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New Details about Libby and Judith Miller

By Jeralyn, Section Lewis Libby Indictment
Posted on Thu Jul 06, 2006 at 05:30:17 PM EST
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Truthout has posted the transcript (pdf) of the May 16 Scooter Libby hearing. Jason Leopold points out the new details, primarily, that Libby's lawyers seem to suggest Miller may have discussed Joseph Wilson's wife before June 23.

According to a May 16, 2006, court transcript obtained by Truthout, Libby attorney William Jeffress told US District Court judge Reggie B. Walton that redacted versions of Miller's notebooks turned over to the defense during the discovery phase of the Libby criminal proceedings show that "Ms. Miller was investigating and focusing on [former Ambassador Joseph] Wilson before the very first time that she met with Mr. Libby, that is before June 23, 2003."

"There are numerous entries throughout those notebooks to 'V.F.,' or 'Victoria Wilson,' or to 'Valerie Wilson,' all of which indicate that she [Miller] is talking to someone else about Mr. Wilson's wife," Jeffress said, according to a copy of the 128-page transcript. "What she learned and when she learned it about Mr. Wilson's wife is extremely - it is right at the heart of this case."

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    New Details about Libby and Judith Miller | 60 comments (60 topical)
    Re: New Details about Libby and Judith Miller (none / 0) (#1)
    by jimcee on Thu Jul 06, 2006 at 06:47:23 PM EST
    And here I thought that that dead horse had not only been re-beaten but canned and sent out to the pet food shops. Let's see, Mr Leopold has been rather incorrect recently and so he is such a sure source for future, uhm, nonsense. I'll skip the DU analogy now and posit that giving Leopold any credibility is nothing more than pissing away any credibility that TalkLeft has had. Why would a credible site become so irrational? Jondee what is your opinion?

    Re: New Details about Libby and Judith Miller (none / 0) (#2)
    by Talkleft Visitor on Thu Jul 06, 2006 at 07:06:03 PM EST
    Unlike the last fiasco, this is a transcript.

    Re: New Details about Libby and Judith Miller (none / 0) (#3)
    by Talkleft Visitor on Thu Jul 06, 2006 at 07:12:09 PM EST
    Rather than asking this guy to divulge his sources...to tell us who played him/us for a fool...you give him more ink??? I agree that TL is risking her integrity by giving these folks air time.

    Re: New Details about Libby and Judith Miller (none / 0) (#4)
    by Talkleft Visitor on Thu Jul 06, 2006 at 07:29:42 PM EST
    Yeah I saw an interesting post at TruthOut and thought of the folks here that had written them off. I'm sure you'll share the pride in their success that didn't get as much attention recently.
    "Bush at Center of Intelligence Leak", Welcome to the party Murray ... We were amused to see Murray Waas writing for the The National Journal Monday "break" the news that George W. Bush in fact authorized Dick Cheney to respond to Joseph Wilson back in 2003 when Wilson's Op-Ed first appeared in The New York Times. Waas's piece titled, "Bush Directed Cheney To Counter War Critic" is causing quite a stir in digital politics this holiday weekend. .... It's nice that another journalist has belatedly covered this story, but it was Jason Leopold writing for Truthout nearly 3 months ago who first reported Bush's involvement in his piece titled, "Bush at Center of Intelligence Leak". .... Not the first time. In January Leopold reported for TO that, "Bush Authorized Domestic Spying Before 9/11". Over 6 months later, on June 30th Bloomberg finally checked in with their report confirming Leopold's, "Bush Authorized Domestic Spying Before 9/11". ...more
    I noticed that the transcript linked in the original thread content is dated around the same day as when the indictment should/would/could have been filed....May 16th? I gotta check those pages out and see what other tidbits are in there.

    Re: New Details about Libby and Judith Miller (none / 0) (#5)
    by Talkleft Visitor on Thu Jul 06, 2006 at 07:41:34 PM EST
    I think Jason is right. Luskin produced NO DOCUMENTS WHATSOEVER. Luskin said Fitz "does not anticipate seeking charges". ('cause he already has them in hand) Fitz says NOTHING Jason stands by his story. It all fits the classic conspiracy prosecution: The first cases are perjury & obstruction. The middle cases are indicted and sealed so as not to tip off the kingpins. People who flip (Rove) get their sealed indictments dismissed if they deliver the testimony they promise. I think Jason is right.

