Patterico's Pontifications


Libby Again

Filed under: General — Patterico @ 2:25 pm

Clarice Feldman (whom I really like, by the way — and whose son used to live two doors down from me!) lectures me about my posts on the Libby trial in this comment: “Dear Patterico, until you have read the entire record, how dare you smugly say he lied?” She concludes equally harshly: “Until you know what you’re talking about cut the sanctimonious nonsense.” Other commenters have also been piling on, accusing me of being part of a prosecutorial fraternity that never criticizes its own. Many repeat the charge of smugness.

As I admitted in my original post on the verdict, I haven’t followed this case terribly closely — certainly not as closely as Clarice or Tom have. Then again, I’m not completely ignorant about it. I think I have a basic idea of the prosecution’s assertions, and the defense’s points.

My basic feeling is that Libby’s story is utterly implausible. There are things you forget, and things you don’t. Under the circumstances, I don’t believe that Libby learned about Plame, forgot about it, remembered it again, but forgot that he had forgotten. That scenario contradicts the testimony of something like nine other witnesses. While they may have had some memory problems of their own, their memories all contradicted Libby’s in significant ways.

I am happy to carry on the discussion, and I promise to do so with an open mind. I very much dislike Joe Wilson, and I hate to see him profiting in fame and respectability based upon public misunderstanding of this verdict.

In the spirit of discussion, let me explore a few issues with you.

First, a number of you have confidently asserted that Fitzgerald knew early on that Plame’s status was not covert, meaning no crime was committed. For example, DWilkers:

Fitz was appointed to investigate to determine whether a crime had occurred when someone leaked Plame’s status as a CIA employee and if so prosecute the leaker. On the day of his appointment he knew Armitage had leaked her and he also knew she wasn’t ‘Covert’ as defined by IIPA.

and Bob:

Fitzgerald KNEW who first revealed Plame’s name PRIOR to even interviewing Libby. Plame WAS NOT a covert agent and no statute had been violated so no inestigation was necessary.

And jb:

You don’t see anything wrong with Fitzgerald’s actions? Like when, during the first week of the investigation, he KNEW who the leaker was (Armitage) and he KNEW Valerie Plame’s status (not covert); that is, he KNEW no crime had been committed. What was left to investigate? Please help me understand how that is “OK.”

When I read these comments I doubted myself. I have followed the trial to the same extent as many other people who keep up with the news, but who haven’t delved into it in depth. My impression was that we didn’t really know whether Plame was covert or not, but that Fitzgerald evidently couldn’t prove that anyone had violated the statute.

I haven’t followed this case as closely as Tom Maguire, and it seems that even he isn’t sure whether Plame was covert.

So I think some of you may be making assumptions that the facts can’t cash.

Another assumption: if Plame wasn’t “covert” then there was no crime. Really? Fitzgerald seems to have consistently said that her status as a CIA employee was classified — which is not equivalent to saying that she was “covert.” It is still a crime, under certain circumstances, to reveal classified information. So, even if Fitzgerald “knew” Plame was not covert, why does that mean there was no crime?

Another point many of you seem to be making: Fitzgerald knew that Armitage was the original leaker. Therefore, the second he learned that, he should have brought his investigation to a grinding halt — immediately.

I don’t follow this logic either. How is Fitzgerald supposed to know that nobody else was involved in any crimes, just because Armitage says he was the leaker? If Armitage says he did this on his own, must Fitzgerald take Armitage’s word for it?

My current bottom line is this: I can’t agree with people who say that Fitzgerald should not have been thorough, or that he should have ignored falsehoods told before he was appointed, or that he should not prosecute someone for perjury when there is no underlying crime (an argument addressed in this post). If you have other problems with the verdict, feel free to set them forth. But since there seem to be some incorrect assumptions floating around, please include links.

And I don’t mean to sound smug. Maybe I’m making some incorrect assumptions myself — and if I am, I hope someone will gently correct me. My goal is to make sure that my opinions are based on facts, not political resentments or false assumptions.

53 Responses to “Libby Again”

  1. My basic feeling is that Libby’s story is utterly implausible. There are things you forget, and things you don’t.

    I think that’s what the jury concluded, too.

    Ten days of deliberation tells me that they understood “the benefit of the doubt” and that they did not convict him without convincing themselves that his actions overcame that doubt.

    Tracy (63e43e)

  2. How is Fitzgerald supposed to know that nobody else was involved in any crimes, just because Armitage says he was the leaker?

    Yes, but….

    Yes, the fact – and it appears to be about the only one that everyone agrees to – that Armitage originally leaked the role of Plame in the Wilson mission (to Woodward and Novak) – does not preclude the possibility that Libby and Rove on their own or in concert (without knowing about Armitage’s role) were also engaged in possibly criminal activity.

    Fitzgerald had to continue on despite his knowledge of Armitage’s initial leaking.

    But, there was a series of actions – or non-actions – by Fitzgerald that makes one question what his motives were. Fact: Fleischer’s GJ testimony was at odds with that by Dickerson and Gregory. Fact: Armitage’s GJ testimony was at odds with Pincus’s and Woodward’s. Fact: Woodward says he told Pincus about Armitage’s revelation. Pincus denies it. Fact: Andrea Mitchell stated that “all the reporters” knew Plame’s status. From where? Who? Mitchell later retracted that statement but apparently was never questioned about her original claim.

