No Easy Answers

Thursday, March 22, 2007

The Potemkin Prosecution (Part Two)

The licensed manager of an investment fund is approached by three men, representing American Trade Industries Inc. The men offer the fund manager a deal that promises 10% per month return, where the invested money is always in the control of the investor, and the deal is overseen by the Federal Reserve. Now that's a good deal.

But it's a deal too good to be true, and is in fact a scam.

However, it's a scam that this fund manager isn't aware of, and she signs on to the tune of over 20 million dollars. About half a year later, the liquidity of the fund she manages comes under the scrutiny of the Security and Exchange Commission. She seeks the return of the money she invested, but does not get an accounting, bank statements or a "refund." She seeks help from the United States Secret Service.

The Secret Service is aware of this sort of scam, and requests her assistance in obtaining evidence against the men who represent American Trade Industries Inc. She has conversations with all three of the men who made the initial pitch, and all three of them give false accounting for the whereabouts of her money.

The Secret Service prepares a criminal complaint with the assistance of the US Attorney's Office of the Northern District of Illinois, charging each of the three men with wire fraud. The Secret Service files the criminal complaint in the federal district court, and each of the three men is arrested. The Assistant US Attorney assigned to handle the case against the three men is Jacqueline Stern.

About four months later, charges are dismissed against one of the three men who represent American Trade Industries Inc. -- remember, he personally made a false accounting to the investor.

From this fact pattern, was there a botched investigation? Was there a meritless charge against an innocent person? If the charge was without merit, who is to blame for that? The Secret Service or the US Attorney's office? If the US Attorney's Office perpetrated the meritless charge, do you blame Stern or her boss? Or even beyond that, her boss's boss?

If your answer was "Patrick J. Fitzgerald is to blame for whatever went wrong," you have company.

The Potemkin Prosecution (Part One) - By Clarice Feldman

The news for Fitzgerald got worse last week, as he was forced to drop a high profile prosecution of a prominent businessman with an impeccable record whom he had wrongfully charged with criminal conduct

Yep. That's the ticket. From the facts above, Ms. Feldman blames Patrick Fitzgerald.

The blame is assigned via the same kind of illogic, over-active imagination and tinfoil that the left uses to blame President Bush for "whatever." No matter how wacky the connection from evidence to conclusion, the response to inconvenient background facts is to stubbornly defend the fiction with smoke, mirrors and additional misrepresentation.

To be fair, Ms. Feldman didn't arrive at the original prejudiced leap without prompting. Tom Maguire's Anyone Can Make A Mistake was the germ that set the Potemkin Prosecution (Part One) in motion, and the conclusions asserted therein are repeated (and bought by gullible suckers) to this very day.

Next installment, we look for evidence of involvement of the US Attorney's Office for the Northern District of Illinois, with the inadvertent production of documents to a district court in the Northern District of Texas. Oh wait, there is no such evidence. Well, not unless you want the answer to be "Patrick J. Fitzgerald is to blame for all that went wrong." Just utter "Holy Land," and all errors converge on Fitzgerald.

That is, they do if you have Fitzgerald Derangement Syndrome.

Folks, be careful about believing what you read. It's a jungle out there, and all sides are engaged in "all's fair" publishing -- where accuracy does not matter and dishonesty is a virtue.

Ms. Feldman defends the accuracy and fairness of her article in March 22nd comments here: JustOneMinute: Open Thread Tuesday, I Guess - March 20, 2007

Litigation Release No. 19589 / March 3, 2006

SEC Charges Hedge Fund for Being Duped
By Colin Dodds - March 9, 2006

SEC Sues Hedge Fund for Investment in Another Fund
By Chris Clair - March 13, 2006

Defrauded Manager Settles with SEC
By Susan L. Barreto - June 12, 2006

Litigation Release No. 19985 / January 31, 2007

Friday, March 16, 2007

Plame Leak House Oversight Hearing of March 16, 2007

As predicted, the debate reverts to "leak." As SOME people are aware, the Libby trial was about LYING, but that sure doesn't stifle the curiosity on the leak angle. In fact, Libby's recent obstruction, false statements and perjury convictions seem to have stoked interest in the leak subject. The fire is burning HOT right now.

I further observe ("opine", for you pedants) that those who assert the political motive is weak -- for Libby to lie about "leaking Plame" -- are either dunces or are deliberately obtuse. This hearing is highly politically charged, but it is no more politically charged than the same issue was in October, 2003, when Libby was asked questions by the FBI. It was, and remains! in the White House strong interest to NEVER have to admit that anybody in it, let alone Libby or Rove, was responsible for informing a reporter that Ms. Wilson worked at the CIA.

A webpage of the Committee on Oversight and Government Reform, Disclosure of CIA Agent Identity, has links to many of the documents, as well as a link to the history of (mostly Democrat) interest in the leak itself.

Links repeated here, and this page may eventually contain HTML conversions of the correspondence between Waxman and Fitzgerald, pertaining to Fitzgerald's appearance at this hearing.

If you catch this post shortly after it's first appearance (9:57 a.m. Friday, March 16), you can also catch the hearing on C-SPAN. I'll have half of an ear listening. The hearing is a farce.

Note: I've listened to the initial part of Waxman's opening comments, and he is VERY strongly asserting that Plame was covert. He met with General Hayden of the CIA as part of preparing his opening remarks. I'll post a transcript of Waxman's opening statement after it is made available, but this opening statement will CERTAINLY feed a firestorm of debate between the moonbats on the left and the moonbats on the right.

Representative Davis, the ranking Republican, says the outing was wrong, but he's not sure about the efficacy of this hearing. He also says there is little that can be accomplished, given that the CIA won't permit probing whether or not Plame was covert, and won't admit that she isn't/wasn't. His written remarks don't include the "outing was wrong" statement, for that one will have to review the video/audio tape. He said it, I heard it. I heard it again on the first replay, at 4:23 p.m. "At the outset ... outing of Mrs. Wilson's identity was wrong."

Heh - Plame flatly denies that she had anything whatsoever to do with ex-Ambassador Wilson being assigned to a Niger trip. She testifies that she did not suggest, recommend, or otherwise influence the choice in any way whatsoever. She was just a message-bearer between the CIA and her husband. She further says that the Senate report that says she had involvement in Wilson getting the assignment is incorrect on the facts, and that it is an additional comment inserted by three Republican Senators (Roberts, Bond and Hatch).

Senate Report of Pre-war Intelligence on Iraq
Additional Views: Chairman Pat Roberts joined by Senator Christopher S. Bond, Senator Orrin G. Hatch

Conclusion: The plan to send the former ambassador to Niger was suggested by the former ambassador's wife, a CIA employee.

The former ambassador's wife suggested her husband for the trip to Niger in February 2002. The former ambassador had traveled previously to Niger on behalf of the CIA, also at the suggestion of his wife, to look into another matter not related to Iraq. On February 12, 2002, the former ambassador's wife sent a memorandum to a Deputy Chief of a division in the CIA's Directorate of Operations which said, "[my] husband has good relations with both the PM [prime minister] and the former Minister of Mines (not to mention lots of French contacts), both of whom could possibly shed light on this sort of activity." This was just one day before the same Directorate of Operations division sent a cable to one of its overseas stations requesting concurrence with the division's idea to send the former ambassador to Niger.

James Knodell testifies that there is no investigation in the White House as to whether or not, or who, if there was a leak, told reporters that Ms. Wilson worked at the CIA. Well no kidding - the investigation was turned over to first, the Department of Justice, and then eventually to a Special Counsel. The White House NEVER looked into its own conduct, and one might reasonably ask why it should have, given that it was under the microscope by others.

Mr. Knodell will report back to the Committee, on the question of his office's policy to conduct an investigation, or not, when an outside investigation is underway. His unstudied answer is that the White House would not conduct a collateral investigation. Bill Leonard amplifies this point, inasmuch as an internal investigation might be taken or viewed as obstruction of justice. That's hard to credit, unless internal investigations attach and cause the affirmative assertion of "state secret" or "executive privilege."

That the White House didn't investigate itself on this is obvious.

