No Easy Answers

Saturday, April 29, 2006

Rescheduling of Opposition to Motion to Quash Subpoenas (Press/Libby) [Doc 6-1]

On April 21, 2006, Libby's Counsel filed a Motion requesting a rescheduling of any Opposition to several Motions to quash Subpoena, filed by the Press (NBC, Time, Inc. etc.).

The original schedule was:

The requested schedule, in light of Judge Walton's ruling of April 19 granting Time, Inc.'s request to move the Hearing out to May 16, is as follows:

Case numbers affected are 06-123 through 06-128, and 06-169. An asterisk below indicates that the party filed a Motion to Quash or Modify subpoena. All such motions were filed on April 18, 2006.

   CASE #: 1:06-mc-00123-RBW: NBC NEWS & AFFILIATES *
   CASE #: 1:06-mc-00124-RBW: MATTHEW COOPER *
   CASE #: 1:06-mc-00125-RBW: JUDITH A. MILLER *
   CASE #: 1:06-mc-00126-RBW: ANDREA MITCHELL *
   CASE #: 1:06-mc-00127-RBW: TIM RUSSERT
   CASE #: 1:06-mc-00128-RBW: TIME, INCORPORATED *
   CASE #: 1:06-mc-00129-RBW: NEW YORK TIMES COMPANY   
   CASE #: 1:06-mc-00169-RBW: NEW YORK TIMES COMPANY *

Libby's counsel notes that there were five separate Motions to Quash. This is at odds with the six asterisks above (I personally viewed the docket entries for all eight cases to arrive at the cases that docketed the filing of a Motion to Quash, so six is the correct number of asterisks as of April 19), so either Libby's Counsel have miscounted the number of separate Motions, or two of the docket entries represent the same Motion. I suspect that NBC News and Andrea Mitchell are covered by the same Motion to Quash.

CASE #: 1:06-mc-00123-RBW: NBC NEWS & AFFILIATES
Full docket text for document 3 [Motion noted, but not online as of 4/19 - 07:20]:
April 18, 2006 filed and entered MOTION to Quash subpoena by NBC NEWS & AFFILIATES. (jsc)

CASE #: 1:06-mc-00124-RBW: MATTHEW COOPER
Full docket text for document 3 [Motion noted, but not online as of 4/19 - 07:33]:
April 18, 2006 filed and entered MOTION to Quash Subpoena by MATTHEW COOPER. (jsc)

CASE #: 1:06-mc-00125-RBW: JUDITH A. MILLER
Full docket text for document 3 [Motion is online]:
April 18, 2006 filed and entered MOTION to Quash Subpoena and supporting memorandum of points and authorities by JUDITH A. MILLER. (jsc) Additional attachment(s) added on 4/18/2006 (jeb, ).
Judy MILLER Motion to Quash Subpoena [Doc 3]
Subpoena to Judith MILLER [Doc 3, pp 14, 15]

CASE #: 1:06-mc-00126-RBW: ANDREA MITCHELL
Full docket text for document 3 [Motion noted, but not online as of 4/19 - 07:29]:
April 18, 2006 filed and entered MOTION to Quash Subpoenas by ANDREA MITCHELL. (jsc)

CASE #: 1:06-mc-00127-RBW: TIM RUSSERT
No Motion on docket as of 21:38 EDT, April 18, 2006

Full docket text for document 3: [Motion is online]
April 18, 2006 filed and entered MOTION to Quash or modify Subpoena by TIME INCORPORATED. (jsc)
Time, Inc. Motion to Quash or Modify Subpoena [Doc 7-1]
Subpoena to Time, Inc [Doc 7-2]

CASE #: 1:06-mc-00129-RBW: NEW YORK TIMES COMPANY No Motion on docket as of 22:02 EDT, April 18, 2006

Full docket text for document 1 [Motion noted, but not online as of 4/19 - 07:31]:
April 18, 2006 filed and entered: MOTION TO QUASH defendant I. Lewis Libby's rule 17(c) subpoena and supporting memorandum of law filed by NEW YORK TIMES COMPANY.(jsc)

Update: See JustoOneMinute: Libby Versus The Press for Libby's Opposition to Motions to Quash or Modify, and knowledgeable discussion.

Notice of Production of CIA Referral (libby) [Doc 99]

      Case 1:05-cr-00394-RBW            Document 99        Filed 04/28/2006        Page 1 of 2

                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA                                       Cr. No 05-394 (RBW)
               v.                                      :
            a/k/a "Scooter Libby"


       The United States of America, by and through Special Counsel, hereby notifies defense

counsel that it is this day, April 28, 2006, delivering a copy of the CIA's criminal referral letter,

and accompanying documents, to the Court for its inspection, as requested by the Court in its

April 25, 2006 communication with Special Counsel and defense counsel.

                                       Respectfully submitted,

                                       PATRICK J. FITZGERALD
                                       Special Counsel

      Case 1:05-cr-00394-RBW          Document 99       Filed 04/28/2006        Page 2 of 2

                                CERTIFICATE OF SERVICE

        I, the undersigned, hereby certify that on this 28th day of April, 2006, I caused true and
correct copies of the foregoing to be served on the following parties by first class mail and

                          William Jeffress, Esq.
                          Baker Botts
                          The Warner
                          1299 Pennsylvania Avenue, N.W.
                          Washington, DC 20004-2400
                          Facsimile: 202-585-1087

                          Theodore V. Wells, Esq.
                          Paul Weiss
                          1285 Avenue of the Americas
                          New York, NY 10019-6064
                          Facsimile: 212-373-2217

                          Joseph A. Tate, Esq.
                          Dechert LLP
                          4000 Bell Atlantic Tower
                          1717 Arch Street
                          Philadelphia, PA 19103-2793
                          Facsimile: 215-994-2222

                          John D. Cline, Esq.
                          Jones Day
                          555 California Street
                          San Francisco, CA 94104
                          Facsimile: 415-875-5700

                                                    Patrick J. Fitzgerald
                                                    Special Counsel
                                                    U.S. Department of Justice
                                                    10th & Constitution Ave., NW
                                                    Washington, D.C. 20530

                                             By:      /s/ Peter R. Zeidenberg
                                                      Deputy Special Counsel

Thursday, April 27, 2006

Emmigration, Mexican Style

Mona Charen penned a column yesterday, Misery across the border, in which she discusses conditions in Mexico as being darn good reasons for Mexicans to leave there, and come to the United States. She makes a compelling case.

As the Defense and Foreign Affairs Strategic Policy magazine noted: "Mexico ranks No. 1 in the world for disappearances of women, No. 2 for kidnappings for ransom (No. 1 of countries not at war), No. 2 for number of narco-cartels, and No. 3 for murders per capita." In 2004, 300,000 people rallied in Mexico City to protest kidnappings by criminal gangs, which not infrequently result in death to the captive even after ransom has been paid. The police solve less than 1 percent of these cases. And, as the article details, even when the criminals are jailed, they can easily buy their way out of prison "with collusion of prison officials."

Tuesday, April 25, 2006

President Bush asks for Money for New Orleans

I bet this letter really rubs Governor Schwarzenegger the wrong way, after his recent request for "pre-emergency" money to repair California levees was turned down.

Text of a Letter from the President to the Speaker of the House of Representatives

April 25, 2006

Dear Mr. Speaker:

To provide additional resources to assist the greater New Orleans region to continue its recovery from the devastation of Hurricane Katrina, I ask the Congress to consider the enclosed requests for an additional $2.2 billion for the Army Corps of Engineers (Corps), which is in addition to amounts requested on February 16th. This additional amount is offset by a $2.2 billion reduction in the amount requested on February 16th for the Federal Emergency Management Agency's Disaster Relief Fund.