    And on and on and on… (I used to post semi-regularly at JOM but gave up following this Rube Goldberg-like mess). There are a number of loose threads that, apparently, Fitz. never checked out. Unexamined threads that seem to indicate that Fitz. concluded early on that he would go after the OVP and ignore evidence that pointed elsewhere.

    This whole affair, it seems to me, originated from a series of foulups by Administration officials in identifying Plame’s name. Armitage, for example, has stated that in his 30+ years of government he had never seen a covert CIA agent’s name listed in a document. The names were always redacted or not specifically provided.

    Once Armitage (and Libby and Rove) learned about Plame, they too believed that she was just a desk officer in the Agency who suggested her husband go to Niger and investigate the rumors of Iraq’s attempts to acquire uranium (interesting note: Plame suggested her husband go one day before Cheney asked the CIA to look into the rumours); in other words, Cheney knew nothing about Wilson’s little sojourn).

    So, once Libby and Rove figured out that their leaking (or in the case of Rove, verifying a leak) was possibly a crime, a coverup ensued. Libby conveniently forgot where he learned about Plame’s role and status. Rove, well, I’m not sure how Rove escaped things.

    Negligence and not wilfulness caused this whole mess. As Fitzgerald stated early on, he had to determine whether the pitch hit the batter on purpose or whether it was one that just go away.

    Apparently, it just got away.

    SteveMG (137f44)

  3. SteveMG:

    As I read your comment, the out of control Fitzgerald didn’t do enough to investigate possible perjury on the part of Fleischer and Armitage.

    It reminds me of the Border Patrol critics: why did they prosecute these guys. And also, why *didn’t* they prosecute those other guys?

    You seem to think that there are loose threads like that the out-of-control prosecutor with unlimited resources never checked out. So let me ask you: do you think that there were other viable perjury prosecutions? The only possible one I see is Russert, and it looks weak to me.

    And how do you *know* that Fitzgerald didn’t check them out?

    Patterico (04465c)

  4. Some seem to think that Plame was “classified” and revealing the fact that she was a CIA employee violated some law. I think it is the responsibility of anyone who claims that this is a crime should cite the statute that makes it so. Fitz claimed that Plame was “classified” and outing her violated the law. I say “citation please”

    Retiree (0c909a)

  5. Apparently, it just got away.

    Oh, forgot to answer: Did Libby commit perjury?


    Both Judy Miller and Russert testified that Libby was quite upset over the coverage of Wilson’s allegations. The OVP believed – rightly so, I think – that there were elements in the CIA waging a public relations war with the White House over the erroneous pre-war intelligence.

    Libby, believing this, would certainly have remembered Plame’s role in sending her husband on this lark to Niger. For it appeared to be part of the CIA’s attacks on the White House, specifically Cheney and Libby.

    No way he forgets that.


    SteveMG (137f44)

  6. Here’s the hypothetical that I think gets to the root of a lot of people’s frustration:

    If Fitzgerald had someone who he could put on trial for leaking Plame’s identity would he have bothered to prosecute Libby?

    Stephen Macklin (68591a)

  7. So let me ask you: do you think that there were other viable perjury prosecutions? The only possible one I see is Russert, and it looks weak to me.

    Viable? Probably not.

    But it seems to me that had Fitzgerald aggressively gone after – or looked into – the possibility that these other witnesses were, let us say, “shaky” in their GJ testimony, that would have greatly weakened his ability to go after Libby.

    For the only way to get Libby would be to have a trustworthy Russert and Cooper (among others).

    IOW, he goes after these (perhaps) ancillary perjurious statements, it undercuts greatly his ability to investigate the OVP. I think he overlooked these inconsistencies on the part of Russert et al. because he wanted a bigger target.

    And it’s clear to me that target was the OVP. Libby and then Cheney.

    I’ll note Scalia’s dissent when the independent counsel statute was upheld (yes, Fitz. was a special prosecutor but the principle still applies):

    [W]hen a special-purpose independent prosecutor is chosen, there’s a special risk that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone …

    It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense—that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.

    And how do you *know* that Fitzgerald didn’t check them out?

    I don’t; that’s why I qualified it with “apparent”. Although, IIRC, Mitchell never testified (GJ). Neither did Gregory (GJ). Other figures that may have complicated his desire to prosecute Libby.


    SteveMG (137f44)

  8. “I havent followed this case terribly closely”

    That’s where I stop reading.

    [You’re entitled to stop reading wherever you want. But this is a worthwhile discussion for many of us. I still know enough to challenge some assumptions of the readers here that I think are flawed. We can discuss abstract questions like whether a prosecutor should prosecute perjury in an investigation which reveals no other underlying crime. And it’s a chance for those who have followed the ins and outs to explain to the rest of us why you think Libby’s innocent. If that doesn’t interest you, that’s fine. But you’re wrong if you think the discussion we are having here is uninteresting to everyone. — P]

    craig mclaughlin (8e7ab6)

  9. The question is about discretion. Given the contradictory statements, somebody or somebodies, forgot or witheld the truth. There was smoke. But was there a multi-million dollar fire?

    You well understand the limited resources enjoyed by our justice system. Was this expanded investigation warranted given that no covert status was breached?

    I say no.

