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Libby, Cheney and Fitz, Part II

The New York Times, Washington Post and Associated Press are both reporting on Murray Waas' National Journal article disclosing that Patrick Fitzerald mentioned in a January 26 letter to Libby's lawyers that Libby told the grand jury he had been authorized by his superiors to disclose classified information to reporters.

The prosecutor, Patrick J. Fitzgerald, said in a letter to Mr. Libby's lawyers last month that Mr. Libby had testified before the grand jury that "he had contacts with reporters in which he disclosed the content of the National Intelligence Estimate ('NIE')," that discussed Iraq's nuclear weapons capability. "We also note that it is our understanding that Mr. Libby testified that he was authorized to disclose information about the NIE to the press by his superiors."

Fitz's full letter is available here. (pdf) An earlier letter from Fitz to Libby's lawyers regarding their discovery obligations is available here. Both letters were were filed by Libby's lawyers on January 31 as exhibits to his Motion to Compel Discovery of Rule 16 and Brady Material in the Possession of Other Agencies (pdf). Check out footnote 4 on pages 3-4.

The footnote reveals that Libby's lawyers included Fitz' Janurary 26 letter in their filing to show that they had requested Fitz to disclose any "damage assessments" conducted on the harm caused by the leak of Valerie Plame's identity, and that Fitz's response was that he wasn't aware of any. Libby's lawyers tell the Court that they believe the CIA has conducted some damage assessment, even if only an informal one.

Libby's lawyers also point out (in the same footnote) that Fitz advised in his January 26 letter that the Government intends to address the "relevance and admissibility of Ms. Wilson's CIA employment in the context of CIPA." (the Classified Information and Procedures Act.)

In other words, Fitz's letter was purposely included by Libby's lawyers in their court filing for reasons unrelated to casting blame on Cheney. It does not appear that they are signaling that Libby will use an "Ollie North" type defense of blaming the disclosure on Cheney. They are just trying to make it as uncomfortable for the Government as possible by claiming that there are both classified and unclassified documents that they are entitled to be provided because they are relevant and helpful to Libby's defense. The Government is arguing the documents are not relevant or helpful to Libby on the perjury and obstruction charges and, in any case, there is no damage assessment report.

Should the Court agree with Libby and order the Government to provide classfied information to Libby's team, and the Government decides it does not want to comply with the order, one of its options would be to dismiss the charges against him. Thus, Libby will try to get the Judge to order the Government to turn over as much classified information as possible, hoping among the material is something the Government wants to protect so badly it would decide to drop the case against Libby rather than produce it.

Libby's defense is that he didn't lie to the grand jury, he just was so busy with other important matters he got confused or forgot what he disclosed to Judith Miller or discussed with Tim Russert or Matthew Cooper. He is asking for all of the documents, both classified and unclassified, that he either wrote or reviewed from May 6, 2003, the date Kristof's op-ed was published, through March 24, 2004, the date he last testified to the grand jury.

He's asking for everything that came across his desk for ten months, to show how busy he was during this time period, on the theory that it's relevant to his defense of confusion or failed memory. No wonder Fitz is objecting. It's creative lawyering, but I have a hard time believing the Judge will find it relevant and disclosable under CIPA.

Part One on Murray's article and Cheney's role is here.

Is Cheney out of the woods? I'd say not by a longshot. But I don't think it's because Libby is trying to sell him down the river. Cheney is perfectly capable of hanging himself - through the statements he made during his interview with prosecutors. If he denied being part of the White House Iraq Group meetings at which discussions were held as to how to respond to Wilson's public statements; if he didnt' tell investigators or Fitz that he learned of Wilson's wife's employment from the CIA at least by June 12 when he told Libby -- then Cheney is in trouble.

Fitz will take this investigation as high as it goes, including to Cheney. Hopefully, he'll get there before the 2008 elections.

[Graphic created exclusively for TalkLeft by CL]

Update: Arianna weighs in and says it's major:

The great protectors of our country were so concerned about covering their lies they were willing to pass out highly classified information to reporters.

< Waas: Cheney Authorized Libby to Leak Classified Information | Air Force Takes Giant Step Back >
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  • Re: Libby, Cheney and Fitz, Part II (none / 0) (#1)
    by Aaron on Thu Feb 09, 2006 at 11:16:53 PM EST
    Please God! I just want to see Dick Cheney dragged away in handcuffs. Then I will know that all is right with the universe and the cosmic balance has been restored. Thank you in advance Lord.