The revised Corps request, which now totals $3.7 billion, replaces the previous supplemental request for the Corps that was submitted on February 16th. This revised request supports the Administration's commitment to further enhance the levee system in parts of the New Orleans area to meet Federal 100 year standards of protection.

I designate these proposals in the amounts requested herein as an emergency requirement.

The details of these requests are set forth in the enclosed letter from the Acting Director of the Office of Management and Budget.



Libby Response to Show Cause Order [Doc 94]

    Case 1:05-cr-00394-RBW       Document 94-1    Filed 04/21/2006      Page 1 of 11

                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA                     )
       v.                                    )        CR. NO. 05-394 (RBW)
I. LEWIS LIBBY,                              )
      also known as "Scooter Libby,"         )
      Defendant.                             )


Theodore V. Wells, Jr.                   William H. Jeffress, Jr.
James L. Brochin                         Alex J. Bourelly
Paul, Weiss, Rifkind, Wharton            Baker Botts LLP
 & Garrison LLP                          1299 Pennsylvania Ave., NW
1285 Avenue of the Americas              Washington, DC 20004
New York, NY 10019-6064                  Tel.: (202) 639-7751
Tel.: (212) 373-3089                     Fax: (202) 585-1087
Fax: (212) 492-0089

Joseph A. Tate                            John D. Cline
Dechert LLP                               Jones Day
2929 Arch Street                          555 California Street, 26th Floor
Cira Centre                               San Francisco, CA 94104
Philadelphia, PA 19104                    Tel: (415) 626-3939
Tel: (215) 994-2350                       Fax: (415) 875-5700
Fax: (215) 994-2222

April 21, 2006

     Case 1:05-cr-00394-RBW           Document 94-1       Filed 04/21/2006       Page 2 of 11

               On April 13, 2006, the Court issued an Order that the parties should show cause

why the Court should not issue a special order pursuant to LCrR 57.7(c) to govern extrajudicial

statements by the parties. We respectfully submit this response on behalf of the defense.


               Counsel for Mr. Libby would like the Court to know that we take our ethical

obligations seriously. We are mindful of our duties under LCrR 57.7(b)(1), which cautions

lawyers not to disseminate information about a criminal case publicly that is likely to "interfere

with a fair trial or otherwise prejudice the due administration of justice," and 57.7(b)(3), which

bars extrajudicial comment on specific matters. We also understand our obligation to comply

with the Court's caution concerning extrajudicial statements to the news media. Because we

have endeavored to obey the local rules for criminal cases and the Court's instructions, and

because we commit that we will continue to do so, we do not believe that a "gag order" pursuant

to LCrR 57.7(c) is warranted. Further, we believe that entry of a gag order would embroil the

Court and the parties in First Amendment litigation with news organizations that would distract

us from the important issues in this litigation.


A.     The Court's April 13 Order

               Consistent with our desire to avoid trying this case in the media, since this case

began defense counsel have turned down literally hundreds of requests for interviews from every

major media organization in the United States. Every broadcast and cable news network has

sought to book defense counsel as guests on television programs that range from hard news to

talk shows ­ without any success. Similarly, dozens of print journalists from a broad array of

newspapers and magazines, and even certain enterprising bloggers, have attempted to pry


    Case 1:05-cr-00394-RBW            Document 94-1         Filed 04/21/2006     Page 3 of 11

information about the case loose from defense counsel. We have refused almost all of these

invitations to comment about the case. On the rare occasions when defense counsel have

disseminated information to the press, we believe that such communications have not run afoul

of the local rules or our professional responsibilities to the Court.

               Nevertheless, the Court's Order indicates that the Court is concerned about two

particular types of actions: (1) "dissemination of material that has not been filed on the public

docket" and (2) "public statements." We address both in turn below.

       1.      Disclosure of the Government's April 11, 2006 Correction Letter

               We speculate that the Court's Order may have been motivated in part by the

release to the press of an April 11, 2006 letter from the government to the Court (the "Letter"),

which corrected one sentence in the Government's Response to Defendant's Third Motion to

Compel Discovery (the "Responsive Brief"). We released the Letter to the press in good faith,

and we do not believe that such a disclosure breached either LCrR 57.7(b)(1) or the Court's

instructions regarding contacts with the press. Below, we describe the factual background

pertaining to the release of the Letter.

               The government's Responsive Brief contained a section describing Mr. Libby's

disclosures of portions of the 2002 National Intelligence Estimate ("NIE") to New York Times

reporter Judith Miller and explaining the prosecution's view of the relevance of such disclosures

to its case. That section included the following sentence: "Defendant understood that he was to

tell Miller, among other things, that a key judgment of the NIE held that Iraq was `vigorously

trying to procure' uranium." (Responsive Brief at 23 (emphasis added).) This sentence

materially misstated portions of Mr. Libby's grand jury testimony, which testimony had not

previously been publicly disclosed.


    Case 1:05-cr-00394-RBW            Document 94-1        Filed 04/21/2006       Page 4 of 11

               The NIE opens with a section entitled "Key Judgments," which includes a

summary of findings that reflect the consensus of the intelligence community. The statement

that Iraq was "vigorously trying to procure" uranium from Africa was not included in that

section of the NIE. In his testimony, Mr. Libby distinguished between the Key Judgments

section of the NIE regarding Iraq's weapons of mass destruction ("WMD") capabilities, on the

one hand, and a separate section of the NIE which stated that Iraq was "vigorously trying to

procure" uranium, on the other hand. In short, contrary to news reports, Mr. Libby's testimony

indicates that he did not describe the language about uranium as a Key Judgment of the NIE.

               The government's inaccurate sentence led directly to highly prejudicial and

inflammatory accusations in the news media that assailed the reputations of Mr. Libby, President

Bush and Vice President Cheney. On April 9, a front-page story in the Washington Post

inaccurately reported that "at [Vice President] Cheney's instruction, Libby testified, he told

Miller that the uranium story was a `key judgment' of the intelligence estimate . . . . In fact, the

alleged effort to buy uranium was not among the estimate's key judgments . . ." (Barton

Gellman and Dafna Linzer, A `Concerted Effort' to Discredit Bush Critic; Prosecutor Describes

Cheney, Libby as Key Voices Pitching Iraq-Niger Story, WASHINGTON POST, April 9, 2006, at

A01, attached as Ex. A.)

               An April 9 front page story in The New York Times included a similar account; it

wrongly stated that Mr. Libby had "said he was authorized to portray as a `key judgment' by

intelligence officers [what] had in fact been given much less prominence" in the NIE. (David E.

Sanger and David Barstow, Iraq Findings Leaked by Aide Were Disputed, THE NEW YORK

TIMES, April 9, 2006, at A01, attached as Ex. B.) The article went on to assert that "if the new

court filing is correct, . . . Mr. Libby, on behalf of Mr. Bush and Mr. Cheney, provided an


    Case 1:05-cr-00394-RBW          Document 94-1        Filed 04/21/2006       Page 5 of 11

exaggerated account of the intelligence conclusions" about Iraq's alleged efforts to obtain

uranium only one day after the White House spokesman had acknowledged that those

conclusions were seriously flawed. (Id.) On April 10, the Washington Post printed a story that

stated: "Some of Libby's comments about the NIE that he made to reporter Judith Miller . . .

were inaccurate." (Walter Pincus, Specter Says Bush, Cheney Should Explain Leak,

WASHINGTON POST, April 10, 2006, at A04, attached as Ex. C.)

               Subsequently, the story that Mr. Libby had inaccurately described a key judgment

of the NIE to Ms. Miller began to spread through the media. (See, e.g., William Douglas, Bush

defends move to declassify, THE PHILADELPHIA INQUIRER, April 11, 2006 at A01, attached as Ex.

