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January 27, 2007


Happy Saturday! :D

Thanks for this post. Could you clarify something for me regarding CIPA and discovery?

If Rove really is called to testify, does there have to be CIPA hearings again pertaining to Rove or have his potential CIPA issues already been hashed out? I get the impression from your post that Fitz didn't give Wells everything he (Fitz) had re: Rove. I assume, if this is the case, that Rove would have to turn everything over at some point. What is the time frame for this?

I doubt Rove would testify about anything classified. He'd be asked to admit that he tasked Bartlett to start pointing people to Plame, and that he spoke to Libby about yadda yadda. What Libby got through CIPA was stuff on terrorism and whatnot.

Emptywheel, with all the news we've heard about the firing of federal attorneys and replacing them political operatives, why do you suppose the Bush/Cheney bunch has allowed Fitzgerald to proceed? It seems as though Fitz is turning over a lot of big rocks that they would rather leave unturned.

Emptywheel –

Nothing like watching a real live big time trial to learn about trials, is there? I suspect you’re even with Libby.

I have a comment or two on your speculation about defense witnesses - but first, I need to know whether you think that Team Libby has made an ABSOLUTE and IRRETRIEVABLE COMMITMENT to Libby taking the stand.

Here is why.

Among prosecutors, the practical test of the case for the prosecution is whether it forces the defendant to the stand.

The reason for that test is broader than just in criminal cases. As all trial lawyers come to know, their weakest case is the one they have to call themselves, for their clients. That is due to the Perry Mason factor: The nature of cross-examination.

To illustrate, I note a lot of disappointment how frail have been the memories of the witnesses called so far. It takes some getting used to, but that’s pretty typical in court cases. It’s mostly a function of collision of two natures, that of humans and that of cross-examination.

Witnesses, particularly those inexperienced at testifying in court settings, tend not to perform very well on the stand. We run our lives on ‘sliced information’ and assumptions about conversations. Many of us have never experienced, most of aren’t used to, and few except lawyers, are trained in exercising that level of precise discipline in running and recording our communications precision which is most compelling in a court setting. That becomes most obvious when a witness is ‘tested’ on cross examination, and even more so when the witness is ‘tested’ on cross examination by someone who has talent, skill and experience in shaking people on the stand on their beliefs in their memories – which would be Cline, Jeffress, and especially Wells.

And of, of course - Fitzgerald.

In civil actions, lawyers pretty much always have to call the defendant – or else the other side is allowed to argue that the reason the defendant didn’t take the stand is because he or she is hiding something. Not putting a civil defendant on the stand allows the other side to ask the jury to draw the conclusion that the defendant is hiding something that hurts the defendant’s case. It even allows the jury to conclude that the defendant is hiding the worse possible thing for them consistent with the rest of the evidence. And that can be pretty bad.

But that argument can’t be made against a defendant facing criminal charges.

As criminal lawyers gain experience (and generally it’s those who are the most successful in court who get the most opportunity to gain more experience – I hope that’s clear), they come to learn that NOT calling a client can be among the most powerful tools in saving the client from conviction.

Further, in the peculiar circumstances of U.S. v. Libby, that experience might become the governing principle, ASSUMING the object of the exercise in defending is to do the best one can do WITHOUT putting the defendant on the stand, hoping for the best scenario of acquittal, but being prepared to settle for a back-up scenario of encouraging the judge to make controversial rulings to argue on appeal, while advancing, or at least preserving, the best possible case for presidential pardon.

And while I think it is possible that you, who so often reminds us “IANAL”, may have every bit of criminal trial experience as Libby has, Libby has it all over you on working a pardon.

not being a law type, I am under the impression since Fitz is not going to call Rove as a witness, then Libby has not seen Rove's grand jury testimony. I think the best way to impeach Rove's credibility would be to present his ever changing testimony he gave in five appearances before the g.j. I think that Wells wants to call Rove and try to get an opening so he can get access to Rove's g.j. testimony and use it to discredit Rove and/or support Libby because I believe Rove was spinning the "reporters told me tale" and the "I've been having senior moments defense" to the g.j. too. I think that Libby feels that Rove's final truthful testimony to the g.j. has something damning about Rove and or Bush, and that Libby can make the white house believe that this info will come out in public court, that it might frighten Bush enough to give Libby a pardon.

Boy, did you do a good job of staying outwardly cool, calm, and collected, Marcy, on C-Span's Washington Journal Friday. You have a charming television presence, and a very clear manner of speaking. [I was wondering if you thought to ask WJ to answer their "Independent" phone line that morning, or to at least put their "Democrat" phone line back on the hook...!] I sure couldn't tell that you were a sleep-deprived first-time guest.

There were two main myths that York was able to promote without interference, thanks to the format, starting with his opening stab at pretending that the investigation was initiated solely as a hunt for a singular source who leaked to Robert Novak, and that even though that mystery was supposedly solved on Day One of the investigation, the investigation nevertheless continued - the reason for which the audience is seemingly invited to speculate about...

The second myth is of course the complicit media's favorite chestnut, that the Special Counsel has set some sort of horrible precedent by pursuing testimony from Cooper and Miller. This, despite the fact that the Special Counsel has demonstrated obvious and principled restraint with regard to charging offenses under the Espionage Act, to the benefit of every government official who discussed classified information with reporters in this affair. [A fact which was made clear a year ago in Fitzgerald's press conference.]

You were nevertheless able to get a very good explanation of the IIPA obstruction issue out, and called York's bluff with regard to the Novak-Libby conversation the week of July 6th (which appeared to ruffle York's studied nonchalance of a Very Serious Person manner). I also appreciated your description of the months-long CIPA process and the hours of work it meant for the Intelligence Community, in addition to those directly involved in the trial. All in all, very well done.

hey labdancer
you are a LOON!



Ari seems to be a bit of a mystery. Why was he given immunity under circumstances that Fitz may have considered "high risk", as one pub called it.

Any chance Ari wore a wire or made tapped phone calls, for Fitz, to any of his ole buddies at the WH?

This speculation/question is based on no information whatsoever - it's 100% made up! But any chance it could be true? Yes? No? Wouldn't that be a bit of a story!

Great post, EW... plenty of facts & guesses to mull over.

Here's my question about the whole David Gregory thing -- how does Team Libby "know" that Ari leaked to him?

As far as we know, Gregory didn't testify -- NBC fought the subpoenas for Russert and Mitchell, but we never heard a peep about Gregory. And hasn't Fitz succeeded in not sharing Ari's grand jury testimony? So.... who's left to tell Libby's attorneys about Ari's supposed leak to David Gregory?

The funny thing about Team Libby's quest for Rove and Fleischer's GJ testimony, by the way, is that they're trying to find some way to have Fitz turn over what they almost assuredly already know -- but, because of Scooter's alibis, have to pretend they don't.

Understand this. Libby's team is playing a big game with their witnesses, throwing a bunch of names out there--Cheney, Bartlett, Rove, Libby, Wilson, Woodward, and about 12 journalists to be named later. I really have no idea who will testify--remember that, even if Libby's subpoenas someone, they don't have to call that person as a witness. They may have subpoenaed these people just in case, for publicity reasons, to pressure the WH for a pardon--any number of reasons that may or may not mean they'll testify.

Apparently you are right again, EW. It looks like the legal leaking source on the Rove subpoena is expanding his repetoire. I wonder what prompted the additional information that sort of emasculated Isikoff's exclusive? ;)

"NBC News has also confirmed that White House deputy chief of staff Karl Rove has been subpoenaed to appear as a witness, according to a source familiar with trial. According to the source, who asked not to be identified due to the sensitivity of the case, the subpoena sent by Libby's lawyers is a "standard action," and it does not mean that Rove will be called to testify. "In fact, it is unlikely," according to the source."


If Rove testifies and then Cheney does too, how hard would it be for Fitz to recall Rover to the stand to make Cheney's perjury even more vivid ?

thanks Marcy, the coverage is just great!
I don't follow the issue about Gregory and the likely leak source, I haven't been following closely enough, what are the options here?

another question I had, is this trial going to further taint the jury pool for the future indictments?
two questions; do we know of any other immunity deals like Ari's, or of limited scope?
ooohh, three questions, has the information so far led to speculation about other similar charges to perjury, obstruction, lying to the FBI, etc..? It does seem we have some contradictions likely with a couple of these key witnesses. don't even want to consider IIPA charges, but it does seem as though folks are about to confirm that conspiracy with their testimony

EW -- I have a question about Precedent, current rules of Federal Practice, and, essentially whether Judge Walton is anything like Judge Sirica.

