Plamemania: The Evidence, the Cooper Charge

by emptywheel

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In an effort to lay out what to expect from the Libby trial, I'm going to outline the charges against Libby along with the evidence we know (or suspect) to exist relating to those charges. IANAL, so I'm not going to treat the quality of that evidence. But this is what we know to exist so far (feel free to add in bits I've missed). I'll treat the false statements and perjury charges in pairs, starting here with the charges relating to Libby's July 12 conversations with journalists, particularly Matt Cooper.

The Charges
These charges, count three and count five in the indictment, both relate to what Libby said when he told Cooper (and, for the perjury charges, other journalists) that Valerie Wilson worked at the CIA. This is what Libby claimed to have said to Cooper in his grand jury testimony:

Q. And it's your specific recollection that when you told Cooper about Wilson's wife working at the CIA, you attributed that fact to what reporters –

A. Yes.

Q. – plural, were saying. Correct?

A. I was very clear to say reporters are telling us that because in my mind I still didn't know it as a fact. I thought I was – all I had was this information that was coming in from the reporters.

. . . .

Q. And at the same time you have a specific recollection of telling him, you don't know whether it's true or not, you're just telling him what reporters are saying?

A. Yes, that's correct, sir. And I said, reporters are telling us that, I don't
know if it's true. I was careful about that because among other things, I wanted to be clear I didn't know Mr. Wilson. I don't know – I think I said, I don't know if he has a wife, but this is what we're hearing.

Libby testified that he told Cooper he had heard of Plame's CIA employ from reporters. And he testified that he told Cooper he didn't know whether that fact was true or not.

But Fitzgerald will argue that Libby simply confirmed to Cooper that Plame worked at the CIA, offering no mention of how he knew it nor of whether he knew it to be true or not.

LIBBY did not advise Cooper on or about July 12, 2003 that reporters were telling the administration that Wilson’s wife worked for the CIA, nor did LIBBY advise him that LIBBY did not know whether this was true; rather, LIBBY confirmed for Cooper, without qualification, that LIBBY had heard that Wilson’s wife worked at the CIA;

The charge is important for Fitzgerald because, if he can prove it, it shows that Libby deliberately leaked Plame's identity to at least three journalists (Cooper, Judy, and an unnamed journalist whom Libby appears to have claimed was Glen Kessler), then made up a story after the fact to discount the deliberate aspect of the leak. That is, this alleged lie might prove a concerted campaign to leak Plame's identity that Libby subsequently tried to explain away.

Fitzgerald has, at a minimum, the following pieces of evidence to support this charge:

Matt Cooper's testimony
Matt Cooper will testify that, after Libby offered an on-the-record quote distancing Cheney from Wilson's trip, he went on to confirm that Plame worked at the CIA. According to Cooper, he did so with no caveats about learning that fact from other journalists.

On background, I asked Libby if he had heard anything about Wilson's wife sending her husband to Niger. Libby replied, "Yeah, I've heard that too," or words to that effect. Like Rove, Libby never used Valerie Plame's name or indicated that her status was covert, and he never told me that he had heard about Plame from other reporters, as some press accounts have indicated.

It is unclear what kind of notes Cooper has about this conversation; but according to Libby's lawyers, they don't include any mention of Plame, on which basis they seem to intend to claim that Libby didn't mention Plame at all.

Mr. Libby did not mention that he had heard that Ms. Wilson worked at the CIA.

I don't know how reliable Cooper will be as a witness. I get the feeling that Cooper (and Time) don't want to be the witness that sends a high level administration official to jail. Also, there is, Judge Walton tells us, one detail that changed in Cooper's drafts recounting his conversations with Libby.

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

[snip]

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

[snip]

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

If this is a difference in Libby's wording: "I've heard that too," then it may not be that damaging to Fitzgerald's case. But if it relates to whether he heard from journalists or not, it would discredit Cooper as a witness.

Judy Miller's testimony
The false statement charge relating to this alleged lie mentions only Matt Cooper. But the perjury charge mentions Libby's conversations with other journalists. Presumably, that's because Libby made the same claims as he did about the Cooper conversation more generally about what he said to journalists.

Q. And let me ask you this directly. Did the fact that you knew that the law could turn, the law as to whether a crime was committed, could turn on where you learned the information from, affect your account for the FBI when you told them that you were telling reporters Wilson's wife worked at the CIA but your source was a reporter rather than the Vice-President?

