| Topic: |
Politics > Politics-USA |
| User: |
"Captain Compassion" |
| Date: |
03 May 2006 11:16:02 AM |
| Object: |
Scooter Libby Meets the Press |
Scooter Libby Meets the Press
Clarice Feldman
May 3rd, 2006
http://americanthinker.com/articles.php?article_id=5465
We have just been granted a window on the struggle between Lewis
“Scooter” Libby and the elite media over his access to their internal
documents. Libby is charged with federal crimes because his versions
of conversations with reporters differ from the accounts of the media
people. He seeks evidence from their files about what they knew and
what they privately wrote at the time. In a “he said/she said”
confrontation, access to supporting evidence becomes critical to the
ability to mount a defense.
Late Monday night Libby filed a Motion in Response to the media’s
efforts to quash his subpoenas for documents in their possession. At
last, after a three year one-sided smear campaign by the elite media
and by an unsupervised and careless Special Counsel, Libby gets to
show us the flimsiness of the case against him.
He also shows us the considerable embarrassment facing pillars of the
media establishment and the utter un-tenability of any further claims
for press privilege. Given what these pleadings reveal, a testimonial
privilege for reporters would amount to a figurative license to kill
those with whom they have political or other disagreements.
Should this go to trial, the press will suffer a crippling blow to
whatever credibility they still have, and Libby will be proven to
have been the victim of political opponents and an out-of-control
prosecution.
The pleadings are reprinted in .pdf form here and here. Because the
Motion is reproduced in two parts, to avoid confusion, any page
citations will be to those in the original pleading, not to the pdf
pagination.
Libby’s Argument
Libby seeks to expand the evidentiary base to give a fuller picture of
that testimony and show that it was the reporters, not he, who
misstated and misrecollected the substance of their conversations with
him. As we have noted, the Special Counsel was very selective in the
documentation and testimony he sought from the media. Even in these
spare pleadings, Libby’s case that the testimony offered by the media
was not credible is strong.
The prosecution relies on the testimonial variances between Libby and
three reporters—Tim Russert, Matt Cooper and Judith Miller.
Russert has no contemporaneous notes of the conversation. Cooper’s
notes make no reference to Plame or the CIA although they are
virtually verbatim. Miller’s notes contain evidence that she knew
about Wilson before she spoke to Libby and further evidence that she
knew about Plame and her job from other sources.
Even worse for the prosecution, Miller’s notations upon which
Fitzgerald relied seem to come from sources other than Libby.
All three reporters had colleagues in communication with Joseph Wilson
and others during the time of the conversations at issue, colleagues
who seem to have known well of Plame and her position, the worst-kept
secret in Washington.
Finally, with respect to both Miller and Cooper, there is at best
extreme carelessness about their work, or at worst the stench of a
set-up to nail the White House. All of this behavior occurred in the
context of a prosecution so fixated on Rove and Libby that it failed
to subpoena relevant documents, allowed reporters to testify only
about Rove and Libby, and in every other way so manipulated the
investigation as to predetermine its result.
The evidence Libby seeks is from the New York Times, Judith Miller (a
former Times reporter), NBC News, Matt Cooper and Time, all of whom
have moved to quash the subpoenas. Tim Russert of NBC, a key
prosecution witness, has responded he has no notes of his conversation
with Libby. CNN says they have no responsive documents. The Washington
Post has some documents which the Court ruled it need not turn over,
presumably respecting Woodward’s conversations with the actual first
leaker whose identity (apparently Richard Armitage) the Special
Counsel is taking special pains to protect, apparently under some
benighted notion of good leakers and bad leakers. As to Woodward’s
notes of his June 27, 2003 conversation with Libby, those have been
voluntarily turned over to the defendant.
Libby argues that all of the documents he seeks are relevant,
admissible, defined with adequate specificity and may form the basis
for eliciting testimony at trial and impeaching the government’s
witnesses.
He further argues that that there is no First Amendment right of
reporters to refuse to provide testimony at trial except for the Fifth
Amendment right against self-incrimination. Branzburg v. Hayes, 408
U.S. 665,689-90(1972).
