Evolving Defense Claims

Back before the trial started, I noted this passage from Libby's theory of his defense.

Mr. Libby further contends that when the investigation began, he was confident that he had not provided any information about Mr. Wilson's wife to Robert Novak, and that he had not disclosed classified information about Mr. Wilson or his wife to any other reporters. Further, Mr. Libby was well aware when he was first interviewed by the FBI and when he testified to the grand jury that the investigators could and likely would talk to the journalists he spoke with concerning Ambassador Wilson and that those journalists would truthfully recount their recollections of the conversations he had with them.

Here's how that passage now reads, after several weeks in a court room (thanks to Jeralyn for passing the filing on).

Mr. Libby further contends that when the investigation began, he knew that he had not provided any information about Ms. Wilson to Robert Novak. He also contends that he did not know that Ms. Wilson’s employment status was covert or classified and that he did not knowingly disclose classified information about Ms. Wilson to any reporters. Further, Mr. Libby was well aware when he was first interviewed by the FBI and when he testified to the grand jury that the investigators could and likely would talk to government officials and the journalists he spoke with concerning Ambassador Wilson and that those officials and journalists would truthfully recount their recollections of the conversations he had with them.

Before I start talking about these changes, let me note that Fitzgerald is fighting against Libby being able to say he believed journalists would testify. From yesterday's tedium [see, I excerpt it to save you the pain!]:

Walton Next sentence, I think his waivers would be sufficient to cover first part of sentence.

Fitz waiver (on journalists) signed in January, there's no basis for evidence in October.

Walton the last one, would journalists testify truthfully

Fitz, that would go back to the first part of the sentence, since there [was] no waiver.

Walton I need something in writing.

Fitz We'll give you that tonight.

In other words, Fitzgerald is arguing that, since Libby had not yet signed waivers for journalists to testify (and in fact refused to do so at his second FBI appearance) there is no factual predicate for him to suggest that he had reason to believe the FBI would ask journalists to testify, and even less expectation they would do so. We'll see what Walton makes of that argument.

But now let's look at the three main changes, taken in jumbled order:

• The inclusion of government officials among those Libby expected would testify
• A seeming growing certainty that he didn't leak Plame's identity to Novak
• A seeming acknowledgment that Libby did leak classified information to journalists

The inclusion of government officials among those Libby expected would testify
This one is the less interesting change. It seems to reflect an acknowledgment that the government witnesses--people like the competent Cathie Martin, the banal David Addington, and TYOI John Hannah pose as great a threat to Libby as do the journalists. This is right on--I have always said Fleischer, Martin, and Addington would be some of the most important witnesses. And who knew that the guy in charge of launching an unjustified war on Iran would be caught so easily in Fitzgerald's traps!

But the belated inclusion of government officials says one more thing to me--it says that Libby didn't realize how damning those little tidbits describing his behavior from leak week really would be. John Hannah got flipped from being the surrogate Scooter and Shooter into the best witnesses to the importance of Libby's Judy Judy Judy meeting on July 8.

A seeming growing certainty that he didn't leak Plame's identity to Novak
Back in January, it seems that Libby was just confident--but not certain--that he had not leaked any info on Plame to Novak. Well, five weeks and Novak's testimony later, Libby retrospectively got much more certain that he didn't leak Plame's identity to Novak. You gotta wonder how much that inkling of doubt about Novak's testimony must have been keeping Libby up nights.

I guess Novak, too, is connected at the roots.

A seeming acknowledgment that Libby did leak classified information to journalists
This is the most interesting. After all the wailing from the Right about Aldrich Ames, and then Joe Wilson, outing that low-level desk clerk Valerie Plame, it now seems that Libby is publicly acknowledging that he did leak information that turned out to be classified or covert, though he claims he did not know it at the time. I find this stunning, for several reasons.

First, it will make it easier for Fitzgerald to argue that Libby believed he was might to be busted on an IIPA charge, thereby making it easier for him to prove motive.

It also cedes the issue the right has been wailing about for so long. The Administration (a collection of Scooter Libby, Karl Rove, Ari Fleischer, and Richard Armitage) did out someone who had been classified and possibly even covert. That'll make the Wilson civil suit considerably more interesting.