D (stating that the government's Responsive Brief "suggest[ed] that Libby mischaracterized the

NIE"); Ignoring its own paper and echoing GOP faithful, Wash. Post editorial furthered

numerous CIA leak falsehoods,, April 10, 2006, attached as Ex. E.)

These specific allegations of wrongdoing came at a time when other media commentators and

politicians were speculating that the President and/or the Vice President may have attempted to

mislead the public about Iraq's WMD capabilities in 2003. (See, e.g., John Nichols, Libby:

Bush, Cheney Authorized Leaks,, April 6, 2006, attached as Ex. F; Tr.

MSNBC, "Hardball with Chris Matthews," April 6, 2006, attached as Ex. G.) For example,

Senator John Kerry said on television that if Mr. Libby had been authorized to disclose

information from the NIE that the President knew was incomplete, this "certainly constitutes

misleading the American people." (Ex. G at 6.)

               Even though our client, along with the President and the Vice President, was

being falsely accused of misleading the press about the contents of the NIE, defense counsel did

not make a public statement to correct the public record on this point. We did not respond to the


    Case 1:05-cr-00394-RBW            Document 94-1        Filed 04/21/2006      Page 6 of 11

incendiary stories in the press partly out of concern that any such response might involve

extrajudicial disclosures of grand jury information.

               On Tuesday, April 11, the defense received the Letter from the government as an

attachment to an e-mail message bearing a 5:17 p.m. time stamp. The Letter stated that the

sentence that had sparked the untrue reports in the press should be replaced with one that read,

"Defendant understood that he was to tell Miller, among other things, some of the key judgments

of the NIE, and that the NIE stated that Iraq was `vigorously trying to procure' uranium." This

seemingly minor change was critical. It clarified that Mr. Libby's grand jury testimony did not

suggest that he had mischaracterized the key judgments of the NIE to Ms. Miller, and eviscerated

the basis for press reports that asserted that Mr. Libby had lied to her.

               When we received the Letter, we assumed that the government wanted to correct

the public record. We thought the government was motivated to file the Letter because the

government had realized that the erroneous sentence in its brief was responsible for spawning

false news reports and wholly unjustified conjecture about possible misdeeds by Mr. Libby and

his superiors. Nothing about the Letter indicated that it was not to be disclosed publicly. It was

not designated as confidential under the Protective Order in this case, and it did not contain any

classified information.

               When we received the Letter, we simply assumed that it was a public filing that

was intended to be entered in the public docket, because we believed its sole purpose was to

correct inaccurate statements in a publicly filed brief. Accordingly, we swiftly disseminated it to

the media ­ without any public statements by defense counsel ­ for the purpose of preventing the

publication of any additional incorrect reports that Mr. Libby, the President and/or the Vice

President had lied to the press and the public. We sent the Letter to print, broadcast and


    Case 1:05-cr-00394-RBW            Document 94-1         Filed 04/21/2006       Page 7 of 11

electronic media outlets on Tuesday evening. The Letter was entered electronically on the public

docket at 12:22 p.m. on Wednesday, April 12.

               We believe that our disclosure of the Letter was both appropriate and consistent

with the government's purpose for the Letter. We never considered, then or now, that it was the

government's intent secretly to correct a publicly filed brief that had led to a torrent of false and

highly publicized news stories involving the President and Vice President as well as Mr. Libby.

               In sum, the circumstances demonstrate that defense counsel did not disclose the

Letter to the media to try to gain a tactical advantage or for any other improper purpose. Defense

counsel had no intent to violate the local rule on extrajudicial statements or the Court's

instructions. In the future, if there is any confusion about whether a document submitted to the

Court is public for purposes of dissemination to the press, we will consult with the government

and the Court for clarification and guidance.

       2.      Public Statements by Defense Counsel

               The government's Responsive Brief (which was filed on April 5) addressed at

some length Mr. Libby's contention that the identity and occupation of former Ambassador

Wilson's wife was a relatively peripheral fact to him in June and July 2003. The government,

however, mischaracterized the issue as whether "the controversy about Mr. Wilson and/or his

wife was a trifle." (Gov't Br. at 20 (emphasis added).) The government then argued that events

having nothing to do with Mr. Wilson's wife ­ such as the President's decision to declassify

portions of the NIE ­ showed how important her identity was to the White House and Mr. Libby.

               On April 7, Mr. Libby's co-counsel William Jeffress received a voice mail from a

Washington Post reporter who, as conscientious reporters often do, indicated that he was

working on a story about Mr. Libby's case, and that he wanted to give Mr. Libby's counsel an


    Case 1:05-cr-00394-RBW           Document 94-1        Filed 04/21/2006       Page 8 of 11

opportunity to respond. Specifically, the reporter said that he was planning to write about how

the government's revelations undermined Mr. Libby's contention that former Ambassador

Wilson was unimportant. It appeared to Mr. Jeffress that the reporter's misunderstanding of Mr.

Libby's contention was based on a reading of the government's Responsive Brief rather than Mr.

Libby's motion, ^1 and he decided to return the reporter's call and attempt to avoid publication of

an erroneous and prejudicial story in the jurisdiction from which trial jurors will be chosen.

               In a brief conversation, Mr. Jeffress informed the reporter that Mr. Libby's

motion contended that the subject of Mr. Wilson's wife was unimportant, not that the subject of

Mr. Wilson's allegations was unimportant, and observed that the revelations in the government's

brief about the NIE had nothing at all to do with Mr. Wilson's wife. The article published the

next day in the Post, under the unfortunate subheading "Libby's Lawyer Rebuts Special

Prosecutor's Filing," fails to mention that Mr. Jeffress referred the reporter to Mr. Libby's

motion, but is otherwise a fair characterization of what he said in the conversation. ^2 Mr.

Jeffress' statement to the press on this issue was in no way intended to gain a tactical advantage,

and was not meant to interfere with a fair trial or otherwise prejudice the due administration of

justice. It was to correct a reporter's misunderstanding of publicly filed arguments that

threatened to lead to an inaccurate story that would have been unfairly prejudicial to Mr. Libby.

    Mr. Libby's Third Motion to Compel Discovery Under Rule 16 and Brady, at page 27, stated
    in part as follows: "But in reality, Ms. Wilson was not important. The falsity of statements
    made by and attributed to Mr. Wilson about his trip to Niger was important, and to the extent
    Mr. Libby devoted attention to the matter during June and July 2003, he was focused on
    correcting the public record, not on Mr. Wilson's wife."

    According to the Washington Post, "Jeffress said Fitzgerald's revelation about Libby's
    disclosure of information from [the NIE] `is a complete sidelight' to his accusation that
    Libby deliberately lied. `It's got nothing to do with Wilson's wife,' Jeffress said in a brief
    interview, adding that Libby continues to expect to be exonerated at trial." (R. Jeffrey Smith
    and Jim VandeHei, Disclosures Are Called Unrelated To Plame Case, WASHINGTON POST,
    April 8, 2006, at A01, attached as Ex. H.)


     Case 1:05-cr-00394-RBW           Document 94-1         Filed 04/21/2006       Page 9 of 11

B.       Communications Between Counsel and the Press About Public Information Serve
         Important First and Sixth Amendment Values

                Finally, we address important issues of fairness and First and Sixth Amendment

values that, we submit, caution against entry of a "gag order" in this case.

                This case has unquestionably generated a tremendous amount of publicity. But

the media has not reported exclusively on the crime charged. Instead, journalists and

commentators have focused on, among other subjects: (1) intelligence failures prior to the war in

Iraq; (2) speculation that the White House "leaked" classified information; (3) allegations of a

campaign at the highest levels of government to punish a war critic by revealing his wife's

employment at the CIA; and (4) the news media's own role in the events and the investigation

giving rise to the charges against Mr. Libby. Responsible public debate regarding such issues of

national interest is important, and the national interest is best served by enabling journalists to

report and analyze accurate information.