A. No, it's a fact. It was a fact, that's what I told the reporters.

So, on the perjury charge alone, Judy may also serve as a witness to what Libby "told the reporters." It is unclear whether her testimony directly addresses the issue of how Libby discussed Plame, particularly whether he claimed to have learned of it from journalists. This is what Judy wrote wrt their July 12 conversation, the one relevant to the perjury charge.

I told Mr. Fitzgerald I believed that before this call, I might have called others about Mr. Wilson's wife. In my notebook I had written the words "Victoria Wilson" with a box around it, another apparent reference to Ms. Plame, who is also known as Valerie Wilson.

I told Mr. Fitzgerald that I was not sure whether Mr. Libby had used this name or whether I just made a mistake in writing it on my own. Another possibility, I said, is that I gave Mr. Libby the wrong name on purpose to see whether he would correct me and confirm her identity.

I also told the grand jury I thought it was odd that I had written "Wilson" because my memory is that I had heard her referred to only as Plame. Mr. Fitzgerald asked whether this suggested that Mr. Libby had given me the name Wilson. I told him I didn't know and didn't want to guess.

Of course, Judy testified they had spoken about Plame twice before, once on June 23 and once on July 8. Judy leaves open the possibility that Libby was uncertain of her CIA employ on June 23.

As to the question mark, I said I wasn't sure what it meant. Maybe it meant I found the statement interesting. Maybe Mr. Libby was not certain whether Mr. Wilson's wife actually worked there.

But she describes being told definitively on July 8 that Plame worked at WINPAC.

My notes contain a phrase inside parentheses: "Wife works at Winpac."

Given the two earlier mentions of Plame, Fitzgerald might be able to argue that Judy took Libby's later comments about Plame as verified truth, rather than gossip passed along from journalists.

Judy may not (!?) be a credible witness, either. Her testimony appears to have stayed very close to her notes. But Walton reveals that the drafts of her own tell-all, as well as the NYT tell-all, may have evidence that can be used to impeach her.

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

Further, if Judy testifies to details beyond what she said in her grand jury appearance (particularly regarding her knowledge of Plame's identity and her attempts to publish an article about it), other materials requested by Libby (relating to a conversation with the NYT's lawyer admitting she had had many conversations about Plame, as well as NYT documents referencing Plame), may become admissible as evidence to impeach her. In addition, they plan to use the very vagueness of her testimony--the very thing that may have protected Libby and others from greater jeopardy--as a way to claim she's an unreliable witness.

Cathie Martin's testimony
Cathie Martin serves as a witness to this charge in two ways. First, Libby's lawyers have revealed that Martin--and Libby's personal assistant Jenny Mayfield--were present when he called Cooper.

For example, regardless of whether Mr. Cooper chose to disclose the details of his conversation with Mr. Libby to the government, Mr. Libby could not have assumed that he could falsely represent the details of that conversation with abandon.Mr. Libby could not have assumed that he could falsely represent the details of that conversation with abandon. This is because two other witnesses were present for that call: Cathie Martin, Assistant to the Vice President for Public Affairs, and Jenny Mayfield, Mr. Libby's personal assistant. Obviously, Mr. Libby could not have expected that either Ms. Martin or Ms. Mayfield would refuse to cooperate with the investigation or testify falsely.

We have no idea what Martin (or Mayfield) has testified to wrt this conversation, though I kind of suspect that having Martin, at least, as a witness to corroborate Cooper's testimony is one of the reasons Fitzgerald brought the charge as it specifically relates to Cooper--because he had a third (and presumably fourth) witness to the content of the conversation. Though I also suspect that is why Libby's lawyers want to claim that Libby didn't mention Plame at all--because given the descriptions of this conversation, Martin and Mayfield could only testify to hearing Libby say "Yeah, I've heard that too"--they wouldn't have heard Cooper ask about Plame (unless he was on a speaker phone or something). So Libby's comment could be presented as not referring to Plame at all. Claiming that Libby didn't say he heard about Plame is a way to turn this into a claim that pits Libby's word against Cooper's, in an attempt to minimize the number of witnesses against Libby.

But Martin may have more to say about the content of Libby's conversations on July 12. That's because she was present for the discussion aboard Air Force Two at which she, Dick, and Libby discussed how they would respond to journalists' inquiries (including, specifically, Cooper's) about Wilson.

On or about July 12, 2003, LIBBY flew with the Vice President and others to and from Norfolk, Virginia, on Air Force Two. On his return trip, LIBBY discussed with other officials aboard the plane what LIBBY should say in response to certain pending media inquiries, including questions from Time reporter Matthew Cooper.