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#2)
    by squeaky on Thu Feb 09, 2006 at 11:26:15 PM EST
    Libby's defense is that he didn't lie to the grand jury, he just was so busy with other important matters he got confused or forgot what he disclosed to Judith Miller or discussed with Tim Russert or Matthew Cooper.
    Sounds like he needs a long rest to clear his mind... in a federal penitentiary. Creative lawyering indeed.

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#3)
    by squeaky on Thu Feb 09, 2006 at 11:28:03 PM EST
    Aaron- If you have such good connections why stop with Cheney?

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#4)
    by Aaron on Thu Feb 09, 2006 at 11:55:47 PM EST
    Squeaky Cheney is where it begins and ends. Praying for George W. Bush's arrests and indicted is kind of like praying for the indictment of Marlboro Man for marketing tobacco, instead of the chief executives of RJR Reynolds. Dick is the Head. Cut off the Dick/Head and the body will surely go flaccid/die.

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#6)
    by Edger on Fri Feb 10, 2006 at 05:13:02 AM EST
    Lovely graphic... urrrp, retch. I mean great artistic skill but the subject, urrrp is abit ahard on the stomach. So there really are bogeymen... from hell? We better start a WOT right away.

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#7)
    by Talkleft Visitor on Fri Feb 10, 2006 at 06:16:14 AM EST
    He's asking for everything that came across his desk for ten months, to show how busy he was during this time period, on the theory that it's relevant to his defense of confusion or failed memory. No wonder Fitz is objecting. It's creative lawyering, but I have a hard time believing the Judge will find it relevant and disclosable under CIPA.
    I think you are right about this. Even if the judge agrees with Libby, the prosecution would probably be willing to stipulate that Libby was busy - I don't see how that particularly hurts the prosecution's case. It's a point they could probably prove without the documents or Fitzgerald's agreement.
    Is Cheney out of the woods? I'd say not by a longshot. But I don't think it's because Libby is trying to sell him down the river.
    Well, it isn't clear that Cheney is "in the woods" to begin with. The administration is certainly within its rights to declassify some material to help make their political case. If Cheney lied or omitted relevant information requested by the prosecution, then perhaps he could find himself in hot water. At this point, though, it seems a stretch.
    The great protectors of our country were so concerned about covering their lies they were willing to pass out highly classified information to reporters.
    Heh. This would be a good talking point for Democrats if they had managed to accrue a little credibility on national security. But the truth is, the Exectutive Branch pretty much gets to decide what is relevant to national security and what isn't. Congress can try to gainsay them, but with it's current makeup, my Magic 8-ball says not to bet on it. If the Democrats want to try to hang a "you disclosed classified information without proper authority" charge on the administration after some of the things Democratic senators have done in the past, well, I just don't think that dog is gonna hunt. But then again, who knows? People do have a short political memory, but I am sure the Republicans will want to dredge up Wyden and Rockefeller and Leahy et. al. Not a winner for the Dems, IMO.

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#8)
    by jimakaPPJ on Fri Feb 10, 2006 at 06:24:00 AM EST
    profmarcus - I think the facts are that demonstrations do not happen in Syrua or Iran without the government letting them happen, irrespective of the opinion of Juan Cole and his audience. Truzenzuzex - Could it be that Libby's claim is not that he was just "busy," but completely covered up and working 16 hours a day? You know, thurderstorm to hurricane?

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#9)
    by pigwiggle on Fri Feb 10, 2006 at 06:42:37 AM EST
    "... then Cheney is in trouble."
    For perjury, right? I though it was settled that the actual disclosure wasn't a legal issue for he execs.

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#10)
    by Talkleft Visitor on Fri Feb 10, 2006 at 07:12:24 AM EST
    Truzenzuzex: The administration is certainly within its rights to declassify some material to help make their political case. Oh, I so hope Cheney has to stand there in court and make that case to a jury! "Yes, I told Libby to leak Valerie Plame's identity to the media, knowing that she was a covert agent. But I was entitled to do it, because I was trying to make her husband look bad because he was showing up the lies our administration was telling. So really what I was doing was 'declassifying some material to help make our political case'." Duh. It should be clear to all except the most devoted Republicans that, while Cheney would have had the right to tell the CIA that he intended to declassify Valerie Plame's status, he did not have the right to leak her status to the media - and further more, he knew he didn't, since otherwise, why wouldn't he have said so when the CIA asked the DoJ to prosecute?