It is absurd to contend that a reporter who deserves no special
treatment before a grand jury may nonetheless invoke the First
Amendment to stonewall a criminal defendant who has been indicted by
that grand jury and seeks evidence to establish his innocence.” (pp.
38-39 of Motion).U.S. v. Liddy, 354 F Supp. At 213 n. 13.
Nor is there, Libby notes, any common law testimonial privilege. But
even if there were one, it would be overcome here where the
information goes to the “heart of the matter,” where no other means of
obtaining it exists, and where it is necessary to a fair hearing.
What Libby Seeks
With the main legal argument out of the way, let’s get down to the
details of what he seeks and why. As we do so, you will quickly catch
the reek of media mendacity.
Fitzgerald has asserted (in a response to the defendant’s third motion
to compel discovery) that Libby and others engaged in a concerted
effort to discredit or punish Joseph Wilson by disclosing his wife’s
identity. But one thing that will strike the careful reader
immediately is this: the media documentation of conversations with
Libby show absolutely no evidence of such an effort. If there was such
a campaign, there is no record that Libby played any part in that.
(Curiously, the only government official who told Robert Novak and
apparently Woodward about Plame is not only not charged, but being
protected by Fitzgerald.)
Judith Miller
Let’s start, as Libby does, with Judith Miller. (The indictment refers
to three conversations with Miller: Count 1, Paragraphs 14, 17 and
24).
He shows her testimony is so at odds with her various and varied
statements as to be not credible on its face.
Using her own contradictory public statements (“bafflegab” is the term
commenters at Just One Minute use for it). She told the grand jury
that she “believed” her conversation with Libby on June 23, 2003 was
the first time she’d been told Valerie Plame might work for the CIA. (
Libby cites Miller’s contradictory own reports in the New York Times,
her website, and her colleagues’ reports in the same paper, hoisting
her by her own petard.) When she described to her own colleagues her
grand jury testimony she was yet more equivocal about what she learned
in the conversation.
Equally problematic is her recollection of the July 8, 2003
conversation with Libby where she said she
“couldn’t be certain whether I had known of Mrs. Plame’s identity
before this meeting and I had no clear memory of the context of our
conversation that resulted in th[e] notation [(wife works in Win
Pac)]”
Similarly, respecting her third conversation with Libby on July 12,
2003, she indicates she didn’t know if Libby had given her the name
“Wilson.”
But there is much more reason to question the reliability of her
recollection. It looks to me that she was trying to set up Libby and
is trying to hide that fact. (Something equally obvious about Time’s
Matt Cooper, as we shall see.)
Even the highly redacted notes she provided Libby indicate she had Joe
Wilson’s name and phone number in her notebook before she first spoke
to Libby. It doesn’t appear that Fitzgerald even questioned her about
that. Why look for inconvenient facts? That would only complicate an
investigation with a predetermined outcome.
These same redacted notes suggest that Miller’s notation “Victoria
Wilson” were made before her conversation with Libby on July 12,
perhaps again from another source. Notes on preceding pages, not yet
provided to Libby, may allow the defendant to ascertain from whom
Miller obtained these bits of information and whether she confused
those conversations with her talks with Libby.
Similar questions obtain from Miller’s redacted notes where in her
account of the June 23 conversation she has recorded “(wife works in
Bureau?)” and an entry in the July 8 notations “(wife works in Win
Pac)”. Miller says she doesn’t recall the meaning of the question mark
or parentheses, and Libby suggests these may show they were added
later and from other sources. (Some careful note taking!)
But even more curious is this. Her notebooks are replete with variant
references to Ms. Plame: “Valerie Flame”,”Valery Plame”, Valerie P”,
“VF?” and “Victoria Wilson—works in unit” (this last permutation
appears pages away from the end of her July 8 Libby interview notes).
The variety of these terms, of course, suggests a multiplicity of
sources.
Adding the problems with her notes to her conflicting recollections of
what she said to the grand jury, I do not think she’ll prove to be a
dream prosecution witness. On the other hand, she may prove one for
the defense.