If we remember, at the verdict stage of the first Watergate Trial, (Jan, 1973, the Miami Burglers, Hunt, McCord and Liddy) Sirica had a number of Guilty pleas, plus two convictions, (McCord and Liddy), and at that point he took custody of all eight defendants, laid on very high bail, sent them to the DC Jail, and issued Provisional Sentences, which more or less began at 40 years. He made clear that final sentences would depend on cooperation with the Grand Jury, and he ordered the prosecutors to make regular reports to him. In essence, he did not believe the case had come anywhere near getting at the truth, and with guilty pleas and convictions, he was using his leverage to get additional truth.

We all know that except for Liddy who never cooperated, they all broke and answered GJ questions like crazy, and then McCord completely broke, wrote the letter to Sirica claiming perjury had been committed during the trial and named names, and that broke Watergate wide open.

So the question -- Is Walton getting into the frustrated mood that Sirica achieved during the first trial -- and would he do something similar? Are the Federal Trial rules today similar so as to allow the use of such leverage? Is Libby a Liddy or a Hunt-McCord? Looking at a maximum Provisional sentence and a stay in DC Central Jail while on appeal, would he Sing as Hunt and McCord did, or would he tough it out G. Gordon Liddy style?

I also would like to know if there has been any talk in the press room or around the court house about the Watergate Precedent regarding pardon talk. One has to remember that one of the impeachment charges against Nixon was Obstruction of Justice, and some of the statements of fact in that charge had to do with the promises of pardons made through lawyers to the defendents in that first Watergate trial. Any discussion of a pardon, to be valid, has to seem to come from the only person who has the power of pardon. Just observing and remembering that some folk around Bush ought to remember this stuff as well as I do.

If you remember, the pardon talk went from Nixon to Colson to Bittman who was Hunt's lawyer, and attorney for a couple of the Miami Burglers. The McCord promise went from Colson to one of McCord's phone tappers and then to McCord.

Just a few years ago I discovered how F. Lee Bailey got paid off for defending McCord at trial. It is in the extended version of Halderman's Diary. Nixon through Halderman let F. Lee know that he intended to let the price of Gold float from the 32$ per oz. to market rate. Halderman estimated Flee made about 850 thousand on that little secret. For that he was expected to keep McCord well shut up till pardon time. (too bad Rodino's Impeachment Committee did not have access to Halderman's Diary.) Anyhow, talk about Pardons if it seems to come out of the WH can be very very dangerous to No. 1.

More thoughts on the CM testimony. Wasn't one of the problems people have pointed out, is the he said/she said nature of the case. If this is the case, then shouldn't Fitzgerald have attempted to clarify this matter by asking Martin to confirm whether Libby said that he was hearing from reporters or whether he merely said "I've heard that too"?


I agree with everything you're saying--and that's why I think they're not putting Libby on the stand. Also understand that there are new details likely to be admitted into evidence--Libby's meeting with Novak and his obstruction with Judy--that would offer keen incentives for not getting on the stand. There is risk of further charges, beyond the incrimination of going on the stand in this case.

But I do think that Walton will make mightily sure that if Libby wants to make a memory defense, he's going to have to take the stand. I didn't include it in the post, but Walton said, "It would be suicide" to attempt a memory defense w/o calling Libby. And I think it not unimportant that Walton would be personally angry that Libby's team had misrepresented their intent to call Libby. Fitzgerald will try hard to prevent Libby from entering any details of the memory defense if Libby doesn't take the stand, and I think at this point, Walton is sympathetic to Fitz' position.

So the answer is, am I sure they're going to call Libby? No, I think it quite likely they'll try to avoid it. But I am sure that if they don't call him, the memory defense becomes largely moot, which may be why Libby's team appears to be thinking in terms of appealing the case rather than winning it here on trial.


I agree on all counts--though coming in as a defense witness, Libby's team wouldn't have the same access to Rove's testimony. That's what I mean when I refer to blind spots. They DON'T get the testimony if Rove is their own witness.


No, Libby's team got Ari's testimony on December 22, which is also when they learned the details they now know about Ari's immunity deal. This would explain the delayed discovery of Gregory. The implication in all the discussions about Ari's testimony is that he admitted to leaking something to a bunch of journalists. My point is just that it's not clear that he told them Plame's identity--and there's reason to believe not, given Well's fast and loose with facts.

But they are not so entitled with Rove, since he would be coming in as a prosecution witness. They're only entitled to thinks that are directly incriminating/exculpatory to Libby. There was one or two case in Iran-Contra, where the most damaging evidence against a defense witness was brought in by the defense who hadn't seen the witness' testimony and therefore didn't know of some damning comments the witness had made.


Contrary to reports, there has been no other discussion of deals that I've seen. The MSNBC that Armitage got a deal is, in particular, unlikely at best, given that we know Fitz told Armi he would not face charges in February 2006 (implying he did not have immunity) and also given that Armi himself said that he figured if he were punished he deserved it.

WRT Gregory, Libby's team wants to use him in their attempts to impeach Russert's testimony. So they're using the fact that he learned SOMETHING about Plame (though I'm rather convinced Wells oversold this)to suggest that Russert would have learned of Plame from him. But to do that, they seem to be playing with the date of Russert's conversation.


Brilliant question (of course).

First, the difference here will be that, if Libby is convicted, he will not have plead guilty. So he will still be entitled to an appeal. And the sense is that he will get that appeal. I strongly believe Libby will be able to stretch out this thing, at least until such a time when he might get a pardon.

As to explicit talk of pardon, interesting question. If there has been such talk, I'd bet it was Dick doing the pardon which introduces a nice wrinkle. Shrub has not, AFAIK, written an EO that also gives Cheney pardon power. So there would have to be a campaign of persuasion from Cheney to Bush.

What is the source for the Novak speaking to Libby the week of July 6th? I can't find it.

Emptywheel – Thanks for your clarification.

Also helpful were your response to ken and SharonW’s link to the MSNBC story. With due respect to SharonW [thanks], to me the most important passage in that story is this:

“Libby's attorneys argue that the jury should consider whether Fleischer's immunity deal gives him a reason to provide testimony that "will curry favor with the government. … Lead defense attorney Ted Wells argues Fleischer is in a "different position than any other witness in this case," and "may have issues where his credibility should be questioned because he has an arrangement."
Again: “Fleischer is in a different position than any other witness in this case.”

Those words are attributed to Wells, Libby’s lead trial lawyer – NOT some anonymous source, or a barely-disguised “lawyer on the case” over comp’d scotch and calamari.

Translation? Every witness in this case who isn’t named Lawrence “Ari” Fleischer please stand: No soup for you!

It’s on life support, but I’m almost dead certain Action Armitage never raised it. I come up well short of that with the Artful (Draft) Dodger Rove, but it’s possible even he neither offered nor sought it.

[I’m thinking Charlie Reigle’s idea of bringing back the draft has some merit, if for nothing else then for early detection of hypocrites posing serious risks to national security.]

Why not? Ask not ”Why not?”; rather, ask, “Why”?

Why would an able prosecutor offer immunity to a guy who, when he realized on reading Thing’s October 2003 story Thing may be about to nominate him as one of the “two senior administration officials” Thing wrote were his “original sources” for learning about Valerie Plame Wilson being a CIA “operative”, went straight away to his boss, Powell, who with him then called Taft, who in turn called Abu G, [who then told Bush, who then told Cheney, who then told Libby, blah, blah] never hired a lawyer, and said publicly he’s “ashamed” for his “gossip”? I sure can’t think why he’d get immunity.

Equally, why would an able prosecutor offer immunity to a guy whose testimony before the grand jury was so stinky the prosecutor ‘invited’ him back three times, who then had his lawyer wrangle one last chance, whose lawyer finally succeeded in getting him to tell the grand jury something that, as his lawyer thereafter successfully argued to the prosecutor, hardly an easy mark, was either (1) the truth, (2) close enough to the truth to suit the prosecutor’s purposes, or (3) a lie maybe, but if so, a lie so plausible that pursuing him before or while pursuing an easier target might not suit the prosecutor’s purposes, and in any event would immunize the prosecutor’s case from being undercut by anything he might do or say, cuz Lord knows that boy can spin a yarn! I sure can’t think why the word “immunity” would cause a single glia in my brain to flutter.