    Re: New Details about Libby and Judith Miller (none / 0) (#6)
    by Talkleft Visitor on Thu Jul 06, 2006 at 07:53:36 PM EST
    It has yet to be proven that Jason and TruthOut were wrong, either intentionally or by subsequent actions after the story published that might have occurred. In other words, it's never been proven that Rove was not indicted by a grand jury.

    Re: New Details about Libby and Judith Miller (none / 0) (#7)
    by Patrick on Thu Jul 06, 2006 at 07:58:49 PM EST
    In other words, it's never been proven that Rove was not indicted by a grand jury.
    This is the position for supporting? In the immortal words of Soccerdad, ROTFL.

    Re: New Details about Libby and Judith Miller (none / 0) (#8)
    by Patrick on Thu Jul 06, 2006 at 07:59:34 PM EST
    It's never been proven that Jeralyn Merritt wasn't indicted either. But I don't believe she has been,

    Re: New Details about Libby and Judith Miller (none / 0) (#9)
    by Edger on Thu Jul 06, 2006 at 08:06:52 PM EST
    Patrick:
    It's never been proven that Jeralyn Merritt wasn't indicted either. But I don't believe she has been,
    In the immortal words of OJ Simpson (sic), ROTFL.

    Re: New Details about Libby and Judith Miller (none / 0) (#10)
    by Talkleft Visitor on Thu Jul 06, 2006 at 08:08:12 PM EST
    Care to rule out anyone else while we're at it?

    Re: New Details about Libby and Judith Miller (none / 0) (#11)
    by Edger on Thu Jul 06, 2006 at 08:18:42 PM EST
    johnforde: The middle cases are indicted and sealed so as not to tip off the kingpins. Speculative question for any of the lawyers here... Would it have been legal and within bush's authority to have secretly pardoned (by executive order or otherwise) Rove and somehow dismissed an existing indictment after Jason Leopold wrote his article, with the condition that the rove team, and Fitzgerald, could say nothing about it?

    Re: New Details about Libby and Judith Miller (none / 0) (#12)
    by Talkleft Visitor on Thu Jul 06, 2006 at 08:28:12 PM EST
    My unprofessional opinion has always been that the authority assumed by this president can and has sufficiently granted whatever is necessary to protect themselves from serious criminal prosecution...so far. There have been secret dockets that the public has no access to, in the name of state secrets or national security. They resort to the AUMF for justification first and then move to 'cause we wanna do it, that's why'.

    Re: New Details about Libby and Judith Miller (none / 0) (#13)
    by Talkleft Visitor on Thu Jul 06, 2006 at 08:36:51 PM EST
    edger: I'm not a lawyer, but I don't think any lawyers would call a scenario like that settled law.

    Re: New Details about Libby and Judith Miller (none / 0) (#14)
    by Edger on Thu Jul 06, 2006 at 08:42:01 PM EST
    Johnforde - Very few of the powers bush has claimed and assumed, and uses, are anywhere near settled law. That hasn't stopped him. Witness the SC ruling last week...

    Re: New Details about Libby and Judith Miller (none / 0) (#15)
    by Che's Lounge on Thu Jul 06, 2006 at 09:46:40 PM EST
    Go Jason and Truthout. Someone needs to expose the truth about these people. Personally I'm still inclined to believe that Cheney is not yet out of the woods. Really, if it's over, why hasn't Fitzgerald closed the investigation?

    Re: New Details about Libby and Judith Miller (none / 0) (#16)
    by Edger on Fri Jul 07, 2006 at 12:00:24 AM EST
    Perhaps I should reword my earlier question. I don't want to put any laywers into the position of saying anything that could even be construed as giving legal advice here. But is it conceivable that David Addington or other WH lawyers or Alberto Gonzales, given their track record the past few years, would have counselled bush that he had the legal authority and power to do so and to go ahead and secretly pardon (by executive order or otherwise) Rove and somehow dismissed an existing indictment after Jason Leopold wrote his article, with the condition that the rove team, and Fitzgerald, could say nothing about it?

    Re: New Details about Libby and Judith Miller (none / 0) (#17)
    by Edger on Fri Jul 07, 2006 at 12:01:13 AM EST
    err... "lawyers"

    Re: New Details about Libby and Judith Miller (none / 0) (#18)
    by Talkleft Visitor on Fri Jul 07, 2006 at 12:10:19 AM EST
    Anyone seen a decent graphical Plamegate timeline? A quick Google finds a lot of textual-based ones. One site deserves dual award of ugliest web site ever developed and most whacky conspiracy site. It seems a well designed timeline would be helpful as reference as this story creaps along.