Toensing does a good job explaining the legal meaning of "covert." Representative Davis says that nobody really made the case the Plame was covert, that this status was "assumed" to be correct for purposes of the hearing (he seems okay with this) and that the hearings hadn't been focused on making that legal/factual determination. Davis properly lays responsibility at the CIA for not keeping the secret in the first place. That it's unreasonable to expect the people in the WH to keep a secret, if they aren't expressly told the information is to be guarded.

Mark Zaid notes the distinction between a criminal violation under IIPA, and administrative or other penalties short of criminal, for what it's worth.

Toensing and Waxman are arguing as to whether or not Plame was covert under the act. She says Plame wasn't, he says she was. The debate never gets to the relevant analysis. Pretty good fireworks. Waxman has a career in punditry. Toensing doesn't know how to deal with the word "leak" in a question from Waxman (Waxman unreasonably wants a Yes/No answer here) but she generally wants "leak" to be narrowly construed to apply only to an IIPA violation.

Toensing blames the CIA for not protecting information, and she blames the prosecutor for using legal process where there is no violation. Her complaint as to prosecution is not responsive to the decision to undertake a whodunnit investigation, nor is it responsive to the question of how to handle false statements in the context of an official investigation.

Toensing is sticking to her guns "under oath," that Plame was not covert under the meaning of the IIPA. She should give the factual bases she uses to reach that conclusion, and has NOT done a good job of reinforcing that.

The questioners are noting the difference between the Executive Order for classification as compared with the IIPA. That is, there can be releases of classified information that violate the Executive Order that do not constitute a violation of the IIPA. Toensing implicitly admits that the White House disclosed to reporters that Ms. Wilson worked at the CIA. I'm still looking for an official statement from the White House that either Rove or Libby did disclose to reporters that Ms. Wilson worked at the CIA.

Asked if Toensing thinks "this" was a serious matter (referring, I think, to leaks in general wothout regard to them ultimately being "criminal")? She directs her answer to a focus on violations of the IIPA, without regard to other analytical frameworks. She notes Grenier's testimony in the Libby trial, that he, when asked, said he did NOT tell Libby that Ms. Wilson was classified.

Waxman is keeping the record open so he can enter items that rebut Toensing's testimony.

Elsewhere, and in a very easy to find place, I have listed the deadlines for filing legal pleadings in the Libby post-trial process. Happy hunting!

Here are the letters and other material related to these hearings. You can tell from the spelling and other errors that Fitzgerald isn't too bright. Just kidding. These are mostly the raw results of OCR conversion.



March 8, 2007

The Honorable Patrick J. Fitzgerald
Special Counsel
Office of Special Counsel
Bond Federal Building
1400 New York Avenue NW
Ninth Floor
Washington, DC 20530

Dear Mr. Fitzgerald:

I commend you on your professional and thorough investigation into the disclosure of
Valerie Plame Wilson's identity as a covert CIA agent. It is apparent that you followed the facts
where they led and served the interests of justice and the American people.

By necessity, your investigation had a narrow legal focus: Were any federal criminal
statutes violated by White House officials? Your investigation, however, has raised broader
questions of national significance. I am writing to invite you to meet to discuss how the
Committee on oversight and Government Reform, which is the principal oversight committee in
the U.S. House of Representatives, can become informed of your views about these broader

The identity of undercover CIA operatives is supposed to be one of the most closely
guarded national security secrets. There are a host of administrative requirements designed to
safeguard this type of information from disclosure. Yet the trial proceedings raise questions
about whether senior White House officials, including the Vice President and Senior Advisor to
the President Karl Rove, complied with the requirements governing the handling of classified
information. may also raise questions about whether the White House took appropriate
remedial action following the leak and whether the existing requirements are sufficient to protect
against future leaks. Your perspective on these matters is important.

After the verdict was announced yesterday, one juror expressed the view that former
Chief of Staff to the Vice President Lewis "Scooter" Libby was only a "fall guy." This juror's
views encapsulated questions that many in Congress and the public have about whether the


Honorable Patrick J. Fitzgerald March 8, 2007 Page 2 ultimate responsibility for the outing of Ms. Wilson rests with more senior officials in the White House. This is another area where you have a unique perspective. I recognize that as a federal prosecutor, you are constrained by the rules of grand jury secrecy. But you undoubtedly recognize that Congress has a responsibility to examine the policy and accountability questions that your investigation has raised. As a result of your investigation, you have a singular understanding of the facts and their implications that bear directly on the issues before Congress. I respectfully request that you meet with me and the Committee's Ranking Member, Tom Davis, to discuss the possibility of testifying before the Committee and other means by which you can inform the Committee about yow views and the insights you obtained during the course of your investigation. I look forward to the opportunity to speak with you. Sincerely, Henry A. Waxman Chairman cc: Tom Davis Ranking Minority Member

_Of_ce ofSpecial Cou_sel

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a_ered to bg Kqu_em_ts 9f_1e Rule _u_qut tbia pro_ing and _ust cont_ue to do so.

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_e Com_ttee may ___ aboNt V_e __mate rgsponRibili_ of_or whi_é Nouse ormcials for _he
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Statement of Rep. Henry A. Waxman

Chairman, Committee On Oversigbt and Government Reform Hearing 0n Disclosure of CIA
Agent Valerie Plame Wilson's Ideohty and Wbite House Procedures for Safeguarding
Classified Information

March 16, 2007

    Today, the Committee is holding a hearing to examine how the White House handles highly
classified information.

    In June and July 2003, one of the nation's most carefully guarded secrets - the identity of
covert CIA agent Valerie Plame Wilson - was repeatedly revealed by Wite House officials to
members of the media.

    This was an extraordinarily serious breach of our national security. President George W.
Bush's father, the former President Bush, said - and I quote - "I have nothing but contempt and
anger for those who . . . expos[e] the name of our sources. They are, in my view, the most insidious,
of traitors."

    Today, we will be asking three questions: (l) How did such a serious violation of our
national security occur? (2) Did the White House take the appropriate investigative and disciplinary
steps after the breach occurred? And (3) what changes in White House procedures are necessary to
prevent future violations of our national security from occurring?

    For more than three years, a special prosecutor, Patrick Fitzgerald, has been investigating the
leak for its criminal implications. By definition, Mr. Fitzgerald's investigation had an extremely
narrow criminal focus. It did not answer the broader policy questions raised by the release of Ms.
Wilson's identity. Nor did it seek to ascribe responsibility outside of the narrow confines of the
criminal law.

    As the chief investigative committee in the House of Representatives, our role is
fundamentally different than Mr. Fitzgerald's. It is not our job to determine criminal culpability.
But it is our job to understand what went wrong, to insist on accountability, and to make
recommendations to prevent future abuses.

    We begin ths process today.


    This hearing is being conducted in open session. This is appropriate, but it is also challenging.     Ms. Wilson was a covert employee ofthe CIA. We cannot discuss all of the detalls of her CIA employent in open session.     I have met with General Hayden, the head of the CIA, to discuss what I can and cannot say about Ms. Wilson's service.     My staff has also worked with the agency to ensure these remarks do not contain classified information.     I have been advised by the CIA that even now, after all that has happened, I cannot disclose the full nature, scope, and character of Ms. Wilson's service to our nation without causing serious damage to our national security interests.     But General Hayden and the CIA have cleared these following comments for today's hearing.     During her employent at the CIA, Ms. Wilson was under cover.     Her employment status with the CIA was classified information prohibited from disclosure under Executive Order 12958.     At the time of the publication of Robert Novak's column on July 14, 2003, Ms. Wilson's CIA employent status was covert.     This was classified information.     Ms. Wilson served in senior management positions at the CIA, in which she oversaw the work of other CIA employees, and she attained the level of GS-14, step 6 under the federal pay scale.     Ms. Wilson worked on some of the most sensitive and highly secretive matters handled by the CIA.     Ms. Wilson served at various times overseas for the CIA.     Without discussing the specifics of Ms. Wilson's classified work, it is accurate to say that she worked on the prevention of the development and use of weapons of mass deshuction against the United States.     In her various positions at the CIA, Ms. Wilson faced significant risks to her personal safety and her life.



