Water Man Spouts

Sunday, February 26, 2006

A Bench With A View (Part #2)

A Bench With A View (Part #2)
Section #1 – The Indictments

{A} "9. On or about June 12, 2003, LIBBY was advised by the Vice President of the United States that Wilson's wife worked at the Central Intelligence Agency in the Counterproliferation Division. LIBBY understood that the Vice President had learned this information from the CIA."
-- USA v. I. Lewis Libby; Indictment 05-394; 10-28-05; page 5

In order to consider the significance of the February '06 events in the Scooter Libby case, including documentation of motions filed in court by both Team Libby and Patrick Fitzgerald, it might be beneficial to review the five indictments that "Scooter" faces. First, we will examine the highlights of the "time line" Fitzgerald included in the indictments, and then a brief review of each of the five charges.

The Time Line

1-28-03: President Bush includes the infamous "16 words" in his State of the Union address, claiming that there is evidence that Iraqi dictator Saddam Hussein was seeking to purchase yellow cake uranium for WMD production. This claim was the single most important factor in the Bush administration's bringing the nation to war in Iraq.

5-6-03: New York Times reporter Nicholas Kristof ‘s column noted that an unnamed former ambassador had been sent to Niger to investigate the yellow cake charges, and that he had reported back to the CIA and State Department in early 2002 that “the allegations were unequivocally wrong …”

5-29-03: Libby asks an Under Secretary of State about the former ambassador’s trip to Niger; oral reports on Joseph Wilson are made to Libby.

6-9-03: The CIA faxes reports to the Office of the Vice President, to the attention of Libby and one other person, regarding the Niger trip. The reports are clearly marked “classified.” They do not mention Wilson by name; however, Libby and the other official write “Wilson” and “Joe Wilson” in the margins.

6-11-03: The Under Secretary of State tells Libby that Plame is CIA.

6-11-03: Libby then talks to a senior CIA official about Wilson and Plame.

6-12-03: VP Cheney tells Libby that Plame is from the CIA’s Counterproliferation Division.

6-14-03: Libby meets with a CIA briefer to express his displeasure at reports the CIA did not support all of VP Cheney’s claims on Iraqi WMD programs. Libby also discuses Wilson and Plame.

6-19-03: The New Republic publishes an article “The First Casualty: The Selling of the Iraq War.” It quotes a former ambassador as saying the administration “knew the Niger story was a flat-out lie.”

6-13-03: Libby meets with Judith Miller. They discuss Wilson and Plame.

7-6-03: Wilson’s op-ed appears in the NY Times; Wilson appears on Meet the Press, and says that he believes VP Cheney was aware of his Niger report.

7-7-03: Libby meets with Ari Fleischer and tells him that Plame is CIA.

7-8-03: Libby speaks with Miller about Plame; he requests that she refer to him as a “former Hill staffer,” rather than senior White House official, in order to hide his identity.

7-8-03: Libby meets with the Council to the Vice President to discuss Plame and Wilson.

7-8-03: The Assistantto the Vice President for Public Affairs tells Libby that Plame is CIA.

7-10-03: Libby calls Tim Russert to complain about Chris Matthew’s reporting on the Plame case.

7-11-03: Libby talks to Rove about Karl’s conversation with Robert Novak about Plame.

7-12-03: Libby flies to Norfolk, VA on AF2; on the ride back, Cheney and Libby discuss their Plame-media strategy. Later that day, Libby talks to both Matt Cooper and Judith Miller about Plame.

9-26-03: The FBI begins investigating the leak of Plame’s identity.

10-14-03 and 11-26-03: Libby talks to FBI investigators.

3-5-04 and 3-24-04: Libby testifies to the grand jury.

{B} “13. Shortly after publication of the article in The New Republic, LIBBY spoke by telephone with his then Principal Deputy and discussed the article. The official asked LIBBY whether information about Wilson’s trip could be shared with the press to rebut the allegations that the Vice President had sent Wilson. LIBBY responded that there would be complications at the CIA in disclosing that information publicly, and that he could not discuss the matter on a non-secure telephone line.”
-- Libby Indictment; page 6

Patrick Fitzgerald filed 5 indictments against I. Lewis Libby. Count #1 is Obstruction of Justice; counts #2 and #3 are for making False Statements; and counts #4 and #5 are for Perjury. The first three are for lying to the FBI investigators, while the last two are for lying to the grand jury. The lies include his denying that he spoke to Miller or Cooper about Valerie Plame, and for making up a conversation with Russert in which he claims Russert told him that most of the Washington DC area reporters were aware of Plame’s role at the CIA.