I wouldn’t dare attempt to get into the head of either Armitage or Rove, but here’s a thought:

It was Thing which spun a visit from CIA spokesperson Bill Harlow, a visit Harlow is reported to have made for the sole purpose of dissuading It from naming Plame, into a “source” for It’s naming Plame.

Oh so YOU say, waterdog! [I think he might have passed out, so far gone he couldn’t tell canine from waterfowl.]! What do you say? It admitted to doing that? How … diabolical! And It has the nerve to calls Itself a journalist, you say? Why, it’s nothing but … a … a cad! Is nothing sacred to this Thing? Egad … how low might It go?

So low that It even might take advantage of a so-called longed-for opportunity to interview with someone who considers It loathsome - like Armitage?

So low that It even might take advantage of an old acquaintance, even a Rat F**ker like Rove?

[I claim legitimate use pejorative, with full credit to its original publishers, Woodward and Bernstein in their “All The President’s Men”; and to reports repeated in the link which follows, suggesting that Rove graduated (magna cum laude, I would think) from the Donald Segretti School of Political Black Ops, a.k.a. rat f**king. Presumably Bartlett knows of the graduation ceremony.]


In practical terms for followers of U.S. v. Libby, since the defendant calling either Armitage or Rove to testify would ensure Libby’s conviction, obviate any illusion of legitimacy to appealing on the various esoteric grounds his defenders are cobbling up, and render him too toxic to appear even on a mere list of those presidentially pardoned, to say nothing of effecting a significant change to his romantic life, is committing suicide, I think Libby calling Armitage or Rove will not happen.

As I have posted before, the value of grand jury testimony at trial is chiefly [though not exclusively, as perhaps now may be brought home to Ms. Martin] to the lawyer conducting cross-examination. Both Armitage and Rove testified before the grand jury. If Libby were to call either, and either were to deviate in the slightest from what he said to the grand jury, before Fitzgerald asked his first question on cross-examination, the first thing he would do is reach for the transcript of the witness’ grand jury testimony - his spare hand poised over an indictment for perjury.

As someone here or elsewhere commented, when no one seemed able to get him for gangsterism, some bright light prosecutor nailed Capone for tax evasion. At this point, I foresee it taking many years before Fitzgerald tires of putting officials of the Bush administration in jail for perjury.

I don’t envy anyone on Team Libby; though well paid for what they do, they act for the trial lawyer’s nightmare client – a lawyer, publicly casting a green eye at a college drop out internationally infamous for prevarication, charged with perjury, rejecting any plea deal, in front of a judge who is telling him he is damned if he doesn’t go on the stand, and who knows he is damned if he does.

Parting shots:

(a) I’m convinced there was at least one conspiracy here, on the cover up. How does the saying go? Those who missed being indicted from Watergate are entitled to repeat their mistakes thirty years later and someone notices.

(b) Don’t you think it’s interesting that Woodward had in his list of questions for his interview of Libby on June 29, a list he sent to Libby June 23, a question on Wilson’s wife? I’m not terribly surprised Woodward hasn’t been able to recall what if anything Libby said in responding to that question; I’d be much more surprised if Libby failed to ask Woodward who on earth suggested such a thing to him.

(c) As loathsome as It is, you’d think that there would be someone out there who might see him as the Precious he really is, maybe someone in the State department who also had complete access to the CIA, someone with an interesting subject, some show and tell, a motivation, and a genuine fondness for spending time with such as It, thereby relieving the OVP of the prospect of a bill for fumigation.

(d) Horrible though he surely is, if for nothing else then for enabling his boss to “achieve power”, I think it is not at all necessarily the case that Rove leaked or conspired to leak.

(e) Horrible though he surely is, Rove is the prevaricater’s prevaricater, operating on the ultimate stage, so I think we’re as likely to all die from blue face as we are to see Rove facing charges from the cover up. If I’m wrong on one of these, please let it be this one.

(f) I’m having none of that “Ari told Gregory” crap. I’m not making bets on this [Betting is against my non-faith-based belief system.], but I can see Wells saying something like: “Did I say Gregory? I meant Dickerson. All those guys’ names sound the same to me. Damn, I made a mistake. Well, those things happen to the best of us. Did I mention I speak for Scooter?”

But I am sure that if they don't call him, the memory defense becomes largely moot, which may be why Libby's team appears to be thinking in terms of appealing the case rather than winning it here on trial.

I wouldn't say it becomes entirely moot -- Wells will still be able to argue that Libby "just forgot" while pointing to the "memory problems" of other witnesses. What Wells won't be able to do is use the "my client's memory failed on this detail and Plame and Rusertt, despite the evidence that my client pursued information about Valerie Plame, because that subject was so minor compared to all of these critical issues he was facing" defense.

But more to the point, Walton will instruct the jury to ignore all the various aspects of testimony related how important Libby's job was --- he will instruct the jury to use their common sense with regard to their own memory -- and Fitz will hammer home the fact that not only was Libby told numerous times about "wilson's wife", he also related that information to others and made inquiries specific to her before he alleged heard about Val from Russert "as if from the first time" and that he "didn't even know Wilson had a wife."

The memory defense is weak to begin with --- and well Walton instructs the jurors to ignore all the evidence concerning the "special" nature of Libby's job, they will get the message loud and clear.......

If Libby does not take the stand and the memory defense is out of play for the trial, then I hope by extension Libby would not be able to argue about CIPA substitutions during any potential appeal motion.

Finally got the 1/26/07 C-SPAN Washington Journal videa to run on my computer. Nicely done, emptywheel. I agree with pow wow above that you appeared wide awake. Not even a yawn. I don't think I could have hidden my sleep deprivation.
Hope they let you do another taping this week--without Byron this time. His perspective on the case is already overrepresented by the MSM.

But they are not so entitled with Rove, since he would be coming in as a prosecution witness.

emptywheel, in your January 28, 2007 at 04:19, I'm pretty sure you mean "defense witness", yes?

There is evidently some legal back-and-forth going on this weekend over Fleischer, his immunity arrangement and the possible introduction of the 1x2x6 article, which evidently prompted Fleischer to seek legal help, in the context of Libby's quest for immunity. cboldt has two motions in limine from Libby's defense on these topics.

Maybe this has already been discussed, but emptywheel's awesome write-up highlighted one of Fitzgerald's prosecutors indicating that Fleischer, upon reading the 1x2x6 article, did not believe he did one thing that 2 supposedly did - telephone reporters. This doesn't mean Fleischer isn't part of 2 - that story could have been, and probably was, imprecise or inaccurate in that regard (maybe the disclosures weren't or weren't all over the phone, or were in calls initiated by reporters). But it would be more evidence that Fleischer wasn't Pincus' source, since Pincus has indicated that his source called him.

Can we rule out Cathie Martin? Or not necessarily, if both sides have some incentive not to mention Martin calling Pincus? If it's not either, that would seem to raise Hadley, Bartlett and possibly even Cheney in the list of possible candidates.


It was a reference Wells made in opening (sorry, my liveblog skills were not yet finely tuned and I didn't catch it)--he says that Novak testified that he may have told Libby about Plame, so that therefore Libby had no reason to lie about Russert bc he could have found out about Plame from Novak on the same day. But since there are several other known inaccuracies in Wells' opening, I'd take this with a grain of salt for now.

We knew there was a conversation between them, though, going back to October, when it started showing up in filings--Libby's team seems particularly concerned about Fitz introducing details about Judy's and Novak's hesitancy to testify.


Yes, I'm increasingly convinced the Pincus source is someone who borrowed Martin's suggestions and made a call--Rove and Hadley are increasingly likely, IMO. So unfortunately, I'm not up a beer but may still be down a dinner.


Yes, thank you.


That's good, because by that point I was very very tired.

Did the judge actually say it would be "suicide" for Libby? I know you used that word in your live-blogging, but I wasn't sure it was a verbatim quote. It seems like the type of soundbyte that would show up in a news report, but I haven't seen it.