    She took on serious risks on behalf of her counhy.     Ms. Wilson's work in many situations had consequences for the security of her colleagues, and maintaining her cover was critical to protecting the safety of both colleagues and others. the disclosure of Ms. Wilson's employent with the CIA had several serious effects.     First, it terminated her covert job opportunities with CIA.     Second, it placed her professional contacts at greater risk.     And third, it undermined the trust and confidence with which hhre CIA employees and sources hold the United States.     This disclosure of Ms. Wilson's classified employent status with the CIA was so detrimental that the CIA filed a crimes report with the Department of Justice.     As I mentioned, Ms. Wilson's work was so sensitive that even now, she is still prohibited hom discussing many details ofher work in public because ofthe continuing risk to CIA officials and assets in the field and to the CIA's ongoing work.     Some have suggested that Ms. Wilson did not have a sensitive position with the CIA or a position of unusual risk.     As a CIA employee, Ms. Wilson has taken a life-long oath to protect classified information, even after her CIA employent has ended.     As a result, she cannot respond to most of the statements made about her.     I want to make clear, however, that any characterization that minimizes the personal risk Ms. Wilson accepted in her assignments is flatly wrong.     There should be no confusion on this point.     Ms. Wilson has provided great service to our nation and has fulfilled her obligation to protect classified information admirably.     We are confident that she will uphold it again today.


                   Statement of Rep. Tom Davis
                        Ranking Republican
         Committee on Oversight and Government Reform
Hearing: White House Procedures for Safeguarding Classified Information
                          March 16, 2007

        I want to begin by commending Chairman Waxman on the passage of important
reform legislation this week. The House adopted bipartisan bills crafted in this
Committee to strengthen the Freedom of Information Act, disclose donors to presidential
libraries, expand access to presidential records and fortify whistleblower protections.
Given those accomplishments, it seems sadly ironic we end Sunshine Week - the annual
observance of open government ­ with a partisan hearing on how best to keep secrets.

        I have to confess, I'm not sure what we're trying to accomplish here given all the
limitations the Chairman just described. Ostensibly called to examine White House
procedures for handling and protecting classified information, this hearing's lead witness
never worked at the White House. If Valerie Plame Wilson knows about security
practices there, she certainly can't say much, if anything, about them in a public forum.
But we do know she worked at the Central Intelligence Agency. That now well known
fact raises some very different questions about how critical, but difficult, it is to protect
the identity of individuals with covert status. But again, those are questions we probably
can't say much about here without violating the very security safeguards the majority
claims to be worried about at the White House.

        Under these circumstances, perhaps a hypothetical case is the best way to describe
the futility of trying to enforce the Intelligence Identity Protection Act in this decidedly
non-judicial venue. Let's say a member of the committee staff is told to identify a CIA
witness for a hearing on security practices. He, or she, calls the Agency and asks to
speak with Official A. Official A is not in, so the call is routed to Official B, who
identifies him or herself by name and title, and answers the staffer's questions. Thinking
Official B would be a fine witness, the staff member then calls the Congressional
Research Service, or a friend at another committee, to find out more about Official B.
But Official B happens to be a covert agent.

                                                                                 Page 1 of 2


Statement of Rep. Tom Davis March 16, 2007 Page 2 of 2 In passing the name, title and CIA affiliation around, has the staff member violated the law against disclosure? Probably not. You'd have to be looking through a pretty thick political prism to see an intentional unauthorized disclosure in that context. In the case of Mrs. Wilson, the majority stresses the fact that disclosure of her status triggered a "crimes report" by the CIA to the Justice Department. Allegations against White House officials and reporters were thoroughly vetted. But after spending six months and millions of dollars, the Special Counsel charged no one with a violation of the Intelligence Identities Protection Act. The lack of prosecutions under the Act shows those disclosures probably occurred in a similarly non-intentional context, lacking the requisite knowledge of covert status or the intention to disclose that status without authorization. No process can be adopted to protect classified information that no one knows is classified. Just as no one can be prosecuted for unauthorized disclosure of information that no one ever said was protected. So this looks much more like a CIA problem than a White House problem. If the Agency doesn't take sufficient precautions to protect the identity of those engaged in covert work, no one else can do it for them. The same law meant to protect secret identities also requires an annual report to Congress on the steps taken to protect that highly sensitive information. We're told few, if any, such reports exits. Who knows what information needs to be protected and how are they told? Is there a list officials can check against? Do CIA briefers know when material given to executive branch officials references a covert agent, and are they cautioned not to repeat the name? How is it made known, and to whom, when the five year protection period for a formerly covert agent has elapsed? Those are the questions that need to be asked about the safeguards on classified information. But we won't hear from the CIA today in this open forum. Given all that, I suspect we're going to waste considerable time today talking about all the things we can't talk about. It's unfortunate. Unfortunate an individual possibly still in a covert status was publicly identified. Unfortunate executive branch officials got anywhere near this media maelstrom rather than focus on more serious problems. And unfortunate this has become so politicized. On this side, we're not here to defend or attack anyone. In an open session, we hope to shed some sunshine on the workings of government. I have to say again, I'm not sure that's going to happen today, but I thank our witnesses for trying.

Prepared statement of Victoria Toensing ...

       Chairman Waxman and Members of the Committee on Oversight and
Government Reform, thank you for inviting me to speak this morning. I am informed
that this hearing concerns "White House procedures for safeguarding classified
information," and that Valerie Plame has been invited to testify. Special Counsel Patrick
Fitzgerald has characterized Plame's employment status as "classified," but conducted a
three-year criminal investigation under the auspices of the 1982 Intelligence Identities
Protection Act, which criminalizes only the disclosure of a "covert" intelligence officer
or agent. Therefore, I must assume that one specific goal of this hearing is to understand
the difference between the two terms ­ classified and covert ­ and the importance of our
intelligence community protecting the identities of covert agents under the 1982 law. In
that regard I would like to discuss the Congressional intent and clear mandates and
prohibitions of that Act, and how it played a role in the investigation and indictment of
Lewis "Scooter" Libby.


       In late 1981, when I became Chairman Barry Goldwater's chief counsel for the
Senate Select Committee on Intelligence, my first assignment was to get the Intelligence
Identities Protection Act passed. Chr. Goldwater was the ultimate manager, meaning that
I was to come to him if there was a problem only he could resolve. Other than that
situation, I was to negotiate whatever issues arose. Thus, I had hands-on everyday
involvement with those for and against the bill.

       Although there had been hearings and drafts prior to my coming to the
Intelligence Committee, there remained throughout my months of negotiations a major



concern that had to be addressed. Opponents of the legislation considered the criminalization of publishing covert names to be unconstitutional. The media hired highly respected counsel, including the late Dick Schmidt, American Society of Newspapers Editors (ASNE), and Bruce Sanford, Baker & Hostetler, who represented a coalition of news organizations. They vigorously voiced the press' specific concern: specifically, that passing a bill that prohibits identifying an employee or agent of the CIA (or some other intelligence gathering agency) would have a "chilling effect" on criticizing the intelligence community. We were then in the wake of Watergate. The ability to criticize intelligence gathering and conduct of intelligence officers and agents was paramount to the media. I assume and hope it remains important. Those who supported the concept of the law wanted the statute to pass constitutional muster. If a prosecution violated the First Amendment, it was useless as a deterrent to those who had the specific intent to "out" truly secret officers and agents. In reaction to both the strong lobbying by the media and ACLU, and Congressional concern for the First Amendment, two basic categories of persons subject to prosecution were created: 1) journalists and 2) those having authorized access to classified information, the latter being government personnel with clearances. Congress wanted to make it nearly impossible to prosecute a journalist for criticizing the CIA because it wanted to "exclude the possibility that casual discussion, political debate, the journalistic pursuit of a story on intelligence, or the disclosure of illegality or impropriety in government will be chilled" by the law. S. Rep. 97-201, at 12. Therefore, any publication identifying a covert agent had to be done "in the course of a pattern of activities" with the specific intent to expose that agent, and "with reason to 2


