Posted on 01/30/2006 8:58:09 AM PST by SirLinksalot
Libby's Defense Goes after Antique Media Reporters January 30th, 2006
Last week, Lewis Libby filed a long-anticipated motion to compel discovery of reporters and organizations, making a significant strategic move in the perjury and obstruction case brought against him by the Special Prosecutor.
As anticipated, he seeks broad discovery of the reporters and news organizations which covered the fake charges of Joseph C. Wilson IV and the claimed Administration response to it. As we know, Wilsons well-hyped story, of a White House deliberately ignoring what he claimed to have found in Africa, was not true and the Senate Select Commission on Intelligence made that clear. As the indictment itself establishes, there was no concerted attempt to retaliate against Wilson or his wife.
The indictment centers on three conversations, one each with Tim Russert of NBC, Matthew Cooper of Time and Judith Miller then of The New York Times. In sum here is how the Special Prosecutor describes the difference he has with Libbys testimony about these conversations and the reporters versions which the grand jury credited.
Russert The Prosecutor alleges that Libby falsely claimed (a)that on July 10, 2003 Russert told Libby that Plame worked for the CIA and all the reporters knew this and (b) that Libby was surprised by what Russert had told him;
Cooper The Prosecutor alleges that Libby falsely claimed that on July 12, 2003 he told Cooper that HE had heard that Plame worked for the CIA from other reporters though he didnt know if that information was true, but , in fact, he had only said hed heard it and had not made further qualification of the statement.
Miller The Prosecutor alleges that Libby claimed that on July 12, 2003 while discussing Plame with Miller he told her that hed heard that Plame worked for the CIA from other reporters but didnt know if that was true. Again the charge is that Libby had not offered these qualifications to her about the source of his knowledge.
Nothing in the indictment accuses Libby of violating any law relating to the handling of classified information. Nothing alleges, as the news reports had sensationally reported (based apparently on Wilsons word), that Plame was a covert agent in July 2004. The Prosecutor, however, does allege that her employment by the CIA was classified and not common knowledge outside the intelligence community.
The indictment, by treating the small differences in the recollections of the reporters and Libby as evidence of criminality on Libbys behalf, and by overstating substantially how well-kept a secret Plames CIA employment was, left the door wide open for the discovery requests Libby has made. The Prosecutors statement at the press conference that Libby was the first in the chain of gossip can only be fully refuted by granting Libby the discovery he seeks, although others like Bob Woodward have already poked holes in that charge.
Libby seeks all inculpatory and exculpatory information in the Governments possession under existing precedents and Rule 16 of the Federal Rules of Criminal Procedure. In particular, Libby charges that since the indictment put at issue what the reporters knew about Plames status. he has the right to know which reporters knew her identity, when and from whom they learned this information. He asserts, I think with good cause, that he needs this not only to refute the allegations against himi.e., did Russert know this before he spoke to Libby?but
for exploring the ways in which information about [Plames] employment status circulated in Washington or reached Libby.
In sum, he is arguing that his recollection of these disputed conversations may be truthful, but they may also be the result of mistake or confusionthat he may have confused conversations with other reporters for those he had with these three. He also contends that he may have learned of the reporters knowledge from other government officials who related such conversations with him.
Libby seeks all documents and information the government has reflecting knowledge prior to July 14, 2003 of Plames employment by any news reporter or employee of a news organization or her role in connection with Wilsons trip to Niger. More significantly he seeks discovery of any communication prior to July 14, 2003, between reporters and a government official, another news reporter, an employee of a news organization or any other person in which Plame was mentioned. Libby also demands
Copies of subpoenas issued to reporters and news organizations during the grand jury investigation and any agreements by the FBI or Office of Special Counsel to limit the scope of the information supplied pursuant to those subpoenas.
Libby specifically observes here that the government is withholding subpoenas and correspondence relating to reporters not referenced in the indictment.