    On the other hand, I do enjoy watching the hubristic confront judicial overstep (tyranny?) as so many average Joes encounter everyday.

    Ed (bc2d77)

  10. Cooperation with the law just took another kick in the nuts. One of the commenters here, or maybe Beldar, said something like “it’s a tangled mess of spaghetti”. He is right and and now we are all mafiosi.

    “I don’ recall nuthin’.”

    What else would any sane man say to any cop, any prosecutor, any grand jury, any judge.

    BlacquesJacquesShellacques (83acf5)

  11. Like Patterico I have some knowledge of the case but haven’t followed it obsessively. There is something I am curious about. Ashcroft originally thought the investigation could be handled by the justice department but at some point concluded a special prosecutor was needed. There was speculation at the time about his reason for recusing himself but if I recall correctly nothing conclusive. Is this now known (or convincingly suspected)? If, as some of you claim, there was nothing left to investigate about the leak, why did Ashcroft feel a special prosecutor was needed. It seems likely to me that the appointment had more to do with evidence of perjury or obstruction of justice than with the leak. In which case blaming Fitsgerald for the direction his investigation took seems strange.

    Regarding prosecutorial discretion, there are two reasons a prosecutor may decline to prosecute although he is convinced that someone is guilty and that he can obtain a conviction. One is lack of resources, there are higher priority crimes to be prosecuted. The other is the interest of justice, although he could convict someone it would not serve the interest of justice. The first reason does not really apply to special prosecutors, if a special prosecutor prosecutes A this does not mean he can’t prosecute B. So for better or worse when the AG decides a special prosecutor is warranted he is deciding that potential prosecutions are high priority.

    James B. Shearer (fc887e)

  12. I spent forever answering and someone lost the post.
    Here is the best short answer on whether she was w/in the IIPA–an utter red herring. Read the Statute and Toensing and the disingenuous appointment letter and tell me you seriously believe she was, that Comey or Fitz thought she was or that this was ever seriously a consideration.

    On October 3, Armitage confessed to certain members of the DoJ . With him were Powell and the Dos GJ Taft. Despite the fact that the President asked the leaker to come forth to him, all three and the DoJ officials kept this from him and from the public. Fitz never sought Armitage’s calendar nor interviewed him–it seems–about others he told. In any event, he did not reveal that he’d wold Woodward on June 23. Did he tell others? It seems likely but we don’t know.

    On that date (Oct 3)the DoJ announced an investigation was being undertaken and w/in days WH staff was ordered to preverve all papers. Libby was out of town. When he returned the FBI wanted to speak to him. He said that he’d not had an opportunity to review his notes or refresh his recollection but he showed them the one document he’d found. That document indicated Cheney told him (a) he never sent Wilson to Niger (b)he never saw any report from him and (c) the SOTU was consistent w/ the NIE which was based on sound intel and (d) Wilson’s wife worked in counter proliferation. (More than one agency has a cp dept, nothing in that or anything else Libby ever received indicated she worked in the CIA or that her status was in any way classified.)Libbery was asked to deal w/ the first 3 items. The last item apparently never seemed to any import to him.(It was apparently of no import to anyone much until a few days after the Novak piece, David Corn wrote in the Nation that *if* he was an undercover agent, this information would jeopardize national security .(*I repeat the IF, it was something he concoted out of thins air with Wilson and gave a story that was going nowhere legs.)
    About that time Grossman, Armitage’s deputy asked for a memo about the trip .It listed Plame by name, said she worked at the CIA and had played a role in her husband’s trip. No evidence was ever provided that Libby saw it. The evidence is that Fleischer saw it, Barnett saw it, Powell saw it and Armitage saw it.

    On July 11, the testimony is that Fleischer told Gregory and Dickerson. Dickerson denies that and was never called or interviewed. Gregory has never confirmed or denied it. Russert says that if Mitchell or Gregory knew it, he did, too.
    Harlow, the CIA public affairs officers, told Cathy Harlow of the OVP’s office–sometime in the week of July 6–that reporters were calling his office asking about Plame. Rove told Libby Novak had called him w/ information he’d received from Armitage.
    Libby said that the information about Mrs. Wilson (no proof that he ever knew her name before this time, a month later started coming in from reporters.At the gj ( Near the end of 8 hours of waterboarding before the gj, in which, among other things, Fitz tried to get him to confess to illegally leaking the NIE and to telling Pincus, Libby was asked to explain why he thought he got that information from Russert. He said he remembered hearing it “as if for the very first time”. “As if…” is not “for the very first time, but logically reveals that for the first time that bit of information had some significance.

    At this point you probably think I’m going on far too long. So I’ll just run thru some of the testimonial variance and memory lapses of all the key prosecution witnesses:
    (a) Fleischer:Aside from the Dickerson contradiction and Gregory silence, he denied on the stand that he told Pincus. Pincus testified w/o reservation that Fleischer, not Libby was his source.
    (b) Cooper’s testimony shows that he was sloppy and careless and even then his notes seem to confirm what Libby said–that he’d heard it from other reporters but did not know it was true. While his story for Time was largely made up out of whole cloth –he lamely said after that was revealed-that the article “War on Wilson?” ended w. a question mark–he admitted that his bosses did not consider Libby’s remarks confirmation and held up the story.
    (c) Russert engaged w/ the prosecution in some skullduggery–He failed a false affidavit in connection w/ his effort to fight the subpoena in which he hid his prior cooperation w/ the FBI.And Fitz never notified the court that that affidavit was false. The original FBI notes are mysteriously missing but the summary shows that Russert initially said that it was “possible” he did tell Libby.
    Mitchell had earlier said “everyone knew ” about Plame. She at one point indicated she’d cooperated w/ the FBI, but there is no indication what that consisted of and she never testified under subpoena. Her two efforts on Imus to backtrack from “everyone” knew fell flat, but the defendant was not allowed to examine her on this issue.