believe that such activities would impair or impede the foreign intelligence activities of the United States." Additionally, the journalist had to know the information so identified the covert agent and that "the United States was taking affirmative measures to conceal that individual's classified intelligence relationship to the United States...." Under this definition, Robert Novak's July 13, 2003, column does not come close to triggering the Act as to him. The second category is government employees. In addition to a government employee having authorized access to classified information and disclosing it to a person without clearances (like a journalist), the following factors must be present for a government employee to violate the Act: · The United States is taking affirmative measures to conceal a covert agent's intelligence relationship to the United States; · The person disclosing the identity knows that the government is taking affirmative measures to conceal the relationship; · The person disclosing the identity knows that the information so identifies the covert agent; · The covert agent whose identity was disclosed is an employee of an intelligence agency; · The covert agent whose identity was disclosed has a relationship with such agency that is classified; · At the time of the disclosure, the covert agent whose identity was disclosed was serving outside the United States or had done so within five years of the disclosure; and · The disclosure is intentional. In a prosecution, all these factors, which are called elements of the offense, must be proven beyond a reasonable doubt. Two of these factors were particularly important in drafting the law: 1) the definition of "covert agent," including the requirement of 3


serving outside the country, and 2) the law's requirement that the government take "affirmative measures" to conceal the agent's intelligence relationship to the United States. Covert Agent Under the term "covert agent," two types of individuals are covered: an officer and an agent. A person working for the CIA is an "officer." A person who is an informant or source for the CIA is an "agent." The media often err in this distinction. To make the legislation simpler, the term "covert agent" was used by the drafters to refer to both officers and agents. The Senate Report, when relevant, distinguishes how the law applies to each. Although a "`covert agent' is specifically limited to an individual whose identity as an intelligence agency employee `is classified information,'" criminality does not turn on whether the information disclosed is classified. Id. at 15. There should only be prosecution "when the defendant has knowingly disclosed information that, in terms of its specificity, its sensitivity, and the effort expended to maintain its secrecy, is virtually the equivalent of classified information." Id. In other words, the definition of a covert agent is more than classified and less than classified. It clearly is not synonymous with classified. As the Committee stated, "The mere fact that an intelligence relationship appears in a document which is classified does not constitute evidence that the United States is taking affirmative measures to conceal the relationship." Id. at 19. Significantly, the Senate Report makes clear Congressional desire to limit application of the criminal law to disclosure of selected intelligence officers: [T]he Committee has carefully considered the definition of "covert agent" and has included only those identities which it has determined to be absolutely necessary to 4


protect for reasons of imminent danger to life or significant interference with vital intelligence activities. Undercover officers and employees overseas may be in special danger when their identities are revealed.... (Emphasis added). Id. at 15. Notably, the legislation limited coverage of U.S. citizen informants or sources (agents) also to situations where they "reside and act outside the United States." Id. at 16. This foreign assignment requirement developed from the impetus for the legislation: attacks on CIA personnel serving abroad. Renegade former CIA officer, Philip Agee, exposed over 1000 CIA officers, which was followed by the December 1975 assassination of CIA Athens Station Chief, Richard S. Welch. In 1980, Louis Wolf, co- editor of the Covert Action Information Bulletin, publicly claimed 15 U.S. officials in Jamaica were CIA. He provided addresses and telephone numbers, information not considered "classified." Within a week two of those named were attacked. Id. at 8. Early drafts of the legislation covered only those individuals stationed abroad. During my participation in the negotiations, the CIA brought up the issue that it was not unusual for CIA officers to be rotated back to the United States. Such period of time was for about two to three years. So we agreed to extend coverage for three years after a covert person left a foreign assignment. Then the issue arose that the protection of the Act was not intended just for the CIA officers, but also for their sources. "How long," we asked, "would be a reasonable time to protect sources?" The CIA replied that five years would be sufficient. As a result of that round of negotiation, the criterion of the foreign assignment requirement for an employee to be a "covert agent" was drafted as follows: [A] present or retired officer or employee of an intelligence agency...who is serving outside the United States or has within the last five years outside the United States. 5


§ 426 (4)(A). In other words, the compromise language of "within five years" is intended to prohibit disclosure of the intelligence officer for five years for the purpose of protecting former sources, not protecting the person assigned back to this country. There is a most recent example of a former covert officer bring named as such in the Washington Post. In John Kelly's March 1, 2007 column, he described Clare Lopez having lost a class ring in the mid-1980's while scuba diving off Mauritius. It was recovered recently by a German diver who returned it to her. Nice story. However, Kelly also described Lopez as "stationed at the U.S. Embassy in Mauritius" and as a "former CIA officer who is now a private consultant on issues related to the Middle East, terrorism and weapons of mass destruction." [App. A]. That story tells the public not only that Lopez was once covert but also that we have CIA presence in Mauritius. No one made a peep at such revelations. For Lopez, it is clear five years had passed. In his own words, in an autobiography titled, "Politics of Truth," Joseph Wilson, husband of Plame, reveals the timing of her return from foreign assignment as June 1997, some six years prior to Novak's July 2003 column: "In June of 1997, I arrived back in Washington to take my new job directing the African Affairs desk at the National Security Council. *** My move back to Washington coincided with the return to D.C. of a woman named Valerie Plame. I had first met her several months earlier at a reception in Washington...." pp.239-40 [App. B. pp1-2] 6


Affirmative Measures There was great displeasure by certain Senators, especially Chr. Goldwater, that the CIA had been sloppy protecting its own. Indeed, one of the legislation's seven findings states: (7) The policies, arrangements and procedures used by the Executive branch to provide for U.S. intelligence officers, agents and sources must be strengthened and fully supported. S.Rep at 11. Such concern was the reason the Act required the government to be "taking affirmative measures to conceal such covert agent's intelligence relationship to the United States" before there could be a prosecution. Throughout the Senate Report, disappointment is expressed about the Executive branch's failure to provide adequate cover. As the Committee noted, "[P]art of the bill is designed to improve cover." "Without effective cover for U.S. intelligence officers abroad...the United States cannot collect the human intelligence" it needs. Id. at 10. (Emphasis added). In this regard, Section 423 of the Act requires the President, "after receiving information from the Director of Central Intelligence," to submit an annual report to both Intelligence Committees on "measures to protect the identities of covert agents, and on any other matter relevant to the protection of the identities of covert agents." Has the CIA done so? Given this concern and mandate, additional basic managerial questions of good intelligence tradecraft come immediately to mind. I am aware that this Committee does not have oversight of the intelligence community so others, perhaps, must ask these questions: 7


· Could the CIA produce immediately a list of all foreign assigned personnel it has designated covert under the Act? · Does the CIA make any such list available to selected few individuals who need to check whether to confirm or deny that person's "intelligence relationship to the United States," as required by the Act? (Think CIA spokesman who often confirms or denies to reporters whether certain people work at the Agency.) · Has the CIA established guidelines for briefers of its Executive branch clients so they do not reveal names of "covert agents" without a caveat not to repeat the name or relationship? · Has the CIA devised a tracking plan so that five years after a formerly covert employee returns to the United States, he or she knows the Act no longer applies and, just as importantly, other persons have notice, e.g. a briefer? No White House can prudently safeguard classified or otherwise non-disclosable intelligence information (such as covert status) unless its own intelligence agency follows the proper procedures to inform it and its Executive branch clients of that classification or status. If Plame was really covert in July 2003 (or within five years of covert), the CIA was required under the statue to take "affirmative measures" to conceal her relationship to the United States, particularly because the criminal law comes into play. If Plame was really covered by the Act in July 2003, why did: · The CIA briefer who said he discussed the fact of Wilson's wife working at the CIA with Libby and the Vice-president, not tell them Plame's identity was covert or classified; · Richard Armitage, (who, having seen Plame's name in a State Department memo from which he gave the gossip to Robert Novak and later asserted, "I had never seen a covered agent's name in any 28 years of government") not know Plame's identity was not to be revealed; · State Department Undersecretary, Marc Grossman, not know Plame's identity was not to be revealed; 8