Section #2 – Team Libby

{A} “The government’s argument … is entirely unconvincing.”
-- Libby Defense Brief; 2-21-06; page 1

In examining the Team Libby defense, it may be beneficial to break it down into three segments. The first of these three is weak. It is an effort to avoid the serious issues involved by way of attacks on the integrity of Fitzgerald and his case. Most people who read newspapers or watch tv are aware, for example, that one of the more curious motions to dismiss the case claimed that Fitzgerald’s role was unconstitutional. One suspects that this could not have come from the attorneys that comprise Team Libby, for all are intelligent, capable lawyers. It sounds more like the ranting of people who are {a} unfamiliar with the U.S. Constitution, and {b} very angry that Mr. Fitzgerald was appointed to the case. That sounds like those connected to the Vice President’s office, who did not realize that after Attorney General Ashcroft decided to recuse himself, and James Comey appointed Patrick Fitzgerald, that the case would become this generation’s Watergate. More, they likely did not realize that Comey was friends with Wilson, and hence their feeling betrayed by Fitzgerald’s being appointed.

Team Libby’s 2-21-06 brief betrays their need to resort to insults, rather than argue the merits of the case. After calling Fitzgerald’s case “entirely unconvincing,” they make the following references:

--“three phantom concerns” p.1
-- “insulting”p.1
-- “the prosecution baldly asserts” p.1
-- “fundamentally inconsistent with basic principles of fairness” p.3
--“straw man” p.3
--“weaknesses of the government’s case” p.3
--“the government merely rehashes the same unpersuasive arguments” p.4
-- “it is astounding for the government to assert” p.8
-- “transparent attempt to force the defense” p.9
--“This is unreasonable” p.9
--“If the government were truly concerned” p.11
--“That argument is puzzling” p.12
--“unfairly penalizes” p.19
--“presents no conceivable threat to national security” p.19
--“The government also relies on a mistaken application” p.19

{B} “….penalizing Mr. Libby for serving in a position that required him to address urgent national security matters every day.”
-- Team Libby; 2-21-06 defense brief; page 2

The next goal of the defense attorneys appears to be to portray “Scooter” as a victim. This will be the strategy, should the case ever go to trial. It is also a strategy that will be used for appeals of the convictions that will certainly result from a trial.

On page 2, Team Libby claims that the “prosecution’s attempt to limit the defenses available” to Scooter. On page 8, they note “the information Mr. Libby seeks is necessary to prepare the defense based not only upon the state of mind, but also on the truth …” On page 12, the defense claims any lies Scooter told the FBI or grand jury were the “result of confusion, mistake or faulty memory.” Team Libby notes on page 14 that Scooter held three positions in the White House, thus he was “so focused on urgent national security matters, it is hardly surprising that he would later confuse, forget or misremember …. Less important topics (e.g., Ms. Wilson’s identity and employment status).”

On page 18, Team Libby says Fitzgerald “knows that a jury will likely understand that seeking to counter a terrorist threat that may kill tens of thousands of Americans” was Libby’s only goal. Yet this prosecutor has taken Scooter from this task – making Americans like those very jurors and their families safe from terrorists – simply because “he recalled certain events incorrectly or forgot snippets of conversation months after they occurred.” (page 22)

{C} “In a case that essentially pits Mr. Libby’s memory of certain conversations against the recollections of three reporters…”
--Team Libby; 2-21-06 defense brief; page 8

The Libby defense strategy goes beyond his selection of Theodore Wells, Jr. to appeal to the anticipated Washington DC jury. “Scooter Dogg” will become the dedicated public servant, who was overworked and underpaid, working 16-hour days to make America safe for the jurors and their families.

Team Libby has stated that they will bring experts on memory and cognition to explain how Scooter may have made innocent errors in his conversations with the FBI and the grand jury. Of course, every juror will know that anyone can honestly err and forget a detail or an entire conversation. Yet no expert can make a sincere case that a person, no matter how busy, will recall a conversation that never took place – and that is exactly what Scooter has done in regard to Tim Russert.

Thus, the defense is seeking to bring numerous journalists to court, to try to confuse the issues involved. This includes an attempt to call journalists who did not speak to Libby about the case. Again, Team Libby looks to use smoke and mirrors to take the focus off of Scooter. It will not work.