    There’s more but you are porbably sick of reading all this.
    The bottom line is that these are all busy people, this was not always the big deal it seems in retrospect, and everyone remembers it differently. Despite the memory lapses and testimonial contradictions the prosecution forged ahead against one man. And both in his presser and in his absolutely outrageous rebuttal which went beyond anything in the record and in the defense closing, Fitz made clear his animus to the WH and his politicization of a purely political dispute.

    clarice (c49871)

  13. #

    I think that’s what the jury concluded, too.

    Ten days of deliberation tells me that they understood “the benefit of the doubt” and that they did not convict him without convincing themselves that his actions overcame that doubt.

    Comment by Tracy — 3/10/2007 @ 2:48 pm

    Of course, this is the same jury which includes at least two members are convinced that there was a higher level conspiracy occurred, even though that case wasn’t even tried.

    thirteen28 (1da714)

  14. There are some typos in the above post–“Libbery” of course should be “Libbey” and Re Russert he “FILED, not failed” a false affidavit.

    clarice (c49871)

  15. If, as some of you claim, there was nothing left to investigate about the leak, why did Ashcroft feel a special prosecutor was needed

    Well, Ashcroft recused himself due to appearances of conflict of interest and the then Deputy AG James Comey named Fitzgerald to investigate.

    Note: Fitzgerald was one of the prosecutors for the Clinton DOJ in the embassy bombing cases. He’s not a Republican; or a Democrat. IIRC, he’s actually a registered independent.

    There were lots of calls from Democrats and the press for an special prosecutor based on the allegation (led by David Corn) that Plame was a covert agent and that someone in the White House leaked her name illegally.

    From there, all hell broke loose.

    SteveMG (137f44)

  16. I wrote about this matter extensively, including during the trial. Here are two articles, one on Cooper and one on NBC which cover these issues in greater depth.



    clarice (c49871)

  17. Cooper


    clarice (c49871)

  18. 15

    But Ashcroft did not recuse himself immediately, the investigation was already well underway. So what happened that made Ashcroft decide he should recuse himself?

    James B. Shearer (fc887e)

  19. So what happened that made Ashcroft decide he should recuse himself?

    It’s not clear (at least to me). IIRC, after the investigation was underway, Rove was discovered/determined to be a possible leaker (i.e., a person of interest), Ashcroft then decided to recuse himself because Rove had campaigned with Ashcroft when he ran for Senate in Missouri.

    So, once Rove’s actions became an issue, Ashcroft decided to drop out.


    SteveMG (137f44)

  20. I tend to lean towards faulty memory, in that everyone involved in this case had piss-poor recollection.

    Fitzgerald and the jury made a big deal of Libby being contradicted by multiple witnesses, but never addressed the witnesses contradicting each other.

    Being grilled for eight hours about statements made months earlier, I am sure almost all people would misstate themselves.

    All of this presupposes that Plame was a big deal before the Novak article came out, but the testimony (and the observations of a D.C. denizen) indicate that nepotism isn’t such a big deal in this burg. Getting the NIE out, and the info that OVP did not send Wilson was the important task, and if you listen to the Armitage/Woodward tape it becomes clear that Plame sending Wilson was a bit of salacious gossip that was on everyone’s lips due to Wilson being a shameless self-promoter, liar and all-round dickhead.

    Maybe Libby did intentionally perjure himself, but I am still at a loss as to motive, and think the judge egregiously limited the defense. Regarding Plame’s status, 36 media organizations agreed that she wasn’t covert in court although they continually reported that she was on air/in print. Tim Russert has exposed himself as a knave, so even if this goes badly for Libby now there is a silver lining.

    Uncle Pinky (300784)

  21. Maybe Libby did intentionally perjure himself, but I am still at a loss as to motive

    I’ll throw out two:

    (1) To protect Cheney, who gave him orders to correct Wilson’s falsehoods.

    (2) To delay/complicate the investigation so that it wouldn’t affect the presidential elections.

    Libby was convinced – he said so according to Miller – that the CIA was waging war on the OVP over the disastrous pre-war intelligence failures. He saw Wilson – from Plame who worked on the WMD program in the CIA – as being part of that cabal. And Plame – with Wilson – as part of that same cabal.

    Hard for me to believe that he would forget that fact. I.e., Plame was married to Wilson and had a role in him sent to Niger.

    Possible? Yea. Likely? No.


    SteveMG (137f44)

  22. Protect Cheney from what?
    Tenet was supposed to clarify that the Agency not the OVP sent Wilson in his July 11 statement and did not. Just in case you think the idea of a CIA plot is ridiculous. The DoJ treated the referal letter (which was leaked to NBC’s Andrea Mitchell as soon as DOJ got it)as a routing matter of the sort they get 400 times a year, until Tenet called and demanded action. The CIA took no steps to rein in Wilson. Indeed they never even asked him to sign a non-disclosure statement–so, in effect the idea is that he could promote lies about a trip no one even knew about in the WH.