Libby contends that given all the documentation about her notes,
emails, etc., he may be able to show at trial that if the topic of
Plame was raised at all it was raised by Miller, as was any mention of
Wilson and his trip. Further, it is evidence that he neither knew nor
had reason to believe at that time that Plame’s position was
“classified.” It was too widely known in relevant government and press
circles. Surely, it will be entertaining to watch Miss Run Amok and
her bizarre note taking skills examined by real lawyers.
The New York Times
Libby has subpoenaed information relating to other employees not named
in the indictment or called before the grand jury (or for all we know
avoided like the plague by the witless, myopic investigators and
prosecutor).
Nicholas Kristof kicked off the Wilson Gambit with a story full of
lies about the Mission to Niger, a story obviously and admittedly
sourced by Ambassador Munchausen, Joe Wilson himself. Libby suggests
he needs to know if there is documentation of conversations between
Kristof and Miller.
Libby also seeks notes of the investigation and analysis by the paper
itself respecting the events leading to Miller’s incarceration and her
various published accounts of the events relevant to this case. He
notes the paper admits it has such documentation but wants to withhold
it until after her testimony. Of course this would make it harder to
prepare for her cross examination without substantial delay in the
trial.
Libby argues that when it is almost certain that someone will be
called as a witness and there is a clear indication of what her
testimony will be, this evidence should be turned over before, not
after, her testimony, to allow the defense adequate opportunity to
prepare for it.
Libby reveals that the New York Times admits it has documentation of
the paper’s interviews of other government officials including Libby’s
subordinates but they
“contain no information regarding…the employment of Mr. Wilson’s
spouse by the CIA.”
Once again, the weakness of the Fitzgerald claim of a vigorous effort
by Libby and others to punish Wilson is found wanting any evidentiary
foundation. Perhaps Fitzgerald is thinking of a “smear” by ESP just as
he risibly claimed supervision by ESP (never communicated,
undocumented intent) from former Acting Attorney General Comey, a
claim we laughed at and the Court quickly kicked to the curb.
Libby seeks from the New York Times documentation of conversations
with government officials, including Ari Fleischer, who reportedly had
the classified document which mentioned Plame’s role in the Mission to
Niger, her position at the Agency and name.
Libby also seeks documentation of conversations with former Department
of State official Marc Grossman, who some news accounts claim charged
White House officials with smearing Wilson, perhaps to divert from
the fact that his boss, Richard Armitage, is the most likely source of
the first press disclosure of Plame by Bob Novak.
Bill Harlow of the CIA press office is another source to reporters
about whom Libby seeks media documentation. He notes that there is
public record evidence that Harlow spoke to Valerie Plame and Robert
Novak, Ms. Martin of the White House press office and others about
Plame and her position.
Libby also notes that in his laughably misnamed book The Politics of
Truth, Ambassador Munchausen states his wife spoke to Harlow after he
(Wilson) spoke to Novak. There is moreover a suggestion, Libby
observes, that Harlow’s disclosure to Novak was okayed by Tenet or
Grenier at the CIA, which if true would preclude prosecution of
Harlow, but would still not clarify the mystery of why the CIA
referred for investigation a leak it generated itself by Harlow’s
confirmation of Plame’s employment.
Another reporter at the NYT whose documentation Libby seeks is David
Sanger who interviewed Libby about the 19 words in the State of the
Union Address.
Evidence in the paper’s possession about Judith Miller is also sought.
(p. 23) Libby notes that after their July 8 meeting by her own
account, she recommended the paper investigate whether Libby was
trying to “smear” Wilson. But publicly, her editor has denied this
claim.
Naturally, this conflict goes to Miller’s recollection and
credibility. The documentation supports the defendant’s claim that he
did not use any of this information to discredit or punish Wilson, but
simply to rebut his monstrous lies. Telling on this score is the
quoted statement Miller made to the New York Times legal counsel,
Freeman,
“I knew Valerie Plame’s name. I knew who she was. I talked to many
people in the government about her before and after Novak’s article.”