Most importantly, it solves on problem for the defense but creates another one. The problem it solves is another motive question. One reason, Fitzgerald will argue, that Libby lied and said he learned of Plame's ID from journalists is that it provided a non-classified channel for Libby to have learned of Plame. It seems here that Libby is prepared to cede that he did, in fact, learn of Plame from Cheney. But that Libby just didn't know that most people in counter-proliferation are covert. In other words, Libby is distracting some attention from his attempt to launder his knowledge of Plame through journalists.

But the problem it creates is that, if Fitzgerald ever proves that Cheney ordered Libby to leak Plame's identity on July 8 as I think he might, it removes the claim that the NIE lie has long served. That is--Libby has ceded his ability to argue, at future time, that Cheney declassified Plame's identity and therefore made it peachy for Libby to leak it through Judy Judy Judy.

Well, here's to hoping Fitzgerald has an opportunity to use this admission.

Comments

[emptywheel]

One thing I didn't mention is that they changed the reference from Ms. Wilson to Mr Wilson's wife. They've been struggling with how to refer to her all trial long. Looks like they're still doing so. I hope they manage to refer to "the wife," "the wife," "the wife" to the prominently female jury.

[emptywheel]

Oh shit, I'm wrong!! It was the reverse. After reading me suggest Ted Wells a misogynistic pig, they've now revised to calling her Ms. Wilson.

[William Ockham]

ew,

You aren't entirely wrong. The first reference in the defense's current theory is to "Mr. Wilson's wife" (and they didn't even refer to Joe Wilson before that, so it sounds like something from Dennis the Menace).

One of the problems with Libby's defense is hinges on two seemingly incompatible assertions, his now absolute certainty that he didn't leak to Novak and his inability to recall which reporters he leaked to. If he honestly doesn't remember which reporters he leaked to (or was leaked to by them), how does he know he didn't leak to Novak (or that Novak didn't leak to him)?

[viget]

Did you also catch that they removed the reference to "classified information about MR. Wilson" too? So are they ceding the point that Scooter probably DID leak Wilson's trip report and ID'd him as Joe Wilson before that fact was widely known?

[Jodi]

:)

Well, it would seem to me that imputing all this confusion to Mr Libby and his team of lawyers buttresses up his and their claims of "not remembering" or having "different memories."

[kim]

I had no idea trials were so ad hoc - adding and eliminating evidence throughout, rewriting the charges at the end, and renovating the defense rational until the final day. Thanks for the thorough blogging.

[Stephen Parrish, CPA]

"But the problem it creates is that, if Fitzgerald ever proves that Cheney ordered Libby to leak Plame's identity on July 8 as I think he might, it removes the claim that the NIE lie has long served. That is--Libby has ceded his ability to argue, at future time, that Cheney declassified Plame's identity and therefore made it peachy for Libby to leak it through Judy Judy Judy."

Marcy - have you had an opportunity to read Executive Order 13292?

[annx]

Great analysis.

You are awesome. And I just needed to tell you that.

[Kagro X]

Executive Order 13292? You mean the one that the ISOO recently complained to the Attorney General that the Office of the Vice President hasn't been in compliance with since 2003?

[Jane S.]

EW--I bothered you the other day in the middle of live blogging with a question about how you knew Novak and Libby had spoken that critical week?

Also, this is a great post which clears up much of the muddle that was Thursday. And the live blogging was amazing. I look forward to closing statements. I finally had a moment to start your book and I couldn't put it down. I'm delivering a second copy of it to my Mom tomorrow.

[irene]

After all the wailing from the Right about Aldrich Ames, and then Joe Wilson, outing that low-level desk clerk Valerie Plame...

I always got such a kick out of the low level desk clerk label. I mean, how plausible is it that a low level desk clerk decides who will investigate WMD questions for the OVP.

If the Right wants to believe baseless crap, shouldn't it be baseless crap that's at least within the realm of possibility?

Jane S., I think a call between Novak and Libby during 'leak week' showed up on a phone log. Not 100% positive about that.

[Mimikatz]

It's obvious Libby became certain he didn't leak to Novak when Novak didn't testify that he did.

[Liam]

Jodi Jodi Jodi whoever is paying you for your trolling is being short changed.EW you are a true American hero.God bless you.