This is the meeting, remember, where Cathie Martin was pulled off of point-person duties with regard to the Wilson response, and Libby took over. Shortly after this conversation, Libby called "several" journalists and told them about Plame. I'm guessing, but I strongly suspect there is something that transpired at this meeting that supports the false statements and perjury charges relating to the July 12 conversations.

Other Evidence
Other evidence to support these charges might include Jenny Mayfield's testimony or Libby's own notes. I doubt Glenn Kessler will be called (because, according to reports, he testified that he and Libby didn't speak of Plame at all).

Up next: How Libby will respond to this charge.

 

Comments

[Jeff]

The charge is important for Fitzgerald because, if he can prove it, it shows that Libby deliberately leaked Plame's identity to at least three journalists (Cooper, Judy, and an unnamed journalist whom Libby appears to have claimed was Glen Kessler)

Unclear how the fact that Libby testified that he told a third journalist - almost certainly Kessler - on July 12 about Plame in a very innocent context and only as a matter of the merest hearsay from journalists implies that he deliberately leaked Plame's identity to a journalist beyond Cooper and Miller. Kessler testified, apparently, that the Wilsons did not come up at all in his conversations with Libby. So where's the third leakee coming from?

On the really substantial difference between the story Libby told and the story the reporters told, including the very very innocent context in which Libby himself brought up Plame, according to Libby, I believe Tatels' opinion is a really good source.

[Swopa]

And what, pray tell, did Tatel say in his opinion?

[Jeff]

Not being precious about it, transcribing from a pdf (and I don't know how to do otherwise) is a pain in the ass. The key bit is on pp. 32-33 of Tatel's opinion:

Libby called several journalists, including Cooper and Miller. (I-202-203.) As Libby tells it, Cooper, whom he reached first, asked him why Wilson claimed Cheney had ordered the trip, to which Libby responded, "[Y]ou know, off-the-record, reporters are telling us that Ambassador Wilson's wife works at the CIA and I don't know if it's true. . . . [W] don't know Mr. Wilson, we didn't know anything about his mission, so I don't know if it's true. But if it's true, it may explain how he knows some people at the Agency and maybe he got some bad skinny, you know, some bad information." (I-203-06.) According to Libby, Miller, too, said something that "triggered" him to mention that "reporters had told us taht the ambassador's wife works at the CIA." (I-207-09.)

Then combine that with the fact that Libby testified that he thought Wilson to be fully qualified for what he did, and didn't think about the possibility that Wilson was sent on his trip because of his wife until after Novak's column. And you get much more than just the idea that Libby said he'd heard about it from reporters, whereas Cooper testified Libby just said he'd heard that too.

[emptywheel]

I'm assuming you're referring to this?

Libby called several journalists, including Cooper and Miller. (I-202-03.) As Libby tells it, Cooper, whom he reached first, asked him why Wilson claimed Cheney had ordered the trip, to which Libby responded, “[Y]ou know, off-the-record, reporters are telling us that Ambassador Wilson’s wife works at the CIA and I don’t know if it’s true. . . . [W]e don’t know Mr. Wilson, we didn’t know anything about his mission, so I don’t know if it’s true.

But if it’s true, it may explain how he knows some people at the Agency and maybe he got some bad skinny, you know, some bad information.” (I-203-06.) According to Libby, Miller, too, said something that “triggered” him to mention that “reporters had told us that the ambassador’s wife works at the CIA.” (I-207-09.)

In contrast, in a deposition limited to Cooper’s contacts with Libby (see II-32-33, 107), Cooper said that he (Cooper) asked Libby “something along the lines of what do you know about Wilson’s wife being involved in, you know, sending him on this mission?” (II-53.) According to Cooper, Libby responded, “[Y]eah, I’ve heard that too” (II-54), which Cooper took as confirmation (II-81-91).

In other words, it has to do with an attempt to hide knowledge of Wilson's trip?

[emptywheel]

Oops, cross-posted.

I would love if we get proof out of this that Libby knew of the trip--someone did, either Libby, Hadley, or Armi.

[tnhblog]

What reporters is Libby referring to? Wasn't it Russert? Wasn't that the biggest lie of all?

[emptywheel]

tnh

I'll do the Russert alleged lie in a few days. This one is listed as a separate lie, though, in the indictment, and I'm trying to catalog what kind of known evidence there is beforehand.