Assuming as I do that the Prosecutor has clearly opened the door to these issues and the discovery requests will in large part be granted, how is this likely to affect the three reporters and others in other news organizations?
Very substantially, and in ways that could and should have been anticipated at the time the press demanded this intrusive and silly investigation of the non-outing of a non-covert agent. Lets just take the example of Tim Russert.
Tom Maguire has collected Mr. Russerts various coy explanations of his testimony and his conversation with Libby:
From the NBC press release following his testimony:
During the interview, Mr. Russert was asked limited questions by Special Prosecutor Patrick Fitzgerald about a telephone conversation initiated by Lewis Scooter Libby, Vice President Cheneys Chief of Staff, in early July of last year. Mr. Russert told the Special Prosecutor that, at the time of that conversation, he did not know Ms. Plames name or that she was a CIA operative and that he did not provide that information to Mr. Libby. Mr. Russert said that he first learned Ms. Plames name and her role at the CIA when he read a column written by Robert Novak later that month.
Does he specifically deny telling Libby anything about Wilsons wife working at the CIA? No. This could simply be an artful dodge around the fact that he didnt know her name or her specific assignment there.
On Meet the Press, he again seemed as coy:
TIM RUSSERT, HOST, MSNBCs MEET THE PRESS: The answer was no. And whether I knew Valerie Plames name or where she worked as a CIA operative and the answer was no. And that was the extent of it.
WILLIAMS: He [Libby] called to complain about some programming..something that was said or covered on one of our cable news programs
RUSSERT: Correct. And that was the extent of it. I immediately called the president of NBC News and shared the complaint, which is why it was memorable in my mind. But to the notion that I was somehow the recipient of the leak, which just wasnt the case, or that I had shared information, which I did not know. The first time I had heard of Valerie Plame and the fact that she was a CIA operative was when I read Robert Novaks column the following Monday.
On his own show on CNBC, Russert still evades the basic issue:
RUSSERT: And I am Washington bureau chief, so I was a manager, in effect. He [Lewis Libby] called me to complain about something that he had been watching on MSNBC, and he was rather agitated about it and wanted to make his views known, as a viewer, and I duly noted it and said, `You know, you should call the correspondent directly, or you could call Eric Sorenson-who was then the head of MSNBC-`or Neal Shapiro-then head of NBC News-`or Id be glad to share this information. I gave him some phone numbers, I believe. He then says that I shared with him the name of Valerie Plame and that she worked for the CIA. I didnt know who Valerie Plame was; I-therefore I didnt know that she could have worked for the CIA. I wish I had. I-Mr. Libby didnt share it with me, although he obviously had confirmed it with other reporters, and to this I wonder why.
Since it was clear the question was did he know Wilsons wife worked at the CIA and did he share that information with Libby, his insistence that he didnt know who Plame was feeds the suspicion that he was being less than forthcoming.
This suspicion is made stronger by the fact that his colleague Andrea Mitchell said she did know Wilsons wife worked at the CIA though she had no clear knowledge of her exact position. She, in fact, said it was widely known among those of us who cover the intelligence community that Joe Wilsons wife was at the CIA.
If it was widely known it would be natural to assume that once Wilsons op-ed was published and the matter became the topic of the day, shed have shared that with her boss, Russert, isnt it? And her many efforts to distance herself from her earlier admission since then have only added to the suspicion that she did share this information with him and has not been forthcoming about how and when she came to know this, who else knew, and whether and when she shared that information with Russert.
She hasnt even a consistent story about whether she was questioned by the Special Prosecutor about her widely known story. At one point she said she had spoken to investigators and yet later she denied having any contact with Fitzgeralds office. Since the Special Prosecutor alleges in the indictment that Plames employment was not widely known and a major broadcasting figure said otherwise well before the issuance of the indictment, it would be fair to conclude the indictment statement could only be true if the Prosecution deliberately avoided pursuing the lead Andrea Mitchell threw out or that she somehow persuaded him that she hadnt said what she clearly had even though no one else seems to find her backstroke convincing.
