The Indictment Instapundit Calls A Rabbit

Friday, October 28, 2005
I just skimmed it and checked out a few lawblogs for first impressions. I heard parts of the Fitzgerald press conference. My impression is that it is a well-crafted indictment that depends entirely on the credibility of three people to convict. Without the testimony of Judy Miller, Tim Russert and Matt Cooper holding up on cross examination as to three separate conversations, this case cannot be won.

With all due respect to Mr. Fitzgerald, this case does not hang together.

This is a classic credibility question with the only evidence against him on the critical issues in the case being the eye witness testimony of three individuals about three ten- to fifteen-minute conversations. Libby testified before the Grand Jury as to his recollection of each of those conversations. Apparently the testimony of Miller, Russert and Cooper either did not corroborate Libby's versions of those conversations or contradicted them. Each of the three conversations was one on one.

The indictment alleges pretty convincingly that before the reporter conversations, Libby was told by a number of people that Wilson's wife worked at the CIA. At least one of those conversations was recorded in notes Libby provided to the grand jury. There is therefore plenty of testimony that Libby was at the very least dissembling to the reporters.

But the indictment does not allege that Libby testified before the grand jury that he did not know that Wilson's wife worked for the CIA before he spoke with these reporters. Rather, the indictment alleges that Libby lied to the FBI agents by telling those agents:

(a) Russert asked Libby on July 10 if Libby knew that Wilson's wife worked for the CIA and told Libby that all reporters knew it;

(b) That Libby was surprised to hear from Russert that Wilson's wife worked for the CIA;

(c) That Libby told Matt Cooper on July 12 that he had heard that other reporters were saying that Wilson's wife worked for the CIA, and that Libby did not know whether that was true;

(d) That Libby "advised" Judy Miller that he heard that other reporters worked for the CIA, and that Libby did not know whether that was true.

According to the indictment, Russert made no such assertions and Libby did not tell either Miller or Cooper what he said he told them. The indictment says in fact Libby "confirmed" to Cooper that Wilson's wife worked for the CIA.

The first perjury count alleges that Libby lied when he gave the underlined testimony under oath before the grand jury, which the indictment claims is false:

And then he said, you know, did you know that this – excuse me, did you knowthat Ambassador Wilson's wife works at the CIA? And I was a little taken aback by
that. I remember being taken aback by it. And I said – he may have said a little more
but that was – he said that. And I said, no, I don't know that. And I said, no, I don't
know that intentionally because I didn't want him to take anything I was saying as in
any way confirming what he said, because at that point in time I did not recall that
I had ever known, and I thought this is something that he was telling me that I was
first learning. And so I said, no, I don't know that because I want to be very careful
not to confirm it for him, so that he didn't take my statement as confirmation for him.

Now, I had said earlier in the conversation, which I omitted to tell you, that
this – you know, as always, Tim, our discussion is off-the-record if that's okay with
you, and he said, that's fine.

So then he said – I said – he said, sorry – he, Mr. Russert said to me, did you
know that Ambassador Wilson's wife, or his wife, works at the CIA? And I said, no,
I don't know that. And then he said, yeah – yes, all the reporters know it. And I said,
again, I don't know that. I just wanted to be clear that I wasn't confirming anything
for him on this. And you know, I was struck by what he was saying in that he
thought it was an important fact, but I didn't ask him anymore about it because I
didn't want to be digging in on him, and he then moved on and finished the
conversation, something like that.

The second perjury count relates to Libby's testimony about his conversation with Matt Cooper and is too long to include here verbatim, but essentially tracks what Libby told the FBI he told Cooper.

As noted above, the entire case is about three short conversations that happened on two days in July.

I think a trial will be very hard for the prosecuter to win unless Russert, Cooper and Miller are much better witnesses than Libby under cross examination. I am doubtful that they will be. Reporters are not used to being challenged by skillful counsel. Lawyers are.


46 comments:

Rick Ballard said...

I really don't get this. Why didn't he get Arkansas Alzheimers? I've been deposed five times by different attorneys, I've testified as a regular witness and as an expert (all civil matters), I can almost do the instructions to a witness from memory and I sure remember a very big one - "if you're not sure don't guess". "I don't recall" is a very legitimate response to any matters that pertain to events that happened more than two days ago.

