The Good Ship Fitzgerald Is Listing

While the media focuses on handwritten notations by the Vice President on a newspaper article, there is much more to be gleaned from late Friday's court filings in the Libby case. The spin says that damaging new evidence has surfaced. But the filings by Fitzgerald reveal how rapidly his case is sinking.

Discovery in legal cases is rather like playing the old game 'Battleship' where you can surmise from your opponent's responses to your blind probes where he is hiding his fleet. So you can sink it. Scooter Libby's legal team is playing the game masterfully and as the latest filings late Friday show, Fitzgerald's fleet is taking on a lot of water.

News articles as evidence

In the course of the May 5 hearing it was revealed that Fitzgerald intended to offer as evidence at trial a series of news articles (obviously sourced by Wilson).  The Court asked the prosecution to identify any news articles it anticipated offering into evidence in its case in chief. The first is the op—ed in the New York Times written by Wilson which appeared on July 6, 2003, with the Vice President's notes on the margin [scroll to page 3 for an image].

Before getting to the arguments Fitzgerald makes for its admission, let's consider the actual motivation for placing this item before the jury. I don't consider those to be identical to the stated reasons. He wants this before the jury because he has said he has no intention of calling Wilson to the stand as his witness. He has said clearly that he does not stand by Wilson's credibility and yet he wants the jury to buy into the Wilson revenge theory first peddled by Ambassador Munchausen and his pals David Corn, Ray McGovern and Marc Grossman. It's that simple.

Wilson is radioactive and will be demolished by the defense, so Fitzgerald wants to distract the jury's attention from that indisputable and damaging fact while forwarding Wilson's attack on the Administration. Put Wilson's article in front of the jury, not the man himself.

In this latest pleading, the Prosecutor contends that he wants to show how beginning from the date of the op—ed, Libby's attention was focused on responding to the issues in that article. Even then he is quick to add that the statements in the article 'may not be considered as proof of the matters asserted therein.' Indeed.

Of course, Ambassador Munchausen's tale of his truth—seeking Mission to Niger actually began earlier, about May 2, 2003 at the Senate Democratic Policy Committee Meeting, (now mysteriously scrubbed from its website), during which he first peddled it to Nicholas Kristof.  The tale continued on for two months during which time he spoke to numerous journalists, all of whom were equally focused on it. And some, including David Corn (who has never been questioned in this inquiry), seemed to have knowledge (probably from Wilson) of his wife's position in the agency. Libby says he has five or more witnesses that Wilson outed his own wife, (and a wise bettor would put his money on more.)

Fitzgerald also wants to show the jury annotations apparently made by Vice President Cheney to the article to demonstrate that he and Libby were focused on the assertions in the article and in responding to them.

So what?  This is evidence in a case which the prosecutor claims is a small case about perjury respecting conversations with three reporters. Nowhere in the op—ed does Wilson mention his wife or her role or her employment. If every article that caught an official's attention—because, I might say, it involved a pack of lies harmful to an important matter—were to be considered evidence of wrongdoing, no one would be safe from such  ridiculous probes.

Fitzgerald also wants to offer in redacted form 5 other articles: the May 6, 2003, NYT article by Kristof; the June 12, 2003, Washington Post article by Walter Pincus (which was a pack of lies, as I reported, and the Post, 2 years after it was published, admitted), the June 30, 2003, New Republic article by John B. Judis and Spencer Ackerman; the July 14, 2003 Chicago Sun Times article by Robert Novak and the July 17, 2003 Time.com article by 'Cooper and others'.

As to the first three articles, Wilson was the admitted or obvious source. Plame may as well have been a source for at least the Kristof piece. The Novak article was sourced by the man Fitzgerald is protecting, apparently Richard Armitage.

The Calibresi connection

It is curious that the prosecutor attributes the Time article to 'Cooper and others'. One of those others was named Massimo Calibresi.  Libby in prior pleadings said that documents from Time he received from the prosecutor show that Calibresi spoke to Wilson just prior to Cooper's call to him and just after they spoke.

The article made assertions about leaks to harm Wilson which came from the creative pens of the authors, and not the conversation with Libby. Indeed, I suspect it was prewritten and the call was pretextual. The article might have been already prepared, perhaps in relevant part even dictated by the Ambassador himself.

But the prosecutor doesn't want to mention Calibresi as a co—author because he doesn't want us to focus on the hocus—pocus behind that article. Introduction of the article as evidence is intended to prejudice the jury.

The rationale

What specific reasons are offered for presenting such prejudicial material to the jury?