                The intense coverage of these issues in recent months, often involving front page

headlines in newspapers and lead stories on news broadcasts, has been triggered almost entirely

by motions and memoranda filed in the public record in this case, not by extrajudicial statements

by the parties. But the facts are so complex, the issues so varied, and the charges so widely

misunderstood, that even well-intentioned reporters occasionally get it badly wrong. ^3 More

often, reporters are genuinely puzzled by what is said in the filed papers and desire, before filing

     For example, CNN initially broadcast that the government's Responsive Brief "said the
     President gave [Mr. Libby] permission to leak the name of CIA operative Valerie Plame to
     reporters," and later made a correction. (Tr. CNN, "Your World Today," April 6, 2006 at 6,
     attached as Ex. I.) As another example, an MSNBC correspondent reported the same day,
     based on misreading the government's filing, that Mr. Libby testified to the grand jury that
     the Vice President told him to give information to reporters about the nature of Wilson's trip
     "and by the way, it's ok to give information about his wife." (Tr. MSNBC News Live, April
     6, 2006, attached as Ex. J.)


   Case 1:05-cr-00394-RBW            Document 94-1        Filed 04/21/2006       Page 10 of 11

their stories, clarification from the lawyers so that their reports will be accurate. These problems

are compounded because reporters frequently have just a few hours to review complicated filings

and write stories analyzing them.

               As described above, defense counsel are flooded with inquiries from reporters,

and, in almost all of these situations, we do not respond to such inquiries. However, on certain

occasions, when reporters have asked us for assistance in finding or understanding information in

the public record, we have felt it proper and appropriate to provide such assistance. Our practice

is never intentionally to release non-public information, never to comment on a ruling by the

Court, and never to make statements that could fairly be regarded as a violation of Rule 57.7.

               We respectfully submit that neither defense counsel nor attorneys from the Office

of Special Counsel should be wholly forbidden from responding to press inquiries in a manner

that would facilitate accurate reporting on information in the public record. Indeed, to do so

would raise serious concerns under the First Amendment's protections of the newsgathering

function, and ­ where inaccurate press reports threaten the defendant's right to a fair trial ­ under

the Sixth Amendment as well.


   Case 1:05-cr-00394-RBW             Document 94-1        Filed 04/21/2006      Page 11 of 11


                 For the reasons stated herein, we respectfully submit that this Court should not

issue a special order governing extrajudicial statements by the parties pursuant to LCrR 57.7(c).

April 21, 2006                                  Respectfully submitted,

/s/ Theodore V. Wells, Jr.                      /s/ William H. Jeffress, Jr.
Theodore V. Wells, Jr.                          William H. Jeffress, Jr.
(DC Bar No. 468934)                             (DC Bar No. 041152)
James L. Brochin                                Alex J. Bourelly
(DC Bar No. 455456)                             (DC Bar No. 441422)
Paul, Weiss, Rifkind, Wharton                   Baker Botts LLP
  & Garrison LLP                                1299 Pennsylvania Ave., NW
1285 Avenue of the Americas                     Washington, DC 20004
New York, NY 10019-6064                         Tel.: (202) 639-7751
Tel.: (212) 373-3089                            Fax: (202) 585-1087
Fax: (212) 492-0089

/s/ Joseph A. Tate                              /s/ John D. Cline
Joseph A. Tate                                  John D. Cline
Dechert LLP                                     (D.C. Bar No. 403824)
2929 Arch Street                                Jones Day
Cira Centre                                     555 California Street, 26th Floor
Philadelphia, PA 19104                          San Francisco, CA 94104
Tel: (215) 994-2350                             Tel: (415) 626-3939
Fax: (215) 994-2222                             Fax: (415) 875-5700


Republican Doldrums

Robert Novak is at it again, "bashing" Republicans. But he makes an observation in his recent column that I happen to agree with. In politics, there is no value to being true to principle, the scam is to be marginally "better" than your opposition. And so there is no doubt, the scam requires a two-party system, where the winner will always be one of the two. That is what passes for competition in the political realm.

But seriously, why be "much better" or "much different" from one's competitor, as long as a marginal difference results in winning the election? What are nominally Republican voters going to do? Let the DEMs take control of the government?

I posit that the strategy by the Republicans is politically sound, as long as marginally different is enough to win elections. Mind you, I don't like it, but it's hard to argue with success.

Republican Doldrums
By Robert D. Novak - Published 4/25/2006 12:08:40 AM

Indeed, Republicans may escape catastrophe this year because of what I have called the Henny Youngman Syndrome. The old standup comic often began his routine by being asked, "How's your wife?" Henny replied: "Compared to what?" Republicans seek votes by tacitly urging citizens to forget their faults because the Democrats are much worse. In that sense, Nancy Pelosi, Howard Dean, and Teddy Kennedy could be the most valuable players of 2006 for the GOP. ...

The Republican members of Congress are also reluctant to answer for their own contribution to their party's malaise. During the past eleven years, the Republicans controlling the legislative branch have come to look more and more like the Democrats who sat in those chairs over the previous four decades. Hard to believe though it is, the Republicans are in some ways worse, as in the use of earmarks and the growth of lobbyists' power. They will not admit it, but the Republicans in Congress have made their own bed for this year's election.

Like the children of biblical Israel who so enjoyed the "flesh pots" of Egypt, Republicans derive too much pleasure from the joys of majority status in Congress. Far from being a reason to re-elect them, their attitude toward living the good life in Washington may be reason for their defeat.

But as noted above, the defining measure isn't "how bad has the GOP been?" Rather, it is, "how much worse would it be under the Democrats?" And in that measure, the GOP wins, regardless of how much it spends and inability to enact "small government." Earmarks? Piffle, you haven't sen earmarks until the DEMs have power. Economy? Remember Jimmy Carter?

Folks, it's a race to the bottom, where the winner is the party that gets there second.

Sunday, April 23, 2006

Cboldt's Free Republic Wayback Machine

Cboldt's Free Republic/JOM Wayback Machine

I found myself searching for posts I'd composed at Free Republic and Just-One-Minute, (and a few at The Next Hurrah) and made these list of links for my own use. It may give readers here some insight into what's in my head.

Senate Coverage

Threads at Just-One-Minute

Use your browser's search function to find individual posts in these threads. The brief list of subjects here is mostly, but not fully comprehensive.

March 17, 2006 thread: Post link to FR containing an HTML rendition of Doc 67 (Fitzgerald Response to Motion to Dismiss), Made no substantive commentary. (March 19, 2006 at 03:56 PM PST)

March 21 thread: classic cboldt's first [substantive] post at JOM, and it's in the wrong thread! He takes light flak.

April 12-14 thread: covers political embarrassment motive, importance of Plame in July/October, irrelevance of CIA, NSC and State dis/interest in Plame.

April 14-16 thread: Comments on Fitzgerald correct of error as to characterization of contents of NIE; relationship of pending motion to dismiss to subpoenas to reporters; who (between prosecution and defense) leaked Fitzgerald's correction to the press [it was the defense].

April 26 thread: link to Tatel misconstruction of Fitzgerald footnote, speculate on Rove indictment, note that I am a JOM misfit.

April 27-29 thread: covers "Collateral Order Doctrine", materiality, "only leaker" aka "first heard" theory, motives to lie to investigators, not excusing false statements just because the investigation is doomed to fail on other grounds, effect of concluding "defective appointment," presence of a 'will I be caught?' calculus in telling a lie. Classic cboldt's last post here says, "I appreciate that you think I'm trying. But, FWIW, I think I'm wasting my time when I share my thoughts here. Not that I won't waste my time from time to time, just saying that y'all seem to have it figured out, and humor posts like mine just to have a football to kick around."

