course, that doesn't preclude Libby calling Rove for his defense - but it seems Rove doesn't help Libby's memory defense much.

On the other hand, if Rove has agreed to testify for the prosecution, it would make for an outstanding news headline, and would certainly up the pressure on Libby to enter into a plea bargain.

[emptywheel]

Carl

Two things. First, I'm not sure what basis you're using for labelling someone "a big player"? One of my assumptions here is that you don't give immunity in exchange for getting to a lesser player/crime. So that implies that anyone who might have immunity would be less important than Libby or have done something less compromising (and my conspiracy argument--which is the kind of thing they used repeatedly in Iran-Contra--would suggest it might simply be tangential association). Further, I wouldn't call either Ari or Martin "a big player" here, since both were just implementing the communications strategy of others. The term "big player" comes from you--it's not something I mentioned at all.

And, as cboldt has pointed out, Fitz has said explicitly he doesn't intend to call Rove. Granted, that was before Rove received word he would not be charged. Nevertheless, if Rove were to be called, it likely would have shown up in the discovery process, since so many of the decisions made during that process were contigent upon Karl not being called. We known witnesses were discussed in the December 19 hearing, and my arugment is that, if Rove were to testify, his testimony would likely (though not definitely) be one of the ones discussed.

[cboldt]

-- "if Rove were to be called, it likely would have shown up in the discovery process" --

I haven't carefully played this notion through all the pleadings and facts, but I think it's possible for Rove to be a government witness today, even though Fitz had no plan for such in April last year. My intuition is that, technically, it's easily possible.

The pleadings on the discovery process ran their course early on, and may well have provided Libby with all of the Rove stuff that wasn't Brady or Jencks. And it's highly likely that the intersection of Rove with Brady material is the null set, making no obligation to turn anything additional over, if (and at the point in time) the prosecution changes it's mind about calling Rove.

Rove immunity in exchange for testimony would explain a number of oddities - "Why wasn't Rove charged?" being at the top of the heap.

Anyway, pure unadulterated speculation on my part. My gut reaction on hearing "immunity" was "It sure would be a hoot if Rove got immunity for perjury."

[Carl Heylin]

There is no doubt that Rove will remain on the prosecution list, whether he testifies or not is an entirely different story. That is standard practice in federal criminal cases. As a prosecutor, you do not want to say categorically that you do not intend to call a witness to testify so you simply leave this person on the potential list of witnesses that may be called if only as a way to refute the defense or to paint the defense into a corner. I shall check to see if such a list has been produced. I do have associates who may have access to such files if they have been made available publicly.

[cboldt]

-- "There is no doubt that Rove will remain on the prosecution list" --

He was expressly off the prosecution's list in April. So it's not remain on, putting Rove on the prosecution's witness list would represent a newsworthy event.

-- "I shall check to see if such a [witness] list has been produced" --

They have been. Fitz produced his witness list (for the prosecution's case in chief) on December 22, and Libby produced his on January 2 or 3.

[Carl Heylin]

another point: The absence of the letter sent to Mr. Rove purportedly removing the uncertainty of his legal status most likely includes language requiring Mr. Rove's cooperation and/or any other tidbits that would allow him to remain out of legal jeopardy.

I do find it quite interesting and a tad bit bizarre that seven months has passed an nary a reporter has secured this letter. Interestingly, David Corn was interviewed on Air America I believe and he was specifically queried about whether he has seen the Rove letter. Mr. Corn said he had not.

Now, wouldn't it be interesting and make for a compelling story if such a letter indicated at the bare minimum Rove was/is required to "cooperate" or even possibly testify?

I will try to steer clear of entering into the realm of conspiracy, however, there is a sealed indictment, the one that others have written about, that remains sealed seven months beyond its filing date. Coincidence? Perhaps.

Just food for thought

[cboldt]

Just one more thought - it's also possible that Rove is not part of the prosecution's case in chief, but is "held in reserve" as they say, in case the defense opens up an issue where Rove's testimony would be probative. If that's the case, I would expect the contingent possibility of Rove testimony has been communicated to Libby for him to ponder.

[Carl Heylin]

would you direct me to this list? Many thanks.

[Carl Heylin]

Emptywheel: a very well thought out argument. I stand corrected. I am looking forward to reading your book! Have you entertained the thought of turning it into a screenplay? it would make quite a movie!!

[cboldt]

-- "would you direct me to this list?" --

Would if I could. My assertion is based on the parties' public promises to produce Jencks material (statements of witnesses in case in chief) by the dates I noted - Dec 22 for the government, Jan 2 for Libby (I give Libby to Jan 3, because "business was closed" on Jan 2). Libby referred to Jencks material in a recent filing, so he has the list of government witnesses - and that is where the fact came out that one of the government witnesses had been immunized. But the parties haven't made the lists a matter of public record.