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#11)
    by Talkleft Visitor on Fri Feb 10, 2006 at 07:13:38 AM EST
    pigwiggle: I though it was settled that the actual disclosure wasn't a legal issue for he execs. More likely that it's going to be very difficult to pin it on them. It's not the crime, it's the coverup. Nixon found that out.

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#12)
    by Talkleft Visitor on Fri Feb 10, 2006 at 08:01:50 AM EST
    Jesurgislac said:
    It should be clear to all except the most devoted Republicans that, while Cheney would have had the right to tell the CIA that he intended to declassify Valerie Plame's status, he did not have the right to leak her status to the media - and further more, he knew he didn't, since otherwise, why wouldn't he have said so when the CIA asked the DoJ to prosecute?
    Well, I can agree with the first part of your point - it would certainly be unethical and quite possibly illegal for Cheney to have unilaterally authorized the disclosure of Plame's CIA employment. But that isn't what Libby has said, so I don't quite see how it's relevant. Looks more like wishful thinking to me. JimakaPPJ:
    Truzenzuzex - Could it be that Libby's claim is not that he was just "busy," but completely covered up and working 16 hours a day? You know, thurderstorm to hurricane?
    It could be, but it still seems that if that were substantially true, Fitzgerald would have no problem stipulating that fact. I just don't really see how a judge could decide that the only way Libby could prove that he was overworked would be by forcing the government to release highly classified information under the rubric of "proof of workload". It just doesn't pass the test of reasonableness. Fitzgerald may disagree, but if he has solid documentary proof of perjury, stipulating Libby's heavy workload would not get Libby off the hook. In fact, it may tend to prove negligence - a person so busy they may carelessly leak classified data or be so confused that they can't remember who said what can't possibly be an effective public servant. We are talking about adults here, n'est pas?

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#13)
    by Talkleft Visitor on Fri Feb 10, 2006 at 08:33:47 AM EST
    it would certainly be unethical and quite possibly illegal for Cheney to have unilaterally authorized the disclosure of Plame's CIA employment. Oh well, we're on the same page then. I thought that when you said "The administration is certainly within its rights to declassify some material to help make their political case" you meant that Cheney had "declassified" Plame's status and was therefore within his rights to leak that information to the media, or to arrange to have it leaked. I apologize for the confusion. I'm glad we agree that when Cheney did that, it was a crime.

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#14)
    by scarshapedstar on Fri Feb 10, 2006 at 09:03:20 AM EST
    Huh. I thought PPJ et al (there's that phrase again!) maintained that Wilson's status wasn't classified. Now here we have Go F*ck Yourself, himself, telling us otherwise. Were they lying then, or are they lying now?

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#15)
    by jimakaPPJ on Fri Feb 10, 2006 at 09:17:31 AM EST
    scar - Huh? His work schedule and the status of Mrs. Wilson are two separate things. et al - Even Fitzgerald has noted that Mrs. Wilson wasn't a covert agent, so why keep claiming it? Now her employment status may have been classified... two entirely different things.
    "Let me say two things," Fitzgerald told reporters. "I am not speaking [in this indictment] to whether or not Valerie Wilson was covert . . . And we have not made any allegation that Mr. Libby knowingly or intentionally outed a covert agent." Fitzgerald did insist that Mrs. Wilson's "association with the CIA was classified," which would make leaking her occupation a crime. But he declined to bring any charges to that effect, casting even more doubt on the claim that her CIA job was a closely guarded secret


    Re: Libby, Cheney and Fitz, Part II (none / 0) (#16)
    by jimakaPPJ on Fri Feb 10, 2006 at 09:19:01 AM EST
    Aaron - Squeaky wondered why stop with Cheney... Would you also get OBL and the rest of'em? Yes? No?