This morning I've been staring at Cathie Martin's handwritten notes submitted as evidence 1/25/07 by Fitz.
see http://www.usdoj.gov/usao/iln/osc/exhibits/0125/index.html Government exhibit GX541 second page among others.

FWIW, Martin seems to love her blue ink pen. Uses it everywhere--to proof copy and to take notes. The sudden switch to black ink when outlining ways to respond to criticism of Niger intelligence is eye-catching. The margins change, too, becoming narrower. Seems she was separated from her blue pen and couldn't stop to retrieve it. Had she left it behind when Cheney entered the room with Scooter and she was kicked out? Or was she suddenly brought in to see Cheney and in her haste left the blue pen behind? Her bolded OPTIONS where she retraced the letters in MTP, lEAK, pRESS, Op-Ed remind me of someone sitting in a lecture or one on the phone listening as someone else drones on.

Then it's back to blue ink. Martin has been reunited with her blue pen! The margins relax again.
(BTW, whose handwriting is on Government Exhibit GX528A "Handwritten notes July 12, 2003" from the Office of the Vice President? This handwriting is more angular than Marin's, but written in the same blue ink! Had someone borrowed Martin's pen? or is blue the prefered ink in OVP?)

I also noticed Martin writes in ALL CAPS names of Senior Administration Officials: VP, CONDI, HADLEY, SCOOTER, RUMSFELD.
She does not use all caps for Sanger or Harlow (Government Exhibit GX 521A). Those names are in cursive.
However, PINCUS is all caps and BOB WOODward is partial caps.

Of note, Martin is inconsistent with the letter I. She adds a friendly diminutive "dot" over the capital I on the names CONDi and PiNCUS but leaves it off 'CIA' and 'DIA'--someetimes adding serifs to the I in NIE. Martin also adds the dot to capital I in OPTIONS.

I would guess PINCUS and BOB WOODward are trusted in the OVP, Sanger and Harlow are outsiders.


Nice read. I was making some of the same kind of analysis myself. FWIW, Cheney didn't go into Scooter's office. He was on the phone. But they couldn't have Martin witness that side of the phone call, so they had to separate her from her blue pen.

Jim E.

Yes. That is verbatim. Walton absolutely did say "suicide."

Most of the journalists had trickled out by that point (some were running to make planes, for example), so there were probably only about 20 of us left who saw that. Ditto the point where Wells said, "we are probably going to be arguing this after the ... maybe arguing about this after the trial," (this one, in particular, I double checked with some reliable journalists, who are better at catching quotes) which sounds an awful lot like a concession that your case stinks for this early in the trial.

A few comments now that things are moving along.

There was so much conjecture and "HOPE" about all the possible meanings of this and that before the trial.

I remember all the hoopla about Martin being on the AF2 and hearing stuff. And all the counting of eggs that that hen would hatch. NOW we learn that she was in a different room from the big guys. Ooops. There went that conjecture. Sorta fizzled.

Now we have the same about this witness and that, and calling and not calling, and testifying or not, and the building in people's minds of giant mountains where perhaps there really are only little mole hills.

I assume that these lawyers, on both sides, are competent and have their own reasons for doing things. And some of them we don't know, and may not know until they write their books. Or we get the inevitable rehash from the Monday Morning quaterbacks.

And again, we get some strategy, as they interpret the very complicated law, and jockey for position.

And finally, I have seen nothing yet to indicate that Cheney and for that matter his lackeys were deliberately trying to "out" Ms Plame.

Thus far my previous comments that her outing was as much her's and Joe Wilson's fault for involving themselves in a political brawl, as anyone else who was trying to refute his comments, seem to hold. Mr Wilson is the one most at fault. He was the one who didn't protect his wife by being discreet. He wanted an Guest Op-Ed line. "Hey, look at me!"

Well they did.

From Newsweek Q&A with Dick Cheney:

Q: President Ford, his recent funeral—did it put you in a reflective mood about that period? Do you draw any parallels to now?
Dick Cheney: I was delighted to see the outpouring of tributes to his leadership ... and praise for the tough, tough decisions he made—in particular, for example, the pardon. I reflected back on where we'd been 30 years ago when he made those decisions and, obviously, suffered for it in the public-opinion polls and the press, and how history judged him 30 years later very, very favorably because of what he'd done. He had displayed those qualities of leadership and decisiveness, steadfastness, if you will, in the face of political opposition.

Q: Is there a parallel to now?
Dick Cheney: There may well be.

The Newsweek interview gives more evidence that Dick Cheney is not, in fact, human (depending on how one defines "some reaction"):

Q: And other comments—criticism from [Brent] Scowcroft about not knowing you anymore. People have gotten quite personal, people you worked with before. You wouldn't be human if you didn't have some reaction.
Dick Cheney: Well, I'm vice president and they're not.

One of the great standards of the mainstream media that bloggers should hold ourselves to is that you never introduce an acronym without telling the readers what it is unless it's as familiar as FBI or MTV.

What the hell is CIPA?

Jodi -- read the indictment. Again, if necessary.

You said, "...I have seen nothing yet to indicate that Cheney and for that matter his lackeys were deliberately trying to "out" Ms Plame."

That would be a different trial for a different indictment that has not yet happened. This trial addresses the five counts of perjury, false statements and obstruction allegedly committed by I. Lewis Libby, and not conspiracy by the VP and "his lackeys". Perhaps the obstruction -- sand in the umpire's eyes -- is the reason you have not seen solid evidence of conspiracy yet. Perhaps you also need to read (and re-read) Fitzgerald's post-indictment press conference to grasp that point.

You're doing a lot of Monday Morning quarterbacking of your own. If you have found evidence of Joe Wilson outing Valerie Plame, contact the DoJ and point it out. If you haven't, you're merely indulging in speculation -- the pot calling the kettle black.

Jodi - Your tone is that we're all mired in wishful, hopeful obsession with minute details and speculations which frequently don't pan out and that we should step back and see your "bigger picture" where you try to make the case that Plame's outing was no big deal in the first place.

Applying the same approach, what happens when you yourself zoom all the way out from your bigger picture to the indisputable whole picture that there was a conspiracy to fabricate evidence to justify a war which through some combination of incompetence and war profiteering has become an unmitigated disaster, and that there was another conspiracy to hide culpability for the original conspiracy. Whether or not specific laws were broken, everyone can see that this is exactly what happened.

It's this "whole picture" that supplies the motivation for most of us here to continue obsessing with details, hopes, wishes, and wild speculations.

But Jodi - what on earth is it that motivates YOU to obsessively sift through the same details in search of loopholes to give a pass to these people who are at best idiots and at worst criminals against humanity.

What is it about the Iraq War in which we're currently embroiled that to you represents an end to justify the means of trumping up a bogus Iraqi nuclear threat?

Presidential pardons... in order to pardon, does there first need to be a guilty verdict or plea? If Bush & Co don't want their dirty laundry aired at the trial, how do they end the trial before more witnesses testify? Let's say Libby pleads guilty, would the trial end? At what point could Bush step in with a Presidential pardon?

joe falcone -- mainstream media in this country consists primarily of for-profit corporations paying journalists that are expected to provide broad information to a diverse reading community. Hence their use of explainers for acronyms when their audience can't be expected to understand terminology -- or in the case of print and broadcast media, unable to access readily reference material. Bloggers are primarily citizens who write for their own motivations, and in many cases, for audiences that are both interested in specific issues and are internet-savvy and already on the internet in order to read blog content.

In other words, you as a blog reader are expected to be self-empowered to educate yourself with the wealth of resources across the internet if content you are reading doesn't meet your needs. Knock yourself out. I'll buy the first round, but you are perfectly capable of consulting a search engine on your own. I'd personally rather that Marcy and the other highly gifted contributors and commenters here continue to examine past testimony and explore speculative angles for future testimony than school in readily available information.

CIPA = Classified Information Procedures Act

Marci, have you looked at the defense exhibits here from AP? I found this one of particular interest to your assertion that the VP had seen the report re: Wilson's trip to Niger.