Context 'for evidence of conversations concerning Mr. Wilson's wife' is claimed for the Kristof article — in which Wilson's name and his wife's are never mentioned. For the Pincus article, now completely though tardily discounted by the publisher, also doesn't mention Wilson or his wife, Fitzgerald claims that because it increased media attention to the 'un—named Ambassador's trip' and motivated defendant to respond, it makes it more

'likely that the defendant's disclosures to the press concerning Mr. Wilson's wife were not casual disclosures that he had forgotten.'

In other words, to those not impaired by tunnel vision, responding to the lies that were published means one had to be focused on an incidental matter of infinitely less significance. And the more the lies about the trip were spread in the media, according to the Prosecutor, the more certain it is that responders had to focus on an ancillary, almost irrelevant matter not reported in any of those stories.

In Fitzgerald's view, to note lies in an article is evidence of wrongdoing. And so, too, is the fact that the lies are spreading. There is simply no other rational way to view the rickety scaffold of 'evidence' the prosecutor is trying to erect.

Even evidence that you spoke with care to an aide about media lies, is evidence of wrongdoing. Fitzgerald wants to introduce into evidence the New Republic article

'because it caused the defendant to speak with Ambassador Eric Edelman (who just left his position as defendant's Principal Deputy) in late June 2003 and discuss the fact that they could not talk about the former Ambassador's trip because of 'complications' at the CIA which could not be further discussed on an open telephone line.'

The caution about the call relates to the National Intelligence Estimate, not Plame, but I strongly suspect that Fitzgerald used it otherwise before the grand jury and is attempting to try the same trick yet again.

Equally as preposterous is the rationale offered for submitting the Novak article, for which we know Libby was not the source. The source — Armitage it seems — is being protected by the Prosecutor in this ostensible investigation of who leaked the information. 

Fitzgerald says it is important the jury see the Novak article because on the day it was published

'A CIA official was asked in the defendant's presence by another person in the OVP, whether the CIA official had read that column. (The CIA official had not.) At some time thereafter...the CIA official discussed in the defendant's presence the dangers posed by disclosure of the CIA affiliation of one of its employees as had occurred in the Novak column.'

Therefore, the prosecutor argues, he has found a motive for Libby to lie.

Shrinkage

Let's review the shrinkage of the prosecution's case. He states in his indictment that Plame was 'classified' but now concedes he will not put in evidence that she is. He stated in his press conference that disclosure of her identity 'harmed us all' and at the May 5 hearing said he was not putting in evidence of that though he might argue 'potential harm.'

Now he's saying that someone from the CIA said to someone else in a room where Libby happened to be that there might be unspecified 'dangers' in the revelation of this information. From that he argues that Libby, who had no idea that the information being bruited about—largely, I think by Ambassador Munchausen himself— was classified and might cause 'danger', purposely lied about conversations with reporters in which evidence of any deliberate leaking is virtually non—existent.

I think the 'classified' charge having been sunk in the harbor, Fitzgerald is trying to use this conversation to pretend to the jury that there was something really secret about Plame's identity and harmful about its disclosure. And remember the agency we are talking about has been the source of enormous leaks clearly harmful to national security. In fact, I think the only 'danger' in the disclosure is that it reveals the perfidy and incompetence of certain people within the Agency respecting the Wilson Gambit

As to the article in Time written, as the prosecution notes 'by Cooper and others' (sweeping under the rug Calibresi and his patent collusion with Wilson), Fitzgerald says the evidence of wrongful intent is that the Office of the Vice President (OVP) contacted the magazine to complain of the selective 'on the record' quote by Libby.

And the evidence of Libby's crime in this is? In the words of the prosecutor:

'The effort to include the defendant's full quote, while at the same time offering no dispute as to the characterization of anonymous government officials concerning Ms Plame, is important because the Cooper article asserts that government officials had intimated that Ms Plame was involved in sending Mr. Wilson on the trip.' 

So, officials, be forewarned if you demand a correction about what you said. For if you do not at the same time deny assertions about what others reportedly said, you are offering up to counsel like Fitzgerald evidence of your own wrongdoing.

Why would Libby deny a claim that officials confirmed the report of Plame's role when (a) he didn't; and (b) he has no idea who, if anyone, did?

Remember that, according to the indictment, Cooper said only that Libby, when asked about Plame's role in sending her husband to Niger, said 'I heard that, too.' And though in the Time article Cooper suggests that he'd received 'confirmation' of the report from persons who are ostensibly Libby and Rove, no real journalist would regard Libby's remarks as confirmation of anything. Evidence that Cooper didn't regard the statement as confirmation, either, is the contemporaneous email he sent his editor saying Time should call the CIA's public affairs officer, Bill Harlow, to confirm it.