If they get any of the journos on the stand, then tearing them apart is going to be a piece of cake. Cooper's stories on this in particular are so full of errors that by the time his examination is complete the jury won't believe a word out of his mouth. I read it as a weak indictment, too, but I sure don't have the legal knowledge to even attempt to take it apart. It just doesn't logically flow as it is written.

Doug said...

Hope you're right, not Medved.

I think Medved says there were records at White House showing Scooter was made aware of Plame numerous times (7?) before he talked to Russert.

Hewitt's guest Andrew McBride thinks he'll plea.

(Trial sure would be fun if Wilson Plame and the MSM were all outted.)

Doug said...

Had not read your comment:

McBride said the reason Rove was not charged was that he had a better lawyer, and they went back and corrected "oversights" which Scooter could have done also.

vnjagvet said...

Doug:

It still boils down to what he actually said to the reporters.

Reading the quoted testimony in context, it appears he was trying to explain his state of mind to the GJ.

Consider this explanation: If he put out of his mind the "true facts", i.e. that he actually knew that Wilson's wife worked for the CIA, he would be less likely to do what he should not do, i.e., leak to the reporter. In essence, as of July 9-12, he was playing a role to the reporters -- that of Sergeant Schultz on Hogan's Heroes "I know nuuuuuuusing". And explaining the conversations this way to the grand jury.

Without the testimony of Russert, Cooper and Miller that he (Libby) told them on July 9 and 12, respectively, the prosecution has nothing. The question is, are they credible if that is their testimony.

terrye said...

I was not aware of the fact that it is a crime to lie to a reporter.

I know it is not a crime for a reporter to lie, so you know, I just thought it was mutual.

If Fitzgerald is worried about people blabbing maybe he ought to go after his own leaker.

I have heard different takes from people today, but so far the consensus seems to be that Rove is in the clear.

I suppose we shall have to wait and see, but I really can not see what Rove might have done here.

As far as I concerned if 22 months is not long enough to get what he needs they should call it quits. Enough is enough.

They probably want Libby to flip to avoid jail time...but I aways wonder about that. I know it is done all the time but I don't feel comfortable with "tell me what I want to know or you won't be there for yur kids graduation."

vnjagvet said...

Terrye:

On the flip issue, is Libby a Liddy?

ambisinistral said...

This is just a token indictment that will go nowhere. It is as silly as the 60 million dollar blowjob investigation.

I really wish both Parties would knock it off with this nonsense. This is our tax dollars they're squandering.

Doug said...

I think it's lying to federal agents that MIGHT be a problem:

defendant herein, did knowingly and willfully make a materially false, fictitious, and fraudulent statement and representation in a matter within the jurisdiction of the Federal Bureau of Investigation, an agency within the executive branch of the United States, in that the defendant, in response to questions posed to him by agents of the Federal Bureau of Investigation, stated that:

During a conversation with Tim Russert....

4. As defendant LIBBY well knew when he made it, this statement was false in that when LIBBY spoke with Russert on or about July 10 or 11, 2003:


3. On May 6, 2003, the New York Times published a column by Nicholas Kristof which disputed the accuracy of the "sixteen words" in the State of the Union address. The column reported that, following a request from the Vice President's office for an investigation of allegations that Iraq sought to buy uranium from Niger, an unnamed former ambassador was sent on a trip to Niger in 2002 to investigate the allegations. According to the column, the ambassador reported back to the CIA and State Department in early 2002 that the allegations were unequivocally wrong and based on forged documents.4. On or about May 29, 2003, in the White House, LIBBY asked an Under Secretary of State ("Under Secretary") for information concerning the unnamed ambassador's travel to Niger to investigate claims about Iraqi efforts to acquire uranium yellowcake. The Under Secretary thereafter directed the State Department's Bureau of Intelligence and Research to prepare a report concerning the ambassador and his trip. The Under Secretary provided LIBBY with interim oral reports in late May and early June 2003, and advised LIBBY that Wilson was the former ambassador who took the trip.