April 28-May 1 thread: covers brief summary of the elements of false statements, when is it ethical to lie to investigators?, materiality, relationship of CIA referral to motive, reference to DoD to DOJ 11 questions questionnaire, a Clinton/Jones parallel, a Martha Stewart parallel.

May 2 thread: covers legitimacy of investigation, posts cribsheet summaries of Libby's version of conversations with reporters. Thread has an insignificant amount of indictment discussion, but has some indictment summary.

May 13 thread: covers bringing the perjury case at all, Libby can be a liar without being a (criminal) leaker, discuss what the leak case would look like, links to his FReeper background, disagrees that Libby has to think he may be a (criminal) leaker in order to have motive, disagrees with a couple of arguments that resemble "innocence loops," probes the burden Judge Tatel applies to the government to compel reporter testimony.

[5 month hiatus]

Oct 6 thread: covers intermediate action on the CIPA front.

Oct 27-28 thread: covers role of expert witness, timing of "when Libby knew what, when he forgot what he knew."

Oct 31 - Nov 5 thread: covers view of two motions to exclude testimony, the Cooper conversation, says Fitz's decision to charge Libby might be justified, revisits April "materiality" and "leak v. false statements" discussions. Massive disconnect as Turner reads Syl as probing a criminal leak case while classic cboldt is stupidly stuck in the false statements frame of reference. Classic cboldt rebuts cathyf view that "not leaker" is an effective defense to "liar." Investigate government payment if defense prevails. With TM, notes basic need for honest testimony, effect of Woodward revelation (with links back to Nov 2005). Classic cboldt asserts that the core of the some charges lies in "well aware on 7/10." Discusses the meaning of "well aware on 7/10" with Turner while boris snipes from the sidelines. Classic cboldt transitions to "agreeable act."

Nov 5-6 thread: classic cboldt made an appearance to express rationales for occupying "agreeable act."

Nov 4-6 thread: classic cboldt as characterized by some readers:

Nov 14 thread: covers ramifications of Walton's ruling that Fitz's substitutions aren't sufficient.

Nov 17-25 thread: covers motions in limine re: CIA damage assessment, Plame's employment status at CIA ("materiality"), propriety of NIE disclosure, reporters' reluctance to testify, and government's charging (and not charging) decisions. Also covers CIPA 6(a) and 6(c) standards, Libby/CIA briefer conversation(s), absence of motive because of absence of proof of classified status, reporter confidentiality = "opportunity," Fitzgerald incompetence and treason, Fitzgerald dropping witnesses, Fitzgerald appeal of CIPA 6(a)/6(c) conclusions, Fitzgerald v. Miller Holy Land case appealed to SCOTUS by NYT.

Dec 2-15 thread: covers Walton's CIPA 6(a) ruling and Opinion, redacted on December 1, possibility of CIPA 6(a) causing withdrawal of case, CIPA 6(c) as another way to limit Libby's case, which newspaper articles are planned to be introduced, case cite to Jason Leopold's 1x2x6 article, the nature of Libby's proposed "preoccupied by other events" PowerPoint presentation, the context of Walton's "I don't know if that's a battle you want to fight before a District of Columbia jury", notes recent filings - Docs 210 (12/4) through Doc 217 (12/11), who is qualified to sign and ramifications of CIPA 6(c)(2) affidavit, note that 6(c)(2) and 6(e)(1) affidavits have different functions, US v. North case (Independent Counsel v. Attorney General, regarding release of classified information), Status of Wilson's civil case (text of most recent docket entries), ramifications of Walton's grant of 6(c) motion on pending 6(a) appeal, Libby and Fitz Dec 14 status reports (Fitz decision to withdraw 6(a) appeal, various issues relating to testimony and evidence).

Dec 15-19 thread: Libby's proposed jury instruction re: CIPA 6(c) substitutions, which reporters will resist defense subpoenas (I guess Woodward and Novak) [Was Sanger and Mitchell].

Dec 19-23 thread: Jencks/Brady material, value of Cheney testimony, Armitage testimony should have been the end of investigation, Wilson motion to quash subpoena (1:06-mc-560), Russert testimony v. confidentiality agreement, Court admonishes Melanie Sloan, probable round of CIPA 5/6 motions and hearings relating to government witnesses, motive redeaux, clarice assertion that Fleischer is off Fitzgerald's witness list.

Dec 23-30 thread: Libby supplemental re: reporter motions to quash subpoenas, comments on CIPA 6(c) Opinion (that Walton gives short shrift to the "hearing" end of memory), link to Libby's proposed jury instruction re: relevance of Plame's "classified status" at the CIA, Dow Jones/AP Motions to Unseal investigator's affidavits in "Miller must testify" case - CADC 04-3138, Libby reply to Wilson motion to quash.

Dec 31 - Jan 4 thread: Libby reply to Wilson motion to quash, pointer to prediction of Libby CIPA 5 filing in response to Fitzgerald's providing of government witness list and statements (Jencks).

Jan 3-12 thread: Ultimate goal/motive(s) of Dow Jones/AP Motions to Unseal, Martha Stewart charges and deals, Fitz as a mugger with a gun, link to OCR rendition of Libby jury instruction reply [Doc 229], note filing of Libby CIPA docs 232-236, Libby objection to introduction of the full GJ transcript, Fleisher on/off the witness list due to immunity, Libby's expectation of waiver v. reporters persisting to resist, NYT v. 18 USC 798, flame PeterUK and topsecretk9 for their gratuitous insults, link to documents index.

Jan 12-16 thread: Murray Waas leak conspiracy article, point to "leak v. lie" aspect of the case, how many Miller/Libby phone calls on July 12?, maybe getting caught is no concern (no prosecution even if caught), Fitz request for time extension on classification review, Fitz request for time extension on response to DJ/AP motion to unseal, divulge existence of pleadings index and (unpublished) ordered witness list, defense narrows line of possible alternatives to the action as charged.

Jan 16-18 thread: Court won't admit Vallely and other "everyone knew" witnesses, refuel speculation relating to admitting evidence on Cooper and Miller fighting giving testimony to the grand jury, belief that Miller withholding Holy Land evidence, some people believe Fitz is involved in Dallas/Holy Land prosecution.

Jan 17-19 thread: Miller & Cooper must testify rationale and ramifications, 2006 CIA annuity calculation letter to Plame, Valerie Plame Wilson Compensation Act.

Jan 17-19 thread: Miller "essay" = Wilson op-ed & "report" is something else, disagree that fear of leak crime is the only possible Libby motive to lie to investigators, summarize my suspicions about Libby and the investigation, ask if the principle, "If there is no underlying crime, then there's is no crime in the lie" applies in civil litigation.

Jan 17-20 thread: Post the docket entry for Fitzgerald's Response to DJ/AP Motion to Unseal, note that Pacer's "Docket Report" is more informative than "History/Documents," MJW complaint about my bias.

Jan 18-19 thread: What if Cheney confesses to a 'conspiracy', speculate as to Cheney's testimony, criticize Well's suggestion to disregard any Libby thought that Plame was covert, the inverse relationship between leak/don't and covert/not, derision of calling the legal process to clear an ethical lapse, political embarrassment being caught in a false denial or "parsing," ignore insults from boris and Turner.

Jan 19-22 thread: Walton's Dec 19 Order reinforcing his May 26 Opinion that press needs to be prepared to deliver documents for final rulings on discovery, link to article that gives perjury prosecution statistics and expresses that Clinton's lies weren't material because the evidence would have been excluded under Rule 403 anyway, link to pre-trial guilty/innocent polls, discovery vs. admissibility of Andrea Mitchell handwritten notes, Russert's "Libby was a viewer - not a source," cryptic references to the tenor of JOM, Maguire announces that he's put one of my blogs (No Easy Answers) on his sidebar.