In any event, it is impossible for me to see how Libbys claim that it is very material to his defense to explore whether Russert knew this information from whatever source at the time of the conversation cited in the indictment can be contested. If he did know, it is as likely that Russert did say what Libby reported he had and simply forgot it.
Similar arguments are made respecting the testimony of Cooper and Miller. In Coopers case he wrote and made public statements advancing the idea that the Administration pursued a coordinated effort to punish Mr. Wilson by leaking information about his wife. (See citations pp. 18-19 of the Motion).
Certainly, Mr. Libby argues (convincingly, I think) that a witness -Cooper-who believes the defendant was involved in a coordinated smear campaign has expressed a bias against the defendant. But Libby also argues, again persuasively, that to address possible bias, he
must first investigate which persons disclosed Mr. Wilsons identity, determine their motivations, and finally assess whether such evidence can reasonably be construed to support accusations of a smear campaign.
If Cooper was reporting and publishing this prior to his grand jury testimony and yet upon full discovery cannot provide any evidence for those charges, isnt that relevant to a determination whose version of the conversation should be believed? If it isnt, what is?
How concerned is the media about this development and is the concern warranted? Very concerned and with very good reason.
The Court in Miller said there was no First Amendment right for a reporter to refuse to provide evidence and there is a Constitutional right for a defendant to obtain the evidence necessary to defend against a criminal charge. And the press acknowledges that this case will place them all in a difficult position of providing the testimonial evidence or facing the consequences.
Where does this patchwork of reporter-source relationships and philosophies leave the profession? If Libbys case goes to trial, with journalists as unwilling star witnesses, the answer is likely to be a messy one. What would happen to a carefully negotiated waiver when a journalist got on the stand?
Thats the $50,000 question, says David Schulz, one of the media lawyers representing Associated Press reporter H. Josef Hebert in Lees civil suit. Fitzgerald reached agreements with some journalists and their lawyers to limit his questions to certain sources or particular time frames. In a trial, that will all become fair game, Schulz says. Defendants will argue they have a due-process right to get all the surrounding information, which is going to put the privilege and the reporters First Amendment claim directly in conflict with the Sixth Amendment and the right to a fair trial.
James Goodale, a former New York Times general counsel, sees a real risk for reporters who are called to testify in a trial.
Once a journalist gets on the stand, its going to be very hard for a journalist to say, All Im here to talk about is the waiver... when youre asked about other sources, he says.
Libbys lawyer, tasked with guaranteeing his client a fair trial, could ask Woodward or any other journalist whatever he wants.
Now we have Bob Woodward, the worlds greatest source protector being in a position of unmasking other sources, or he can go to jail, Goodale says.
Freelance writer Vanessa Leggett predicts the defense is going to be granted latitude to tear into these journalists. Reporters at the trial are
just going to file in there like mechanical ducks at an arcade, and there are going to be some who will fall, she says. And those who fall will lose points with the public, and then we all lose.
There are other interesting aspects of the motion.
First, Libby makes clear this is just the beginning of what is likely to be a series of expansive discovery requests.
Secondly, Libby seems to be seeking evidence relating to Fitzgeralds allegation that Plames employment status was classified, citing in particular that Bob Woodward described his sources disclosure to him that Plame worked at the CIA as casual and offhand and the reference did not appear either classified or sensitive.
Finally, Libby requests all subpoenas and agreements to limit the scope of documents or testimony by reporters. It is clear that there were such agreements. I have argued that they prevented a full exploration of the facts and made it more likely than not that the grand jury findings would be skewed. I think this request will be granted, and when it is many more members of the press will in Leggetts words join the file of mechanical ducks in the arcade. Clarice Feldman is a lawyer in Washington, DC.
This should be good. The 'Rats and MSM should be careful what they wish for--"discovery" can bite them on their backsides.
R-U-S-S-E-R-T
What is Fitz hiding? Cough up the docs, Patty!