NBC
Libby testified that on July 10 or 11, 2003 he had a conversation with
Tim Russert of NBC. According to Libby’s grand jury statement, Russert
asked him if he (Libby) was aware that Wilson’s wife worked for the
CIA and told Libby “all the reporters knew it.”
According to the indictment Libby and Russert did not discuss this at
all.
Enter Andrea Mitchell. As Libby notes she is an “access” reporter with
close contacts in the Department of State and CIA. She is Russert’s
subordinate. On July 6, 2003 the very morning of Wilson’s inflammatory
and false op-ed in the New York Times, Wilson appeared as a guest on
Andrea Mitchell’s show, an appearance which certainly required some
preplanning, knowledge of Wilson’s identity and background, and of the
planned op ed. Three months later she publicly said:
“It was widely known among those of us in the intelligence community
and who were actively engaged in trying to track down who among the
foreign service community was the envoy to Niger”(p. 25)
She subsequently and not credibly has tried to modify or back off this
statement.
But she has also said:
“I wasn’t aware of her actual role at the CIA and that she had a
covert role involving weapons of mass destruction, not until Bob Novak
wrote it.” (p.28)
The Government never issued a subpoena for documents to NBC, Russert,
Ms. Mitchell or anyone else at the network. Not only does this yet
again reveal the weakness of the investigation, it also means that if
Libby cannot subpoena them he will have no way to view this material.
Tim Russert
Russert says he has absolutely no notes documenting his conversation
with Libby, so it is his recollection versus Libby’s. NBC will not
even turn over its documentation respecting its public statements
about Russert’s testimony to the grand jury or Mitchell’s damaging (to
the Prosecution) admission.
Libby suggests that these public statements by NBC were so carefully
parsed that they may reveal that Russert, like Mitchell (and likely
from her) knew on the date of his conversation with Libby of Ms.
Wilson’s employment with the CIA.
As Tom Maguire has observed long ago and repeatedly, the NBC statement
was exceedingly finely crafted. Libby picks up on this point (p. 27):
We note that NBC’s carefully worked public statements have never
completely disclaimed that Russert knew that Mr. Wilson’s wife was
employed by the CIA prior to July 14, 2003 [the date of the Novak
article].
NBC says
“Mr. Russert told the Special Prosecutor that, at the time of the
conversation he did not know Mrs. Plame’s name or that she was a CIA
operative and he did not provide that information to Mr. Libby.” But
Mr. Libby “never testified that Russert mentioned Mrs. Plame’s ‘name’
or her ‘role’ at the CIA.” (p. 27)
(Good enough for Government work as they say.)
How great a leap is it to believe that Mitchell told her boss,
Russert, what she knew about Wilson and his wife? Not much. It is
exceedingly likely, which makes Libby’s testimony – that Russert said
everyone knew and did he, too – more, rather than less credible.
In fact, Libby adds, Mitchell’s own public statements reveal she
shared what she knew of the Wilsons with other NBC employees, and they
discussed this during the very week of the Russert-Libby conversation.
Are we expected to believe that she told a lot of people but not her
boss?
It’s news to me, but Libby observes (p. 30) that Mitchell had a
conversation with him during this time, and NBC says those notes do
not mention that Mrs. Wilson’s wife worked for the CIA. NBC claims
that makes them irrelevant. They make the same mistake Fitzgerald
does, ignoring the mountain of evidence that Libby and his staff
didn’t mention Plame and didn’t try to smear Wilson, and suggesting
the exact opposite. (To paraphrase Secretary Rumsfeld, in this
situation absence of evidence really is evidence of absence.)
Time
While they demanded this special prosecution to get to the truth, the
truth they have manipulated and distorted from the very beginning,
Time and Matt Cooper come off no better than Miller, the New York
Times or NBC. All seem to have played a game of hiding the truth and
doing what they can to prevent it from being known, even if that means
denying the means to clear his name to the man they helped smear.
Matt Cooper is the main actor at Time. Libby doesn’t mince words about
Cooper, spouse of Clinton appointee, Mandy Gruenwald.