    Re: New Details about Libby and Judith Miller (none / 0) (#19)
    by Talkleft Visitor on Fri Jul 07, 2006 at 12:28:35 AM EST
    Don't have to look very far: There's one posted on the New York Times site (and it's interactive no less!) ;) Interactive Graphic Timeline of a Leak [Google: "Plame timeline graphic"]

    Re: New Details about Libby and Judith Miller (none / 0) (#20)
    by Talkleft Visitor on Fri Jul 07, 2006 at 12:49:11 AM EST
    edger--I don't know what you are referring to by a "secret" pardon. There are a lot of guides to presidential pardons online: Here's one from the University of Pittsburgh Law School, with FAQ that may be useful to you in trying to learn more about the laws relating to presidential pardons. (Just Google "presidential pardon" or "Presidential pardon": a whole bunch of useful sites come up.)

    Re: New Details about Libby and Judith Miller (none / 0) (#21)
    by Talkleft Visitor on Fri Jul 07, 2006 at 01:19:19 AM EST
    The government Office of the Pardon Attorney is a useful site for detailed information. [Doesn't it seem from the information about presidential pardons given on these sites that until someone is convicted, there is nothing he or she can be pardoned (or granted a reprieve) for. People petition for pardons and reprieves, there are all kinds of government officials and offices involved, and there doesn't seem to be anything done "secretly" in that context. I'm not sure what you (edger) had in mind, but it really doesn't seem plausible to me (but I'm not a lawyer) that Fitzgerald would agree to what you proposed even if it were a possibility (which I don't think it is). Of course, I could be wrong, but that's my reading of it. Fitzgerald decided not to indict Rove, on the evidence that he had accumulated from the testimony that he has gotten (see the NYTimes interactive graphic timeline of the Plame leak, which conveniently links the articles about the key testimonies). Fitgerald's not indicting Rove is a fait accompli. But the case is still open because other people could still be indicted perhaps (?) I don't know if that decision not to indict Rove could change; but it doesn't seem so, since Fitzgerald sent his lawyer a letter saying that he wasn't going to indict Rove (as a result of this particular Grand Jury investigation). Libby, however, already has a trial date set. That's a whole other ballgame. [What emerges from a trial is another story.] If/after Libby (and perhaps others down the road, if there are others, which seems doubtful at this stage, if Libby is the "fall guy" and no one else in the administration is indicted [relating to why the case is still open]) are convicted of the crimes for which he (they) have been indicted, then the situation becomes one in which he (they) might petition the president for a pardon or some kind of reprieve (regarding a sentence). Whether or not he (they) would get such pardons or reprieves are still very much an open question. National (and international) politics would figure a lot in that question, it would seem to me. (Bush is basically out of what he used to love calling his "political capital" (which it made me sick to hear him say every single time he said it). He has no more to "spend." But who knows what he might do to "pay" people who "supported" him (or didn't) back? Talking about presidential pardons still seems very premature at this stage. After Libby's trial takes place (assuming that it does take place), should he be convicted (which is still in doubt (given the presumption of innocence and a fair trial), then it's more relevant. (If he were to be convicted, there are also possibilities of appeal, which could drag on; though if he would want to petition for a pardon, he might forego the appeal route.) Again, all this is just my reading of the situation as a lay person. Maybe the lawyers will help out here.