[Jeff]

emptywheel

What makes you think there was a third reporter to whom Libby leaked?

As for Libby's story about Cooper, what's striking to me is that Libby's story is essentially that Plame came up in a context that was not even remotely critical of Wilson. He brought up Plame by way of possible explanation for why Wilson was under a misimpression with regard to Cheney's role in his mission, and it appears to put the blame entirely on the CIA. There is not the least suggestion from Libby that she had anything to do with his trip or that there was anything untoward about his trip, for which he was perfectly qualified.

[Watson]

Are there indications or educated guesses about how Ms. Miller will perform as a witness?
Is her relationship to Libby still primarily one of solidarity? Or is it now antagonistic?
Can’t we assume that she will be hostile to Fitz, not least because he jailed her, but also because she views him as having thrown a monkey wrench in the neocon game plan?
Thanks.

[emptywheel]

Which perfectly matches their current stance, of course. I still think we might get evidence (from Ari?) that they knew of this. If, for example, Pincus' source was telling the truth--that is, that they knew, but dismissed Wilson's trip repot--we might learn of it.

I don't know that there is a third. I've been thinking a lot about Evan Thomas, though, why he wouldn't get subpoenaed? Mostly it's because they couldn't prove he had gotten a leak. Though looking back at his later work, he seems to have had a thing in for Libby.

But I also can't understand why Libby would say he leaked to several journalists--did he raise Kessler, too, to hide another "several" (Thomas?).

By the three, though, I was mostly talking about intent--w/o the caveats, then whatever Libby was doing looks to be a real campaign.

[Swopa]

But I also can't understand why Libby would say he leaked to several journalists...

I have a theory about that. ;-)

[emptywheel]

Watson

Honestly, your guess is as good as mine.

I think she only told half truths in her testimony. So she's screwed, because her story is shaky, but she can't recant her testimony (particularly not if Fitz perjury trapped her with the June 23 meeting).

But both Libby and Fitz know this. So the question is, who has more leverage over Judy. Will Judy sit nicely while Libby slams her credibility? Or will Fitz find some way to turn it on her--to use her lack of credibility to argue she and Libby are in cahoots. A lot depends on how much of the details pertaining Judy's unwillingness to testify are admissible, I think.

But like I said--your guess is as good as mine. It's one of the three or four things I'm most curious about with this case.

[tnhblog]

But if Libby is contending that he was merely relaying what he heard from reporters to Cooper and that itself is a lie, then doesn't that prove that the statments he made about his conversations with Cooper were lies as well? And doesn't that discredit every other aspect of his version of those conversations?

[cboldt]

-- "transcribing from a pdf (and I don't know how to do otherwise) is a pain in the ass" --

http://pacer.cadc.uscourts.gov/docs/common/opinions/200502/04-3138a.pdf

That particular pdf is easily translated to text, is amenable to cut and paste, etc.

[Jeff]

If, for example, Pincus' source was telling the truth--that is, that they knew, but dismissed Wilson's trip repot--we might learn of it.

Unlikely to come from this source, at least with regard to OVP, since Fitzgerald knows what that source knows, and is still saying that he's not contesting that OVP didn't find out about Wilson's trip until mid-2003. This remains a real puzzler to me, given how much Cheney was told about CIA working on his question, given that he asked again and his CIA briefer was told in response that a source was being debriefed on March 5 2002 (and presumably the briefer relayed this information to Cheney), and given that DO flagged the trip report for Winpac given the high priority of the issue. Perhaps Winpac didn't pass it on?

[pdaly]

emptywheel,

Your suggestion from the other day for everyone to go the original sources I took to heart. Tonight I reread Libby's indictment and was surprised to realize Novak's name, his article and how Novak came to know the details of Plame's CIA affiliation are NEVER mentioned. His infamous article is just alluded to ONLY ONCE and very INDIRECTLY by the inclusion of the date on page 10 line 28 of the Libby indictment:

"A major focus of the Grand Jury Investigation was to determine which government officials had disclosed to the media prior to July 14, 2003 information concerning the affiliation of Valerie Wilson with the CIA,and the nature, timing, extent, and purpose of such disclosures,..."

I assume Fitzgerald is doing this purposely to keep Novak and Armitage out of the story and away from Libby's lawyers, but I wonder if you could flesh out this tactic or point me to a prior post if you have covered these details already.

