The Next Hurrah

I Present to You: Saint Libby

by emptywheel

Warning: Do not read this on a queasy or otherwise weak stomach.

Did I say we had reached the PR phase of this defense? Sure looks like it, from the job Comstock Team Libby did on the sentencing memorandum. Here's how it starts.

Distinguished public servant. Generous mentor. Selfless friend. Devoted father. This is the rich portrait of Mr. Libby that emerges from the descriptions of him in the more than 160 heartfelt letters submitted to the Court on his behalf. The letter writers, who range from administrative assistants to admirals, neighborhood friends to former colleagues, Democrats to Republicans, bear witness to Mr. Libby’s character and patriotism. As detailed below, Mr. Libby’s accomplishments in the State Department, the Defense Department, and the Office of the Vice President demonstrate his extraordinary commitment to public service. His dedication to promoting freedom abroad and keeping American citizens safe at home is beyond question. Mr. Libby has also earned a reputation for treating people fairly and kindly and comforting those who are distressed. He has avoided the Washington limelight to focus on nurturing his young children. Even those who disagree vociferously with policies he supported while serving in the government believe his conviction is not characteristic of the life he has led.[my emphasis]

"Beyond question"? Team Libby has taken that little universe of 160 letter-writers (fewer, I might repeat, than supported Abramoff) and used the to claim the man who helped Cheney dismantle our Constitution is a saint.

And meanwhile: any guesses? "Democrats to Republicans"? They do know about last year's primary in CT, don't they? And anyone know the admiralty well enough to guess the identity of that one? John Poindexter, maybe? The architect of Total Information Awareness? No mention, yet, of journalists or WaPo editors.

The mention of journalists doesn't come until later:

The letter writers come from many different periods in Mr. Libby’s life and from across the political spectrum. They are conservatives and liberals; career public servants and people working in journalism, medicine, and law; professional mentors and pro bono clients. They run the gamut from four-star generals and admirals to non-commissioned officers; renowned professors and cabinet officials to secretaries, law firm associates, and junior staffers. Mr. Libby has touched all of these people’s lives, and we rely on their letters to show what he is truly like.

Sooooo. I'm starting a pool to guess the journalist. Just Fred Hiatt? Or Judy too?

The renowned professors are probably Fukuyama and Bernard Lewis. The Four Star Generals? Guesses? And I'm sure there are a number of cabinet officials. Now I wish I had written my letter arguing the press ought to vet these people to expose their conflicts of interest.

Cross-References and Circular Arguments

by emptywheel

I was perhaps a bit unfair with the Defense's filing in my first post on this. The material in the first section of their filing is all a bunch of PR fluff. But it does serve a legal purpose in the second half of the argument. Let me show you how they use it, before I look at the cross-reference argument.

As I showed in my first post, the Defense rehashes some stale PR:

1. Novak was the only leak investigated
2. Cheney wasn't involved in Libby's crimes at all
3. The jury only found Libby guilty of telling a lie about his Russert conversation
4. Plame wasn't covert and even if she was Libby didn't know it
5. No evidence introduced at trial supports the claim that Libby knew Plame was covert

These are the predicates that Defense uses to argue against the government's sentencing argument. Each is false, but they need each of them to sustain their argument regarding sentencing.

Investigating Perjury or Investigating IIPA

Let me show you how they do this with a discussion about whether or not Libby's sentence should be increased because of the expenses the government incurred investigating his crimes. In the discussion specifically pertaining to perjury, they say:

The Defense Makes Its Final Desperate PR Bid

by emptywheel

Update: In a second post on this, I trace how Team Libby uses this bad PR to good effect to undercut some of the government's argument. So this is all bad PR, but it is bad PR used to very deliberate effect.

I can't speak to the legal argument presented in Libby's Response to the government's presentencing memo. But I can say this: It appears to have been written by Barbara Comstock. That's the only explanation I can think of for why this document repeats all of the half-truths Comstock has been peddling for three years.