Jan 22-24 thread: Martin/Libby conflict, what constitutes speculative testimony (a witness's personal degree of uncertainty about his recollection is not speculation), Walton's point on "reasonable doubt," observation that the opposing theories of the case have little changed in a year, Ashcroft v. Gonzales, Rick Ballard gives a thumbs-up testimonial for my 'Scamming the Sham' essay, Fleisher immunity is not for false statements, another thumbs-up testimonial, describe how the WH and partisan Republicans will punish Fitzgerald.

Jan 23-24 thread: Political effect of false denials by the White House, write off Cecil Turner.

Jan 24-25 thread: Describe Motion for Judgement of Acquittal, opinion that Walton is fair and competent, Libby can "not testify" and come out okay, Fitzgerald's case is accumulation - not bombshell, wonder if Cathie Martin would hear from reporters if reporters are telling the administration about Wilson's wife.

Jan 25-26 thread: What the lawyers were arguing re: Fleischer's immunity/Giglio (will be a Motion to Exclude), the Waas conspiracy (again), question the assertion that Fitz conflates interest in Joe with interest in Valerie, Cathie Martin's husband is chairman of the FCC, the Fleischer immunity, note the filing of government motion to admit Libby's nondisclosure agreements (motive to lie = risk of termination), Byron York and Marcy Wheeler on C-SPAN, guess maximum incarceration time of 1 year, improving the media by encouraging readers to use independent analysis, definition of "The Memory Defense" vs. general lapse of memory presentation, inform clarice of the links to accounts of Walton/Wells/Fitz sidebar on Libby testimony.

Jan 26-29 thread: tsk9 suggests I start a tip jar (no thanks - ignore), discuss Apuzzo "Rove and Bartlett subpoenaed" and Isikoff "Will Rove Testify?" articles, (unlinked Docs 254 & 255 were put on NEA as of 6:30 AM Eastern Time), defense possession of Rove's GJ transcripts, Armitage immunity speculation, Fleischer immunity, where and when did Fleischer deny having legal representation?, paste from Doc 255 at 11:44 PM EST, speculation and analysis of Fitzgerald's (and defense's) handling of Fleischer immunity deal - risky for the defense, apprise posting of Docs 254 & 255 at 1:59 AM EST Sunday, express frustration with MJW persistent misconstruction of my positions.

Jan 29 thread: Immunity to Fleisher if he honestly believes he committed no leak crime, cross exam dwelling on "other than Mrs. Wilson" material, Martin recalled Plame over the course of a couple weeks.

Jan 30 thread: Miller summary, revisit notion that disinterest in Wilson (in general) helps Libby and that he'd be better of if Addington hadn't testified, rebut "first hearing from a reporter" cures the charges, paste part of Fitz's Response to Libby's motion to exclude parts of Fleischer testimony, note filing of Libby response to Fitz motion to admit Libby NDA's, express why I find Novak's column -- not the Russert conversation -- as the cutoff date.

Jan 30-31 thread: Miller hold out for testimony relating to privileged sources other than Libby (subpoena was only for Libby as the source), link to letters re: reporter privilege, the "other sources" reason for Miller's hold out may be her own fabrication/creation.

Jan 31 thread: Relationship of Miller to Islamic Charities case, Walton comment on the Aspen letter (Libby consciousness of guilt), no reporter incarceration mini-trial.

Jan 31 thread: Predict Wells's Rule 29 Motion re: Miller will be denied because her testimony is that Libby did not attribute source of "Wilson's wife" information to "reporters."

Feb 2-3 thread: A few misguided souls take reference to me as "appeal to authority," post links to Fitz and Libby motions re: admission of articles marked-up by Libby.

Feb 3-4 thread: Paraphrase FBI report on timing of Libby disclosing existence of June 12 Cheney note (disclosed but not given to FBI at 1st interview, Oct 14), research clarice assertion that Fitz had 100's of counts of obstruction reduced at Court suggestion, rhetorically ask if reporters are expected to testify truthfully if the underlying charge is doomed to fail (e.g., Plame is not covert or classified, therefore no lie is "material" to the charge of outing the agent).

Feb 4 thread: Fitz case with 100 counts dropped was actually 100+ points of action that made up a single conspiracy count, research Clarice contention that 911 Commission was critical of Fitzgerald's aggressive style and find the criticism is regarding aggressive DOJ stance against terrorist financiers (Enaam Arnaout case).

Feb 4 thread: Excerpt of Bond's testimony re: Libby's Cheney note of about June 12 (disclosed but not given to FBI at 1st interview, Oct 14 - Libby's testimony did not waver on the point of hearing but not recalling Cheney conversation, nor on the point of recollection of first hearing was hearing from Russert).

Feb 5 thread: Indictment as a political/legal boundary, Travolta movie "Phenomenon" notes roots of aspen trees, rendering not-guilty even faced with belief of guilt.

Feb 6 thread: Fitz's judgement in bringing the case, parallel with Starr/Clinton/Jones and question of materiality of Clinton's lies, assert that politics is a powerful force -- commensurate with criminal law, defend Fitz and honesty in general, summarize my bottom line take of Libby v. Fitz as to honesty and the social impact, "asshole" boris for calling me "coy."

Feb 6 thread: Libby should not testify if Fitz's case is weak, Libby motive includes political embarrassment.

Feb 6-7 thread: Reiterate that Walton did not reverse on admissibility of Mitchell, government's proffered Russert testimony never included discussion of Wilson's wife (and appears to not include Wilson or his op-ed/essay).

Feb 6-7 thread: Field of defense speculation is narrowed by defense theory of the case, CIA sent investigator on its own initiative - completely independently of OVP, connect FR's buckhead to JOM's Harry MacD, reiterate oddity of nobody but Libby "hearing from reporters," introduce Fitz's motion to preclude irrelevant defense evidence.

Feb 7 thread: Legal truisms - role of the judge and of advocates, filings probe weaknesses, ruling on Mitchell testimony will reveal Walton's attitude regarding "everyone knew" defense.

Feb 7 thread: Point out that missing FBI notes represent raw material for report, challenge the notion that the affidavit accompanying Russert's motion to quash amounts to a false statement. Parting shot on decision to avoid making substantive comments here.

Feb 7 thread: Closing comment.

Feb 21-24 thread: Tom Maguire dedicated this post to the "Framing the Charges" essay at No Easy Answers. One reader implies that my advocacy would do Stalin proud. My replies to comments.

Mar 10 thread: Materiality under a Maguire hypothetical, take a repeat "Stalin-like" hit, which refreshes my memory of the JOM environment. A reader assumes my conclusions under an alternative hypothetical, and I state what my conclusions would actually be. Thread rejuvenates two easily-refuted myths, Fitz indicted Cowles, and Fitz is involved in the Dallas/Holy Land case where classified documents were mistakenly given to defense.

Mar 16-17 thread: Partisans argue conduct using "highest ethics" or "proved criminal" as the goalposts, I note the application of Godwin's Law to Ballard's comments.

Mar 20 thread: Thread topic refreshes Fitzgerald assertion re: Cowles and Holy Land cases and I point to comments made elsewhere.

May 30-31 thread: Fitzgerald asserts Plame CIA status met the elements of IIPA, link to Wilson complaint, link to Libby opposition to sentencing.

June 11-12 thread: Dow Jones filing of supplemental memorandum in Miller/CADC case, the legal standard for granting bail pending appeal (18 USC 3143).

June 12-13 thread: Refresh link to Libby case index, Walton's use of agency law to construe the Comey delegation letters, argue that Fitz didn't misrepresent Walton.