5. On or about June 9, 2003, a number of classified documents from the CIA were faxed to the Office of the Vice President to the personal attention of LIBBY and another person in the Office of the Vice President. The faxed documents, which were marked as classified, discussed, among other things, Wilson and his trip to Niger, but did not mention Wilson by name. After receiving these documents, LIBBY and one or more other persons in the Office of the Vice President handwrote the names "Wilson" and "Joe Wilson" on the documents..

6. On or about June 11 or 12, 2003, the Under Secretary of State orally advised LIBBY in the White House that, in sum and substance, Wilson's wife worked at the CIA and that State Department personnel were saying that Wilson's wife was involved in the planning of his trip.
7. On or about June 11, 2003, LIBBY spoke with a senior officer of the CIA to ask about the origin and circumstances of Wilson's trip, and was advised by the CIA officer that Wilson's wife worked at the CIA and was believed to be responsible for sending Wilson on the trip.

20. On or about July 10, 2003, LIBBY spoke to NBC Washington Bureau Chief Tim Russert to complain about press coverage of LIBBY by an MSNBC reporter. LIBBY did not discuss Wilson's wife with Russert.

Doug said...

vnjagvet,
A Libby might be a flipped Liddy, but Liddy would never flip.
...would rather eat rats.

I don't think scooter will flip either.
That would NOT be Hooter for sure.

Doug said...

Terrye:
Andy McCarthy says Fitz is as straight as is portrayed in the msm.
Says he's the best he worked with.

...the problem is when it's a Democrat, either the punishment is absurd, ala Bergler, or the MSM Flips the entire deal 180 degrees and everyone (esp GOP Types) lays off.

Rick Ballard said...

Doug,

Without a complete transcript of the agents questionong I'm unwilling to accept that lying bit at all. If the questions were being asked for the eigth time over a four hour period - each time with a slightly different twist, then confusion could be an issue.

Long periods of questioning with multiple variations of the same theme can have odd outcomes.

vnjagvet said...

Doug:

Inverting the indictment and setting forth background information as part of the specifations of the offense doesn't work.

The background allegations may or may not be relevant to introduce the facts alleged as a crime and those remain paragraphs 32 and 33 of Count One, 2-4 of Count Two, 2,3 of Count Three, 2,3 of Count Four and 2, 3 of Count Five.

They are as I stated them, statements before the FBI and testimony before the grand jury as to conversations on July 9 and July 12.

Doug said...

Agreed,
ALL of us oldsters are covered by a single defense Rick:
It has to be intentional.
55 plus means it could not possibly be an intentional lie:
How would we be able to remember it?
...we just believe what we can remember.

. NRO Media Blog :

UPDATE: I just read this statement from Libby and his lawyer. I understand that sometimes people have different recollections of different events. But if the charges in the indictment are true, it looks more serious than that. The indictment alleges that Libby told the FBI and the grand jury that he first learned about Valerie Plame from Tim Russert, who testified that he never discussed Plame with Libby. That could be chalked up to different recollections. But according to the indictment, Libby discussed Plame with government officials seven times and with Judith Miller twice before he ever talked to Russert. That's not forgetfulness. That's Alzheimer's.
---
Intrepid e-mailer explains Libby's Over 50 Defense:

"That's not forgetfulness. That's Alzheimer's."
Just wait until you get a little older.
When you turn 45 you will understand.
Time is no longer a line with a clear beginning and end; it is a circle..
You take linear memory for granted because you are yet young.
When you turn 50 there will be times when you are no longer confused about when an event occurred...because you will have lost all memory that the event occurred at all.
When Judy Miller couldn't remember what her notes meant and everyone was incredulous of that, I understood it quite well.
I can no longer jot down shorthand notes if I care to remember what I am writing about two days later.
"GWB called re sup. ct."...who is "GWB" and why would he call me about a "suppository count"?
"Call back by 5 p.m. or HM gets appt"
..does this have anything to do with the "GWB" mentioned in the note above the doodle of the clown's face?

---Media Blog:
In the end, I hope you're right. Thanks for the e-mail, and thanks to everyone who takes the time to write.
I know I'm not the best about staying in touch, but sometimes I just forget.

Doug said...

Everyone I've heard says Scoot needs a better lawyer, however.

vnjagvet said...

Doug:

If Libby's testimony was as you state it, it would have been alleged as a separate count.

terrye said...