[cboldt]

-- "flesh out this tactic" --

Libby didn't leak to Novak, therefore conversation with Novak isn't a venue where Libby was "caught lying to investigators."

The indictment is a hard place to start, unfortunately. As you read it, force yourself to remember this is a "lying to investigators" case - and picture yourself as an investigator who holds Libby as a suspect.

"A major focus of the Grand Jury Investigation was to determine which government officials had disclosed to the media ... information concerning the affiliation of Valerie Wilson with the CIA"

Take Libby's alleged testimony as TRUE. Was he a government official who COULD NOT have disclosed to the media? Was he unaware that Wilson's wife worked at the CIA?

[pdaly]

Thanks cboldt. I agree Libby is not accused of leaking to Novak. But everyone knows Novak authored the article that started this case. It seems Fitz went out of his way however NOT to place Novak's name in Libby's indictment. Not being a lawyer I would have added it-- just curions what loopholes doing so would have created for Libby's defense, if any.

[pdaly]

'curions'<---that's a curious typo.

[Jeff]

In fact, it is in Libby's defense's interest to emphasize Novak, since Libby was not a leaker to Novak. Contrariwise, Fitzgerald has been pointing out in response to this effort by Libby's defense that in fact the investigation had to do with pre-July 14 2003 leaks from government officials to reporters, and was not solely focused on Novak. Which seems sensible to me, since it's not clear why the investigation should have followed the contingencies of which reporter leaked to by some pair of people managed to scoop which other reporter leaked to by someone else and others, i.e. Novak scooped Miller, in part because Miller couldn't get her editor to sign off on a story on the Wilsons she wanted to pursue and write.

[pdaly]

Jeff,
I agree. And it looks like Fitz has been very aware of this in the wording of the indictment.

Pre-July 14, 2003 is the delimiting date for investigating government leaks in this case, but I don't think Fitz ever explains why this date in Libby's indictment. That Fitz does not have to explain I find interesting and amusing. Glad to know it makes Libby's team have to work that much harder.

[lukery]

It's one of the three or four things I'm most curious about with this case.

and the others, marcy?

[emptywheel]

tnh

I think that's what Libby's lawyers would like you (or the jurors) to think. They're going to spend some time, if they can, suggesting that Libby also learned of Plame from Woodward, and in so doing, try to make the "I heard from journalists" story believable. But still, if he didn't say that to Cooper, he still lied or misremembered about what happened.

Of course, it'll make the memory defense more believeable, but hey.

[emptywheel]

The indictment is a hard place to start, unfortunately. As you read it, force yourself to remember this is a "lying to investigators" case - and picture yourself as an investigator who holds Libby as a suspect.

"A major focus of the Grand Jury Investigation was to determine which government officials had disclosed to the media ... information concerning the affiliation of Valerie Wilson with the CIA"

Take Libby's alleged testimony as TRUE. Was he a government official who COULD NOT have disclosed to the media? Was he unaware that Wilson's wife worked at the CIA?

I'm not sure what you mean, cboldt. Are you trying to make a case that the charges wouldn't have been central if Fitz didn't already suspect Libby? (Though, given that Libby had already told some implausible stories by the time Fitz came on board, that may be natural.)

[cboldt]

-- "I'm not sure what you mean, cboldt. Are you trying to make a case that the charges wouldn't have been central if Fitz didn't already suspect Libby?" --

Sort of. I'm saying that all the people in the WH were suspects, some more than others. The investigation was to probe leaks coming from the White House to the press corps. The point of the exercise is simply to understand the charges expressed in the indictment.

I just suggest the "backtrack into the shoes of an investigator" lens as useful for understanding the indictment and the prosecution that is following it. If you, the investigator, take Libby's testimony as true, what is your conclusion about Libby's awareness that Wilson's wife worked at the CIA? As an prosecutor, do you think all the misstatements were the product of flawed memory?

[emptywheel]

It seems to me once you find the notation about CHeney informing you of Plame's identity (not to mention the notation that he was supposed to leak something to Judy), I don't understand how you could avoid being suspicious.

Also, if State cooperated fully and quickly as a result of Armitage coming forward, the FBI may have had Grossman's testimony quite early, which would go to how obsessive Libby was on these issues.

In other words, I just can't imagine a scenario where these things wouldn't appear very suspicious. Add in Novak's changing story, and you've got reason to be suspicious, I think.

[tnhblog]

Did Libby ever testify, or is there any other evidence in the filings, that Woodward was the reporter that Libby got the info about Plame from?