· CIA spokesman Bill Harlow tell Vice-president staffer, Cathie Martin, that Wilson's wife worked at the Agency but not warn her Plame's identity was not to be revealed; · CIA spokesman Bill Harlow (who, according to Wilson's autobiography, had been "alerted" by Plame about Novak's sniffing around, p. 346 [App. B, p3] ) confirm for Novak that Plame worked at the CIA; · The CIA not send its top personnel, like the Director, to Novak and ask the identity of Plame not be published just as the government does any time it really, really, really does not want something public, e.g. in December 2005 when the New York Times was about to publish the top secret NSA surveillance program; · The CIA not ask Joe Wilson to sign a confidentiality agreement about his mission to Niger (a document all the rest of us have to sign when performing any task with the CIA) and then permit him to write an OpEd in the NYT about the trip, an act certain to bring press attention, when his Who's Who biography includes his wife's name; · The CIA allow Plame to attend in May 2003 a Democratic breakfast meeting where Wilson was talking to New York Times columnist Nicholas Kristoff about his trip to Niger; · The CIA allow Plame to contribute $1000 to Al Gore's campaign and list her CIA cover business, Brewster-Jennings & Associates, as her employer; · The CIA give Plame a job at its headquarters in Langley when it is mandated by statute "to conceal [a] covert agent's intelligence relationship to the United States"; · The CIA send to the Justice Department a boilerplate 11 questions criminal referral for a classified information violation when its lawyers had to know that merely being classified did not fulfill the required elements for exposing a "covert agent"? Such questions reveal slip-shod tradecraft, casting doubt on whether Plame's identity was even classified, much less covert. In fact, in a curious twist, while the CIA was turning a blind eye to Wilson writing about his mission to Niger (Did he go through the pre-publication review process like the rest of us have to do?), it was sending to the Vice-president's office documents about that 9


same trip and these documents were marked classified. So the very subject Wilson could opine about in the New York Times was off-bounds for the Vice-president to discuss unless the person had a clearance. CRIMINAL INVESTIGATIONS UNDER THE ACT Criminal statutes are interpreted precisely. The rationale is that if a person is to be deprived of liberty, he or she should have sufficiently clear notice that specific conduct violates the law. For example, if the law protects a former covert officer for five years after leaving a foreign assignment, a person can be prosecuted for revealing the name within four years, eleven months and 30 days, but not five years and one day later. For public policy reasons, it is important for the CIA to take "affirmative measures" to protect the identity of a covert agent because it appears that even the accidental mention of a name or relationship is sufficient to trigger a full-scale years long criminal investigation. (Two other statutes, 18 USC § 793 and 18 USC § 798, criminalize disclosing classified information, but not the names of employees or agents else we would not have needed the 1982 law.) Although Libby suffered the most severely, numerous other persons were negatively affected. They had to hire lawyers. Several had to endure the angst of being threatened with indictment or jail. Judith Miller, New York Times reporter, did go to jail. If Plame was covert and the CIA had been fulfilling its obligations, all involved would have had sufficient notice from the CIA. If she was not covert, there should not have been a CIA referral for Novak's column because publishing a merely "classified" employee's name is not covered by the 1982 Act or the other two criminal statutes. 10

HENRY A. WAXMAN, CALIFORNIA                                               TOM DAVIS, VIRGINIA
CHAIRMAN                                                              RANKING MINORITY MEMBER

                                 ONE HUNDRED TENTH CONGRESS

                              2157 RAYBURN HOUSE OFFICE BUILDING
                                  WASHINGTON, DC 20515_143

The Honorable Joshua Bolten
Assistant to the President and Chief of Staff
The White House
1600 Pennsylvania Ave. NW
Washington, DC 20500

Dear Mr. Bolten:

       Today, the House Committee on Oversight and Government Reform held a hearing to
examine the disclosure by senior White House officials of the identity of covert CIA agent
Valerie Plame Wilson. The hearing raised many new questions about the how the White House
responded to an extraordinarily serious breach of national security. It also raised new concerns
about whether the security practices being followed by the White House are sufficient to protect
our nation's most sensitive secrets.

       James Knodell, Director of the Office of Security at the White House, testified at the
hearing about White House procedures for safeguarding classified information. During his
testimony, Mr. Knodell made some remarkable statements about how his office handled the
disclosure of Ms. Wilson's covert status. Specifically, Mr. Knodell testified:

       - The Office of Security for the White House never conducted any investigation of the
         disclosure of Ms. Wilson's identity;

       - Under the applicable executive order and regulations, your senior political advisor, Karl
         Rove, and other senior White House officials were required to report what they mew
         about the disclosure of Ms. Wilson's identity, but they did not make any such report to
         the White House Office of Security; and

       - There has been no suspension of security clearances or any other administrative sanction
         for Mr. Rove and other White House officials involved in the disclosure.

       According to Mr. Knodell, the explanation for the lack of action by the White House
Security Office was a White House decision not to conduct a security investigation while a
criminal investigation was pending. Mr. Knodell could not explain, however, why the White


The Honorable Joshua Bolten
March 16, 2007
Page 2

House did not initiate an investigation after the security breach. It took months before a criminal
investigation was initiated, yet according to Mr. Knodell, there was no White House
investigation initiated during this period.

       Mr. Knodell also testified that it would be inappropriate to allow an individual who was a
security risk to retain his or her security clearance while a criminal investigation is pending. As
members of the Committee pointed out, a criminal investigation can last years, and it would
jeopardize national security not to investigate the officials implicated in the leak and suspend
their security clearances if there were reason to suspect their involvement. Mr. Knodell did not
dispute this point.

       The testimony of Mr. Knodell appears to describe White House decisions that were
inconsistent with the directives of Executive Order 12958, which you si_ed in March 2003.
Under this executive order, the White House is required to "take appropriate and prompt
corrective action" whenever there is a release of classified information. Yet Mr. Knodell could
describe no such actions after the disclosure of Ms. Wilson's identity.

       Taken as a whole, the testimony at today's hearing described breach after breach of
national security requirements at the White House. me first breach was the disclosure of Ms.
Wilson's identity. Other breaches included the failure of Mr. Rove and other officials to report
their discloses as required by law, the failure of the White House to initiate the prompt
investigation required by the executive order, and the failure of the White House to suspend the
security clearances of the implicated officials.

       To assist the Committee in its investigation into these issues, I request that you provide
the Committee with a complete account of the steps that the White House took following the
disclosure of Ms. Wilson's identity (l) to investigate how the leak occurred; (2) to review the
security clearances of the White House officials implicated in the leak; (3) to impose
administrative or disciplinary sanctions on the officials involved in the leak; and (4) to review
and revise existing White House security procedures to prevent future breaches of national

       I look forward to your response and hope you will cooperate with the Committee's


Henry A. Waxman

cc: Tom Davis
Ranking Minority Member

Friday, March 09, 2007

D.C. Circuit Court and the Second Amendment

Courtesy of the, some good news from the DC Circuit ...

Divided three-judge D.C. Circuit panel holds that the District of Columbia's gun control laws violate individuals' Second Amendment rights.

The majority holding is right on the money too.

That right .. was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government ...

Mr. Bashman has a link to the opinion and dissent (all PDF).


More on the case, from ScotuBlog. Looking ahead to a possible review at the Supreme Court, and comparing the instnat case with recent Second Amendment cases ...

The Second Amendment: Is the Court interested? - Lyle Denniston

Wednesday, March 07, 2007

Libby Trial Pleadings Archive

I never intended this space to focus exclusively on the Libby trial, but for whatever reasons, it took on being primarily a Libby-case pleadings presentation site.

If you're interested in retrieving the Libby-case pleadings, bookmark this: Link to Libby Trial Pleadings.

I'm apt to edit that page (as opposed to making entries at the top of the blog) as the grounds for retrial are asserted and argued, the issues on appeal are clarified, etc.

Tuesday, March 06, 2007

Libby Trial - Whereto from Here?

Fitzgerald's return will be fun to watch by John Kass - a must read.