Section #3 – Fitzgerald’s Case

“(T)here is no general constitutional right to discovery in a criminal case. ..To the contrary, discovery in a criminal case is limited to that provided by statute, rule, or case law.”
--Fitzgerald; 2-16-06 motion; page 3.

Patrick Fitzgerald avoids personalizing the responses to the Team Libby motions. Instead, he keeps his Consolidated Response focused on the charges against Scooter Libby. A good example of this is found in his response to the defense request for information regarding Fitzgerald’s larger investigation of the role played by reporters who had no contact with Libby: “…information regarding reporters with whom the defendant had no contact, and reporters’ sources other than the defendant, is unlikely to ‘play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.’ See Marshall, 132 F.3d at 68. The defendant is not charged with falsely characterizing what journalists knew prior to the July 14, 2003, as he contends. Instead, the indictment charges the defendant with lying about what he knew and did not know about Ms. Wilson, what reporters said and did not say to him, and what he said and did not say to reporters, prior to July 14, 2003. Given the nature of the charges, defendant’s legitimate defense must necessarily focus on the defendant’s state of mind, rather than that of others.” (pages 11-12)

Fitzgerald continues to tighten the noose on Libby by doing away with the defense claim that he is obligated to show that the act of exposing Plame’s identity caused damage to the CIA. Team Libby wanted to debate an “informal” damage assessment. The actual damage assessment is, of course, highly classified. More, it is irrelevant. Libby is not facing charges that he violated either the Espionage Act or the Intelligence Identities Act – at least not yet. But, even if he were, the prosecution has no burden to “prove actual damages, much less obtain, or produce, a damage assessment prior to trial. Actual damage is not an element of either substantive offense.” (pages 26-7)

Fitzgerald’s document demonstrates that Team Libby is attempting to take the focus off of their client’s lying to FBI investigators and the grand jury. He strips away not only their hope to expand the scope of the trial to include other non-related issues, but he closes the door on many of the attempts by the defense to interject issues to appeal, post conviction.

The only time Fitzgerald comments on the defense efforts quality is found on pages 24-5: “The defendant’s request to compel the production of approximately 277 PDBs from May 6, 2003 through March 24, 2004 to establish his ‘preoccupation defense’ is nothing short of breathtaking.” He makes pointed comments on the effort at “greymail,” which are a tactic used to derail sensitive cases by demanding classified documents.

Fitzgerald notes that the charges are not about a wider conspiracy, with other journalists or White House officials looking to discredit Ms. Plame. It is only about Scooter’s lying to the FBI and grand jury. It is not about WMD in Iraq, or about terrorist plots to kill thousands of American citizens, including potential jurors anmd their families. It is only about Scooter lying to the FBI and grand jury.

At the same time, Fitzgerald makes clear the need to protect the on-going grand jury investigation, that appears to be investigating the possibility that there was a larger conspiracy to out Plame in order to damage Joe Wilson.

Part #4: Conclusion

“According to my sources, between March 2003 and the appearance of my article in July, the workup on me that turned up the information on Valerie was shared with Karl Rove, who then circulated it in administration and neoconservative circles. That would explain the assertion later advanced by Clifford May, the neocon fellow traveler, who wrote that Valerie’s employment was supposedly widely known. Oh, really? I am not reassured by his statement. Indeed, if what May wrote was accurate, it is a damning admission, because it could have been widely known by virtue of leaks among his crowd.”
--Wilson; The Politics of Truth; pages 443-4

The court ruled that Fitzgerald must turn over more of Libby’s handwritten notes. However, the judge ruled that the defense is not entitled to information documenting another administration official who has testified to the grand jury about his role, including possibly discussing Plame’s identity with Bob Woodward and Robert Novak. This official is reportedly Steven Hadley.

Further, the judge delayed deciding on the PDB request, although his comments indicate he is unlikely to allow the defense to derail the trial in a long, drawn out conflict with the office of the president.

Team Libby has until 4-7 to subpoena journalists directly involved in the case; the journalists will have until 4-21 to file objections.

The single most important “update” was reported by TruthOut’s Jason Leopold on 2-24-06, in an article that indicated the White House turned over 250 previously missing “e-mails” which demonstrate the role VP Cheney may have played in the wider conspiracy to destroy Joseph Wilson and Valerie Plame.


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