"Cheney had read the 12 June Pinkus article, which claimed the ambassador's trip was done at the request of theVice President. Cheney did not recall this at all. He also couldn't recall if he had requested a memo on this issue. Research revealed that Cheney did ask and received a memo in early 2002. The agents had copies of some faxes I had sent (in June) to Scooter Libby's then chief of staff, ERic Edelman, containing an early 2002 and an early 2003 memo on the Iraq/Niger/Uranium issue doen for Cheney and Rumsfeld, respectively. I was asked serveral times by Cheney and LIbby during this time frame if I knew anything about such a trip. I had not been infomred of the trip, nor had any notes or memos done by the DI mentioning the trip -- so I pleaded ignorance to the principals. I told the FBI that I first heard about trip was around the Novak article was published from _______ who relayed what she had heard from the DDCI.

I mentioned also to the agents that LIbby was in charge within the administration (or at least the White House side) for producing papers arguing the case for Iraqi WMD and ties between Iraq and al-Qa'ida, which explains LIbby's and the Vice President's interest in the Iraq/Niger/Uranium case.

I wanted you to see this if you haven't already. And I would love to hear what you think. Thanks for all the great work on the trial.

No, Libby's team got Ari's testimony on December 22, which is also when they learned the details they now know about Ari's immunity deal.

Was it redacted in any way? When Fitz said the defense is trying to "learn things they're not entitled to learn," what's he referring to? He seems to be implying that there's some information he's holding back (and thinks he has a right to hold back).

Oh, wait, I see from cboldt's site that Team Libby wants info on Fleischer's immunity agreement. (Thanks to Jeff for the link, and to cboldt for snagging the documents!)

But what is Fitzgerald's reason for holding out?

Swopa, you're famous now via emptywheel on the AAR Phoenix.

Listen to Jane and Marcy live now.

Oh Goodness, how many times have I told Jodi to go out and get a book and read it????

Look Jodi, back at the time of the first war with Iraq (1990-91) Joe Wilson was Charge' at the US Embassy in Baghdad, and it fell to him in the ramp up to the invasion to push the Iraqi's out of Kuwait to rescue and arrange the exfiltration of about 2000 Americans caught in Iraq and Kuwait. Except for one guy who died of natural causes, he got them all out. At one point during those six months, Saddam Hussain threatened to Hang anyone sheltering Americans -- and at the time Joe was hiding hundreds. Joe personally confronted SH -- and in dramatic fashion he took his own Noose along for the meeting. It was on TV back in 1990, a very gutsy performance in my mind. In fact, when the video of the hanging of Hussain rolled on my TV, I actually laughed, because I remembered the mental picture of Joe's little symbolic noose, and my thought as they put that GIANT sixed noose on SH, was that Joe had underestimated by a mile. Anyhow, what Joe did over about 6 months in 1990 in essentially battlefield conditions, but with the tools of diplomacy and public and press relations was hero sized effort -- and it certainly gives him standing to have professional opinions about Iraq, Saddam Hussain, and all the rest. In 2002 I had pretty much forgotten him till he showed up on a Think-Tank panel broadcast by C-Span, and I was most impressed that he had a highly sophisticated analysis of why invading Iraq might not be such a great idea.

One other thing. In his book, Wilson makes the point that from the point of the invasion of Kuwait till he left Baghdad just before the bombing started in 1991, he kept an open line between the Embassy and the State Department that could also be patched into the Oval Office. So for six months, he was talking to James Baker, GHWBush and Colin Powell every day -- and since Cheney was Sec of Defense at the time and daily in meetings in the Oval Office, don't you think he knew who the guy speaking to them from Baghdad was? But Cheney's 2003 claim was that he didn't know Joe Wilson, never heard of Joe Wilson -- HA. Of course he had heard of him.

Now of course Cheney could have a bad memory, you know -- but he was our man in Baghdad. Bush Senior gave him a hero's welcome when he came home, gave him a medal, and had him promoted to Ambassador.

So now, What's your source on Joe outing his own wife? Is there any possibility your source is one of those conservative columnists Cheney invited home for lunch as part of the plan to slime Joe Wilson because Cheney did not appreciate his work destroying one high value piece of the fake intelligence used to gin up a war? Maybe Fitzgerald has a witness on his list that will deal with this matter.

Of course you don't need to have been convicted (or even indicted) to receive a pardon. Two words: Richard Nixon.

Libby's defense team really is risking turning Walton into Sirica if Libby doesn't testify. Judges HATE being lied to. Juries too.

Jodi has said previously that her brither is in Iraq and she comes from a conservative background. That would account for her hopes that Iraq turns out ok.

Thanks again, EW, for doing the thinking. This has gotten way, way too complex.

And thanks to whoever it was who reminded us, yet again, that the real reason for the coverup was that Wilson could expose that they had lied about WMD and that they knew before we went into Iraq that there were no WMD. The greates strategic blunder in US history was based on lies; it was completely unnecessary from the US national interest. And it has cost us billions if not trillions, over 3000 dead and countless casualties and wrecked the lives of Iraqis, and cost us our position and influence in world opinion. No pardon can ever undo that.

Thanks for your efforts, Marcy - and for all the discussion here.

I caught the tail-end of the Air America Pheonix radio interview and it was good to hear both Jane's and Marcy's voices. I still haven't figured out how to get my computer to play the C-SPAN segment. aaargh...

Anyway, I'm not sure if this information has been discussed previously but I saw references at the "From the Desk of Patrick J. Fitzgerald" blog to an excerpt on Fleischer's GJ testimony from the US Court of Appeals Miller/Cooper/Time appeal document. Highlighted is Fleischer's testimony about a July 7th lunch meeting at which Libby told him that Wilson was sent to Niger by his wife who worked at CPD, not the EOP (pp 74-75).

If anyone has already analyzed this document for other such details, I'd appreciate a link. There's a link to the lengthy document on Pacer via From the Desk of PJF - "Ari Fleischer and the Pea...?"

Ordered five copies of The Anatomy of Deceit today to distribute to local libraries and cafes and will give the book a plug at next Saturday's author talk/signing with Dave Lindorff.

THANKS again for all you're doing - this is riveting (and a great lesson in democracy to my 12-year-old son)!


Sara 14:40 -- Brava. You rock!!

Sara 14:40 -- Brava. You rock!!

I'll second that

Swopa 14:21 -- might it not be as simple as Team Libby NOT being entitled to testimony by Fleischer in regards to anything outside Libby's indictment? If Fleischer testified in regards to violations of IIPA and conspiracy by Libby (or anybody else), this isn't material to the charges of obstruction, perjury and false statements and therefore need not be turned over per Giglio? Assuming this is the case and Fleischer has not yet testified on the stand in this case about the 5 counts, any other content germaine to the 5 counts against Libby are not yet Jencks?

IANAL, but it seems to me that Fitz extended immunity based on Fleischer's proffer about other charges and not about Libby -- that the pig-in-the-poke is what Fleischer might say about Libby. Open to critique since this is merely speculation.

Beautifully written recollection of Wilson in 1990-1, Sara. The wingers were for him before they were against him.

My tin foil hat is buzzing with all that has been happening on the warmongering front with Iran. Now that Brewster-Jennings is out of the picture, there is little or no intelligence to contradict all the WH claims about Irans evil doings. The ex Iran-Contras seem to learn from their mistakes. I have come to believe that Iran was the main target all along.

Nan @ 15:40

Here's some help. I had trouble at first viewing the 1/26/07 C-SPAN Washington Journal video of Marcy, too.
I am using Windows XP (but this may apply to any Windows version)

Before going to the C-span site, open the Realplayer program.
Click on the Tools tab, choose 'Preferences'.
Inside the dialog box click on 'Content' and choose 'Media Types'.
In Media Types, click the 'manually configure' button.

A dialog box pops up. Scroll down (for me it was about 3/4 of the way down) to "Real-Time Streaming Protocol".
Pick this option by checking the box to the left of the words "Real-Time Streaming Protocol", and click OK.

FINALLY the c-span video played when I went to the site. And all the other CSPAN videos. too.
Hope that helps.

The more I reflect on Sara's comment about Wilson during Poppy's admin, I think I see a hint of something much ickier peeking out from underneath all of this.

Cheney may have been jealous of Wilson -- the kind of guy who is everything that Cheney isn't.