    I didn’t mention the 9 witnesses who the prosecution said told Libby in the one month period between the time Cheney told him and he had the conversation with Cooper–but at JOM we totaled them up and found 8, all of whose recollections had like wine improved susbtantially w. age. We could find only one solid reference which totaled 30 seconds, occurred in a meeting w. a number of other people under circumstances where it was unclear Libbery ever heard it.

    clarice (c49871)

  23. Many thanks for the links. It’s nice to again be alligned with you as a contrarian, Patterico. :-)

    I’ve been guilty many times recently of using loose terminology in which I’ve written things like “there was no underlying crime in connection with the leak.”

    I should be more precise. I’m not basing that on a detailed analysis of the facts about Plame’s job description or employment history at the CIA, which I don’t claim to have looked into and am not persuaded anyone in the public domain has all the relevant information about. I know there are at least two federal statutes that potentially could have applied, and but I haven’t looked closely at either since 2003 or so.

    When I say (in loose language) something like “there was no underlying crime in the leak,” what I specifically mean is that the prosecutor who was charged with investigating that subject has now chosen to close his investigation without obtaining any indictments or convictions for that.

    If there was a crime, it will go unpunished. No one will ever be convicted of that crime, if there was one. That doesn’t absolutely, positively negate the possibility that there was a crime, but it’s the functional equivalent for society’s on-going purposes.

    I don’t know if that’s the result of Fitzgerald’s analysis of the specific facts about Plame; or if it’s due to his analysis of the particular intersection of those facts with the two statutes; or if it’s due to his concerns about ambiguities in the statutes that would make any prosecution under either extremely difficult; or if it’s based on his evaluation of the credibility of various documents; or if it’s based on scarcity of prosecutorial resources and better needs to apply them (although I doubt that one highly); or of these reasons in combination with each other and/or any of several other possible reasons.

    I can’t even rule out the possibility that he or some other prosecutor could indeed have gotten a conviction against Armitage or someone for an underlying crime.

    But just since Fitzgerald’s post-verdict press converence, we now know with a reasonable degree of certainty that nobody will be convicted for leaking about Plame. Given that the system has run it’s course now, it’s not an inappropriate shorthand to say “no crime was committed” — but saying “no crime was charged and proved” would be more precise, and I’m going to try to modify my own language in the future to say that instead.

    Beldar (24e978)

  24. In fact, Fitz said he would never raise the issue of her status or harm to national defense, it was irrelevant, and therefore he woul d provide no evidence on those points, nor would he provide any discovery to the defense on those matters. And then he raised it in rebuttal.
    (I like you too, Patterico BTW).

    clarice (c49871)

  25. Clarice:
    Protect Cheney from what?

    You asked me this once before. Over at Tom’s.

    To: (1) Protect Big Time from the uproar – right before an election – over his involvement. Cheney told Libby to get the facts out. This included the role that Plame played in getting her oafish husband the mission.

    And: (2) Libby wasn’t exactly sure what Plame’s status was. If it was determined that the revelation did indeed somehow damage national security, Cheney would be in trouble. Not legal perhaps; but political.

    Political embarrassment.

    So, he came up with this story that he forgot. You know darned well that the OVP believed – correctly – that the CIA was waging war against them. They were. Plame’s little outfit along with those loony VIPS were going after the White House.

    You think Libby would forget about Plame’s involvement in this? She was part of that cabal. I cannot begin to believe that Libby would forget that critical fact.

    I repeat: Leaking/revealing Plame’s name was in error. That’s why Fitz. didn’t prosecute anyone (Armitage, Fleischer et al.).

    SteveMG (7ffc41)

  26. He showed the FBI his notes on Cheney’s June 12 comments at his very first meeting w/ him.

    Now, here’s another interesting tidbit on Armitage. When he knew Novak was being approached by the investigator he had a mutual friend call Novak to impress upon him how inadvertent Armitage’s leak to him had been. And everytime his deputy Marc Grossman was to appear for questioning, Armitage met with him the night before to discuss his testimony.

    clarice (c49871)

  27. I’m bothered by two things:

    (1) The fact that the prosecutor and the Court let Andrea Mitchell skate after saying “everyone knew” about Plame.

    (2) The fact that the nexus between politics and special prosecutors meant/means that Libby and future indicted Republicans will probably be tried in a DC court. I don’t believe DC jurors are unfair or unreasonable but they are typically liberal Democrats. Defendants only have so many challenges and it’s difficult to get a change of venue absent exceptional circumstances, so that seems like bad news for Republicans.

    DRJ (863f9f)

  28. Clarice,

    I’ve read enough about this to suspect that Armitage, Powell, and Taft were fairly Nixonian in their handling of this leak after the fact.

    DRJ (863f9f)

  29. Of course, this is the same jury which includes at least two members are convinced that there was a higher level conspiracy occurred, even though that case wasn’t even tried.

    Actually, that was Libby’s defense.