[hauksdottir]

Emptywheel,

Even if Bush himself insta-declassifies Ms Plame's identity and status (waves his wand), can he legally do that? Without notifying the CIA? Without telling her or her station chief? Especially with an entire officeful of CIA agents and employees at risk? Would he not have to call Tenet, and Tenet call the station chief on a secured line saying "get our people out tonight!"

Should there not be a paper trail designating the order, even if that trail is classified? Suppose that he fired her, he can't just drop her out the window and her potted plant, too. He'd have to tell her boss and make sure that a pink slip in quadruplicate with a couple of signatures was handed to her. Exposing a spy ends her career just as surely. A total lack of paperwork would make a wrongful discharge case harder to repel.

His signing statements and executive orders seem to be mostly hidden from view, but there hasn't been a whisper of authorization about this.

If Cheney insta-declassified her status, would he even bother to tell Bush? Anybody?

If Novak's gossipy lobbyist buddy spread the news to the Administration on Friday that a story revealing Plame's identity was due to be published on Monday, I'm surprised that not one of those officials bothered to let the CIA know what was in the pipeline.

Can Bush or Cheney insta-declassify anything for a half-hour (long enough to safely leak) before classifying it again? Wouldn't the document get the equivalent of metal fatigue from being warped and unwarped too many times?

[KM]

Stephen, EW isn't saying that Libby would be correct to claim that Cheney had the right to insta-declassify Plame's identity and then have it spread to select journalists. She's simply saying that irrespective of Cheney's declassification powers, if Libby is indeed now conceding that Plame's identity was either classified or covert at the time that he leaked it, then it will be most difficult for him to later claim that Cheney had in fact already declassified it at the time that Libby, er, passed it along.

[emptywheel]

KM

Thank you--yes, that's the idea.

Jane S.

I'm hoping to do a post dedicated to you to answer that question. Problem is I've got a lot this week--and I've got to at least do my "indicting Dick" post.

But please, please, keep nagging me, bc I do want to do the post.

[dipper]

When I heard Mr. Year of Iran Hannah blather about how many things Libby had to do, it reminded me of Nixon's 2 hencemen, Erlichman and Haldeman. They loved to use the excuse of the "maelstorm" going on in the White House, meaning they were all way too busy to concern themselves with such trivia as Watergate.

[cboldt]

See also Fitzgerald's Objections and Proposals to Final Jury Instructions, filed February 16. [Doc 292]

The government objects to this part of the Defense's Revised Theory of the Defense on three grounds. First, it purports to set forth a fact, rather than the defendant's contention, regarding defendant's state of mind. Second, there is no evidence in the record indicating that journalists "likely would" talk with the FBI, or that defendant believed that that was the case. Similarly, there is no evidence in the record that "the journalists [defendant] spoke with" would in fact "recount to the FBI their recollections of conversations they had with the defendant," let alone that they would do so "truthfully." In fact, the evidence showed that a number of individuals with whom Mr. Libby spoke refused to recount their recollections to the FBI and to prosecutors, and that court orders were required to obtain the testimony of numerous witnesses. The government therefore submits the following proposed revision to that sentence from the defendant's Proposed Theory of the Defense Instruction, which omits those aspects
of the statement that are unsupported by evidence and also corrects the reference to "investigators" as the Court previously suggested:

Further, Mr. Libby contends he was well aware when he was first interviewed by the FBI and when he testified to the grand jury that the FBI agents could talk to government officials and the journalists he spoke with concerning Ambassador Wilson.

[Jeff]

Be sure not to miss the second correction the Times has had to issue about the Libby-blogging article bearing on information to do with Cox and MBA. This time the Times has taken the gloves off and explicitly blames Cox for the erroneous information.

[John Casper]

hauksdottir, I think you nailed it. Cheney can rant about his authority to insta-declassify all he wants. That process should go back to 12 June 2003, when Scooter's notes confirm Cheney told him. Both Cheney and Scooter had ample, public notice after Novak's article, that the declassification process, was massively incomplete at best. I have to believe, that the not insignificant paper trail, that declassification was supposed to generate, does not exist. That absence imho will be massive evidence against Cheney.