May not have been the raison d'etre for the outing, may not be a crime, but it could have made it much easier for DeadEye to discard someone he saw as a rival. Good gravy, can you imagine if the RNC ever got behind Wilson instead of Cheney for Veep? Even the Dems would have had a much more difficult time with the Bush-Cheney ticket...

There is so much here that is raw, naked, primal, festering over more than a decade. Maybe even three decades, when these once-young turks nursed at Nixon's breast and cut their teeth on plausible deniability. Ugh.

Oops, I meant Bush-Wilson ticket.

Thanks, pdaly @ 16:27. Will give it a whirl.

I agree with Mimikatz.

One small other point that I don't know the answer to.

Even if Libby is not entitled to Rove grand jury transcripts, Rove is free to tell Libby what he said before the grand jury. Or to tell someone who could tell Libby.

Why wouldn't Rove do this? How do we know that he hasn't?

Is the hoopla just for PR and an argument in the appellate brief?

Swopa asked (speaking of Fleischer's immunity deal):

But what is Fitzgerald's reason for holding out?

Rayne rightly replied:

Swopa 14:21 -- might it not be as simple as Team Libby NOT being entitled to testimony by Fleischer in regards to anything outside Libby...? If Fleischer testified in regards to...anybody else...

And the same query that occurred to Swopa was a main focus of looseheadprop's "Queen for a Day" post today at FDL (slightly edited for clarity):

The fact that [,and to the extent that,] whatever it is that PatFitz is saying he doesn't have to turn over to the defense exists, [] suggests to me that the investigation is not over and that maybe, just maybe, that gamble has paid off.


If it was all going to be over after the Libby trial, why fight so hard to keep this info secret? Why say that defense lawyers ask questions to try to find out things they are not supposed to find out?

Is Pat suggesting that Team Libby has gone to trial in an effort to force Pat to disclose what else he has found out? After all, a defense lawyer should not be asking questions that are designed to elicit information to help some other criminal, only those which are designed to help his own client. Asking questions and seeking info that does not help your client but instead benefits someone else, is a prohibited conflict of interest. - looseheadprop, 1/28/07

This all sort of brings us full circle to that yet-unseen 1/17 government response to the Dow Jones 'Motion to Unseal' in the Circuit Court, but on a parallel track: tea leaves are now emerging from the trial and begging to be read with regard to the wider grand jury investigation... Certain potential witnesses have a burning curiosity to know just what they may be up against should they take the stand, I do believe...

jwp 16:54 -- IANAL, but I think if Rove were to disclose to Libby and Defense Team directly what he'd testified to the GJ, that he'd 1) be obstructing the investigation, and 2) could make a mess of any efforts to keep current charges narrow and finite. The highly limited and tightly defined charges do work to Libby's advantage right now; he's only a whisker away from a conspiracy charge, which I would guess off the cuff could add another handful of years to his sentence if proven.

-- This all sort of brings us full circle to that yet-unseen 1/17 government response to the Dow Jones 'Motion to Unseal' in the Circuit Court --

January 17: RESPONSE to Dow Jones Motion to Unseal [CADC 04-3138 (1017157-1)]

It's been sitting online, there, since the 23rd.

Thanks for that, cboldt. By the way, thanks so much for the entire collection; I know it's a lot of work to scan the content into searchable text, but it certainly makes research so much easier.

Any chance you have a copy of Fitz' subpoenas from Jan-Feb 2004? We should look again at the list of "journalists" subpoenaed, to see which ones might also qualify as op-ed writers that might have been invited to lunch at the Veep's digs.

-- a lot of work to scan the content into searchable text --

Most of them are easily converted without scanning. A few are OCR jobs, cleaned up by hand, but I usually don't bother with the ones that don't convert "automatically" without the equivalent of scanning.

I go through the extra work for some of the filings, like that Jan 17, 2007 Response to Dow Jones Motion to Unseal, and Libby's two filings from the 26th - but only because they are brief.

--Any chance you have a copy of Fitz' subpoenas from Jan-Feb 2004? --

IIRC, it was Libby doing the subpoenaing at that time (February). Check here for a table of contents of sorts. What is now "3." in the outline has the reporter stuff.

Thanks, ew. I can see why York might have given you a "look" over that statement. I think you would have given him a "look" if/when he made a similar assertion based on conjecture.

Anyway, your liveblogging skills are fantastic.
I think its fun to 'see' two great lawyers go after each other, and watch the gamesmanship. Also good to see a thoughtful, reasonable judge.

THANKS, cboldt. Missed it. Heading over there now.


Interesting. I am clearly out of my depth here. But do you know of any examples where a witness before the grand jury was charged or convicted of obstruction merely by making public his testimony? The action itself is perfectly legal.

Of course, I suppose it wouldn't take much beyond a mere recitation to make a conspiracy to obstruct justice.

cboldt 17:56 -- cool, thought you were having to spend quite a bit of time on PDF conversion. Phew, smaller guilt trip for me.

Think we may not be thinking about the same subpoenas. See DKos timeline, 22-JAN-04, item 3 that same day: "3. Documents from Feb. 1, 2002, through 2003 related to Wilson's February 2002 trip to Niger, to Plame, and to contacts with journalists, 25 listed by name." [bold mine]

1x2x6 not reflected in this subpoena if 25 journalist contacts are requested. Who are these 25 and how do they fit with the 6-plus? Some are likely co-authors by-lined on key articles, but some may not...were they invited to the Veep's for lunch? Would we see some synchronistic work in any articles some of these folks published after lunching with DeadEye?

jwp -- ditto, since IANAL. Need to ask one of the attorneys who frequent these digs what constitutes obstruction. I suspect that if the Grand Jury was asking about classified information disclosure that subsequent testimony may be iffy for publication, for starters. I think this is part and parcel of Rover's virtual silence since before the elections...might be afraid of compromising himself any further than he may already be.

Anybody got instructive comments on obstruction?

-- See DKos timeline, 22-JAN-04 --

Duh. /slaps head/ I missed the 2004 part of that!! I don't have much if anything that pertains directly to the grand jury investigation. I followed the Miller and Cooper must testify case (Judge Hogan, CADC 04-3138, petition for cert); the Libby indictment; and then the Libby pre-trial.

About the only thing I've picked up "stray," on that path, is a real puzzle as to what the deal is with Rove.

Jodi, a lot of us have cut you a lot of slack, because you say you have relatives fighting with US ground forces in Iraq/Afghanistan. Everyone here wants only the best for Americans in uniform and has tremendous respect for their courage.
Several very seasoned commenters here at tnh have generously taken their time to ask you specific questions and make specific suggestions about what you are missing. I don't see any response from you.

I, or someone else, can easily save their questions/comments. Since you appear on emptywheel's threads frequently, if you don't respond on this thread, any of us can certainly recomment their questions/comments on later posts in which you comment, until we get responses from you.

The leaks from the WH that Rove and Bartlett were subpoenaed and now may be called by Libby are unmistakable and extremely accessible signals about how seriously concerned team Libby and the WH are after the trial's first week.

Thanks, cboldt, I'll keep poking around. It's probably someplace obvious and I've just not caught it yet.

emptywheel @ 11:00 Thanks for the correction. I was thinking this was all happening 7/12/03 on AF2 ride back to DC--one of the Govt exhibits has Libby's handwritten notes in the same blue ink. I should have reread your court transcript which shows Martin's "black ink" marks probably were written on or around 7/10/03, the day before the Tenet mea culpa. Also, another correction to my morning comment: 'DCI' and not 'DIA'.

First, thanks again, cboldt, for the long and careful transcription - that was a lot of work. And I'm assuming we have emptywheel to thank for the photocopy you transcribed? I'm amazed she fit that in on her first day or two at the courthouse. I very much appreciate seeing this response, and thank everyone who helped get it on-line.

I read this as the crux of the government's careful, and skillfully-compiled, argument:

For the reasons stated in this response and the accompanying affidavit, the Special Counsel submits that events to date do not justify lifting the protection of Rule 6(e) as to most of the currently redacted material, but that disclosures necessitated by the Libby trial may justify disclosure of some materials and that it would be inefficient and imprudent for this Court to review all of the sealed material, possibly releasing some during trial, and then likely have to revisit the issue again in light of disclosures at trial.