Did Libby lie directly to the FBI or did his testimony via the reporters show an inconsistency that implied he was not being truthful?

Does that make sense? In other words, is it his word against theirs pure and simple?

And if his notes make a liar of him, how do you explain Libby giving over notes that contradict testimony? Wouldn't he either have gotten rid of the notes or corrected the testimony?

And is it possible that he did not tell the reporters he knew who Plame was for fear that by confirming he knew, he would be outing her?

It seems complicated to me.

Kind of like that game we played as kids where one kid would make something up and pass it to the next kid and on and on and by the time the last kid got the story it would be completely different.

vnjagvet said...

Terrye:

Here's what the indictment says happened:

In Libby's interviews with the FBI he gave them a version of his conversations with Russert on July 9 and with Miller and Cooper on July 12.

This version was consistent in all of his interviews with the FBI.

Then he gave his grand jury testimony. Libby's version of those conversations stayed the same. I quoted his version of the Russert conversation from the indictment.

The allegations in all counts is essentially that his version of the conversations with Russert, Cooper and Miller (as related to the FBI and grand jury) was false in material respects.

The only way this could be so is if the other parties to the conversations, Russert, Cooper and Miller gave testimony differing from Libby in those material respects.

I hope that clarifies it. If not, please write.

Doug said...

terrye said,
"Wouldn't he either have gotten rid of the notes or corrected the testimony?"
(That's one reason why Hugh's guest McBride says he had a bad lawyer.)

"And is it possible that he did not tell the reporters he knew who Plame was for fear that by confirming he knew, he would be outing her?"
He almost says that in the indictment, I think.

Doug said...

All purpose Gotcha Clause: (Hewitt)

False Statement to a Federal Agent.

Peter UK said...

It would seem to me that the defence is simple,it depends on how you define learned or heard.
People often receive information which is,at the time,incosequential and "goes in one ear and out the other".Subsequently that information is re-learned from a different source,this time, because of different circumstances the information gains significance.
Often the original source is completely forgotten.
"You suit is at the cleaners"..."Yes Dear"......."Your suit is at the cleaners,they close in an hour and we are going out to dinner"...."Why didn't you tell Me?"....."I did a week ago,I left you a note,look!"

Doug said...

Peter,
Here's my defense for my posts above:
Saw Rick's Cute Pic at Belmont, and thought I was at Rick's Blog!
(my first visit here)
Didn't even know who I was talkin too, and I ain't no lawyer.
---
Wife's version:

Doug is deeply involved and hopefully perturbed w/a project:

"Your suit is at the cleaners,they close in an hour and we are going out to dinner...."

Rick Ballard said...

vnjagvet,

I've been through the indictment five times and I cannot fault your analysis. Absent tapes made by Russert and Cooper - which, I believe, would have to be produced during discovery, it's Cooper and Russert's word against Libby's. I'm not sure about Miller's testimony even carrying any weight.

Fitz is nuts to bring this without tapes.

Rick Ballard said...

Hey Doug - nice to see you here. I only made a couple of comments over at BC regarding the Galloway deal - I don't care to comment there when the pet Jewbaiter is doing his thing.

This is a group blog and I do post.

Doug said...

Rick,
Hewitt asks:
Will Russert recuse himself from his program for the duration, or will he continue to spread .. and continue to corrupt the Jury Pool?
---
Also, has anyone plead yet?
(reporters only other hope is it does not go to trial)

vnjagvet said...

Hey Doug:

Welcome! The pesky lawyers are at it again.

Rick:

This indictment is total BS. If any of the 3 reporters reveal they made tapes, they will never get a source to talk with them again. Adios career.

NSA may have tapes, but will not disclose they do for security reasons.

Result: Deal. When? Who knows.

BTW: Did anyone catch the part of Fitz's news conference today when he said he had several hundred cases going in his "day job" (as US Attorney in Chicago)?

Doesn't sound like he thinks this is his ticket to Attorney General under a Democratic administration.

Rick Ballard said...

Doug,

It's a hypothetical that's not worth an answer. I haven't watched any of the Dem propagandist who masquerade as journos in years.

I'm a bit curious as to what admin figure would be stupid enough to show up to talk to TattleTim. I'm sure he can get McCain on because McCain is dumb as a door knob but I wonder what other Rep pols will lack the backbone to just say no.