It's Not All About Bob

For example, there's the old claim that this investigation pertained solely to Bob Novak:

Valerie Wilson’s employment at the CIA was disclosed publicly in a column by Robert Novak published on July 14, 2003. There is no doubt that Mr. Novak’s column triggered the government’s investigation. After the CIA referred the matter to the Justice Department, an FBI investigation began in late September 2003. It is undisputed that, as the investigation swiftly uncovered, Mr. Novak’s two primary sources were Richard Armitage and Karl Rove, and that CIA spokesperson Bill Harlow also confirmed information about Ms. Wilson’s CIA employment to Mr. Novak. Mr. Libby had nothing to do with this leak. He was not a source for Mr. Novak, and he was not acting in concert with any of Mr. Novak’s sources. The government has never suggested otherwise.

Obviously, this is irrelevant to the question of whether, by leaking Plame's identity to Judy before Armitage and Rove spoke to Novak, Libby violated the IIPA. Moreover, the Defense is just plain wrong when it says Libby was "not a source" for Mr. Novak, in spite of the fact that Libby and Novak hid and at times lied about their July 9 meeting for three years. And as I've shown, there's a big fat OVP talking point right in the middle of Novak's column (read through the comments--Maguire even concedes this point, though he argues with my point more generally). Seeing as how Libby was Novak's source from OVP, and how he used some of Libby's talking points for his column, I'd say he was a source for Novak.

My Name Is emptywheel and I Am an Oversight Hearings Addict

by emptywheel

I must be. Because when I read at the Gavel that Jerry Nadler was going to start a series of hearings on The Constitution in Crisis, I immediately started having the following conversation inside my head:

Well, you'll be in DC anyway, for the Libby sentencing on June 5. You could just stay two more days. I'm sure you can change your plane flight. Well, there's the problem that your mother Maggie is going to visit, you meet her in the airport on Wednesday and you haven't seen her for a very long time, but I wonder if she has made her plane reservations yet and ...

It's not pretty. Alas, I'm going to have to watch on CSPAN, if Maggie lets me. It looks like it will be very interesting:

Topics to be covered by the hearings include:

• The National Security Agency’s wiretapping program and proposed expansions;
• The erosion of Habeas Corpus through the Military Commissions Act;
• The sanctioning of torture through the Military Commissions Act and other government policies;
• The practice of “extraordinary rendition,” or government sponsored kidnapping;
• PATRIOT Act threats to privacy rights, including the FBI’s abuses of the National Security Letter authority and intrusions into Americans’ “Freedom to Read”;
• Government surveillance of First Amendment-protected activities; and
• The gutting of the Justice Department’s Civil Rights and Voting Rights Divisions.

I hope Nadler is ready to park David Addington's ass permanently in his subcommittee witness chair, because this is basically is list of all of Addington's favorite creations.

More Like This Please

by emptywheel

Via the DailyMuck, I see that Nevada just passed a law requiring transparency in Defense Funds.

Facing a Friday deadline, Nevada lawmakers passed a bill imposing reporting requirements and controls for legal defense funds -- a measure stemming from a furor over Gov. Jim Gibbons' fund, which was set up to deal with various allegations against him.

Senate Bill 425 limits per-person contributions to such funds to $10,000, and also requires that periodic reports on the fund be sent to the secretary of state. Restrictions on when contributions can be made also are in the bill.

Anyone have a good recommendation for some Congress Critters who might be willing to sponsor similar legislation? After all, Scooter Libby's anonymous friends have footed the bill for his very expensive defense. As I point out in my letter to Judge Walton, this benefits not just Libby but also his buddy Dick. Yet, we have no idea who is donating as a way to curry favor with the Unitary Executive.

And Monica Goodling plans to establish her own legal defense fund, so Karl's friends can pay Akin Gump for helping Monica to keep Rove out of jail.

This is getting utterly ridiculous. Legal defense donations may well be becoming the new form of under the table donations to the corrupt and powerful. Don't you think it's time to institute a similar law at the national level?

Heffelfinger: Targeted by a Who's Who of Voter Suppression Stars

by emptywheel

The LAT expounds on something we talked about a week ago--the likelihood that Tom Heffelfinger was targeted because he fought for Native Americans' voting rights. Thanks to Tom Hamburger for noticing the important details from the Goodling testimony that the rest of the media seems to have missed.

As I explained last week, at issue is whether Minnesota's Native Americans were to be allowed to use their tribal ID to vote.