- 1/17/2007 Government [aka James P. Fleissner?] response (emphasis added)

The potentially significant thing for me in this statement, is the existence of a sealed affidavit that a standard, straightforward grand jury secrecy argument should not require, as far as I can see. In fact, the grand jury secrecy argument is well-made in the public filing, which only raises the question of what further "reason" was provided that needed to be provided under seal. [Part of the affidavit apparently does contain specifics about what portions of the grand jury testimony are likely to be revealed at trial. However, the government has clearly not yet taken the time to carefully parse the redacted information as was done in its 2005 response, because of still-unfolding revelations from the Libby trial.]

The government is openly acknowledging that the Libby trial will doubtless reveal portions of the now-redacted information, while pointing out, absolutely logically and obviously, that the ongoing Libby trial is not the time or the place to be parsing Libby-related Appeals Court redactions of grand jury testimony for distribution to the media - a patently obvious and common sense assertion, and one that Dow Jones and its attorneys surely anticipated in response to their very untimely motion.

The provocative Dow Jones & Company assertion that the grand jury investigation is now "closed" is in fact left hanging, because it is not directly addressed in the government's response, as cboldt notes. Though perhaps it is in fact addressed in the sealed affidavit. But this government response does a masterful job of saying neither 'yes' or 'no' with regard to that assertion about the status of the grand jury investigation, in my opinion. No easy fishing in these waters:

Furthermore, the Special Counsel submits, based on the pre-trial record, including the press reports cited by the amicus curiae, that very few, if any, additional portions of the redacted opinion and the sealed affidavits have lost their character as grand jury material. FN#5

Footnote #5: Central to the movants' theory of why there is significant public interest in disclosure of the facts presented to the Court by the Special Counsel concerning the need for the testimony of the reporters in question is the assertion that "the public learned that the Special Counsel's pursuit of these reporters was entirely unnecessary for him to determine who had leaked Ms. Plame's identity to Robert Novak, the columnist who had first published it." Motion at 1. That assertion ignores that the scope of Special Counsel's investigation was not limited to the leak to Mr. Novak, a fact that is a matter of public record. In re: Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 966-67 (D.C.Cir. 2005)(Sentelle, J., Opinion for the Court): Id. at 1001 (Tatel, J., concurring). Indeed, in response to the initial motion of Dow Jones to unseal, the Special Counsel agreed to the disclosure of paragraph 6 of his affidavit dated August 27, 2004, which explained that "the investigation of unauthorized disclosures is not limited to Novak."

Overall, this is how you answer a hostile motion, which is clearly a fishing expedition, without becoming the bait, and without becoming the 'catch of the day'... Very nicely done. There's very little there for Dow Jones to read into, and yet plenty for the Circuit Court to use to postpone this issue until after the Libby trial. I'm impressed.

-- I'm assuming we have emptywheel to thank for the photocopy you transcribed? --

Negative. I hired a runner.

-- The potentially significant thing for me in this statement, is the existence of a sealed affidavit that a standard, straightforward grand jury secrecy argument should not require, as far as I can see. --

Given the high profile of this case, in combination with its procedural history (affidavits galore, to establish for the court, the direction of grand jury investigation and details of grand jury testimony so far elicited that inclines them to certain investigatory strategies) , I'd be more surprised if there was not an affidavit.

This affidavit, the new one, probably narrows the scope of what may be published after the trial, laying out the list of government witnesses and correlating them with testimony that may be elicited in their examination and cross-examination. Likewise for any expected defense witnesses in the Libby trial. The affidavit is, in a way, the groundwork for future publication - it's a future publication punch list or road map. "This came up at trial, this came up at trial, this didn't, etc."

-- The provocative Dow Jones & Company assertion that the grand jury investigation is now "closed" is in fact left hanging, because it is not directly addressed in the government's response, as cboldt notes. --

My observation is that the January 17, 2007 Response does not say the investigation is NOW ongoing, whereas the last time around, the Response said that the investigation was THEN ongoing. At the time, ongoing investigation was one of the reasons for not publishing. The "ongoing investigation" reason is not asserted in the January 17, 2007 Response.

Well, then, that was one less thing for her to have to worry about last week, cboldt, so thanks for taking the initiative.

This is an amazing post (and only one of many here)!! A BIG THANK YOU TO ALL who have worked so hard and continue to work on the myriad of pieces of this puzzle. It's so heartening to see this level of friendship and cooperation, not to mention determination and intellect. Bravo all!

Yes, cboldt, I agree that the government witness testimony contained within the redacted opinion/affidavits is probably the primary detail in the affidavit, though I think the defense witness testimony may have been left a little sketchy.

Since the government response seems to indicate that any such revealing trial testimony will not be extensive (only "some" will be revealed by the Libby trial), I'm not sure that that listing is very extensive. [Classified evidence seems to be ruled out as a reason for the sealed filing.] Whether further "reasoning" is elaborated on in the affidavit, in addition to such witness detail, is one indication in that response that can be read either way, I think.

It seems to me that the government went out of its way to not clarify the status of the grand jury investigation this time, perhaps because it took the 2006 motion to be largely a disingenuous effort to discover just that information. It's hard to ignore the stark "closed" assertion in the Motion to Unseal (not to mention some of the other specifics that the response left alone), without a conscious effort. The specific reason(s) for making that conscious effort are another question, of course. Nevertheless, there is this opening sentence of the response's Background section whose meaning could probably be interpreted to refer to the present:

"The consolidated appeals in this case arose from civil contempt proceedings conducted during an ongoing federal grand jury investigation concerning alleged leaks to reporters of purportedly classified information by one or more government officials."

Of course, most of us seem to concur that even if only because of the Libby trial, the government won't be declaring its investigation officially "closed" until that trial concludes. And this response certainly aligns with that scenario, at a minimum.

Footnote #5: Central to the movants' theory of why there is significant public interest in disclosure of the facts presented to the Court by the Special Counsel concerning the need for the testimony of the reporters in question is the assertion that "the public learned that the Special Counsel's pursuit of these reporters was entirely unnecessary for him to determine who had leaked Ms. Plame's identity to Robert Novak, the columnist who had first published it." Motion at 1. That assertion ignores that the scope of Special Counsel's investigation was not limited to the leak to Mr. Novak, a fact that is a matter of public record. In re: Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 966-67 (D.C.Cir. 2005)(Sentelle, J., Opinion for the Court): Id. at 1001 (Tatel, J., concurring). Indeed, in response to the initial motion of Dow Jones to unseal, the Special Counsel agreed to the disclosure of paragraph 6 of his affidavit dated August 27, 2004, which explained that "the investigation of unauthorized disclosures is not limited to Novak."

Gosh. That's just about what I said.

-- might it not be as simple as Team Libby NOT being entitled to testimony by Fleischer in regards to anything outside Libby's indictment? --

The Brady/Giglio analysis is different from "in or out of the indictment," but that forms part of the analysis.

What evidence in the "scene of the crime" and subsequent immunity deal is helpful to Libby's defense? Par of that is motive for Fleisher to lie on the stand or testify in order to curry favor with the government. Does Fleischer have a motive to rat out Libby to save his own hide?

The angle that Libby is dancing around with the question "Why did Fitz give immunity to Fleischer?" is something that resembles perjury trap or malicious prosecution. If Fitzgerald knows his cases are limited to false statements by Libby and Rove (and maybe others), and he makes an immunity deal expecting (or even contingent on obtaining) testimony against these targets, then the jury needs to hear that.

The allegation against Fitz is easy to make, but not the sort of allegation that the defense wants to make overtly. It is also a very hard proof.

And as it is, the facts that Fleischer is most likely to testify to, that Libby told him Mrs. Wilson works at the CIA, isn't damaging at all, on its own. While there may be a technical reason that Libby isn't supposed to share "in house," sharing "in house" only become an issue when the information crosses the threshold from "in house" to "out of house." Fleischer knew that he was one conduit for crossing this threshold - and the prosecution says that this action is what caused him to fear criminal charges. There has been no allegation that he feared criminal charges because he heard Libby say that Mrs. Wilson works at the CIA.

At any rate, Fitz has no doubt pondered the risks of withholding discovery from Libby, and has studied the cases that describe the Brady/Giglio obligations of the prosecution. And he has concluded that Libby is not entitled to discovery. He'll share the immunity deal history with Judge Walton, Walton will agree with Fitz (not discoverable, not Brady, not Giglio), and if Libby is found guilty, he'll argue on appeal that if Walton had let him discover the details of the Fleischer immunity deal, the jury would have found Libby not guilty.


