Victoria's Secret ~~ Libby Trial Deliberations: 3-1-07

The jury is starting another day of deliberations. No word yet on a verdict — you'll know as soon as we know. And in the meantime…

Also, yesterday afternoon (3:45) the jury asked for another post-it flip chart pad.

Someone has been in too many business brainstorming sessions, I think. Jokes in the media room about "The Libby Trial, brought to you by Post-It."

Remember a few weeks ago, when Jim Marcinkowski challenged Ted Wells to put his punk on the stand –either one of them.

Well, it seems like Marcinkowski is a little bit irked that Wells didn't do so. Because he really lays the slapdown on Victoria Toensing in this post at No Quarter. He starts by reminding her (and who should have to remind Toensing of this, after her rants about Clinton?) that perjury is a crime.

Second, to allege that there first must be an underlying crime to bring a perjury charge is flat wrong, and every first-year law student knows it. Perjury is itself a crime, period. Under the Grand Jury system, evidence is presented to a panel.

If the panel decides that a crime was committed, then an indictment is issued. If not, the case ends. Either way, the evidence submitted must be the truth. You don’t get to lie to a Grand Jury. That’s pretty simple, unless of course you feel that one should be free to lie and suffer no consequence - hardly an argument that should be advanced by an attorney and officer of the court.

To assert that Valerie was not covert is to assert that the CIA operates public branch offices overseas. Victoria, here’s a news flash for you - there are a lot of people in this world that don’t like the United States in general and the CIA in particular. Anyone in the CIA traveling overseas would be as nuts as your op-ed to reveal that association. CIA officers and offices are placed all over the world. I really don’t recall the CIA crest adorning any office or being listed in any embassy directory. Victoria, the CIA is a spy agency, it is full of spies who spy on objects of interest to the United States. There are no non-covert spies.

To add a gloss of legitimacy, Ms. Toensing erroneously cites the law as requiring the covert agent to have had a “foreign assignment,” then concludes that Valerie was not “stationed” overseas.

Nice try. The law uses neither of these descriptions as a basis for defining the criminal act of disclosing the identity of a covert agent. The law only requires that the agent have served overseas within the preceding five years of his or her disclosure. CIA officers may very well serve overseas by meeting with secret sources in third countries.

The fact that they may be “stationed” or “assigned” to Washington, D.C. does not prohibit them from serving overseas by actually engaging in clandestine operations in other countries and returning thereafter to this country.

Would the purpose of the law designed to protect our agents operating overseas be served by distinguishing between the two scenarios? If so, then Ms. Toensing, who claims to have assisted the Senate Intelligence Committee in drafting the law, did a very lousy job.

And finally, he hits the right note of seriousness about a office of the court making false statements.

Rules of professional conduct for attorneys around the country make numerous references to truth telling both inside and outside the courtroom, e.g. “…an advocate must disclose the existence of perjury….” or, “…a lawyer shall not knowingly make a false statement of material fact or law to a third person…”

I suspect they are after her because of this:

THE PLAME KERFUFFLE

Investigate the CIA
An "outing" was the result of either incompetence or an effort to undermine the White House.

BY VICTORIA TOENSING
Sunday, November 6, 2005 12:01 a.m. EST

In a surprise, closed-door debate, Senate Democrats last week demanded an investigation of pre-Iraq War intelligence. Here's an issue for them: Assess the validity of the claim that Valerie Plame's status was "covert," or even properly classified, given the wretched tradecraft by the Central Intelligence Agency throughout the entire episode. It was, after all, the CIA that requested the "leak" investigation, alleging that one of its agents had been outed in Bob Novak's July 14, 2003, column. Yet it was the CIA's bizarre conduct that led inexorably to Ms. Plame's unveiling.

When the Intelligence Identities Protection Act was being negotiated, Senate Select Committee Chairman Barry Goldwater was adamant: If the CIA desired a law making it illegal to expose one of its deep cover employees, then the agency must do a much better job of protecting their cover. That is why a criterion for any prosecution under the act is that the government was taking "affirmative measures" to conceal the protected person's relationship to the intelligence agency. Two decades later, the CIA, either purposely or with gross negligence, made a series of decisions that led to Ms. Plame becoming a household name:

• The CIA sent her husband, former ambassador Joseph Wilson, to Niger on a sensitive mission regarding WMD. He was to determine whether Iraq had attempted to purchase yellowcake, an essential ingredient for unconventional weapons. However, it was Ms. Plame, not Mr. Wilson, who was the WMD expert. Moreover, Mr. Wilson had no intelligence background, was never a senior person in Niger when he was in the State Department, and was opposed to the administration's Iraq policy. The assignment was given, according to the Senate Intelligence Committee, at Ms. Plame's suggestion.

• Mr. Wilson was not required to sign a confidentiality agreement, a mandatory act for the rest of us who either carry out any similar CIA assignment or represent CIA clients.

