WSJ and the AP Finally Get Their Windmill!

by emptywheel

Pow wow is right. One of the best parts of today's Appeals Court order releasing more of the grand jury material from the Plame investigation is this paragraph:

Even if the Armitage revelation created a compelling public interest in them—and it
is unclear to us why, as Dow Jones asserts, the Special Counsel’s knowledge that one individual leaked Plame’s identity calls into question the validity of his continuing investigation into others who may have unlawfully leaked this same information—this is irrelevant given that there is no First Amendment right of access to secret grand jury matters.

The Appeals Court judges are basically telling the AP and WSJ the same thing I said months ago--they're being dumb when they claim that Armitage's involvement in the leak touches on Libby and Rove's guilt at all.

The new stuff unsealed in the opinion, however, is frankly less exciting (as it was bound to be, given the pointlessness of this request given grand jury rules) [Thanks to Jeralyn for passing it on--click through for her post on it]. The opinion mentioned Cheney's dictated talking points to Libby from July 12:

Libby testified that while flying back from an event in Norfolk on Air Force Two, Vice
President Cheney dictated several statements relating to the sixteen words controversy, some to be given to reporters on-the-record, others on background and deep background. (I-193-201.) After landing,

It also mentioned Libby's admission, at his first FBI interview, that Cheney may have ordered him to leak Plame's identity:

Also, though Libby now claims not to remember Cheney telling him to discuss Plame’s
employment, he told the FBI during a preliminary interview that it was “possible” that he received such instructions. (I-201, 391.) Perhaps indicating the issue was on Cheney’s mind, the vice president’s copy of Wilson’s op-ed, which Cheney cut out and kept on his desk, carries the following handwritten note: “[H]ad they done this sort of thing before[,] send an
ambassador to answer a question? [D]o we ordinarily send people out pro bono to work for us? [O]r did his wife send him on a junket?” (I-308-12.)

This suggests in the last round of unsealing, Fitzgerald fought to hide Cheney's close involvement.

The opinion also included details of the Novak leak--that we already know:

the special counsel has demonstrated that his testimony is essential to charging decisions regarding White House adviser Karl Rove. (See 9/27/04 Aff. at 22-23). Although uncontradicted testimony indicates that Novak first learned Wilson’s wife’s place of employment during a meeting on July 8 with Deputy Secretary of State Richard Armitage (see 8/27/04 Aff. at 18), Novak said in grand jury testimony that he confirmed Plame’s employment with Rove (II-153-54), a longstanding source for his columns (II-121-22). According to Novak, when he “brought up” Wilson’s wife, “Mr. Rove said, oh, you know about that too” (II-154) and promised to seek declassification of portions of a CIA report regarding the Niger trip, which Rove said “wasn’t an impressive piece of work or a very definitive piece of work” (II-158). In an October 2003 column describing his sources, Novak identified Armitage’s
comment as an “offhand revelation” from “a senior administration official” who was “no partisan gunslinger.” (II-20.) He referred to Rove simply as “another official” who said, “Oh, you know about it.” (II-20, 209-11.) Upon reading Novak’s October column, Armitage recognized himself as Novak’s source and, as he told the grand jury, “went ballistic.” (II-859-60.) He contacted Secretary of State Colin Powell to offer his resignation (II-862-64) and spoke the next day with FBI and Justice Department officials investigating the leak (II-878-79). “I was very unhappy at myself,” Armitage testified, “because I had let the President down, I’d let the Secretary down, and frankly, I’d let Ambassador and Mrs. Wilson down. In my view inadvertently, but that’s for others to judge.” (II-860.)

About the only interesting bit there is Armitage's phrase "went ballistic." Not a surprise, but just more good Armitage color.

The unsealed portions include a reference to the INR memo:

and Armitage’s testimony identifies a document referring to Plame as a “WMD managerial-type,” wording Armitage considered “strange,” though he “assumed she was another analyst” (II-783 -84, 809, 815-16).

Again, we know Armitage thought the phrasing was "strange"--it doesn't say much for Armitage's intelligence, I guess.

What is most interesting, though is what remains redacted, Tatel's argument for why Rove was suspected of perjuring himself on the Cooper conversation. The passage directly follows the long Armitage passage above, consists of about two pages, and ends with the point that Cooper's testimony will provide key evidence as to whether or not Rove perjured himself. I'm going to come back to this redaction in a separate post.