With this statement, I gotta believe Fitz thinks he will have his thunder during this trial, or not at all:

For all of the foregoing reasons, the Special Counsel respectfully requests that the motion of Dow Jones and The Associated Press be denied without prejudice. In the alternative, the Special Counsel requests that the motion be held in abeyance pending the completion of the ongoing trial in the district court.


Agree with your assessment, cboldt. I'd add, too, that it seems that the immunity agreement with Ari focused on someone else--and that may be the source of Fitz' discomfort, since Libby is trying to argue that Fitz should have brought charges against Rove, and didn't.

-- I'd add, too, that it seems that the immunity agreement with Ari focused on someone else--and that may be the source of Fitz' discomfort, since Libby is trying to argue that Fitz should have brought charges against Rove, and didn't. --

The way Fitz presents it, the Fleisher deal was pretty much to save his own hide at nobody else's expense. Fleischer has information, and the only way we get it was to give him immunity.

I've tossed out as a hypothetical possibility that Fleisher was a lone-wolf leaker, and it's most likely that he has ZERO evidence of Libby or Rove leaking. What, Libby told Fleisher, "I told a bunch of reporters."? I doubt it.

Another possibility is that Fitz may have been "on the fence" as to charging anybody, and would entertain exculpatory evidence. If Fleisher says he learned by reading the INR and shared with a mess of reporters on the Africa trip, and that neither Libby or Rove ever said a word about Mrs. Wilson, that makes the case against Libby weaker.

When viewed with the benefit of hindsight, it's easy to charge that Fitz was just looking for something to nail Libby with -- it's the only point of view to take if the assumption is that Fitz is a partisan hack. But I think the assumption is in error, and is made more on the basis of emotional partisanship than objective analysis. Show me the evidence -- and the Libby prosecution isn't enough to convince me.

Interesting that you perceived "discomfort" on the part of Fitzgerald. Reading your transcript, my impression was that he was angry and stifling it.

I've tossed out as a hypothetical possibility that Fleisher was a lone-wolf leaker, and it's most likely that he has ZERO evidence of Libby or Rove leaking. What, Libby told Fleisher, "I told a bunch of reporters."? I doubt it.

However, it's an extremely sensible assumption that as press secretary -- y'know, the official spokesman for the White House -- Ari Fleischer didn't say anything to any reporter (up to and including "My name is Ari Fleischer") that he wasn't specifically instructed to say.

So, given evidence that Ari leaked Plame's identity, it's reasonable for Fitz to assume that Ari could testify as to who told him to do it.

Good clues in here re: Ari and GJ -


-- So, given evidence that Ari leaked Plame's identity, it's reasonable for Fitz to assume that Ari could testify as to who told him to do it. --

Without the benefit of hindsight, I suppose Fitz could hypothesize the opposite of a lone wolf, and suspect that Fleisher was himself part of an organized team leak. I'm just saying that Fleisher may have in fact "leaked without being ordered to leak."

But given hindsight, and that Libby and Rove urged Fleisher to put out "we're clean" stories (and that Fleisher seems to have accepted the "we're clean" assertions as true), it seems that Ari traded what he thought was risk of criminal prosecution for his personal leaking, for evidence that Libby and Rove knew that Mrs. Wilson worked at the CIA. As this is a Libby trial, and not a Rove trial, the Rove part is irrelevant.

-- http://patrickjfitzgerald.blogspot.com/2007/01/ari-fleischer-and-pea.html --

Fun website in general - I enjoy irreverent humor. But the legal theory in that post seems to have come out of The Onion or something. Jencks material isn't the same thing as document discovery.

Hey, EW, be sure to say hello to Judy Miller this week...

"But given hindsight, and that Libby and Rove urged Fleisher to put out "we're clean" stories (and that Fleisher seems to have accepted the "we're clean" assertions as true)..."

Umm, no. Fleischer's last day at the White House was the same day the Novak column was printed. Scott McClellan was the flack who put out the Libby and Rove denials.


I've been meaning to ask whether your 1x2x6 bet - I mean theory - is dependent on Fleischer calling a bunch of reporters, or whether him telling them in Africa is good enough for you? Because it looks like he didn't call anyone to disclose Plame's CIA employment, at least for the moment.

I take it part of the reason Fleischer's testimony is significant, beyond the obvious significance in terms of whether Libby's story of how and when he effectively learned about Plame, is that he provides some good evidence that Libby was aware that the information about Plame was, at the least, sensitive.

Yes, but Ari didn't put out any "We're Clean" statements from the WH. His last day in the Press Room was one or two days after they returned from Africa, a day perhaps after the Novak article broke. It was Scottie who got to make the clean statements.

Well, we will probably find out tomorrow.

-- Scott McClellan was the flack who put out the Libby and Rove denials. --

I need more, or better sleep ;-)
WTF was I thinking? Hahahaha. Fleischer could have been up to his eyeballs in team conspiracy - or he could have been a lone blabbermouth.

The allegation against Fitz is easy to make, but not the sort of allegation that the defense wants to make overtly. It is also a very hard proof.

cboldt - do you mean a) very difficult to prove? or b) very hard evidence?


I mean a) very difficult to prove. [that Fitzgerald KNEW all he possibly had was false statements, PLUS he gave immunity to Fleischer on a wink and a nod that Fleischer would testify against Libby's interest in a false statements case]

There's two things that have been giving me pause; I think they're related and part of the parsing of Ari.

1) DeadEye's comment about not saving a staffer over a guy in the meat grinder because of incompetence of others (paraphrase, don't have the exact quote). Whose incompetence?

2) Ari being out of the loop about Blair 's visit before Ari leaves his job. Why was Ari being cut out already, in an administration noted for its tight, unified messaging?

Did Ari leave because he was already slipping with getting WHIG's back -- and is the incompetent guy that couldn't be counted on to save WHIG's butts, forcing Libby to step up and do what should have been Rove's and Ari's job, too? (Ari being press secretary should have had the largest piece of this pie, calling the press, don't you think?) Had Ari already earned the enmity and therefore the shunning of WH/OVP staff for this reason? Did Fitz limit his questions to Ari about Rove alone in advance of the immunity offer because it looked initially like Rove was guilty of something else BIG (and Rove may have screwed up his testimony enough to exacerbate the perception)?

By BIG, I mean something that would have frightened Ari; the death penalty weirdness we heard from The Plank via TPM may be hyperbole spun by somebody, but was the point that there was something BIG at the root of this decision to get immunity?

2 minutes to midnight...I don't know if I can sleep! Wonder if Marcy is just as excited? Only a matter of hours before we know more.

There is one thing I was wondering in the context of Cathie Martin, and it plays for Fleischer too. If the WH and OVP are hearing from reporters, would the press adjuncts of the WH and OVP be hearing from the reporters? Martin testified that she did NOT recall hearing it from reporters at all.

Ah yes, another dog not barking. Let's guess that Ari not only heard first about Blair's visit from the press, but DID NOT hear about Plame from the press. Nothing to see here, move along...

Could Ari possibly give testimony on Libby's involvement with the WHIG activities????

As I remember, Ari's decision to leave the Press Secretary job was long planned and quite legit. He had been with Bush since the 2000 campaign, he had gotten married, and he either was a new father, or about to become one. He wanted his life back. Bush had told the whole staff that if anyone planned to leave before November 2004, they should leave Summer of 03 as they would be going into campaign mode in the fall. Press Secretary is a killer job, in part because you travel everywhere with the President. No time to be a daddy. So Ari split from Bush mid July so that Scottie could get into the job and "attach" to Bush before the campaign. I remember there were other resignations, including Mary Matalin. Africa was his last gig.

Hey, EW, be sure to say hello to Judy Miller this week...

Oh my god! I didn't think of that. We need to take up another PayPal collection to hire a bodyguard to protect EW in case she gets caught in the elevator with Judy!

(how do you write that sound an angry cat makes as it slashes its paw through the air in a clawing motion?) "rrrrreowwwww!"

Barnes & Noble just emailed to say my copy of Anatomy of Deceit has been delayed! Has anyone else gotten their copy yet?

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