More media materials

Fitzgerald also indicates he may refer to but not offer in evidence some other media materials. The most risible claim respecting these is the rationale for referring to the annotated copies of an October 2003 Seymour Hersh article in the New Yorker. The annotations seem to Fitzgerald to show that Libby's claim that he was too focused on national security matters to notice anything about Plame are undercut by the fact that they were annotating articles in the media which most certainly undercut Administration positions on national security.

Or it may be that his reason for wanting to refer to the July 17, 2003 Wall Street Journal editorial 'Yellowcake Remix' which contained quotations from Libby's transmittal of a copy of the portions of the 2002 National Intelligence Estimate is even more laughable. Fitzgerald, revealing once again his ignorance of Washington, says this:

'This evidence is relevant to establish that during the relevant time frame in July 2003, the defendant, notwithstanding other pressing government business was heavily focused on shaping media coverage of the controversy concerning Iraqi efforts to obtain uranium from Niger.'

As if media coverage was irrelevant to Libby's duties of helping to shape and explain the Administration's position on the war!!

I'd say from the discovery proceedings to date, the Prosecution cannot and will not show that Plame was 'classified,' that it cannot and will not show that disclosure of her identity caused any harm, that the person who did do that has not and will not be charged, that it has yet to show even potential harm, and that it is a far way from showing that Libby had the slightest motive to lie. And that the stench of selective prosecution is unmistakable

I think the case is taking on lots of water and the Prosecutor is quite frankly out of his depth.

Note on Libby's filing

Libby's filing is shorter and largely responds to the Judge's request for a more detailed briefing on his claim that Rule 16 of the Federal Rules of Criminal Procedure which requires the government to give the defendant statements it intends to use at trial relates to potential  defense witnesses (as opposed to government witnesses).

He says he needs them to 'counter the charges in the indictment, corroborate testimony, and [for] leads to other admissible evidence.' His most important stated reason to obtain the documents he seeks under the rule is that they 'will illuminate, among other things, how these witnesses learned that Valerie Plame worked for the CIA, whether they understood her employment status to be covert or classified and whether they disclosed information about Ms. Wilson to anyone else.'

Clarice Feldman is an attorney in Washington, DC

While the media focuses on handwritten notations by the Vice President on a newspaper article, there is much more to be gleaned from late Friday's court filings in the Libby case. The spin says that damaging new evidence has surfaced. But the filings by Fitzgerald reveal how rapidly his case is sinking.

Discovery in legal cases is rather like playing the old game 'Battleship' where you can surmise from your opponent's responses to your blind probes where he is hiding his fleet. So you can sink it. Scooter Libby's legal team is playing the game masterfully and as the latest filings late Friday show, Fitzgerald's fleet is taking on a lot of water.

News articles as evidence

In the course of the May 5 hearing it was revealed that Fitzgerald intended to offer as evidence at trial a series of news articles (obviously sourced by Wilson).  The Court asked the prosecution to identify any news articles it anticipated offering into evidence in its case in chief. The first is the op—ed in the New York Times written by Wilson which appeared on July 6, 2003, with the Vice President's notes on the margin [scroll to page 3 for an image].

Before getting to the arguments Fitzgerald makes for its admission, let's consider the actual motivation for placing this item before the jury. I don't consider those to be identical to the stated reasons. He wants this before the jury because he has said he has no intention of calling Wilson to the stand as his witness. He has said clearly that he does not stand by Wilson's credibility and yet he wants the jury to buy into the Wilson revenge theory first peddled by Ambassador Munchausen and his pals David Corn, Ray McGovern and Marc Grossman. It's that simple.

Wilson is radioactive and will be demolished by the defense, so Fitzgerald wants to distract the jury's attention from that indisputable and damaging fact while forwarding Wilson's attack on the Administration. Put Wilson's article in front of the jury, not the man himself.

In this latest pleading, the Prosecutor contends that he wants to show how beginning from the date of the op—ed, Libby's attention was focused on responding to the issues in that article. Even then he is quick to add that the statements in the article 'may not be considered as proof of the matters asserted therein.' Indeed.

Of course, Ambassador Munchausen's tale of his truth—seeking Mission to Niger actually began earlier, about May 2, 2003 at the Senate Democratic Policy Committee Meeting, (now mysteriously scrubbed from its website), during which he first peddled it to Nicholas Kristof.  The tale continued on for two months during which time he spoke to numerous journalists, all of whom were equally focused on it. And some, including David Corn (who has never been questioned in this inquiry), seemed to have knowledge (probably from Wilson) of his wife's position in the agency. Libby says he has five or more witnesses that Wilson outed his own wife, (and a wise bettor would put his money on more.)