Comments

[bk]

Why wasn't Rove indicted for leaking the name of an covert CIA agent? He knew, or should have known, that Valerie was covert. And who do you think he would go to to get portions of the CIA report declassified, Bush or Cheney?

[Canuck Stuck in Muck]

Bear of little brain, here. You conclude "Fitzgerald fought to hide Cheney's close involvement." Only, I don't get how you got there. Help! Please!

[John B.]

Why would Fitz fight to hide Cheney's involvement?

[emptywheel]

Canuck

Because the two bits that I copied above--relating to the Cheney dictating talking points and whether Cheney ordered Libby to leak Plame's ID--were what Fitzgerald fought to keep sealed in the last round of unsealing, which was about a year ago. With those two bits sealed, all mention of Cheney is hidden.

Does that make sense?

[KLynn]

Second bear of little brain here. What benefit to the investigation does fighting to hide Cheney's close involvement do? Was there a hope that "less is more" in getting others to talk about Cheney? I need a life line too! Help!

[emptywheel]

KLynn

I doubt it has anything to do with the investigation--at the time Fitz was hiding this, he was letting it be known that Cheney had ordered Libby to leak Plame's identity the NIE. I think it's more the principle, that Cheney wasn't charged therefore he should not be named in such a fashion.

[KLynn]

Thanks! Now I get it!

EW, thank you for all your absolutely amazing working each day. Thanks for the "Fred" post earlier. I'm having difficulties with the thought of eating lunch after his performance. But I think it is best I keep my blood sugar level maintained and my mind alert.

Any chance you are doing a book signing in Columbus, Ohio soon?

Again, thanks.

[Sebastian Dangerfield]

Hmmm. This is really aki to divination by reading sheep guts, but methinks that the snark about the "Armitage was the leaker" talking point -- which the court had no need to include -- does not bode well for Libby's motion for release pending appeal. Or so I tell myself as reassurance.

[emptywheel]

Sebastian

You know them better than I--but they are different judges. It'd sure be nice, though.

[Sebastian Dangerfield]

"but they are different judges"

No, it is the same panel as the "Special Panel" deciding the motion for release. (We've all wondered whether it's a coincidence. Froomkin talked to Langer at the court who assured him it was indeed just a coincidence.)

My logic, such as it is, is that the "Armitage was the leaker!" talking point is the linchpin to the "Fitz is an out-of-control prosecutor" meme, which itself feeds the "Fitz had such awesome super-powers (granted by his having been bitten by a radioactive Deputy Attorney General) that he must be considered a 'Superior Officer'" argument. Also, mainly for amusement, the order and re-un-redacted opinion have actually convinced that trailing indicator Maguire that the court actually was aware that the only crimes on the table whe it sent Miller to jail were perjury-type crimes. (Welcome to reality, Tom. Take off your coat and stay a while!)

My misgivings have to do principally with Sentelle and secondarily with Hederson, who would likely follow Sentelle if he is inclined to spring Scooter for extra-legal reasons. But maybe he's not that craven. And maybe Tatel can keep them honest. My wager -- and experience -- is that the more dastardly judges are less inclined to pull fast ones if there's someone principled on the panel that would blow the whistle in a dissent.

Now that the panel has this one out of the way, I think we'll be seeing an order on the release motion within a week.

[Sebastian Dangerfield]

EW BTW: Does it strike you -- as it does me -- that Dow Jones's dogged pursuit of the affidavits that Fitz executed to justify the Miller subpoena are clearly intended directly to help the defense's legal case (and not just the war of the blowhards) by trying to dredge up some other weak post-hoc argument (like the CIPA affidavit boo-boo that Robbins's team landed on) that Fitz was acting out of bounds?

[emptywheel]

Sebastian

Ah, shite, you're right.

The dogged pursuit is on the part of AP and WSJ (though I think most of the media is offering some support). Though, given how bad the logic behind this pursuit is, I suspect it IS the WSJ--I was pretty impressed with the AP's lawyer on these issues.

I think they want the subpoenas for two reasons--to fight back in the public sphere, and also to find out if Fitzgerald knew something very specific pertaining to Dick Cheney's involvement (I'll explain a little in my follow-up post to this).

[Sebastian Dangerfield]

"Ah shite, you're right."

Fret not. It's beenn known to happen once in a while that I get something right.