    From the opening statement: “You will learn from the evidence that the person … who was to be protected was Karl Rove. Karl Rove was President Bush’s right-hand person in term of political strategy. Karl Rove was the person most responsible for making sure the Republican Party stayed in office. He was viewed as a political genius. His fate was important to the Republican Party if they were going to stay in office. He had to be protected. Scooter Libby was to be sacrificed. Karl Rove was to be protected. Protect Karl Rove. Sacrifice Scooter Libby. Mr. Libby, you will learn, went to the vice president of the United States and met with the vice president in private. Mr. Libby said to the vice president, ‘I think the White House … is trying to set me up. People in the White House want me to be a scapegoat. People in the White House are trying to protect a man named Karl Rove.”

    Unfortunately for Libby, the jury didn’t think it rose to a complete defense: “I will say that there was a tremendous amount of sympathy for Mr. Libby on the jury. It was said a number of times, What are we doing with this guy here? Where’s Rove, where’s — you know, where are these other guys? We’re not saying that we didn’t think Mr. Libby was guilty of the things we found him guilty of but that it seemed like he was — to put it in Mr. Wells’ point, he was the fall guy.”

    Tracy (63e43e)

  30. convinced that there was a higher level conspiracy …

    Two conspiracies, (1) without evidence yet perceived by Cooper, Wilson and others to punish Joe through Val, and (2) apparently perceived by Libby and Cheney who noted it in a memo that administration resources would protect Rove and let Libby twist in the wind.

    boris (ad3d7f)

  31. My simple theory is that Fitz was in a box where he couldn’t call out the CIA for being liars, and his natural role (between DoJ and CIA) is to seek the leaker(s) and their mens rea. If he found that, then he could go back and get any proof he needed to make IIPA or Espionage, etc.
    He comes on the scene, and sees what he takes as clear evidence that Libby and Rove lied their asses off. His affidavit in support of compelling Miller and Cooper testimony is evidence of that.
    So what’s he to do? Blow off what he sees as strong evidence of lying in a serious investigation? And the evidence was good enough to secure a conviction in an environment with a damn good defense.
    The Fitzgerald detractors are mostly political hacks, in my opinion. And the novel legal theories they advance are preposterous. “No underlying crime = no perjury” for example.

    cboldt (a60d7f)

  32. One piece of evidence in the “did he know and forget” analysis, a piece of evidence that is passed over as being possibly forged (the possible forgery or alternative meaning to Schmall’s note is speculation) is that Libby ASKED about who sent Wilson. If that evidence is believed, Libby wasn’t just passively getting information, he was actively seeking it – or seeking confirmation of it.
    Not to say it is an easy case. It took the jury ten days to get through the evidence and reach a conclusion. But at this stage, from my observations, nobody is going to be persuaded to “switch sides.” This is still more a political case than a legal one.

    cboldt (a60d7f)

  33. What serious investigation? If outing Plame was not a crime, the rest was a farce.

    Retiree (0c909a)

  34. What serious investigation? The one that President Bush said was serious. The investigation that was serious enough (for political reasons, IMO, not for security or legal reasons) that the administration in charge opted to appoint a special counsel.
    I don’t disagree that it was a farce – I think the investigation was a sham perpetrated by the administration, under political pressure from the left, knowing there was no criminal leak, to obtain a clean bill of health from the legal system. The clean bill of health would have been used to support a false public denial that Libby and Rove told the press on deep background that “Wilson’s wife works at the CIA and was involved in the decision to send him on a fact-finding mission to Niger.”
    Libby tried to scam the sham investigation, and got burned.

    cboldt (a60d7f)

  35. is that Libby ASKED about who sent Wilson.

    Yes, but Plame didn’t send Wilson (this is the disingenous phrasing that Wilson used: “My wife didn’t send me”). However, she did recommend him to her department one day before Cheney made an inquiry into the Niger/uranium rumors. Apparently, the DIA and INR were also inquiring about the allegations.

    So, if Libby was told that Wilson was sent by a department in the agency – and Plame’s name wasn’t mentioned – then your theory is problematic since his wife’s name wouldn’t come up.

    SteveMG (7ffc41)

  36. 29 – I’m fully aware Wells opening statements (which were misguided, IMO), but that hardly justifies the cocksure opinion of at least two of the jurors who have been publicly interviewed that there was a higher level conspiracy.

    And of course, you have to admit that Wells ill-advised statement was helped along by Fitz during his closing statements, when he went off with his “cloud over the VP office” rant, totally violating the judges instructions.

    thirteen28 (1da714)

  37. Patterico:My current bottom line is this: I can’t agree with people who say that Fitzgerald should not have been thorough,

    Is there someone complaining that Fitzgerald was thorough? Dogged, perhaps, in some aspects of the case. Thorough no.

    There are things you forget, and things you don’t.

    I agree to a very limited extent. You wouldn’t forget winning Miss America, for example. But to paraphrase Will Rogers, it’s not what you don’t remember that gets you into trouble, it’s what you think you remember that is just plain wrong.
    How can anyone that’s ever forgotten something important make the statement that there are some things you just don’t forget? Futher, once you’ve forgotten something, how do you realize you’ve forgotten it?

    cboldt:This is still more a political case than a legal one.
    Agree. That is the main reason I’m against it at all. I was happy when the Special Prosecutor law was allowed to lapse. I wished not to see a similar investigation again in the near future. I also wished a Prosecutor, given a political case, would see it for what it was and walk away.