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#5)
    by profmarcus on Fri Feb 10, 2006 at 09:27:27 AM EST
    off topic deleted

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#17)
    by Talkleft Visitor on Fri Feb 10, 2006 at 10:03:46 AM EST
    Jesurgislac:
    I'm glad we agree that when Cheney did that, it was a crime.
    Well, I think you may have misunderstood me after all. So far, we have no reason to believe that Cheney did what you appear to accuse him of - authorizing the "outing" of Plame. Libby has certainly not said that was the case.

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#18)
    by Tom Maguire on Fri Feb 10, 2006 at 10:26:42 AM EST
    FWIW, classification and declassification authority is covered by Executive Order, not "the law", or an act of Congress. An intriguing excerpt from the Fitzgerald affidavit, where he explains the possible importance of Judy Miller's testimony: To date, we have no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work. "Direct evidence" may be ambiguous, but it does not look like Cheney (or anyone else) has testified to telling Libby that Ms. Plame's status had covert status. (Well, why is it ambiguous? Maybe Cheney or Grossman says they told Libby, but Libby denies it, and it does not show up in his notes or subsequent conversations. But wouldn't that show a lack of. e.g., "direct, incontrovertible evidence"?) Well, Tenet and Cheney have testified - maybe they are all lying, too.

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#19)
    by Jlvngstn on Fri Feb 10, 2006 at 01:09:44 PM EST
    Great job on getting OBL thus far.

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#20)
    by squeaky on Fri Feb 10, 2006 at 05:11:05 PM EST
    Missed this one:
    In court papers made public late last week, Fitzgerald revealed that there was information regarding Wilson's mission to Niger contained in at least one PDB, or possibly more
    Sounds pretty damning for the WH. From War & Peace

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#21)
    by Sailor on Fri Feb 10, 2006 at 06:37:16 PM EST
    Even Fitzgerald has noted that Mrs. Wilson wasn't a covert agent
    that's a lie. Newsweek-
    Lawyers for Libby, and White House allies, have repeatedly questioned whether Plame, the wife of White House critic Joe Wilson, really had covert status when she was outed to the media in July 2003. But special prosecutor Patrick Fitzgerald found that Plame had indeed done "covert work overseas" on counterproliferation matters in the past five years, and the CIA "was making specific efforts to conceal" her identity, according to newly released portions of a judge's opinion.


    Re: Libby, Cheney and Fitz, Part II (none / 0) (#22)
    by squeaky on Fri Feb 10, 2006 at 06:43:04 PM EST
    Sailor-Missed that one too
    Even Fitzgerald has noted that Mrs. Wilson wasn't a covert agent
    Amazing how delusional the guy is. Must be that he is not straying too much from 'Powerline'.

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#23)
    by Talkleft Visitor on Fri Feb 10, 2006 at 08:53:30 PM EST
    We should have a wake for the death of one of PPJ's favorite 'talking points', perhaps a mug of virtual Anchor Steam Beer to its' memory.

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#24)
    by squeaky on Fri Feb 10, 2006 at 09:10:31 PM EST
    The Dark Avenger-I thought that we have been toasting to that for some time now and it has had no effect. Nothing will wake him up on that point. His epitaph will read: The truth lies here: Valerie Plame was not covert. Even if she was she wasn't.

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#25)
    by Talkleft Visitor on Sat Feb 11, 2006 at 04:24:49 AM EST
    So far, we have no reason to believe that Cheney did what you appear to accuse him of NO reason to believe? Nonsense. We do have reason to believe that Cheney is the man behind the leaking of Plame's identity to the media. Nor do we have any reason to believe he didn't do it. But perhaps you mean only that Cheney, just like the prisoners in Guantanamo Bay and Bagram Airbase, has a legal right to be presumed innocent until found guilty by a fair trial, at which the evidence against him shall be presented openly so that he and his defending counsel have a fair opportunity to argue his defense. If so, I agree: he does. Even though he has denied that right and that process to hundreds, if not thousands of other people, of whom we really do have no reason to suppose they committed any crime.