[bmaz]

Sebastian - Agreed as to the Tatel/Sentelle/Henderson potential dynamic. I would hope/think that it is harder for them to go out on a precarious limb on an interlocutory issue than it is on a final decision for exactly those reasons. That had kind of been my thought process, but I am glad that someone with actual experience with them had the same thoughts. As to the Dow Jones' motivation, I have to think it is both as opposed to one or the other. Either way, the little bonus dicta on Armitage certainly was a beautiful return for the dopes eh?

[Sebastian Dangerfield]

bmaz: Agreed. But there is a flipside to the "interlocutory argument" -- and that is this: Because the standard is not one that requires ultimate resolution of the issue, the panel could issue an anodyne piece saying "we're not prejudging any issue but are of the opinion that of the issues presented Libby has shown one that is sufficently close" without leaving any footrprints that would have any precedential effect. I other words, the tentative, interlocutory nature of the issue could be seen as giving a freer hand. On the other hand, the possibility of a dissent should temper even that impulse.

[freepatriot]

hum, where's the shit stain when you need her ???

HEY SHIT STAIN, AIN'T THAT ONE OF YOUR ARGUMENTS ???

you know, the fact that Armatige leaking Plame's name should exonerate scooter and kkkarl

well guess what shit stain, now you get to learn something that EVERYBODY ELSE here already fucking KNOWS

prior disclosure doesn't extinguish classified status

it is unclear to us why, as Dow Jones asserts, the Special Counsel’s knowledge that one individual leaked Plame’s identity calls into question the validity of his continuing investigation into others who may have unlawfully leaked this same information

so there you have it, shit stain

Armatige's leak didn't alter the classified status of Valerie Plame

kkkarl rove is an idiot and a traitor (Valerie Plame STILL isn't "fair game")

scooter libby is a liar and a traitor

and you're a shit stain who owes a whole community an apology for spreading your stupidity like it was a fact or something

we ain't holding our breath in anticipation that you'll do the right thing

you're a shit stain, so I'm sure you can ignore your proven ignorance, and will continue on your foolish path

see ya on the funny pages, shit stain

[Canuck Stuck in Muck]

Thanks, EW! Your response to me and KLynn made sense of it. I was afraid you'd suddenly developed a bad feeling about Fitz! Instead you pointed out, once again, that he's a classy guy (much as it probably hurts him under circumstances such as these, when he'd probably rather roast Cheney than cover C's ass).

[bmaz]

Canuck, I'll add to EW and try to make you feel even better about it. Fitzgerald was (may still be?) after Cheney. But you don't shoot at the king if you can't take him out; especially with the whiny right wing noise machine furiously searching for something, anything, to throw out as evidence you are unfair and prejudiced. In a different situation, a prosecutor might want to bleed a little info or facts out to rattle a suspect's cage and let the public know the government is on the case (this in spite of the fact a prosecutor is technically supposed to refrain from such actions, it does happen regularly) but not here.

[Linda]

It seems to me that one of the obvious questions we do not have the answer to is: who told Armitage? As I understand it, he is a well known gossip and therefore first up on a lot of reporters' rollodexes (rollodexi?).

[Jodi]

Linda,

Armitage read a paper from the CIA that was poorly prepared. (I think that is correct, and if it is not, be prepared for a deluge of "Got You!s")

[Neil]

Jodi, Care to restate your position on whether Armitage's disclosure of Plame's identify to Novak in any way mitigates the lawfulnees of Libby's disclosure to Miller?

Here's your out. Say Bush or Cheney declassified Plame's status not just the NIE, and then ask EW to make the case for you.

[Jodi]

Neil,

there were several things going on at the time. Joe Wilson put the pot on the fire with the OP-ED and its many claims, and after that things ran their course. Who knows? Maybe Joe planned this whole thing from the beginning with or without his wife's knowledge. Sometimes players just have an instinct for where the action is.

But once Joe put the pot on, everybody else started investigating. The operative question was who the hell is this guy and what is he up to. Is this true? This could look bad. We have to react (an expected reaction)

Being the Government (or any big business) then papers started being generating, people started talking all with their own aims, including gossip.

Mr Armitage read one of the papers that had too much information, and talked to Novak. But of course there were many other circles of activity.

I don't think anyone was in control. Everyone was pushing and prying around, darting about, wringing their hands, etc.