[Carl Heylin]

very good point indeed. What a hoot if Judge Walton were to allow audio of the trial to be released daily.

[Carl Heylin]

I see. Whatis your opinion or the opinion of others that this letter sent to Mr. Rove was included in discovery?

[emptywheel]

One point on Rove.

I agree he is not excluded from the possible list of witnesses (trust me, I'd have fun if he were testifying). Though I do think it significant that signs of someone with immunity (such as Wells' affadavit) precede the time when Fitz said he wouldn't call Rove.

[looseheadprop]

FreePatriot
Re: Liby sentencing concerns. The sentences you lister are the MAXIMUM sentences that Libby could face. They are not the actual sentences he is looking at. Under the federal sentencing guidlines his sentences could vary wildly from those numbers you listed. At Level I, he could be looking at less than 6 months. When you move to tthe guidlines calculation phase it matters very much how many counts you have been convected of (along with lots of other factors)

[cboldt]

-- "What is your opinion ... that this [immunization] letter sent to Mr. Rove was included in discovery?" --

It's not opinion, it's conjecture. The first conjecture is that there is immunity to Rove. Assuming there is, I doubt that an immunity letter from (when? August?) was produced in the course of compelled discovery (in April, May). But if Rove does have immunity and is held as a possible witness, I believe the immunization letter would be produced to defense by now. If the letter is not technically Jencks material (if Rove is not part of the prosecution case in chief), as a practical matter of surviving appeal if Rove is a back-up or possible witness.

[looseheadprop]

EW
Don't put too much stock in the facts that the Jury Instructions say "immunized witnesses" plural.

They are adapter from a book called "Pattern Jury Instructions" and the title of each instruction is generic.

[emptywheel]

LHP

I'm not--in previous hints of immunized witness, with the exception of the most recent filings (just before the holidays), the suggestion has been witness, singular.

If they added ROve (hypotheticall after the discovery phase, when Fitz said no Rove), then it might make plural. But I'm going to assume that it's singular.

[Watson]

Does a potential Congressional subpoena really preclude a Libby pardon?
Wouldn’t Libby stonewall a subpoena by asserting a significantly expanded BushCo interpretation of executive privilege?
Libby’s motion to quash a subpoena would presumably be supported by Roberts, Scalia, Thomas and Alito. Libby would need one vote from Breyer (68), Ginsburg (73), Kennedy (70), Stevens (86) or Souter (67) - or his/her replacement/s (ages in parentheses).

[Rayne]

EW 09:52 -- in regards to declassification, I guess it returns back to the nebulous p*ssing match that's been in suspense between CIA and White House/OVP, even though they are all under Executive Branch. The question about the status of any supporting intelligence contained in the NIE, or Plame's employment, goes back to the interpretation of EO 13292 and the specific term, "original classification authority". I don't see how any of the principals to date in the Plame case qualify as "original classification authority" in regards to any classified content in the NIE or Plame's employment if they were not actually in a direct, supervisory role to resources either obtaining the intel, or Plame's employment manager, hence the CIA's determination there had been a crime.

(Note to self: I wonder if a letter to the Senate Intel Committee might be worth my time, asking about clarification on declassification...)

[emptywheel]

Rayne

Maybe you should email that Levin guy. He seems to be pretty smart!

[Rayne]

EW -- already got a small book I'm going to send him on topics I'd like him to cover.

Oh yeah, and a copy of that book by that Wheeler girl; I figured I'd loan him a copy.

;-)

[Prissy Patriot]

About Rover...I'm of the opinion Fitz gave him a proffer agreement to continue getting info from him.

From Find law To Proffer Or Not To Proffer? White Collar Crime
Why would you ever want to proffer? Because, and only because: 1) you have exposure; 2) indictment is a foregone conclusion if you don't work out a plea deal or immunity agreement; 3) you want a plea deal or immunity agreement; and, 4) the prosecutor will not give you either without first hearing your proffer. Even in this scenario, as noted above, proffering is a high-risk venture.

[Carl Heylin]

good morning.

have you seen the newsweek story about Valerie Plame? The CIA is not allowing her to write about her undercover work which may threaten her book contract.

[Tom Maguire]

Ari would face slightly more jeopardy than Armitage in leaking to Pincus, having been told by Libby that Plame's identity was "hush hush," so it is possible he simply wanted immunity from any IIPA prosecution.

Worth noting - the WH employees were told to sign waivers and cooperate with the investigation (i.e., no Fifth) or face dismissal.

Ari had already left the Admin as of July 14, 2003. So why in the world would he have testified without an immunity agreement (if he had leaked to Pincus, as I suspect)? Well, unless he is a Great American...