    Re: New Details about Libby and Judith Miller (none / 0) (#22)
    by Talkleft Visitor on Fri Jul 07, 2006 at 02:07:09 AM EST
    Re:
    "Ms. Miller was investigating and focusing on [former Ambassador Joseph] Wilson before the very first time that she met with Mr. Libby, that is before June 23, 2003." ... "There are numerous entries throughout those notebooks to 'V.F.,' or 'Victoria Wilson,' or to 'Valerie Wilson,' all of which indicate that she [Miller] is talking to someone else about Mr. Wilson's wife," Jeffress said, according to a copy of the 128-page transcript. "What she learned and when she learned it about Mr. Wilson's wife is extremely - it is right at the heart of this case."
    Those are a whole bunch of red herrings. The issue is not whether or not Judith Miller talked about "Mrs. Joseph Wilson" or "Valerie Plame" ever before she spoke with Libby; that's absurd. There had already been a Vanity Fair feature article on them (with a photo of the two of them in a convertible). Plenty of people talked about the couple. The chief issue is the accusation that it was Libby who revealed to Judith Miller and other reporters in various ways enough information for them to identify Valerie Plame and/or Mrs. Joseph Wilson to her classified role as a covert operative of the CIA and leaking that information. All Judith Miller's annotations show (and they are retrospective annotations, not contemporaneous ones, which she testified she cannot remember precisely when she wrote) is that she was trying to connect dots (and didn't even have the names right). There is no crime in Libby's or anyone else's talking about Mrs. Wilson or Ms. Plame per se; it's the outing of her government operative role that is the main (crucial) issue. The quotation does not speak to that (as far as I can tell). If Libby did that, he did it, whether or not and when anyone figured it out right or not. Either he did, or he didn't. Why he did it is also part of what Fitzgerald is investigating. Whether he acted upon others' directives (e.g., Cheney, Bush: "chain of command"; cause and effect). Reporters like Judith Miller have no role to play in that part of the investigation at all. These seem to me to be red herrings and not at "the heart of the case" at all. They wish. . . . (Libby can tell them what they need to know, not Judith Miller.)

    Re: New Details about Libby and Judith Miller (none / 0) (#23)
    by Edger on Fri Jul 07, 2006 at 04:53:25 AM EST
    Susan - First, thank you for all of the information you've brought here about presidential pardons. Other than from you, I find it curious that any mention of pardons seems to draw no discussion, only silence. My question was speculation only. A 'what if' question, or a 'thought experiment' if you will. An imagining of a potential scenario in which what we've seen happen in the Fitzgerald investigation as it relates to rove and to the Truthout article of May 13 might make some sense in light of the fact that Truthout and Leopold continue to stand by that article and the claim that Rove was indicted. By secret pardon I mean just that, a pardon of rove issued by bush, but done without any kind of announcement to the press or anyone else, and with a gag order preventing Fitzgerald, Luskin, Rove, or anyone else from talking about it. I also think that the wording of Fords 1974 speech announcing his pardon of Nixon, unless I am misinterpreting, makes it clear that presidential pardons have been issued in situations where there was not an existing past conviction:
    "Now, therefore, I, Gerald R. Ford, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from July (January) 20, 1969 through August 9, 1974."
    "may have committed"?

    Re: New Details about Libby and Judith Miller (none / 0) (#24)
    by Talkleft Visitor on Fri Jul 07, 2006 at 04:56:28 AM EST
    The crime would have occurred in talking about V Wilson, Wilson's wife or any identifiable variation and associating her with the identification of covert status with the malicious intent to divulge that identity. It would be a crime to disclose classified information even if all of the other facrors aren't met. This is where Bush/Cheney claimed the right to 'declassify on the fly' any information they choose at the time they choose for the reason they choose. The timing of the disclosures/conversations are important as to who might have been given or gave information when it was still classified or to determine who has lied about the order of events. I can't find much to support any need for review or justification of the pardon process except for a few points that don't need apply. It seems to be based on the honor system of a president not abusing that power and the faith of the people in the president to uphold that integrity....lol. They can be broad, pre-emptive and would not have to be disclosed to the public.