Transcript : Statement by Libby's Attorney - New York Times

Transcript: Fitzgerald Answers Questions - New York Times

Transcript: Libby Juror Answers Questions - New York Times


    I stand by my long-held prediction, that regardless of the outcome of the trial, the opposing political sides will remain entrenched in their respective positions.

    And a new one, that the opposing sides will revert to dissecting this case as a question of "who leaked Plame?" or its corrolary, "No leak? Then no crime!"

    This trial didn't have a happy outcome, but I believe it is the correct outcome. Correct to be charged, and a correct conclusion by the jury. Just my opinion, rejected by most who follow the same rightward-leaning political path that I do.

    Says Ted Wells (my sloppy paraphrase, but it gets the sense of the direction the defense has planned ...

We are very disappointed in the verdict of the jury. This jury deliberated for 10 days. We believe in the American justice system and we believe in the jury system. We intend to file a motion for a new trial, and if that is denied, we will appeal the conviction, and we have every confidence that ultimately, Mr. Libby will be vindicated. Mr. Libby is totally innocent, and did not do anything wrong.

    The motion for retrial will be a good precursor for the appellate brief - and Libby is entitled to an appeal as a matter of law.

    Fitzgerald makes a brief appearance and takes Q&A.

Gratified by verdict. Jury worked long and hard and deliberated at some length. The jury was able to conclude guilt beyond a reasonable doubt. We wish that a high official hadn't lied under oath, but it happened. We're thankful for the service of the jury.

We knew in December that Libby had told lies to the FBI. It's inconceivable that a prosecutor would walk away from the extent of lying that we saw. He was not comfortable walking away from the lying and saying nothing wrong was done.

Any lie under oath is serious. A prosecutor has a duty to enforce that principle.

No comment about Cheney - Cheney is not the subject of our investigation, and our mention of him in closing was to show Libby's state of mind.

What of "cloud over the VP and cloud over the WH?" What was said in closing was rebuttal to the defense that said the prosecution cast the cloud over the VP. The cloud was caused by Libby's lies - he could have removed that cloud, but he didn't.

He expects to file no further charges. The investigation was inactive before the trial. If we get new information, we will act as that information indicates.

He thinks the verdict should stand, but he won't predict how an appellate court would respond to arguments not yet made.

Won't predict what sentence Judge Walton might hand down.

Of course he was worried about the verdict during the extended deliberations.

"Her relationship with the CIA was classified." [whatever that means]

    And a few items from Q&A with the jury ...

Jurors say their decision was driven by Libby's version of the Russert conversation. 34 sheets (easel sheets) of pieces of information that Libby was told (he may have forgotten), and while we believed that Libby had a bad memory, Hannah's testimony was self-conflicting in that even if he (Libby) forgot who told him, he remembered the fact he was told.

Too many things just didn't add up to knowing on Tuesday, forgetting on Thursday (Russert).

Took a long time because they considered all counts, all elements, and played testimony through "motive?" "credibility?" and other filters.

The jury dismissed on Count 3 because the evidence of Libby's words came from Cooper, and somewhat from Martin (except she walked away). The jury saw the charge as Cooper's word vs. Libby's word. If Cooper really had confirmation from Libby, his notes would have said so, and his actions would have indicated two sources for the story - that is, the story would have run. In the end, reasonable doubt, even though Cooper was reasonably credible.

No negotiations over trading one count for another.

Jury Notes Re: Date Unanimity [Doc 314]

    A placeholder while waiting for the court to publish the March 5 jury questions.

    Long story short? The confusing date formulation in Count 1 of the jury instructions was instigated by the government, and it represents a defect in the instructions. Walton will (he MUST, no ifs ands or buts) repair the defect. He MUST also retain the requirement that the jury have unanimity as to which specific statement (or statements) before the grand jury represents obstruction. If they agree on a "specific statement," the jury would necessarily be agreeing on a date. But they do NOT have to find that Libby made the same "lie" on both dates, which is what the instructions now tell them to do.

    We'll know soon if I am right on the point of "date unanimity" being raised as a Count 1 issue by the jury. But even if the jury doesn't raise it, the instruction as stated in the draft jury instructions is defective, and must be adjusted.

UPDATE @ 10:41

    Looks like I was wrong (again!) on the jury questions.

Case 1:05-cr-00394-RBW     Document 314     Filed 03/05/2007     Page 1 of 1

All three questions below relate to count 3 (pages 74 & 75) #1 - Is the prosecution alleging that Mr. Libby did not make the statement to Cooper as presented to us in the Indictment OR is the allegation that Libby did know Mrs. Wilson worked for the CIA when he spoke to the FBI on 10/14/03 or 11/26/03? #2 - Is the prosecution's allegation in Count 3 that Mr. Libby DID know that Mr. Wilson's wife worked for the CIA when he made statements to the FBI on 10/14/03 OR 11/26/03? (Pages 74/75 .... "that Mr. Libby did not know if this was true." #3 - In determining Count 3, are we allowed to consider Mr. Libby's grand jury testimony? 3/05/07 3/30/07 3:30pm

Case 1:05-cr-00394-RBW     Document 315     Filed 03/05/2007     Page 1 of 2


Responses to Jury Note

Response to Questions One and Two:     Mr. Libby is charged in Count Three with knowingly making a false statement to the FBI during interviews on October 14 and November 26, 2003, namely, the statement that: "During a conversation with Matthew Cooper of Time magazine on July 12, 2003, Mr. Libby told Mr. Cooper that reporters were telling the administration that Mr. Wilson's wife worked for the CIA, but that M. Libby did not know if this was true."     Count Three charges that the above statement was false in that Mr. Libby did not advise Mr. Cooper on or about July 12, 2003, that reporters were telling the administration that Mr. Wilson's wife worked for the CIA, nor did Mr. Libby advise Mr. Cooper on that date that Mr. Libby did not mow whether the information regarding Ms. Wilson's employment was true. Count Three alleges that, rather, Mr. Libby confirmed for Mr. Cooper, without qualification, that Mr. Libby had heard that Mr. Wilson's wife worked at the CIA.     To be clear, Mr. Libby is charged in Count Three with making a false statement to the FBI about what was said during his July 12, 2003, conversation with Mr. Cooper. Mr. Libby is not charged with making a false statement to Mr. Cooper.     You have asked with respect to Count Three "[I]s the allegation that Libby did know Mrs. Wilson worked for the CIA when he spoke to the FBI on 10/14/03 or 11/26/03?" You have also asked "Is the prosecution's allegation in Count 3, that Mr. Libby DID know that Mr. Wilson's wife worked for the CIA when he made statements to the FBI on 10/14/03 OR 11/26/03 ....?" To be clear, Count Three does not allege, nor does the prosecution contend, that Mr. Libby told the FBI that, at the time of his FBI interviews, he did not know that Mr. Wilson's wife worked for the CIA.

Case 1:05-cr-00394-RBW     Document 315     Filed 03/05/2007     Page 2 of 2

Response to Question Three:     With respect to your third question, the charge in Count Three relate solely to Mr. Libby's statement during his FBI interviews, and not to any of his testimony before the grand jury. Concerning the false statement to the FBI charged in Count Three, you may consider Mr. Libby's grand jury testimony in March 2004, along with all other evidence admitted at trial, to the extent you find it helpful in deciding whether the government has proven beyond a reasonable doubt each of the elements as described in the instructions.

    Not to be a contrarian, but I think the press and the vast majority of Libby trial observers are incorrect by taking the "date unanimity" question as applying to Count 3 of the indictment and jury instructions.

    Date unanimity is the notion that the jury must agree on a specific instance of a lie - contents and timing - in order to render a guilty verdict. If the instruction is that "Libby is guilty if he made XYZ lie on March 5, and made XYZ lie on March 24," then the jury must unanimously find he made XYZ lie on both dates.

    I think the speculative focus on Count 3 for a "date unanimity" issue is incorrect because, while the indictment DOES have certain phrasing, the instructions given to the jury deviate from the indictment in multiple regards; and the jury instructions (not the indictment) will be the basis for jury questions. The jury does NOT have the indictment.