But this is the germane point about Libby's talking to whoever. Mr Fitzgerald never charged Mr Libby with a crime for any unlawfulness for his discussions about Ms Plame with anybody.

Now I have alreadly repeatedly said that the White House, the CIA, the State Department, and everyone else should not have spoke of or written down Ms Plames name or her relationship to Mr Joe Wilson.

But "lawfulness of disclosure" is moot and not a consideration here. Mr Fitzgerald chiseled that into history by not charging. (I know that much law.)

[P J Evans]

Ah, the troll still hasn't figured out what 'obstruction of justice' and 'perjury' are about, especially in this case. I'd recommend some reading, but I doubt it would sink in. Do trolls use the same water fountain as the folks at DoJ?

[SteveGinIL]

Two points I've not heard and wonder why not:

1. Is it just me, or did it seem awfully convenient that Armitage came out with his, "Oh My! It seems that I myself must have completely inadvertently outed Plame, without realizing it! And once I did realize it, I beat my breast in horror that I could have done something so stupid. Oh, I will have to run around, rending cloth and asking everyone's forgiveness!" This immediately sounded like so much a good sergeant falling on his sword for his lord and master that I nearly puked. The insincerity of it was appalling, yet everybody bought it, hook line and sinker. I don't buy it. If someone had told Armitage to fall on his sword to protect Libby and/or especially Rove, I am sure he would have done it, and particularly if they got a loyalist that would support his story, and if he could also pretend that he had not even realized he'd done it, mea culpa, mea culpa!

2. Nothing in the IIPA (50 USC, Section 421) says that only the first person to out an operative is culpable. By not saying that, subequent outings are still violations of the section.

An example scenario: If two people out an operative at different times, but the first one to do so told someone who didn't pass the in information on to anyone else, then the second 'outer' may not know the information had already been leaked. Therefore, the second 'outer' cannot claim that his outing was simply passing on already outed material, because at the time he did it, he did not know that the first person had done it before him. Did the section apply to the second? IMHO, of course. Until the information is generally known outside classified circles, anyone passing the information on or corroborating it is culpable.

[Glitterscale]

It would appear that somehow they manipulated Armitage to be one of the leakers. Perhaps he enjoyed "being in the know" with some reporters and they took advantage of that by showing him the "declassified" NIE. (And who showed him that?) And if they only showed him the unredacted portions, and he has only a mediocre intelligence he might not have spotted the "WMD" reference that would make people like us quiver a little. But manager he would have understood, being a middle manager himself.

At one fell swoop they push Armitage into the soup AND Colin Powell as well. I wonder they didn't try to go farther pulling Colin into the soup. Maybe it just wasn't as easy?

[Jodi]

PJ Evans,

I understand that you believe just like SteveGinIL below your post that IIPA was operative here.

I will agree that if it was, you PJ have a good point, as well as SteveGinIL but I don't think it was operative in the case of Ms Plame.

ergo., and that is why Mr Fitzgerald didn't press the matter by simply making a charge against someone, anyone.

Some might argue that it was too difficult, too protracted an affair to bring the charge, and that is why Mr Fitzgerald didn't.

I on the other hand seem to have even a better opinion of him that those people and think that if the case was chargeable, then he would have brought it.

I think also that Mr Cheney and Mr Rove and Mr Armitage among others also didn't think it applicable.

... so no charges!! ((Did you read enough PJ?))

[freepatriot]

hey shit stain, did you ever consider that scooter's OBSTRUCTION OF JUSTICE had anything to do with Fitzgerald's difficulty in prosecuting the leak violation

you know, just like Fitz said

that's the difference between a shit stain and a normal human

the shit stains spend all their time finding alternate explanations so the shit stain cognative dissonance is no disturbed

so here's something to consider, shit stain

Patrick Fitzgeral is telling the truth

the FBI is telling the truth

The CIA is telling the truth

The Grand Jury is telling the truth

and the Appeals Court is telling the truth

scooter libby lied and obstructed justice and IS NOT TELLING THE TRUTH

is all of that TOO MUCH for you to handle ???

or are you searching for a way to admit that you know the truth while protecting your "delusions and beliefs" ???

there is certainly something that prevents the shit stains from understanding reality

what's your excuse shit stain ???

[CONNER]

Raise Cain

[AUDREY]

Game is up - The