Vnjagvet,

I agree about the indictment and I really appreciate your help in leading me through the reasoning. On my first pass I was thinking "this sucks - but why does it suck?". Now I think I could almost argue about it if someone thought it meant something.

Yeah - it will be a deal. Sandy Burglar set the standard - except his case was a slam dunk for the prosecutor.

Doug said...

Vnjagvet,
.Byron York and his experts in his 10:37 PM Post seem to miss your point about him relating what he said to Russert.
Hope they are all wrong and you're right.
One thing their argument seems to depend on is some kind of recording of his talk w/Russert.
Who knows?
Seems like speculation.

Doug said...

Rick,
As you know, I haven't watched those guys for decades either.

Makes York's reference to

"In addition, the observers are unanimously appalled by the performance of Libby's lawyer, Joseph Tate.
This is something that has been discussed for quite a while now -- at least since Libby's infamous "the aspens will already be turning" letter to Judith Miller.
What lawyer, they ask, would have allowed his client to write and send such a letter -- clearly raising suspicions that Libby was trying to influence testimony and possibly obstruct the investigation? Now, Libby is said to be in the market for a good criminal defense lawyer. If he had done that earlier, the observers say, he might not be in the trouble he is in now."

seem even more bizarre to me.
Whether Scooter is in trouble or not, it did seem rather foolish they way he sucked up to the NYTimes Snake.

They should all be ignored or laughed at, just like they were by RR, and are by at least one person in the big house: GWB

vnjagvet said...

Doug:

Byron's advisors may well be right, but that is, as you point out, speculation. One thing is certain. If the prosecutor has such corroborating evidence it must be revealed to the defense well before trial i/a/w the Federal Rules of Criminal Procedure.

As to the observations about criminal defense counsel, Tate is well respected in Philadelphia apparently.

Backbiting critics are easy to find in the competitive, high stakes white collar criminal bar. I have not followed the investigation well enough to evaluate the defense tactics to this point.

Doug said...

"such corroborating evidence it must be revealed to the defense well before trial "
Seems like it does not exist, or Libby and Lawyer are nuts.
...but I am not one (Lawyer) so what do I no?

Wow, backbiters in DC?
Who woulda thunk?

Think I'll go troll for "ex-dem" at Belmont for you.
He's a Lawyer too, maybe even DC.

Syl said...

(1)Actually, what Libby said he said to Cooper is what Cooper said Libby said to him.

It really is.

(2)Off the wall, but Russert is either lying, Libby lying, or Libby has him mixed up with someone else who has never come forward. Deux ex Machina!

(3)Miller is a problem.

And Libby telling investigators and the GJ that he first heard about wilson's wife working at the CIA from reporters is a lie and misdirection. That is obstruction.

heather said...

Finally, someone else agrees with me: John McCain is as dumb as a doorknob. It is quite be very heroic, and a slick politician, and have a splendid personality... and still be stupid.
John McCain is stupid. May he never ever be President of the USA.

heather said...

The trouble with this Plame thing, for me, is that I find it really difficult to follow the people and events and all the permutations. Thank gracious Karl Rove seems to have jumped clear of the steamroller. Maybe I am as stupid as John McCain after all.

And now, as Mark Steyn, my hero, points out, it is definitely time to rein in the CIA. I wonder if Bush is capable of that?

Syl said...

I've changed my mind about obstruction and lying on the part of the Libby.

Too long for a comment so I made a post.

ex-democrat said...

doug - this is not my field (what is?) but i just had a look at the indictment and will read the posts and add my 2c if i can think of anything worth saying.

ex-democrat said...

Rick (4.58) rightly points out that “I don’t recall” is usually the safe answer; but note that in Count 2 at least, Libby is being charged with lying when he told FBI agents that he “did not recall” that he previously learned of Wilson’s wife’s identity from the VP. One other point to note here is that lawyers often make poor deponents because their arrogance (hard to believe, I know) makes it hard for them to shut up and remember that being deposed means playing defense, not offense.