OT, emptywheel, I'm concerned that the MSM is slanting their coverage in a way that makes Russert's testimony more important than it is. The key evidence imho are his notes from 12 June 2003 that Cheney told him and his GJ testimony that Cheney told him that Bush had explicitly authorized the leak. Long before Russert, I would rank Cathie Martin's testimony that she told both Scooter and DeadEye that Plame was classified, as more damaging to Scooter. I think the Addington conversation was also more damaging.

OT, I cannot believe that Gregory and Mrs. Greenspan hadn't told Russert prior to July 10, that Plame was CIA.

[Haralambos]

As ever, you are very informative. Three copies of your book are being sent to me and my two brothers.

[cboldt]

-- I'm concerned that the MSM is slanting their coverage in a way that makes Russert's testimony more important than it is. --

I'm not concerned, but I share the same sense that nearly all the observers miss the point of the case. If Russert did, in fact, tell Libby, then Russert is "just another Cooper" in the scheme of things. The objection of the leak investigators and grand jury bottoms out on Libby's apparent insistence that he forgot the only official source he heard from (Cheney, and he volunteered that by showing his June 12 Cheney note at the first FBI interrogation), and only remembered hearing from reporters.

Sure, Libby filled in some details around that basic framework. Heard from Russert, for example. The defense is well-served by making the case all about the detail (if Libby heard from Russert, or honestly but mistakenly thought he heard from Russert, then he didn't obstruct justice), and thereby diverting attention from the basic objection of the investigator.

If the jury picks up the gist of the investigator's objection, then they will, as you do, find the testimony of Miller and the government witnesses (including their contemporaneous notes that indicate Libby asked about the people involved in sending Wilson to Niger) will carry more weight than the testimony of Russert.

[emptywheel]

Here's the whole point about the Russert charge. Bonamici ensured that the instructions would include three unique lies:

(A) During a conversation with Tim Russert of NBC News on July 10 or 11, 2003, Russert asked LIBBY if LIBBY was aware that Wilson’s wife worked for the CIA.

(B) LIBBY responded to Russert that he did not know that, and Russert replied that all the reporters knew it.

(C) LIBBY was surprised by this statement because, while speaking with Russert, LIBBY did not recall that he previously had learned about Wilson’s wife’s employment from the Vice President.

In other words, Libby gets convicted if one of the three is found to be a deliberate lie:

• Libby learned of Plame's identity as if it were new
• Russert said that all the journalists knew it
• Libby was surprised because he didn't know Wilson's wife worked at CIA

The first two bullets rely on Russert's credibility. The third bullet relies on Judy's, Ari's, and Addington's credibility. If Team Fitz can prove the Judy meeting was important to Libby (which Hannah certainly helped to prove), then they can prove it is unlikely that he forgot knowing of Plame on July 8, just two days before he says he was surprised to learn it anew.

[John Casper]

Thanks emptywheel, very much. I never understood until your liveblogging what organized chaos a trial involved, the amount of energy expended by Judge and attorneys, day by day.

OT, in a lot of the video of Fitz entering the courtroom, he's walking with a woman. I'm assuming that's Bonamici. Any rumors that they are an item?

[pollyusa]

Victoria Toensing has a lenghthy article at WaPo today where she writes a pretend indictment. Her pretend indictment lays out her charges against Fitzgerald, the CIA, Joe Wilson, the media, Fleischer, Armitage, and the DOJ.

cbolt, thanks for the Fitzgerald filing.

[William Ockham]

I really think everybody has missed the smoking gun. Does anybody remember the story about Hadley telling friends he expected to go to jail? Do you remember the story about President Bush hiring a lawyer? With those things in mind, go take a look at the Grand Jury exhibit 59 (it is page 41 of 45 in GX1A.PDF which you can find on Fitzgerald's website: http://www.usdoj.gov/usao/iln/osc/exhibits/0207/index.html ).

This document contains Libby's notes from a meeting on 7/10/03 attended by Hadley, Cheney, and Libby. It says (based on Libby's own description of his personal shorthand):

Hadley (quoting McLaughlin quoting Tenet): Wilson is declassified. We haven't started to declassify the NIE.

Hadley {weird spacing} quoting Rice: I spoke to the President, he's comfortable.