June 13 thread: CIPA 6(c)(2) affidavit as indicia of defective appointment, comparison of North case with Libby case in light of deficient CIPA(6)(a) and CIPA (6)(c)(2) signature (not by AG), reiterate argument that Fitz didn't misrepresent Walton.

June 13-14 thread: CIPA(6) deficiency is more useful in context of defective appointment argument, why it would have been better to press the defective appointments argument pretrial, CADC on deciding bail bending appeal v. deciding if the appointment was defective.

June 14-17 thread: "At bottom, it seems the "defective appointment" attack on Fitz is an attack on the executive, for over-reaching his authority to indict himself", note that "Morrison" probes the power of Congress in controlling the exercise of executive discretion v. "Edmond" as the executive exercise of judicial appointment power v. "Libby" as the executive exercise of prosecutorial power.

June 19-20 thread: Reiterate that the CIPA 6(a) Certificate with infrim signature authority was served on Libby in September 2006.

June 21-22 thread: Provide link to Walton "not free on bail" Opinion, link to fact that amicus filed in the Circuit Court, note the need for separate Circuit Court filing of amicus - "part of the record" not the same as offered for the appellate court consideration, cast as "whiney" by Sue.

June 28-29 thread: Reproduce CADC docket entry on filing of sealed response in Dow Jones/AP case, then later link to howappealing for the CADC decision in that case, then later provide docket entries for the June 29 opinion and related material, then later link to firedoglake and thenexthurrah for details of CADC denial of Libby appeal from denial of bail pending substantive appeal.

June 29 thread: Backlink to May 2006 thread for discussion of Tatel's redacted opinion.

July 2-3 thread: Link to CADC denial of Libby appeal from denial of bail pending substantive appeal, opine that commutation was appropriate, dither on the point of continuing with appeal, opine that a pardon is not in the cards.

July 3 thread: Clinton's dishonest actions during discovery phase of Jones trial could not affect the outcome, Walton's request for briefing to reconcile supervised release law with clemecy order.

July 4 thread: Observations as to "does the system work" in light of Fitzgerald prosecution and Bush commutation July 4 thread: Cross-traffic with posting on Patterico re: parallels between Rita case and Libby case: both convicted of perjury but the underlying crime wasn't proven in either case, and the underlying crime is hotly disputed (outside of the perjury trial venue) in both cases.

July 12 thread: Point out a funny broken link

July 19-21 thread: Comments on Kappes Declaration (IIPA related) - that the CIA has narrowed the window for "service outside the United States" and has demonstrated a willingness to make ludicrous statements of classification (won't acknowledge facts recited in its letter as published in the Congressional Record)

Aug 5-6 thread: NYT Dec 2005 publication of NSA surveillance does not cross 18 USC 798.a.3 because it did not disclose procedure or method used to intercept nor contents of the communications alleged to have been intercepted without a warrant from a court, note Jabara case and its matter of fact admission of warrantless NSA surveillance, cite multiple cases and references that go to the application of the phrase "procedures and methods of used in the interception of communications."

Aug 11, 2007 thread: On selling FISA revisions as a remedy to needing a warrant for foreign-on-foreign surveillance, focus on the phrase "acquisition occurs in the United States" as the most likely source of FISA court flip-flop, flame war with "Sue," how did the administration define the terrorist surveillance program (TSP). The "GO-Stop" effect was the result of 1804/1805, not 1801(f)(2)

Aug 17, 2007 thread: Link to text and prediction relating to FISC Order for briefing.

Jul 19, 2008 thread: On Cheney's testimony being an opportunity to reinforce Libby's testimony; and on the Libby case in general and the myriad ways the administration could have short-circuited the affair.

Threads at The Next Hurrah

Jan 5, 2007: Why Fitz isn't using Plame's CIA status at trial, there is no overt evidence that Plame was covert, Libby wants to challenge the investigation on grounds that Plame wasn't covert, has Rove been granted immunity? has he been put on the government's witness list?

Jan 8, 2007: Why Novak isn't a government witness, reading the indictment

Jan 10, 2007: Speculate as to effect of Miller-Armitage link (what if Miller knew before Libby told her?) link to pleadings index at "January 11, 2007 at 14:33"

Jan 12, 2007: More reading the indictment, Libby motive to lie to investigators, essence of Libby trouble is divergence between what Libby learned from official sources & what he told investigators about what he learned from official sources, disagree that inference that Plame was covert is inevitable from evidence on hand - it's one of two mutually exclusive reasonable inferences, there is no evidence that investigators challenged the CIA referral, Libby "expectation" regarding reporter confidentiality

Jan 16, 2007: List of players, whether phrasing of "Summary of the Case" is neutral vis-a-vis existence of a criminal leak

Jan 20, 2007: Ramifications of renewed defense request for production of Mitchell's notes

Jan 28, 2007: Point to link to Response to Dow Jones Motion to Unseal, comment on "ongoing" investigation, comment on Fleisher immunity and Libby counsel strategy (rudimentary Brady/Giglio analysis)

Feb 16, 2007: Cite Fitz objection to Revised Theory of Defense, describe the logical error in extending a hypothetical Libby error (specific naming of Russert) to result in no obstruction for the contention that at the time he testified he only recalled hearing from reporters, post links to Feb 17 Libby filings, post link to Feb 18 Fitzgerald filing

Mar 02, 2007: Opine that Count Three wasn't intended to be a throwaway by the drafter of the indictment

Mar 04, 2007: Relative strength of Russert impeach/Mitchell "everyone knew"/CIPA limitation grounds for appeal, express why I am interested in "defective appointments" issue

July 17, 2007: Discuss the absence of evidence and style of allegation vis-a-vis Ms. Wilson being covered by the IIPA and express why I find "not covered," parse the elements of the IIPA statute, etc., brief review of sentencing guidelines and mandatory cross reference from obstruction to the crime being investigated, factual history of Rita case (per the prosecutor, the parts were not machine gun parts - no underlying crime)

July 21, 2007: Link to Senate by Cboldt thread that analyzes the language in the interrogation/torture statute, which attracts a poster JEP who concludes the post makes me a hypocrite, neocon wannabe, etc.; research medical prognosis for near drowning (complete lung recovery expected - loss of lung surfactant does not represent protracted impairment of function).

July 26, 2007: Post information that counters the contention that the May 17, 2006 list of WH/Congress meeting dates re: NSA activity was withheld until after the mid-term election.

July 27, 2007: Opine that WH legal defense of NSA program and of absence of Congressional business in replacement of US Attorneys is lame, opine that DEM-inclined officials (cite to Supreme Court of Florida's 2000 election decisions) are similarly afflicted.

July 28, 2007: Note March 15 reference to appointment of US Attorneys being granted to the executive by Congress - not by the constitution, note Congress's tendency to pass things in haste without understanding or foresight, point back to (and rebut poster JEP at) July 21 thread on the subject of interrogation techniques.

July 28, 2007: Privacy/PreCrime balance, FISA limits v. foreign intelligence, philosophy of personal independence vs. the power of the state, link to Jabara case on NSA surveillance.

July 29, 2007: Two definitions of "probable cause" - FISA & criminal conduct, on bootstrapping a finding of probable cause, NSA surveillance as a speed trap analogy.

July 30, 2007: The al-Haramain charities case is not a good one for puncturing NSA activity.

July 31, 2007: To speculation that Gonzales is using "operational details" to divide one TSP into more than one program - inject that "Operational details" is the mechanical "how" of surveillance and "program" typically refers to a policy or practice and does not refer to "how" the surveillance is accomplished, off topic opine that NYT did not disclose "procedure or method used in the interception of communications."

Aug 3, 2007: Explain Senate procedure as to why Feingold didn't block the FISA bill (would have been overridden by cloture motions), speculate as to why the Democrats "capitulated" - that being to avoid blame for lapse of security. All parties crave being nannies.