None of Mr. Cooper’s documents produced to date—including
contemporaneous notes of the call—support the indictment’s allegations
that Mr. Libby confirmed Ms. Wilson’s involvement in her husband’s
trip. (p. 31)
In fact there is no mention in these nearly verbatim notes, in
subsequent emails with colleagues, or elsewhere that Mr. Libby
confirmed Ms. Wilson’s involvement in her husband’s trip.
Compare that with the indictment (Count 3, paragraph 2) which says
Libby told Cooper that reporters were saying that Ms. Wilson worked
for the CIA but he didn’t know if this was true and Cooper’s sworn
version (credited by Fitzgerald) that he asked if Libby had heard that
Ms. Wilson was involved in sending Wilson to Niger and Libby said
“Yeah. He heard that, too” or “words to that effect.”
Macsmind has been saying for a long time that Cooper is on the hot
seat, and I believe him more than ever after reading this pleading.
Libby observes that from what we know on the public record Plame was
clearly a topic of conversation in Time’s Washington Bureau. (Indeed,
I think bureau employee Viveca Novak’s public reports of what she told
Luskin, Rove’s lawyer, offer but a hint of the detail she provided,
detail that should give Cooper pause to repeat his story on the stand,
for I think it obvious that he is in trouble.)
Libby more than suggests this:
It is hard to believe the government’s allegation-that Mr. Libby
confirmed this affiliation[of Plame with the CIA]-if not a single
employee of Time took a moment to memorialize this fact. This is
particularly true given that, according to Mr. Cooper, Mr. Libby’s
comment about Ms. Wilson was used to support statements in A War on
Wilson? [an article Cooper coauthored with Massimo Calabresi charging
the Administration was smearing Wilson by disclosing his wife’s
employment.] (p. 30)
Especially since Calabresi called Wilson before the Cooper and Russert
talk and afterwards (p. 36.)
It gets even better:
Mr. Cooper, one [internal] email suggests, viewed Mr. Libby’s alleged
comments during the call as part of a personal attack on Mr. Wilson
rather than as his own notes reflect—a fact based criticism of the
merits of Wilson’s claim.
Creative writing as news reporting, I take it.
Throughout Libby argues that he and his staff considered Ms. Wilson a
“peripheral issue.” The NBC documents undermine the prosecution claim
that Libby confirmed “without qualification” that he heard Plame
worked at the CIA.
The case is full of holes.
This Star Chamber proceeding continues on without cessation despite
the credibility problems of the reporters upon whom the prosecution
rests. Libby’s latest pleading is based on the very small amount of
documentation in his possession and the public record (which
apparently the Prosecutor reads very selectively).
Anyone with good judgment and discretion would have told Fitzgerald
long ago that reliance on such selective testimony and documentation
by the media, whose credibility is so unworthy of his trust, was
folly. The fundamental problem of the case is that Fitzgerald has no
supervision to provide the necessary outside larger perspective.
Former Attorney General Ashcroft, who recused himself, and interim AG
Comey, who turned this over to Fitzgerald without any supervision or
control, have both been replaced. It’s past time for the Department of
Justice to pay attention. After all, it was just last week that Judge
Walton assured us that they were still in a position to exercise
meaningful supervision and direction over this case when he denied
Libby’s Motion to Dismiss.
The DoJ should take Judge Walton at his word and call in Patrick
Fitzgerald to review his handling of this case, and exercise the
supervisory responsibilities Judge Walton says are theirs.
Where are they as this travesty lumbers on
--
"There are no absolute certainties in this universe. A man must try to
whip order into a yelping pack of probabilities, and uniform success is
impossible." -- Jack Vance
"Civilizaton is the interval between Ice Ages." -- Will Durant.
"War is God's way of teaching Americans geography" -- Ambrose Bierce
"Long term commitment in relationships is only necessary because it takes
so damn long to raise children. Marriage may well be some kind of trick
to keep the males around beyond sexual satiation." -- Captain Compassion
"Progress is the increasing control of the environment by life.
--Will Durant
Joseph R. Darancette
daranc@NOSPAMverizon.net
.
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