Fitzgerald also wants to show the jury annotations apparently made by Vice President Cheney to the article to demonstrate that he and Libby were focused on the assertions in the article and in responding to them.

So what?  This is evidence in a case which the prosecutor claims is a small case about perjury respecting conversations with three reporters. Nowhere in the op—ed does Wilson mention his wife or her role or her employment. If every article that caught an official's attention—because, I might say, it involved a pack of lies harmful to an important matter—were to be considered evidence of wrongdoing, no one would be safe from such  ridiculous probes.

Fitzgerald also wants to offer in redacted form 5 other articles: the May 6, 2003, NYT article by Kristof; the June 12, 2003, Washington Post article by Walter Pincus (which was a pack of lies, as I reported, and the Post, 2 years after it was published, admitted), the June 30, 2003, New Republic article by John B. Judis and Spencer Ackerman; the July 14, 2003 Chicago Sun Times article by Robert Novak and the July 17, 2003 Time.com article by 'Cooper and others'.

As to the first three articles, Wilson was the admitted or obvious source. Plame may as well have been a source for at least the Kristof piece. The Novak article was sourced by the man Fitzgerald is protecting, apparently Richard Armitage.

The Calibresi connection

It is curious that the prosecutor attributes the Time article to 'Cooper and others'. One of those others was named Massimo Calibresi.  Libby in prior pleadings said that documents from Time he received from the prosecutor show that Calibresi spoke to Wilson just prior to Cooper's call to him and just after they spoke.

The article made assertions about leaks to harm Wilson which came from the creative pens of the authors, and not the conversation with Libby. Indeed, I suspect it was prewritten and the call was pretextual. The article might have been already prepared, perhaps in relevant part even dictated by the Ambassador himself.

But the prosecutor doesn't want to mention Calibresi as a co—author because he doesn't want us to focus on the hocus—pocus behind that article. Introduction of the article as evidence is intended to prejudice the jury.

The rationale

What specific reasons are offered for presenting such prejudicial material to the jury?

Context 'for evidence of conversations concerning Mr. Wilson's wife' is claimed for the Kristof article — in which Wilson's name and his wife's are never mentioned. For the Pincus article, now completely though tardily discounted by the publisher, also doesn't mention Wilson or his wife, Fitzgerald claims that because it increased media attention to the 'un—named Ambassador's trip' and motivated defendant to respond, it makes it more

'likely that the defendant's disclosures to the press concerning Mr. Wilson's wife were not casual disclosures that he had forgotten.'

In other words, to those not impaired by tunnel vision, responding to the lies that were published means one had to be focused on an incidental matter of infinitely less significance. And the more the lies about the trip were spread in the media, according to the Prosecutor, the more certain it is that responders had to focus on an ancillary, almost irrelevant matter not reported in any of those stories.

In Fitzgerald's view, to note lies in an article is evidence of wrongdoing. And so, too, is the fact that the lies are spreading. There is simply no other rational way to view the rickety scaffold of 'evidence' the prosecutor is trying to erect.

Even evidence that you spoke with care to an aide about media lies, is evidence of wrongdoing. Fitzgerald wants to introduce into evidence the New Republic article

'because it caused the defendant to speak with Ambassador Eric Edelman (who just left his position as defendant's Principal Deputy) in late June 2003 and discuss the fact that they could not talk about the former Ambassador's trip because of 'complications' at the CIA which could not be further discussed on an open telephone line.'

The caution about the call relates to the National Intelligence Estimate, not Plame, but I strongly suspect that Fitzgerald used it otherwise before the grand jury and is attempting to try the same trick yet again.

Equally as preposterous is the rationale offered for submitting the Novak article, for which we know Libby was not the source. The source — Armitage it seems — is being protected by the Prosecutor in this ostensible investigation of who leaked the information. 

Fitzgerald says it is important the jury see the Novak article because on the day it was published

'A CIA official was asked in the defendant's presence by another person in the OVP, whether the CIA official had read that column. (The CIA official had not.) At some time thereafter...the CIA official discussed in the defendant's presence the dangers posed by disclosure of the CIA affiliation of one of its employees as had occurred in the Novak column.'

Therefore, the prosecutor argues, he has found a motive for Libby to lie.