    MayBee (eb1824)

  38. is that Libby ASKED about who sent Wilson.

    Where is the evidence for that in the trial, cboldt?

    MayBee (eb1824)

  39. — if Libby was told that Wilson was sent by a department in the agency – and Plame’s name wasn’t mentioned —
    There was evidence (naturally, credibility is always an issue) that Libby was told that Mrs. Wilson works at the CIA. Now read the indictment again.
    There is evidence that Libby was, at least at one time, maybe more (Schmall, Addington) ASKING questions that would either elicit “Wilson’s wife works here,” or that he was aware a spouse has something to do with that liar Wilson getting his junket … errr, assignment.
    At any rate, I don’t aim to change your mind, or otherwise advocate for the prosecution. My point of view has been fairly steady all along that the indictment wasn’t an abuse of discretion – and as the trial unfolded, I thought there was enough evidence to make the case. Obviously, plenty of people disagree with my point of view. So I mostly keep my observations and analysis to myself. I’ve said all I need to here. Good night.

    cboldt (a60d7f)

  40. Regarding the jurors deliberating 10 days. Denis Collins (and another juror) have spoken about this, and I believe that although they deliberated a long time, there were things the trial judge did that may have sent the jurors in the wrong direction during their deliberation:

    These are questions that have come out via HuffPo, Anderson Cooper, WaPo, and Hardball.

    The jury wondered
    -why didn’t the defense put on a memory witness? If they were supposed to believe this was really a memory issue, why didn’t the defense put on memory evidence?(because the judge disallowed it)

    -why didn’t the CIA witnesses end up testifying on Libby’s behalf? (because the judge wanted to limit their testimony)

    -how could Libby not have remembered about Plame in the week leading up to Russert, given that Cheney had just presented him with an annotated newspaper article? (because the judge allowed into evidence an article Libby had never seen)

    -was Valerie Plame actually covert? The judge allowed Fitzgerald to bring it up regularly, the judge allowed into evidence articles alleging that she was. The jury was reminded not to speculate, but they did. Who was being punished for the big crime, they wondered. Did the notion that there was a big crime influence their decision that Libby was a fall guy for Cheney? They speculated that he was.

    MayBee (eb1824)

  41. I know that some of those “raising” the “no underlying crime” are doing so to point out what they consider the change in standards previously held by Clinton defenders; it was a “good enough” defense for Clinton, hence should be for Libby.

    htom (412a17)

  42. Flip it around: many were self-righteous about the rule of law around the time of Clinton — but all of a sudden, perjury and obstruction of justice don’t matter any more to them.

    Patterico (04465c)

  43. Clarice (#24 and elsewhere):

    My compliments to you on your knowledge of the case.

    On the specific subject of Fitzgerald’s comments in his final (rebuttal) closing argument (and to a lesser extent, in his press conference afterwards): It is absolutely traditional for prosecutors and for civil-court plaintiffs’ lawyers to save a few hyperbolic nuggets for just those moments. Because you have the burden of proof, the system makes you go first but also lets you go last, and you don’t want to blow the chance of getting the “last word” in, especially the last words that your opponents could ram back down your throat if only they had another chance.

    I’ll also tell you from personal experience that if there ever is a time when a trial advocate can be more or less guaranteed to have lost his objectivity, gotten thoroughly drunk on his own fumes, and slipped all the internal governors that otherwise keep him from over-revving, it’s at that moment.

    Even prosecutors are entitled to adrenaine rushes. I’m not necessarily defending the “cloud on the Vice Presidency” comments or the rest of his final closing, but I am inclined to cut him (or anyone in his position) a little more slack on loose or outright mis-statements then. And I’m also convinced that in big cases, especially ones that have jury deliberations that run to ten days, the importance of closing arguments is generally overrated by most people, especially us lawyers who really wanted to be dramatic actors and chafe at our button-down collars accordingly.

    A pedantic point of self-critique: In my comment above (#23), when I wrote “the credibility of various documents,” I meant to write “the documentary evidence and the credibility of various witnesses.”

    Beldar (24e978)

  44. “I can’t agree with people who say that Fitzgerald should not have been thorough, or that he should have ignored falsehoods told before he was appointed, or that he should not prosecute someone for perjury when there is no underlying crime (an argument addressed in this post).”

    I think what frustraits me about statements like this is the implication that Fitz was “just doing his job.” In fact, Fitz totally failed to do “his job” in the leak investigation. He had the “first leaker” from the begining, he just didn’t know he was the first leaker.

    Armigate confessed to leaking to Novak, but apparently “forgot” he told Woodward three weeks earlier. Rather than digging into Armitage’s story, Fitz chose to dig into Libby’s. As a result, Fitz convinced himself, as he stated in the famous presser, that Libby lied about “hearing it from reporters” to conceal the fact that he was actually the “first leaker.” That was Fitz’s original theory of the case and his original motive he proffered.

    But, Armitage did talk to Woodward in mid June, before Libby ever spoke to a reporter. There are three possible reasons why Fitz did not discover that Armitage was the first leaker

    1)apparently never bothered to check Armitages appointment calander.

    2) if he did check, he never asked Armitage if he spoke to Woodward about Plame.

    3)if he did ask Armitage, Armitage “lied” and said he didn’t say anything to Woodward about it.