The OSM (old stream media) is history. Rathergate will mark the turning point in history as we look back 20 years from now.
How the judge rules on this will be key to the disposition of the case. If Libby gets his discovery, then all he has to do is hang tough and eventually the political pressure by dems and the Old Media will force the prosecutor to drop charges. The stakes for the media and the dems are jut too high to let the case go to trial.
But until the judge rules, the pressure on him NOT to grant discovery will be huge. He knows, if he grants discovery to Libby, he and his wife will not get invited to any of the power DC parties for ten years. If he has kids who want internships or contracts with the government, those doors will close. If his kids are attorneys, their clients will hire someone else. If there is an illegitimate child thirty years ago, it will somehow find its way into the NY Times.
The dems and the Old Media (and the Clinton holdovers in the CIA and State Dept) will play the hardest of hardball on this one because it goes to one of the core pillars of their power.
Let's just hope the judge is a red-state kind of guy who could care about the power parties and that his kids work in a decent place in flyover country and don't do business with the government.
What will NOT happen in this case is a public airing in court of the way the press has handled this case.
Hot damn!! I hope their comeuppance is around the corner.
I. Lewis "Scooter" Libby was singled out as the person who identified Valerie Plame, renown and erstwhile spouse of Joseph C. Wilson IV, as an agent of the CIA. If she was covert, it was one of the most clumsily kept secrets in CIA, as her face and name were widely known among the media in the DC area, and she or her husband made no secret of the fact she was employed at CIA, in fact, he kind of bragged it up.
The "culture of corruption" existed at CIA long before the phrase became common currency among Dem'crat congresscritters and the wider world of the media rumorpeddlers.
Have you no decency?
I remember some months ago after it came out that Bob Woodward had information on Flamer a discussion on Fox News and a prediction that Libby would seem discovery from reporters. This should be fun.
ping
BTTT
"One of the things that drives Republicans crazy is the media's enormous double-standard in how they cover various scandals... Skeptics can go to the Web site of the House Committee on Standards of Official Conduct, popularly known as the House ethics committee. Click on 'historical documents,' and go to a publication called 'Historical Summary of Conduct Cases in the House of Representatives.'... By my count, there have been 70 different members of the House who have been investigated for serious offenses over the last 30 years, including many involving actual criminality and jail time. Of these, only 15 involved Republicans, with the remaining 55 involving Democrats." Bruce Bartlett
"But until the judge rules, the pressure on him NOT to grant discovery will be huge."
Not granting discovery is probably reversible error.
If it was widely known it would be natural to assume that once Wilsons op-ed was published and the matter became the topic of the day, shed have shared that with her boss, Russert, isnt it? And her many efforts to distance herself from her earlier admission since then have only added to the suspicion that she did share this information with him and has not been forthcoming about how and when she came to know this, who else knew, and whether and when she shared that information with Russert.
She hasnt even a consistent story about whether she was questioned by the Special Prosecutor about her widely known story. At one point she said she had spoken to investigators and yet later she denied having any contact with Fitzgeralds office. Since the Special Prosecutor alleges in the indictment that Plames employment was not widely known and a major broadcasting figure said otherwise well before the issuance of the indictment, it would be fair to conclude the indictment statement could only be true if the Prosecution deliberately avoided pursuing the lead Andrea Mitchell threw out or that she somehow persuaded him that she hadnt said what she clearly had even though no one else seems to find her backstroke convincing.
Andrea Mitchell on Imus show: I 'Messed Up' on Leakgate Answer .
--snip--
IMUS: Well, then - why did you say you did, Andrea?
MITCHELL: Because, I messed up.
IMUS: Oh.
--snip--
IMUS: Did you ever have a discussion with Russert about it?
MITCHELL: Sure, after the fact.
IMUS: Oh.
I messed up..Andrea's boss...Tim Russert
,,,,,,,,,,, ,,Houston....I think we've got a problem
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