The LAT article is most valuable for the way it captures the veritable Hall of Fame of Voter Suppression specialists involved in this issue.

It was in this environment, [former head of the Voting Rights section of DOJ Joseph] Rich says, that he got an Oct. 19, 2004, e-mail from an assistant U.S. attorney in Minnesota named Rob Lewis, informing him about possible voter discrimination against Indians.

Described as a matter of "deep concern" to Heffelfinger, the issue arose from Kiffmeyer's directive in the fall of 2004 that tribal ID cards could not be used for voter identification off reservations

About 32,000 Indians live off-reservation in Minnesota, mostly in the Twin Cities.

In the e-mail — which Rich described to The Times — Lewis wrote that Kiffmeyer's memo had sparked "concerns regarding possible disparate impact among the state's substantial Indian population."

"Disparate impact" is a term used in civil rights litigation to describe a circumstantial case of discrimination.

After reviewing the matter, Rich recommended opening an investigation.

In response, he said, Bradley Schlozman, a political appointee in the department, told Rich "not to do anything without his approval" because of the "special sensitivity of this matter."

Rich responded by suggesting that more information be gathered from voting officials in the Twin Cities area, which includes Minnesota's two most populous counties.

A message came back from another Republican official in the department, Hans von Spakovsky, saying Rich should not contact the county officials but should instead deal only with the secretary of state's office.

Von Spakovsky indicated, Rich said, that working with Kiffmeyer's office reduced the likelihood of a leak to the news media.

The orders from Schlozman and Von Spakovsky, who wielded unusual power in the civil rights division, effectively ended any department inquiry, Rich said.

[snip]

One of Paulose's first acts [after she replaced Heffelfinger as USA] was to remove Lewis, who had written the 2004 e-mails to Washington expressing concern about Native American voting rights in Minnesota, from overseeing voting rights cases.

The story provides a critical map of the way the Republicans deliberately worked to disenfranchise Native Americans. First, the head of Voting Rights Joseph Rich (who has since left) finds the complaint has merit. But Brad Schlozman, the guy who sued Missouri's Democratic Secretary of State frivolously, told Rich that the issue had "special sensitivity." And then Hans von Spakovsky instructed Rich to work exclusively with the shillicious Kiffmeyer. So they get rid of Heffelfinger, bring in Paulose, and she immediately reassigns the guy who first filed the complaint.

Very deliberate, these Republicans, in their efforts to disenfranchise brown people.

Reggie's Got Mail--But We'll Have Mail, Too, on June 5

by emptywheel

First the bad news: we're not getting the letters sent in support of sentencing until the hearing. I had hoped to send a letter urging for their earlier release. The media and the blogosphere, after all, are going to be in a much better position than Judge Walton to determine whether some of Libby's letter-writers have real conflicts and should be ignored completely. But the damn WiFi in Hartford airport stank and I couldn't get the letter done. Not sure what a little old blogger could have done anyway, given Walton's very pragmatic reasoning behind the timing of the release of the letters:

...the sheer volume of these letters also means the Court will not have an opportunity to fully review each of the letters, let alone to assess what role, if any, they might play in its consideration of a just and reasonable sentence, until the evening before the June 5, 2007 sentencing hearing. The Court cannot conceive of any justification, legal or otherwise, for disclosing the sentencing letters to the media before it has even had the opportunity to read and evaluate them itself. [my emphasis]

Ut oh, Jeffress, Judge Walton appears not to like spam. As I've always said: two rules about Reggie, don't waste his time or the government's money.

But the rest of Walton's order is full of very interesting details. First, Walton gives us a number:

The Court has received more than one hundred and fifty sentencing letters in this case, some urging for leniency for the dependent and some expressing opprobium at the defendant's actions and calling for the imposition of a substantial prison sentence. [my emphasis]

Looking more and more like spam every day. If you're keeping score on the disgraced former public official count, there were nine letters sent in support of a harsh sentence for Bob Ney, and about ninety-five pages of letters (didn't count the actual number) in support of leniency for Ney. So Libby is more popular, not surprisingly, than a two-bit bribery recipient.