    Re: New Details about Libby and Judith Miller (none / 0) (#25)
    by Talkleft Visitor on Fri Jul 07, 2006 at 05:11:41 AM EST
    How about this one?
    Proclamation 6518 Grant of Executive Clemency December 24, 1992 ... By the President of the United States of America ... A Proclamation ... Today I am exercising my power under the Constitution to pardon former Secretary of Defense Caspar Weinberger and others for their conduct related to the Iran-Contra affair. ... For more than 6 years now, the American people have invested enormous resources into what has become the most thoroughly investigated matter of its kind in our history. During that time, the last American hostage has come home to freedom, worldwide terrorism has declined, the people of Nicaragua have elected a democratic government, and the Cold War has ended in victory for the American people and the cause of freedom we championed. ...more I have also decided to pardon five other individuals for their conduct related to the Iran-Contra affair: Elliott Abrams, Duane Clarridge, Alan Fiers, Clair George, and Robert McFarlane. First, the common denominator of their motivation--whether their actions were right or wrong--was patriotism. Second, they did not profit or seek to profit from their conduct. Third, each has a record of long and distinguished service to this country. And finally, all five have already paid a price--in depleted savings, lost careers, anguished families--grossly disproportionate to any misdeeds or errors of judgment they may have committed. ... The prosecutions of the individuals I am pardoning represent what I believe is a profoundly troubling development in the political and legal climate of our country: the criminalization of policy differences. These differences should be addressed in the political arena, without the Damocles sword of criminality hanging over the heads of some of the combatants. The proper target is the President, not his subordinates; the proper forum is the voting booth, not the courtroom. ...more Some may argue that this decision will prevent full disclosure of some new key fact to the American people. That is not true. This matter has been investigated exhaustively. The Tower Board, the Joint Congressional Committee charged with investigating the Iran-Contra affair, and the Independent Counsel have looked into every aspect of this matter. The Tower Board interviewed more than 80 people and reviewed thousands of documents. The Joint Congressional Committee interviewed more than 500 people and reviewed more than 300,000 pages of material. Lengthy committee hearings were held and broadcast on national television to millions of Americans. And as I have noted, the Independent Counsel investigation has gone on for more than 6 years, and it has cost more than $31 million. ... Moreover, the Independent Counsel stated last September that he had completed the active phase of his investigation. He will have the opportunity to place his full assessment of the facts in the public record when he submits his final report. While no impartial person has seriously suggested that my own role in this matter is legally questionable, I have further requested that the Independent Counsel provide me with a copy of my sworn testimony to his office, which I am prepared to release immediately. And I understand Secretary Weinberger has requested the release of all of his notes pertaining to the Iran-Contra matter. ...moreProclamation 6518
    The full document reads like it could be written concerning the situations we have today. It's now wonder with many of the same brilliant minds behind both efforts. I included a few paragraphs but not the entire document here but the full text is at the link above. Anyone else notice the language and key words that have been used in the past 6 years?

    Re: New Details about Libby and Judith Miller (none / 0) (#26)
    by Talkleft Visitor on Fri Jul 07, 2006 at 05:20:37 AM EST
    edger: I appreciate your gerdunket (thought esperiment). I think if there were a secret pardon and a gag order on Fitz he would appeal the gag order. I can't imagine it would stand up to appeal. What is left of democracy if the Pres can secretly pardon any crime committed by his minions? I think Fitz would squawk big time. He'd probably resign.

    Re: New Details about Libby and Judith Miller (none / 0) (#27)
    by MiddleOfTheRoad on Fri Jul 07, 2006 at 05:23:25 AM EST
    Susan - The Vanity Fair article you mention was published in 2004, not 2003. So I don't understand how you can say that there already had been a Vanity Fair article.

    Re: New Details about Libby and Judith Miller (none / 0) (#28)
    by Talkleft Visitor on Fri Jul 07, 2006 at 05:31:49 AM EST
    For anyone insisting that the Bush administration would subject themselves to genuine accountability and rule of law AS WE KNOW IT... Where is the support for this argument? This admin has been meticulous in crafting laws, executive orders, signing statements, interperating laws/Costitution and laying the groundwork for legal justification as they have progressed.

    Re: New Details about Libby and Judith Miller (none / 0) (#29)
    by MiddleOfTheRoad on Fri Jul 07, 2006 at 06:01:58 AM EST
    I am not a lawyer, and I am writing this very much as someone who would like to see the whole cabal (including Libby) get prosecuted. I read through the first 30 some pages of the transcript where the defense is asking for the original 2 notebooks of Judith Miller. Not being a lawyer, I could not make much sense of the discussion revolving around 17(c) and discovery. But I felt that the defense was entitled to the two (unredacted) notebooks. The two notebooks are at the heart of Miller's testimony. While Fitz was fighting for the notes, Bennett already told Fitz that there was nothing in Miller's notes. Now I am not sure if the documents then seen by Bennett include these two notebooks. But it means nothing when Bennet says that there is nothing in these notes. Similarly a judge may not be able to glean from these notes what the defense may be able to. I thought that the defense made a valid point of the court redacting only those parts which needed to be confidential, rather than the other way around of revealing only those things that mentioned Wilson/Plame. Overall I still have a very uneasy feeling about Judy Miller's testimony (and her article in NYT about her grand jury testimony). She had to change her testimony when Fitz caught her in an apparent lie, and she suddenly "discovered" her notes which caused her to change her testimony. I feel that she has not told the whole truth, and has just revealed enough so that she could not be prosecuted for perjury.. I feel very conflicted between my feeling that Libby is guilty and my agreement with his defense team on this issue.