    Also, Armitage engaged in a pattern of activity that is very suspcious. He had a friend of his call Novak to tell him before Novak talked to investigators that Armitage’s statement was “inadvertant.” He also stopped by Marc Grossman’s house the night before Grossman’s first FBI interview to tell him that he (Armitage) had already confessed to leaking to Novak. It is an open question as to what else they may have discussed.

    So, the issue some of us have is not that Fitz was too thorough, but that he was “thorough” in only one direction, the White House and OVP. He never investigaged State with anywhere near the viggor he spent going after Libby and he never charged Armitage with perjury or obstruction.

    Ranger (458f73)

  45. I read enough and asked enough questions to start understanding the Libby defenders. Clarice is not objective. She will refuse to answer hypotheticals that allow us to discern fairness in her approach. And she often uses “defense in depth” in manners that are not mutually consistent defenses. She also has no interest in correcting flaws of those who are “on her side” but who repeat childish inaccuracies (but does in the converse). I used to think she was really smart. Now I just think she’s nice.

    TCO (375bea)

  46. People (advocates like Clarice or even the lower forms who are on “her side”) often maliciously confuse uncertainty with certainty of the converse: *My opponent has not proved Plame to be covert, thus it is proven that she was not covert*

    I’m not sure to what extent this shows stupidity or to what extent it shows dishonest reasoning.

    TCO (375bea)

  47. Beldar (43): Fitz’s closing remarks were inappropriate. He had the time and staff to script them. The issue of matters off the table had been gone over in laborious detail throughout the proceedings. Unless he is a simpleton, then he knew enough not to do that. Let’s not excuse this as a slip.

    TCO (375bea)

  48. TCO (47), one can’t entirely script the final closing because it’s a rebuttal — it’s supposed to depend on what the defense lawyer has said in his closing. I can’t speak to what warnings the judge may have given, and again, I’m not arguing that the remarks were necessarily either articulate or appropriate. I’m just saying that if there’s ever a time when lawyers tend to let it all hang out and aren’t necessarily models of rationality and pre-planning, that’s when it happens.

    Beldar (24e978)

  49. There’s a story in Cook County about a prosecutor who once gave a very limpid closing argument because he was saving all his “zingers” for rebuttal. When it came to the defense’s turn, defense counsel stood up and said “We will not make a closing argument, Your Honor”. They say you could hear the prosecutor grit his teeth all the way across the room.

    nk (48b04e)

  50. Yikes Rico, I wish you had told me you were using me as a foil. I would have made a better effort to defend the statement.

    Here’s how “Covert” is defined by the IIPA:

    (4) The term “covert agent” means –

    (A) a present or retired officer or employee of an
    intelligence agency or a present or retired member of the Armed
    Forces assigned to duty with an intelligence agency –

    (i) whose identity as such an officer, employee, or member
    is classified information, and

    (ii) who is serving outside the United States or has within
    the last five years served outside the United States; or

    (B) a United States citizen whose intelligence relationship
    to the United States is classified information, and –

    (i) who resides and acts outside the United States as an
    agent of, or informant or source of operational assistance
    to, an intelligence agency, or

    (ii) who is at the time of the disclosure acting as an
    agent of, or informant to, the foreign counterintelligence or
    foreign counterterrorism components of the Federal Bureau of
    Investigation; or

    (C) an individual, other than a United States citizen, whose
    past or present intelligence relationship to the United States
    is classified information and who is a present or former agent
    of, or a present or former informant or source of operational
    assistance to, an intelligence agency.

    Plame fails to pass any of A, B or C.

    Specifically she fails test A-ii. She had not served outside the US in the previous 5 years. Wilson’s says so repeatedly in his book. Here’s USA Today on it from 7/14/05: The column’s date is important because the law against unmasking the identities of U.S. spies says a “covert agent” must have been on an overseas assignment “within the last five years.” The assignment also must be long-term, not a short trip or temporary post, two experts on the law say. Wilson’s book makes numerous references to the couple’s life in Washington over the six years up to July 2003.

    She fails test B-i and B-ii. Nobody contends she was an active agent of any sort.

    And she fails C. Obviously she isn’t a foreign national.

    Further, IIPA requires that the US government be “…taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States…” and there is serious doubt that was the case. You know, she lived openly in the suburbs and drove to and from the CIA daily. Not exactly the way you’d think a “covert agent” would behave, or what the US government would do, eh?

    Look. Plame was outed by Aldrich Ames in 1994. Does it need to be said that after she was outed to the Soviets her career as a covert agent was over? She met Wilson in 1997 and married him, they settled and had twin daughters.

    She wasn’t a covert agent, period. Her status apparently was classified (giving Fitz a benefit of the doubt here), but she didn’t meet the definition of covert so IIPA didn’t cover her.

    Dwilkers (4f4ebf)

  51. grr.

    Your spam filter caught my reply P. Wish I had known you were on this again last night, I’d have given you a more thorough response.

    [I rescued it. — P]

    Dwilkers (4f4ebf)

  52. Beldar: I can speak. Do some reading. The issue of non-relevant issues (the “big case”) had been laboriously gone over. Fitz is a big boy. I really don’t care about “when lawyers let it hang it out”. He is not that bright, to respond with wording that was not allowed.

    TCO (a45405)

  53. Hard cases make bad law.

    BlacquesJacquesShellacques (83acf5)

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