    Count 3, from the indictment: "2. On or about October 14 and November 26, 2003, in the District of Columbia ..."

    Count 3, from the draft instructions: "Count three of the indictment alleges that Mr. Libby falsely told the FBI on October 14 or November 16, 2003."

    Obviously something changed in between the indictment and the composition of the jury instructions. But Count 3 is not the only one that changed ...

    Count 1, from the indictment: "In or about March 2004, in the District of Columbia, I. LEWIS LIBBY, also known as 'SCOOTER LIBBY,' defendant herein, did knowingly and corruptly endeavor to influence, obstruct and impede the due administration of justice."

    That's it. Just "March 2004," with no date specified.

Speculation as to which Count is being dissected
Mar 05, 2007 at 05:43:11 PM EST

I'm inclined to think the "date unanimity" issue is with Count 1, not with Count 3. I base that mostly on reference to the draft jury instructions, where Count 1 is the only one that has a need for a statement to be made on both dates.

As a secondary rationale, Counts 2 and 3 are difficult for the jury to date-differentiate on, because they don't have transcript testimony to illustrate slight differences between testimony given in October vs. in November. On the other hand, from the draft instructions ...

Count one of the indictment charges that on or about March 5 and March 24, 2004 ...

I can see where that "and" requirement would cause some discussion and confusion, as the jury tries to figure out similarities and differences between March 5 and March 24 testimony, which they have in written form.

Contrast that with Count 5, which lists 4 individual items, each one with a specific date and specific testimony, and an instruction that says "if you unanimously agree on any one of these, then you must find the defendant guilty."

    Just for kicks, I looked at the "date of offense in Count 1 issue" through the rather convoluted evolution of jury instructions. It's very clear that issues OTHER THAN the use of conjunction between dates had a higher priority than expressing the date(s) of the charged offenses. The first time the date in Count 1 is expressed as "or about March 5 and March 24, 2004" appears in the government's proposed jury instructions [Doc 181 : 11/15/06]. Libby's response [Doc 226 : 12/22/06] doesn't comment on the date expression, and Fitzgerald's reply in opposition [Doc 230 : 01/04/07] reverts to the "March 2004" formulation.

    There is another thread of wrangling that begins with Libby's proposed instructions [Doc 180 : 11/13/06]. In this thread, Fitzgerald's response [Doc 227 : 12/22/06] also reverts to the "March 2004" formulation, and Libby's reply [Doc 229 : 01/03/07] makes no mention of the formulation of the "date lead-in" language. The jury instruction evolution got more complicated when the Court proposed draft instructions.

    Libby's reply to the court's proposed instructions [Doc 248 : 01/17/07] picks up the "or about March 5 and March 24, 2004" formulation for Count 1. I assume that the Court took Fitzgerald's language, proposed in November, and just ran with it. Later pleadings in this thread of negotiation either adopt that formulation, or are silent on the matter. Some contentions are outright false, for example, the Court's language as cited in Libby's second proposed set of jury instructions [Doc 283 : 02/14/07] says "Count one of the indictment charges that on or about March 5 and March 24, 2004 ..." but as noted above, the indictment uses the more general formulation of "March 2004" with no specific date qualifier.

    Just to make the analysis complete (none of these touch on the difference between the indictment and the draft jury instructions, relating to the date of the Count 1 offense), I also reviewed these pleadings: Fitzgerald's Consolidated Jury Instructions [Doc 285 : 02/14/07]; Fitzgerald's Objections to Court Proposal [Doc 292 : 02/16/07]; Libby Response to Court Proposal [Doc 295 : 02/17/07]; and Fitzgerald Response to Court Proposal [Doc 296 : 02/18/07].

    How did the press pick the nomenclature "Count 3" for this? I suspect the jury asked about the 3rd point of Count 1 (as expressed in the jury instructions), which just happens to be on the subject of obstruction (not false statements) as Libby talked to the grand jury about his conversations with Cooper. It happens that Count 3 also refers to the Cooper conversation. I think it's a natural to leap to Count 3 on hearing "Cooper" and the judge talking about "finding false statements in the transcript."

Monday, March 05, 2007

Court Response to Jury Questions on Cooper/Reasonable Doubt [Doc 313]


OCR Job (short and sweet this time - I gave up on the 48 page opinion)

I'm going to add the reply to question two to the list of Grounds for Appeal, because Judge Walton has expressly opened up the entirety of the grand jury testimony, rather than limiting the jury to the specific conflicting historical hypotheticals recited in these parts of the indictment ...

        [Libby said] 32.b. LIBBY advised Matthew Cooper of Time magazine on or 
        about July 12, 2003, that he had heard that other reporters were saying 
        that Wilson's wife worked for the CIA, and further advised him that 
        LIBBY did not know whether this assertion was true;

[But in fact] 33.b. LIBBY did not advise Matthew Cooper, on or about July 12, 2003, that LIBBY had heard other reporters were saying that Wilson's wife worked for the CIA, nor did LIBBY advise him that LIBBY did not know whether this assertion was true; rather, LIBBY confirmed to Cooper, without qualification, that LIBBY had heard that Wilson's wife worked at the CIA;

I disagree with those who conclude that this represents reversible error. I find so because focusing on phrases "32.b" and "33.b" is an attempt to divert attention away from the beef this indictment is laying down in Count One; that Libby was "misleading and deceiving the grand jury as to when, and the manner and means by which, LIBBY acquired and subsequently disclosed to the media information concerning the employment of Valerie Wilson by the CIA."

If Libby's recounting of the Cooper conversation has the effect of misleading and deceiving as to Libby having information from other than reporter sources (and he had the requisite mens rea - separate element), then he is guilty of obstruction.

But clearly Wells disagrees with my point of view. Here is from a Marcy Wheeler liveblogging post earlier today ...

Wells: what the govt is trying to do, we submit, is to expand the charging language in cout one, to make it track the far more expansive language in count five. What they've provided your honor is the pages that track count five, which is a lot longer. The language we have provided is the language in the indictment. If you look at what the GJ charged, it charged there were three false statements that comprised the instruction. This is what the GJ charged. That Libby advised Cooper on July 12, that other reporters were saying that Wilson's wife worked at the CIA and Libby didn't know whether this statement was true. That is what the preliminary instructions tracked, You can't do what the govt is asking, the govt is asking you to amend count one to pick up the charging language from count five. They can't collapse the perjury charge, which is from their indictment. THey can't convert a limited concise statement in count one to a more expansive statement in count five. That's what they are trying to do. That would be inappropriate. The govt should not give them anything beyond what's in the indictment.

Wells went on at length, arguing from a point of concern that the jury might take the charge as something as broad as I suggest is correct. Wells prefers the Court to make sure the jury sees the charge as the narrow difference between 32.b and 33.b.

This is a second bite at obtaining the defense preferred structure for the obstruction count, as the Judge didn't limit the instruction per the terms of the indictment. But here, Judge Walton is expressly telling the jury to look beyond the words in "32.b" and "33.b" of the indictment, and the defense is apt to assert that this produces a charge that the indictment does not make.

Case 1:05-cr-00394-RBW     Document 313     Filed 03/05/2007     Page 1 of 1


Responses to Jury Notes

Response to Question One:

    The instruction I gave you on reasonable doubt is the most detailed language I can provide you on what amounts to reasonable doubt. I request that you re-read the reasonable doubt instruction and consider all of it in yow evaluation of what amounts to reasonable doubt and what the government's burden of proof is in proving guilt beyond a reasonable doubt.

    As to the second part of your questions which asks "is it necessary for the government to present evidence that it is not humanly possible for someone not to recall an event in order to w find guilty beyond a reasonable doubt," I do not fully understand what you mean by "not humanly possible." If you can rephrase the question considering the language I gave you in the reasonable doubt instruction, I will assess whether I can provide further guidance to you.

Response to Question Two:

    As to Count One, Statement Three, the charge is set forth in the instructions. In assessing whether the Government has proven the elements of Count One Statement Three beyond a reasonable doubt, you may consider all of the evidence in the case, including any and all portions of Mr. Libby's grand jury testimony.