Now, having said that, I am intrigued with Terrye’s observation (6.11) that Libby could argue he was telling the truth to the GJ about having lied to the reporters. After all, it wouldn’t be perjurious to tell the GJ that you once told your kid Santa exists just because the evidence suggests you know there is no Santa. Without the claims that ‘Libby lied when he said to Russert/Cooper etc that he didn’t know Wilson’s wife worked for CIA’ isn’t the rest of it just a reporter’s recollection of the conversation versus his? Even if he’s mistaken, would that present sufficient evidence of knowledge and willfulness in his dealings with the GJ?

One last thing for now, the government only alleges that “Plame’s affiliation with the CIA was not common knowledge outside the intelligence community.” Not exactly the same as “classified.”

Rick Ballard said...

ex-dem,

Thanks for droppong by.

I'd really like to know how long Libby was with the investigators and how long he was in front of the GJ, with some idea of where during his appearances these questions were raised.

I've noticed that in depositions that last more than 3 hours the adrenaline surge drops sharply and the ability (at least my ability) to focus tightly drops too. The phrasing of the investigator's and Fitzgerald's questions weren't beacons of clarity. I wonder if Libby's answers were in response to what he thought they were asking rather than to what they were actually asking.

Now I have to reread the damn thing one more time.

ex-democrat said...

no kidding, rick, wearing them down is four thirds of the battle ;-)

i'm going to have to stew on this some more, but i'm wondering at this point whether there's a defense strategy in arguing that the questions and answers are confused - due to fatigue - but what libby was trying to tell the agents and the grand jury was that he was playing a cat and mouse game with the media in time-honored tradition. (which, as terry notes, is not illegal).

the civil litigator in me also wants to ask how these contradictions, even if false, can be "material" if there is no underlying crime. In other words, would it have been illegal to 'out' Plame's occupation (as a CIA desk-jockey) and, if not, what is telling a falsehood about it "material" to?

my 2c.

ex-democrat said...
This comment has been removed by a blog administrator.
ex-democrat said...

on further review, I think my thoughts very much echo vnjagvet's.

here's a thought: supposing Libby can prove that when he spoke with each of these reporters he had already figured out that Plame's CIA status was not in fact classified, just “not common knowledge.”? He can then argue that, for reasons of national security, the administration wanted the fact to become common knowledge – i.e. to deflate Wilson’s big lie – and so, for tactical reasons, had to pretend they were not the source of the knowledge. Just politics, right?
Thus, when asked to describe his calls with the reportyers, he tried to describe playing this game whereby he drew out their interest in the story while feigning ignorance. (Russert: "did you know..."; Libby "No, really, well i'll be a monkey's uncle; etc etc") He may even suggest that he may have been over-coy in that description because any administration’s relationship with the press is a sensitive subject. (iow, he couldn’t just come straight out and admit that they played the reporters for the fools they are).

So, what's left? The fact that Libby's description of the conversation appears to differ from that of Russert's? As vn notes, it will be interesting to see what remains of russert and co’s description after cross-examination. But even so, Libby shouldn't be convicted even if the jury ends up finding his version less believable than Russert's. Rather, they will need to find, beyond a reasonable doubt, that Libby not only made up his version of the conversation (and didn’t just misremember after the 4th hour of repeated questioning – per rick) but also with the specific intent of misleading the FBI agents and the GJ and obstructing the investigation – rather than jockeying with a couple of reporters.

Peter UK said...

Rick,OT
You will find that that form of interogation falls foul of the European Convention of Human Rights,which is why Galloway won't be coming if he does not wish to.

vnjagvet said...

exD:

I don't this case will ever get to trial, do you?

I also think the next several months are going to be somewhat uncomfortable for NBC, the Washington Post and The New York Times, along with their respective ace reporters.

ex-democrat said...

vn - i defer to your better judgment re your first question but fully endorse the sentiment regarding the second:
where is the indictment for wilfully leaking and, in doing so, misrepresenting classified information?

Rick Ballard said...

doug - ex-dem,

Could you email me? Click my name in the contributors list (upper right - Home Page) for address.

vnjagvet said...

exd:

It ain't there because the evidence ain't there. Fitz doesn't even have compelling evidence of the only offenses charged. Two of the three "eyewitnesses" are telegraphing their shakiness.

ex-democrat said...

sorry, vn, i meant: where are the charges against those who really leaked the info - i.e. wilson, the cia, or plame herself.