Hadley: It's better if we leak NIE.

Cheney: Anything less than full and complete disclosure is a serious mistake.

Hadley: That's what I told Tenet.

Libby claims that the line that says Wilson is declassified refers to the Wilson trip report. If that is true, there will definitely be a paper trail at the CIA showing the declassification process. The thing that strikes me is that the what changed in the OVP's approach on 7/10/03 wasn't that they started directly leaking Wilson's trip report, but rather that they started directly leaking Valerie Wilson's identity to independent journalists (as opposed to leaking to Miller who can hardly be described as independent).

If we read the "Wilson is declassified" as referring to Valerie Wilson, the sordid story starts to make a lot more sense, at least in regard to Libby's actions and later lies. It does, of course, raise a rather interesting conundrum in regard to Hadley making this statement. If Tenet, via McLaughlin, really did "declassify" Valerie Wilson's status, then he pulled an incredible double cross when he allowed the Justice Department referral (and still got his Presidential Medal of Freedom). That seems a bit unlikely. I also can't imagine Hadley intentionally setting up Cheney and Libby. On the other hand, Hadley screwing things up by misunderstanding what was really going on seems entirely consistent.

To sum up, here's what I think happened. The CIA was declassifying the Wilson trip report for Tenet's statement. Hadley misinterpreted something McLaughlin said as being authorization to leak Valerie Wilson's involvement in her husband's trip. Hadley got Rice to get Bush's buy-in on the smear. Rove and/or Libby gave Novak the go-ahead to publish his bile. The whole Russert story and the NIE leak authorization B.S. was designed to protect Bush and Cheney.

[cboldt]

-- The third bullet relies on Judy's, Ari's, and Addington's credibility. --

Third bullet = "(C) LIBBY was surprised by this statement because, while speaking with Russert, LIBBY did not recall that he previously had learned about Wilson's wife's employment from the Vice President."

Note the phrase "while talking with Russert." There is an inclination, bordering on insistence in some circles of observers, to conclude "no criminal obstruction" if the reporter assigned to the "Russert role" is other than Russert. That is, if the reaction Libby contends he had was in fact while in conversation with Novak, or Cooper, or Mitchell, or any reporter other than Russert, then this prong of the indictment fails because the wrong reporter is named.

This same sleight of hand / sophistry is applied, regardless of the formulation of arguments, based on the language of the indictment and the right of the accused to know the charge against him.

The logical fallacy is debunked by noting that the name "Russert" is a concession to Libby's testimony. Libby generally asserts he only heard from reporters (except the conversation with Cheney that his notes imply happened -- but Libby said he had no recollection of the Cheney conversation even on reading his notes), and this is the core of the investigator's objection. Libby goes on to specifically name Russert as the reporter he heard from, where THIS hearing (the first one -EVER- in his mind) causes him surprise (not recollection of Cheney conversation, but surprise - it REGISTERED).

By attacking the the specific attribution of this conversation to Russert, he aims to avoid liability for asserting the general contention -- that his surprise, first hearing, and resulting follow-on communications all revolves around hearing "first" (and only) from a reporter.

[Jeff]

The Toensing column is an atrocity.

[cboldt]

A couple filings by Libby today.

Libby Objections to Proposed Verdict Form [Doc 294]

Libby Response to Court's Proposed Jury Instructions [Doc 295]

These cover much ground -- I don't have the proposed language of the Court, and likewise don't know if the Court's proposed language came before or after Fitzgerald's pleadings.

[cboldt]

A Fitzgerald filing today, clarifies who the instigator was.

Fitzgerald Response to Court's Proposed Jury Instructions [Doc 296]

[Jeff]

At the very end of Fitzgerald's latest filing, more grist for the mill:

The government requests that the phrase "at least" be removed from the Court's most recent formulation of the limiting instruction regarding the propriety of defendant's disclosures of portions of the NIE because the evidence shows, at best, that the portions of the NIE disclosed by the defendant were declassified on or after July 8, 2003, and not before.

That's among the more emphatic statements Fitzgerald has made about the NIE.

[Pete]

The Washington Post has been publishing a lot of the moonbat columns (Elizabeth Cheney, Feith, and now Toensing). The one from Toensing is really atrocious.