Aug 6, 2007: Various forms of secrecy in court proceedings, link to Halkin case (injured plaintiff gets presumption that NSA intercepted his communications, in a suit against the CIA), cite to consolidated NSA case.

Aug 7, 2007: Point poster JEP to my confrontational postings of July 27 that aim to focus attention on the detainee treatment statute. Katie Jensen declares me to be racist and sexist.

Aug 8, 2007: Links to House and Senate debate on FISA plus links to Admiral McConnell (Director of National Intelligence) postions relating to acceptable language for FISA modernization, opine that the Democrats manufacted a McConnell agreement and a fantasy that the WH/OVP then over-ruled the agreement negotiated between Democrats and Admiral McConnell.

Aug 12, 2007: In 2006, administration knew FISA required a warrant for foreign-to-foreign off a domestic switch, redefinition of "electronic surveillance" was profeered in mid-2006 in HR5825, S3929, AG obligation to report FISA court decisions to Congress, "outside of FISA" does not necessarily mean "unconstitutional."

Aug 15, 2007: On FISA, S.1927, AUMF plus FISA, inherent power under Article II, and why the administration prefers a statutory solution over reverting to Article II inherent power justification (power of court compulsion to telcos, remuneration, immunity, resolve pending court cases), comments on Hepting/al Haramain hearing, FISA (and president's) foreign intelligence power v. multi-branch approach to domestic security, close the loop on the Nacchio trial (NSA-related evidence for his defense was inadmissible under CIPA as "secret") and conviction.

Aug 15, 2007: List law and politically oriented blogs that I frequent.

Aug 16, 2007: On Gonzales and his prevarication re: TSP and visit to Ashcrof in hospital, Mary cites to WaPo article and DOJ statements that describe the nature of the in-house DOJ dispute; a DOJ/FISC agreement where FISC knows about TSP but does not want it tainting the FISA warrants.

Aug 17, 2007: On Gonzales and his prevarication re: TSP.

Sep 3, 2007: On ACLU motion to FISA Court to release TSP-related legal rationales, distinguish "standing" from "jurisdiction" and "public's right to know," predict that Congress will grant immunity and eventually promote further erosion of the fourth amendment.

Sep 5, 2007: On House Judiciary Committee Hearings into FISA Modernization (Protect America Act), link back to Aug 12, 2007 commentary of similar FISA revisions passed by the House in 2006, note Professor Robert Turner's prepared statement in general.

Sep 8, 2007: On use of presidential pardon in lieu of Congressional immunity, National Security Letters and FISA work hand-in-hand, on erosion of expectation of privacy by all three branches.

Sep 25, 2007: On retroactive immunity for telcos for provacy violations, on whether Congress intended the bulk of international communications to be interceptable sans warrant when it passed FISA in 1978 (radio/satellite vs. wire interception).

Nov 16, 2007: On Ninth Circuit adoption of government's asserion of "state secret" with regard to the NSA call list that was mistakenly provided to criminal defendant al Haramain; on the efficiacy of the FISA statute to pierce the invocation of "state secret" by the government.

Balkin: Aug 9, 2007 - On FISA
Balkin: Aug 10, 2007 - on FISA
Balkin: Aug 17, 2007 - On FISC Briefing Order
Balkin: Aug 22, 2007 - on McConnell & FISA
Balkin: Sep 8, 2007 - on NYT liability for publicizing TSP
Balkin: Oct 19, 2007 - on MCA & Torture
Balkin: Oct 19, 2007 - Mukasey on MCA & Torture
Balkin: Oct 21, 2007 - More Mukasey on MCA & Torture
Balkin: Oct 23, 2007 - Senate asks Mukasey about waterboarding
Balkin: Jul 02, 2008 - on the function of the 2nd amendment
Balkin: Jul 09, 2008 - on the intersection of FISA and criminal law
Balkin: Jul 09, 2008 - on the definition of "foreign intelligence information"
Balkin: Jul 09, 2008 - on FISA being a tool of statutory deception
Balkin: Jul 10, 2008 - on FISA compared with PAA

Volokh: Aug 10, 2007 - extended on FISA modernization
Volokh: Aug 11, 2007 - on FISA modernization
Volokh: Aug 17, 2007 - on FISA in general
Volokh: Aug 22, 2007 - on McConnell & FISA
Volokh: Aug 30, 2007 - on FISA 105A "alone"
Volokh: Sep 27, 2007 - on Mayfield FISA case
Volokh: Oct 23, 2007 - on Mukasey and legality of waterboarding
Volokh: Dec 06, 2007 - on Oral Argument in Boumediene v. Bush
Volokh: Dec 21, 2007 - on FISA Amnesty vs. State Secret
Volokh: Feb 20, 2008 - on FISA and the meaning of "lawful"
Volokh: Mar 19, 2008 - on FISA and unknown scope of surveillance
Volokh: Apr 02, 2008 - on judicial confirmation process
Volokh: May 23, 2008 - on FISA and Yoo's OLC meorandum
Volokh: Jun 06, 2008 - on McCain FISA flip-flop
Volokh: Jun 20, 2008 - on House passage of FISA
Volokh: Jun 26, 2008 - on the Heller decision
Volokh: Jul 09, 2008 - on FISA as an improvement over PAA, and FISA in criminal cases
Volokh: Jul 12, 2008 - on comparing FISA-2008 to PAA and FISA-1978
Volokh: Jul 14-16, 2008 - Comparing FISA-2008 with Protect America Act
Volokh: Nov 19-22, 2008 - on the definition of the word "militia"
Volokh: Nov 25-26, 2008 - on Miller being misconstrued by pointy-head intellectuals
Volokh: Apr 27-29, 2009 - on supermajority confirmation & circumventing electoral college

Patterico: Jun 26, 2008 - on the Heller decision
Patterico: Jun 27, 2008 - on FISA
Patterico: Jul 1, 2008 - on Arar, and sufficiency of the evidence for "enemy combatant"
Patterico: Jul 3-4, 2008 - on Judge Walker's FISA/state secret Opinion and Order
Patterico: Jul 7-9, 2008 - Application of FISA to surveillance conducted overseas

Concurring: Sep 7, 2007 - on NSL's

Loblaw: Nov 11, 2007 - on Government secrecy in Higazy case

Beldar: Jun 12, 2008 - on the Boumediene decision
Beldar: Jun 15, 2008 - on the Boumediene decision
Beldar: Jun 16, 2008 - on the Boumediene decision

ConfirmThem: Jun 15, 2008 - on the Boumediene decision

FDL: Jan 24, 2008 - FISA and Senate Procedure
FDL: Jan 29, 2008 - FISA, Senators, and my political bent
FDL: Jan 29, 2008 - FISA and Senate Procedure
FDL: Jan 29, 2008 - FISA and Senate Procedure
FDL: Feb 1, 2008 - FISA - Changing a UC
FDL: Feb 1, 2008 - FISA Amendments - Senate procedure
FDL: Jun 23, 2008 - FISA Bill - Senate Procedure
FDL: Jun 23, 2008 - FISA Bill - Senate Procedure
FDL: Jun 23, 2008 - FISA Bill - Senate Procedure
FDL: Jun 25, 2008 - FISA & Senate Procedure
FDL: Jun 27, 2008 - on "torture" vs "cruel and inhuman"

EW: Jan 24, 2008 - FISA, Parliamentary Posture
EW: Jan 25, 2008 - FISA & Congressional Indifference to Privacy
EW: Jan 27, 2008 - Genesis of Demand for FISA Retroactive Immunity
EW: Feb 1, 2008 - FISA
EW: Jun 19,20, 2008 - FISA
EW: Jun 20, 2008 - FISA


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