Friday, March 02, 2007

Court Order re: Admissibility of Mitchell/Russert Evidence [Docs 309 & 310]

OCR Jobs. Memorializes past rulings. The "Accompanying Memorandum Opinion" is Doc 310.

Case 1:05-cr-00394-RBW     Document 309     Filed 03/02/2007     Page 1 of 1



    For the reasons set forth during the trial of this matter, and as expanded upon in the accompanying Memorandum Opinion, it is hereby this 1st day of March, 2007,     ORDERED that the Government's Motion in Limine to Preclude Testimony of Andrea Mitchell is GRANTED. It is further     ORDERED that the Motion of Non-party Andrea Mitchell to Quash Subpoena in Part is GRANTED. It is further     ORDERED that the defendant shall be permitted to introduce evidence concerning his state of mind to support his memory defense as set forth during the Court's oral ruling and as further memorialized in the accompanying memorandum opinion. It is further     ORDERED that the defendant is precluded from introducing additional evidence to impeach government witness Tim Russert.     SO ORDERED. REGGIE B. WALTON United States District Judge

Case 1:05-cr-00394-RBW     Document 310     Filed 03/02/2007     Page 1 of 48

[48 pages of snippage]

Thursday, March 01, 2007

Blast from the Past - Same Old Stuff

    The story that will never end. Here is evidence that opposing sides in the Libby trial are entrenched. This exchange from over a year ago (the links work, and I urge readers to "go there" to see the complete exchange), where "the Real fifi" and I tangled briefly, could have happened yesterday.

    The closing contention of that year old thread ...

The contest is NOT between the memory of Libby and the memory of reporters.

... asserts the same basic difference as today's arguments. One argument over framing the charges, and another over the question of materiality. On materiality, this days-old match with Feldman echos my year-old (never settled) argument with "the Real fifi."

the Real fifi: -- I respect that you take another position, but I find it untenable. --

We've had a rather complex dialog, and your "I find untenable that you take another position" is ambiguous. My positions, stated on this thread, amount to the following:

Even if the investigation is bogus, those who testify are (I think reasonably) expected to do so truthfully.

The legal principle being defended is "truthful testimony, regardless of the stupidity and/or motive of the investigator."

The indictment asks this. At the time in interest, was Libby "informed only as well as every other guy in the rumor mill," or was he "well aware that Wilson's wife worked at the CIA?"

... the indictment isn't a "leak" indictment.

There is no indictment, and never will be one that charges "outing" of Plame.

The official stance from President Bush, the DoJ and the prosecutor is that the case, the leak, is serious.

I give the case for conviction better than even odds -if- the case goes to trial. I don't see the charge being dropped, but a plea bargain is possible.

I think it was a bogus investigation.

And you find those positions to be untenable?

77 posted on 02/01/2006 10:17:04 PM EST by Cboldt

To: Cboldt

Simply and breifly--(a) To constitute perjury, the question wmust be material, deliberately false and before a competent tribunal. I have probelms with 2 out of 3 of these.

(b)To find obstruction, you must show that the defendant delibereatley impeded a material line of inquiry. On this I find the indictment lacking two out of two,

(c) If I am wrong, and the lines of inquiry are material and proper, I find it at least as likely that the reporters recollections are wrong as that Libby was deliberately lying and therefore I think the requisite standard--proof beyond a reasonable doubt cannot be established.

78 posted on 02/01/2006 10:48:34 PM EST by the Real fifi

the Real fifi: -- Simply and breifly--(a) To constitute perjury, the question wmust be material, deliberately false and before a competent tribunal. I have probelms with 2 out of 3 of these. --

I assume then that you assert that Libby's statements are not material, and are not deliberately false.

Going for the "meaning of 'is'" defense? The indictment is clear on these points, and earlier posts discuss the political and personal motives for avoidance of being a known, legal leaker.

the Real fifi: -- (b)To find obstruction, you must show that the defendant deliberately impeded a material line of inquiry. On this I find the indictment lacking two out of two --

Not material, I assume on account of Plame not being covert. Good luck with that. Likewise good luck that Libby "accidentally" or "forgetfully" omitted noting his inquiry to the CIA. C'mon - if you know something FOR A FACT, do you forget that?

the Real fifi: -- (c) If I am wrong, and the lines of inquiry are material and proper, I find it at least as likely that the reporters recollections are wrong as that Libby was deliberately lying ... --

Demonstrating that you don't comprehend the point of my previous post. The contest is NOT between the memory of Libby and the memory of reporters.

82 posted on 02/02/2006 12:32:44 AM EST by Cboldt

    The story that will never end. That was evidence that opposing sides in the Libby trial are entrenched. And the debate will continue, on the same subjects and in the same terms, regardless of the jury's verdict.

    One thing I take to the bank, regardless of the verdict, is that the "winning" side will express its victory in terms of the leak itself. If Libby is found guilty, the left will proclaim Plame was covert and there was a conspiracy. If Libby is found not guilty, the right will proclaim that the White House and OVP never told a reporter that "Wilson's wife works at the CIA and suggested sending Joe" was in fact true.

    The point of seeing certain mischaracterization of the outcome is that the ultimate conclusion has power - enough power that it might cause a leaker to "shade his statements to investigators."

Libby Trial - Jury Instructions

In other news (not related to jury instructions - posted here because I think some people check the top of the blog instead of the frequently-updated index of proceedings) ...

Case 1:05-cr-00394-RBW     Document 307     Filed 03/01/2007     Page 1 of 4


And on the subject of jury instructions ...


Which appears in the context of Tom Maguire's February 28 post, Jury Instructions.

Snippets from the jury instructions (with observations of their relationship to instructions advocated by opposing parties) were previously posted at Example Pages from the Jury Instructions, just below.

I've "OCR converted" and edited all 127 pages of the instructions and may post it after the jury renders a verdict. Meanwhile, visit here for the complete conversion by others. I'm limiting this presentation to a brief summary and the text of the Theory of Defense instruction.

Pages 1-52 contain general instructions, and as noted here, Libby LOST his argument regarding certain contents of the memory instruction.

Pages 53-104 comprise recitation of the specific counts and findings that must be made in order to render a guilty verdict.

Libby obtained an "ambiguity" instruction, which the prosecution argued against giving. The "ambiguity" language appears in the perjury counts.

Pages 105-127 contain the following instructions:

Compare with Libby's Revised Theory of the Defense of Feb 15.

        Mr. Libby contends that the government
     has not proven beyond a reasonable doubt
     that he intended to or did obstruct
     justice, make intentionally false
     statements to the FBI, or make
     intentionally false statements to the grand
     jury.  Mr. Libby contends that he told the
     FBI and the grand jury his honest
     recollections at the time, and to the
     extent any of those recollections were
     incorrect, his mistakes were innocent.  He
     contends that he lacked any notes of the
     conversations about which he was
     questioned, and that he was unable to
     refresh his recollection by reviewing the
     notes of other people and discussing with
     them their recollections of events.  He
     further contends that the amount and scope
     of vital national security issues and
     information confronting him on a daily   
     basis during June and July 2003, affected


     his memory of any brief conversations about
     the employment of Ambassador Wilson's wife
     when he talked to FBI agents in October and
     November 2003, three or more months after
     the conversations are alleged to have
     occurred, and when he testified to the
     grand jury in March 2004.  Mr. Libby
     further contends that when the
     investigation began, he knew that he had
     not provided any information about Ms.
     Wilson to Robert Novak.  He also contends


     that he did not know that Ms. Wilson's
     employment status was covert or classified
     and that he did not knowingly disclose
     classified information about Ms. Wilson to
     any reporters.  Further, Mr. Libby contends
     that he was well aware when he was first
     interviewed by the FBI and when he
     testified to the grand jury, that the
     investigators could and likely would
     attempt to talk to government officials and
     the journalists he spoke with concerning


     Ambassador Wilson.  Mr. Libby submits he
     had no reason to lie to the FBI or the
     grand jury, and did not do so.



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