• When he returned from Niger, Mr. Wilson was not required to write a report, but rather merely to provide an oral briefing. That information was not sent to the White House. If this mission to Niger were so important, wouldn't a competent intelligence agency want a thoughtful written assessment from the "missionary," if for no other reason than to establish a record to refute any subsequent misrepresentation of that assessment? Because it was the vice president who initially inquired about Niger and the yellowcake (although he had nothing to do with Mr. Wilson being sent), it is curious that neither his office nor the president's were privy to the fruits of Mr. Wilson's oral report.

• Although Mr. Wilson did not have to write even one word for the agency that sent him on the mission at taxpayer's expense, over a year later he was permitted to tell all about this sensitive assignment in the New York Times. For the rest of us, writing about such an assignment would mean we'd have to bring our proposed op-ed before the CIA's Prepublication Review Board and spend countless hours arguing over every word to be published. Congressional oversight committees should want to know who at the CIA permitted the publication of the article, which, it has been reported, did not jibe with the thrust of Mr. Wilson's oral briefing. For starters, if the piece had been properly vetted at the CIA, someone should have known that the agency never briefed the vice president on the trip, as claimed by Mr. Wilson in his op-ed.

• More important than the inaccuracies is that, if the CIA truly, truly, truly had wanted Ms. Plame's identity to be secret, it never would have permitted her spouse to write the op-ed. Did no one at Langley think that her identity could be compromised if her spouse wrote a piece discussing a foreign mission about a volatile political issue that focused on her expertise? The obvious question a sophisticated journalist such as Mr. Novak asked after "Why did the CIA send Wilson?" was "Who is Wilson?" After being told by a still-unnamed administration source that Mr. Wilson's "wife" suggested him for the assignment, Mr. Novak went to Who's Who, which reveals "Valerie Plame" as Mr. Wilson's spouse.

• CIA incompetence did not end there. When Mr. Novak called the agency to verify Ms. Plame's employment, it not only did so, but failed to go beyond the perfunctory request not to publish. Every experienced Washington journalist knows that when the CIA really does not want something public, there are serious requests from the top, usually the director. Only the press office talked to Mr. Novak.

• Although high-ranking Justice Department officials are prohibited from political activity, the CIA had no problem permitting its deep cover or classified employee from making political contributions under the name "Wilson, Valerie E.," information publicly available at the Federal Elections Commission.

The CIA conduct in this matter is either a brilliant covert action against the White House or inept intelligence tradecraft. It is up to Congress to decide which.

Ms. Toensing, a Washington lawyer, is a former chief counsel for the Senate Intelligence Committee and former deputy assistant attorney general in the Reagan administration.

guess on verdict

Someone is holding out.

If there were one or two holdouts against most who wanted to acquit, then they'd bring back an acquital and wouldn't be taking all this time.

If there were one or two holdouts against most who wanted to convict, then, since they need unanimity, they'd work to change their minds.

My guess is that Libby is in jeopardy except for a few holdouts.

Yesterday's question was interesting:

But the clue itself was difficult to decipher. Jurors asked about a charge in which Libby was accused of lying to FBI about his conversation with Time magazine Matthew Cooper. Cooper testified that Libby told him that Plame worked for the CIA. Libby said he only told Cooper he'd heard that but didn't know if it was true.

Jurors seemed to want to know whether the charge hinges on whether Libby's version of the conversation is true or whether what he told Cooper was true. As Walton and attorneys tried to parse that question, jurors apparently resolved it for themselves.

Libby: Hey, Plame worked for the CIA?

Cooper: Hmmmmm.

Cooper: Libby told me that Plame worked for the CIA.

Libby: Not so. Someone told me that that and I was feeling it out.

Jury: (does)the charge hinge(s) on whether Libby's version of the conversation is true or whether what he told Cooper was true?

Is it a lie if Libby's version of the conversation is true?

Is it a lie if what Libby told Cooper is true?

However that parses, it seems they're trying to determine some involved point about Libby's truth or deceit in relation to a charge.

That would indicate to me that someone is holding out for Libby.

"Before you shine up your American flag lapel pin and affix your patriotism to your sleeve, think about what the impact your actions will have on the security of the American people....Those who take pride in their political ability to divert the issue from the fundamental truth ought to be prepared to take their share of the responsibility for the continuing damage done to our national security."

OK, I'm confused. To what "damage" is he referring? The damage that can be caused by outting a covert agent, or damage he thinks Scooter Libby did?

The "fundamental truth" is that any potential violation of the law that Fitzie was investigating had to meet three criteria:

1) The person outted had a foreign assignment at the time or have had one within five years of the disclosure,
2) The government was taking affirmative steps to conceal the government relationship, and
3) The discloser had actual knowledge of the covert status of the agent outted.

Fitzie, had first checked to see if a crime was even comitted before going on his fishing expedition, would have concluded that the statute was not violated in the Plame case and never would have interviewed Rove, Libby, Cheney, or anybody else.

Marcinkowski argues in this article posted that 1) above was met, while completely ignoring 2) and 3).

If there was no law violated, then Fitzie had no jurisdiction to question Libby before a grand jury, any more than a prosecuter can grab you off of the street and question you in front of a grand jury about the murder of someone who isn't even dead.

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