Shrinkage

Let's review the shrinkage of the prosecution's case. He states in his indictment that Plame was 'classified' but now concedes he will not put in evidence that she is. He stated in his press conference that disclosure of her identity 'harmed us all' and at the May 5 hearing said he was not putting in evidence of that though he might argue 'potential harm.'

Now he's saying that someone from the CIA said to someone else in a room where Libby happened to be that there might be unspecified 'dangers' in the revelation of this information. From that he argues that Libby, who had no idea that the information being bruited about—largely, I think by Ambassador Munchausen himself— was classified and might cause 'danger', purposely lied about conversations with reporters in which evidence of any deliberate leaking is virtually non—existent.

I think the 'classified' charge having been sunk in the harbor, Fitzgerald is trying to use this conversation to pretend to the jury that there was something really secret about Plame's identity and harmful about its disclosure. And remember the agency we are talking about has been the source of enormous leaks clearly harmful to national security. In fact, I think the only 'danger' in the disclosure is that it reveals the perfidy and incompetence of certain people within the Agency respecting the Wilson Gambit

As to the article in Time written, as the prosecution notes 'by Cooper and others' (sweeping under the rug Calibresi and his patent collusion with Wilson), Fitzgerald says the evidence of wrongful intent is that the Office of the Vice President (OVP) contacted the magazine to complain of the selective 'on the record' quote by Libby.

And the evidence of Libby's crime in this is? In the words of the prosecutor:

'The effort to include the defendant's full quote, while at the same time offering no dispute as to the characterization of anonymous government officials concerning Ms Plame, is important because the Cooper article asserts that government officials had intimated that Ms Plame was involved in sending Mr. Wilson on the trip.' 

So, officials, be forewarned if you demand a correction about what you said. For if you do not at the same time deny assertions about what others reportedly said, you are offering up to counsel like Fitzgerald evidence of your own wrongdoing.

Why would Libby deny a claim that officials confirmed the report of Plame's role when (a) he didn't; and (b) he has no idea who, if anyone, did?

Remember that, according to the indictment, Cooper said only that Libby, when asked about Plame's role in sending her husband to Niger, said 'I heard that, too.' And though in the Time article Cooper suggests that he'd received 'confirmation' of the report from persons who are ostensibly Libby and Rove, no real journalist would regard Libby's remarks as confirmation of anything. Evidence that Cooper didn't regard the statement as confirmation, either, is the contemporaneous email he sent his editor saying Time should call the CIA's public affairs officer, Bill Harlow, to confirm it.

More media materials

Fitzgerald also indicates he may refer to but not offer in evidence some other media materials. The most risible claim respecting these is the rationale for referring to the annotated copies of an October 2003 Seymour Hersh article in the New Yorker. The annotations seem to Fitzgerald to show that Libby's claim that he was too focused on national security matters to notice anything about Plame are undercut by the fact that they were annotating articles in the media which most certainly undercut Administration positions on national security.

Or it may be that his reason for wanting to refer to the July 17, 2003 Wall Street Journal editorial 'Yellowcake Remix' which contained quotations from Libby's transmittal of a copy of the portions of the 2002 National Intelligence Estimate is even more laughable. Fitzgerald, revealing once again his ignorance of Washington, says this:

'This evidence is relevant to establish that during the relevant time frame in July 2003, the defendant, notwithstanding other pressing government business was heavily focused on shaping media coverage of the controversy concerning Iraqi efforts to obtain uranium from Niger.'

As if media coverage was irrelevant to Libby's duties of helping to shape and explain the Administration's position on the war!!

I'd say from the discovery proceedings to date, the Prosecution cannot and will not show that Plame was 'classified,' that it cannot and will not show that disclosure of her identity caused any harm, that the person who did do that has not and will not be charged, that it has yet to show even potential harm, and that it is a far way from showing that Libby had the slightest motive to lie. And that the stench of selective prosecution is unmistakable

I think the case is taking on lots of water and the Prosecutor is quite frankly out of his depth.

Note on Libby's filing

Libby's filing is shorter and largely responds to the Judge's request for a more detailed briefing on his claim that Rule 16 of the Federal Rules of Criminal Procedure which requires the government to give the defendant statements it intends to use at trial relates to potential  defense witnesses (as opposed to government witnesses).

He says he needs them to 'counter the charges in the indictment, corroborate testimony, and [for] leads to other admissible evidence.' His most important stated reason to obtain the documents he seeks under the rule is that they 'will illuminate, among other things, how these witnesses learned that Valerie Plame worked for the CIA, whether they understood her employment status to be covert or classified and whether they disclosed information about Ms. Wilson to anyone else.'

Clarice Feldman is an attorney in Washington, DC