Then, look at the language Walton uses to describe this crime:

This large number of letters sentencing letters ... is indicative of ... the weightiness of the underlying charges. [my emphasis]

Ut oh, Barbara Comstock. Walton must not read the WaPo editorial page, if he's talking about the weightiness of the underlying charges. Who's going to tell Fred Hiatt?

Finally, there's the language Walton uses to support expansive disclosure:

Don't Let the Door Hit You...

by emptywheel

As several of you have pointed out in the comments, Tim Griffin will resign effective Friday.

The U.S. Justice Department has notified Arkansas's congressional delegation that Interim Eastern District U.S. Attorney Tim Griffin is resigning effective Friday, June 1. Jane Duke will become acting U.S. attorney. (This is the assistant in the office who the Justice Department once had said had to be passed over as an interim appointee because of her pregnancy. Since it's illegal to discriminate on account of pregnancy, Justice had to back off this statement.)

That's great news--by all accounts, Griffin was determined to stay unless pushed. Which raises a good question--was he pushed?

To answer that, we might want to consider why Griffin stepped down. There are rumors floating he's going to work for Fred Thompson (which is perfect, because once those Libby letters are revealed, I suspect we'll have documentary proof that Thompson doesn't believe in quaint things like jury verdicts). or get rich in the private sector. But I'd like to suggest two factors First, Griffin's departure might have something to do with the fact that one of his guardian angels, Sara Taylor, left last week.

As the Bush administration inches closer to its concluding months, more top aides are headed out to the private sector. Sara M. Taylor, the White House political director and microtargeting guru who has been with George W. Bush from the outset of his first presidential campaign, is the latest staff member to leave the president's employ.

[snip]

Taylor cleared out her office early last week.

Taylor was the person who, in emails in January and February, was most insistent that Griffin's "interim" appointment be permanent.

But I suspect just as important (and very important) behind Griffin's departure is that John Conyers plans to chat with Paul McNulty again.

Reggie's Got Mail

by emptywheel

Judge Walton has announced that he will permit at least some kind of disclosure on the letters submitted in support of Libby's sentencing. Here is the letter Jane and I sent in support of the release of the letters:

We are two of the bloggers credentialed earlier this year to cover the Scooter Libby trial. Numerous commentators, including NYU Journalism Professor Jay Rosen, considered our coverage on FireDogLake.com to be among of the best coverage of the trial. After having served diligently to make the court’s proceedings readily accessible to the public, we were troubled to discover that Defense Counsel William Jeffress presented the possibility that bloggers might discuss the letters written in support of leniency for his client to be one of the biggest risks to the public release of those letters. “Given the extraordinary media scrutiny here, if any case presents the possibility that these letters, once released, would be published on the internet and their authors discussed, even mocked, by bloggers, it is this case.”

Yet even according to Jeffress’ own terms, those letters should be released. He writes: “Nixon views the interest vindicated by giving access to public records as ‘the citizen’s desire to keep a watchful eye on the workings of [the government].’ … Other principles seen as favoring disclosure of judicial records are the need for fostering public confidence in the administration of justice and encouraging informed civic discourse.” All three of those principles apply in this case.

What Constitutes a Hatch Act Violation?

by emptywheel

There's a really important point in this article about the snail's pace of OSC's omnibus investigation of Scott Jennings' political presentations (via TP). The only reason OSC found the GSA presentation to be a violation of the Hatch Act, it points out, is because Lurita "Screwed by her Crackberry" Doan asked what GSA could do to help "our" candidates. The presentation itself, OSC seems to have concluded, wasn't a violation of the Hatch Act.

Elaine Kaplan, Bloch's predecessor as special counsel, said the key factor that led OSC to find a violation on the part of Doan was the determination that the PowerPoint presentation turned into a political brainstorming session under her initiative.

But nothing in OSC's investigative report suggests that anything improper had occurred before Doan initiated the discussion, Kaplan said.

Can that be right? Scott Jennings can wander around our government agencies with his GWB43.com email and target Democratic Congressmen in the 2008 election while on government property, and that's not a violation of the Hatch Act?

Given the fact that someone appears to have backed off of calling for Doan's termination, I think this really raises some questions about how seriously they're going after these Hatch Act violations. I guess there were always questions.

In any case, Scott Jennings sure seems confident he's in no risk of losing his job over his dog and pony show...