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#26)
    by Talkleft Visitor on Sat Feb 11, 2006 at 06:51:22 AM EST
    Jesurgislac:
    NO reason to believe? Nonsense. We do have reason to believe that Cheney is the man behind the leaking of Plame's identity to the media. Nor do we have any reason to believe he didn't do it.
    Ok, I'll bite - why do we have reason to believe that Cheney "is the man behind" the Plame leak? Because Murray Waas is telling us he may have authorized some disclosure of unrelated information? Sounds like wishful thinking to me. And by the way, we do have reason to believe he didn't do it - no one with knowledge of the circumstances has said Cheney did what you suggest. I'd say that's pretty important, wouldn't you? Of course, that could change, but let's not start fitting Cheney for orange pajamas just yet.

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#27)
    by squeaky on Sat Feb 11, 2006 at 07:22:03 AM EST
    Truz-
    no one with knowledge of the circumstances has said Cheney did what you suggest. I'd say that's pretty important, wouldn't you?
    That is except for Libby his second in command. But what does he know. Overworked and confused. He probably dreamed it one night.

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#28)
    by scarshapedstar on Sat Feb 11, 2006 at 09:08:29 AM EST
    I see a whole lot of obfuscating from the right, yet zero reasons why we are better off in the wake of the Plame leak. There oughtta be at least a dozen, the way these guys defend it.

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#29)
    by Talkleft Visitor on Sat Feb 11, 2006 at 11:18:46 AM EST
    This quote supplied by PPJ:
    "Let me say two things," Fitzgerald told reporters. "I am not speaking [in this indictment] to whether or not Valerie Wilson was covert . . . And we have not made any allegation that Mr. Libby knowingly or intentionally outed a covert agent."
    ... does not support this argument by PPJ:
    Even Fitzgerald has noted that Mrs. Wilson wasn't a covert agent, so why keep claiming it?
    When a lawyer says "I am not arguing that X is TRUE", he is not saying that "I am arguing that X is NOT TRUE". He is simply making clear the extent of his argument, no more no less. And Fitzgerald in this quote is making it very clear, except to PPJ evidently, that he was not speaking ... about whether or not Valerie Plame was covert. In other words, he was not speaking about whether she was covert, and not speaking about whether she was not covert. How can that statement be used to support the claim that "Even Fitzgerald has noted that Mrs. Wilson wasn't a covert agent"? Lawyers understand logic, but evidently PPJ does not.

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#30)
    by Edger on Sat Feb 11, 2006 at 11:26:28 AM EST
    Cymro: the claim that "Even Fitzgerald has noted that Mrs. Wilson wasn't a covert agent"? Lawyers understand logic, but evidently PPJ does not. It's just "ppj's conjecture": Conjecture \Con*jec"ture\ : --An opinion, or judgment, formed on defective or presumptive evidence; probable inference; surmise; guess; suspicion.

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#31)
    by Talkleft Visitor on Sat Feb 11, 2006 at 11:38:27 AM EST
    edger, then he should simply say "It is my belief that Mrs. Wilson wasn't a covert agent", and not use faulty logic to try to bolster his claims with statements from Patrick Fitzgerald that do nothing of the kind.

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#32)
    by Edger on Sat Feb 11, 2006 at 11:41:40 AM EST
    Cymro, That would be too logical. ;-)

    Re: Libby, Cheney and Fitz, Part II (none / 0) (#33)
    by Talkleft Visitor on Sat Feb 11, 2006 at 12:48:33 PM EST
    Truzenzuzex: Ok, I'll bite - why do we have reason to believe that Cheney "is the man behind" the Plame leak? One, because Libby, his second-in-command, alleges that he was. Two, because it is clear that when Valerie Plame was outed, it was no accidental slip: it was part of a WH strategy to attack Joseph Wilson. That points to one of two people: it could be Rove, it could be Cheney. Either one might have been responsible for the decision that Joseph Wilson should be discredited, and for the strategy that included leaking Plame's identity to the media. Three, because some e-mails from Cheney's office during the crucial period have been deleted from the archives. Four, because while Karl Rove could have done it - but Cheney was the one we know had a high enough security level to know Plame's identity officially. If Karl Rove did it, how did he find out about Valerie Plame's identity? All of this is, of course, circumstancial evidence - aside from Libby's assertion that his leak to the media was "authorized by superiors" - which means, doesn't it, either Cheney or Bush. And before you say it: I agree (as I said already) that although Cheney has had hundreds - thousands, even - of people arrested and imprisoned without any evidence or due process at all, he is still entitled to the due process, the presumption of innocence, that he has denied to others.