    Re: New Details about Libby and Judith Miller (none / 0) (#30)
    by Edger on Fri Jul 07, 2006 at 06:35:54 AM EST
    johnforde: What is left of democracy if the Pres can secretly pardon any crime committed by his minions? Not much, john. That's one reason I wanted to start some discussion about this pardon process. I think Fitz would squawk big time. He'd probably resign. I would hope so. I think anyone with some personal integrity would. We seem to place great hope and trust in Fitgerald's integrity. Why? Because we feel he is honest, and we are not aware of any duplicity by him.
    How did an administration so good at establishing investigations and commissions that whitewashed its lies and incompetence end up with a prosecutor it doesn't seem able to squash like a bug?
    ...
    The White House apparently didn't see any red flags and probably thought that they had a good mob prosecutor on their hands - little did they know that they were going to be one of the mobs that he was going to end up investigating. So, ultimately, Patrick Fitzgerald was appointed to his current Department of Justice post in Illinois by Bush. It is worth noting that whatever autonomy he has been granted, he still does ultimately report to the U.S. Attorney General: Bushevik crony Alberto Gonzales. more...
    We have all placed so much hope in Fitzgerald. He is, so far as I can recall, probably the only bushco appointee whose integrity we never question. Why? He is a republican. He works for DoJ. He is an employee of bushco. And a long expected indictment of Karl Rove evaporated under our noses. Or is being gagged. Here is another 'thought experiment'. Are we being suckered by Fitzgerald?

    Re: New Details about Libby and Judith Miller (none / 0) (#31)
    by Deconstructionist on Fri Jul 07, 2006 at 06:43:21 AM EST
    Rule 17 (c) pertains to the production of documents and objects by subpoena of the parties and the quashing or modifying of subpoenas by the court if the subpoena nakes oppressive ofr unreasonable requests of production from the witness. I think peopole are forgetting one thing here. Libby is not on trial for disclosing Plame's identity. He is accused onf lying to the grand jury and investigators. It seems to me the whols ado about Miller is just another part of Libby's (so far unsuccessful) efforts to broaden the trial and confuse the issues. He has been endeavoring to to convert the case from a trial about whether or not he told the truth during the course of the investigation into a "show trial" regarding the intelligence that preceded the war and the efforts of the entire Administration to put its interpretation out there and to counter the interpretations of the Administrations critics in and out of government, Obviously, Libby's lawyers believe he would fare better in a wide open trial rather than one narrowly focused on the actual charges because confusion and and complexity always hinders the prosecution which has the burden of proof. Thus far, Fitzgerald has prevailed with Walton and it appears unlikely Walton intends to allow much in the way of such collateral evidence.

    Re: New Details about Libby and Judith Miller (none / 0) (#32)
    by MiddleOfTheRoad on Fri Jul 07, 2006 at 07:13:15 AM EST
    [i]Deconstructionist[/i] - I agree about the need to limit the scope of the trial to Libby's perjury. But if Miller's testimony is used for proving the perjury, then isn't the defense entitled to the 2 notebooks in question? There are several counts against Libby, and some other things against Libby may be much easier to prove beyond a reasonable doubt (e.g. his testimony about Russert). I am very wary about anything that Judy Miller said, given that she was not truthful in her first grand jury appearnace and my suspicion on how she suddenly "discovered" her notes.

    Re: New Details about Libby and Judith Miller (none / 0) (#33)
    by jimakaPPJ on Fri Jul 07, 2006 at 07:27:19 AM EST
    rumi quotes:
    The prosecutions of the individuals I am pardoning represent what I believe is a profoundly troubling development in the political and legal climate of our country: the criminalization of policy differences. These differences should be addressed in the political arena, without the Damocles sword of criminality hanging over the heads of some of the combatants. The proper target is the President, not his subordinates; the proper forum is the voting booth, not the courtroom.
    Thank you for making a very important point. The Repubs promptly ignored that with Clinton to get back at the Demos who promptly ignored it....

    Re: New Details about Libby and Judith Miller (none / 0) (#34)
    by Deconstructionist on Fri Jul 07, 2006 at 08:12:44 AM EST
    Middle: You wrote: "Deconstructionist - I agree about the need to limit the scope of the trial to Libby's perjury. But if Miller's testimony is used for proving the perjury, then isn't the defense entitled to the 2 notebooks in question?" The defense already has redacted versions of Miller's notebooks which it obtained from Fitzgerald via rule 16; Fitzgerald possessed the redacted notebooks because the grand jury had obtained them by way of a grand jury subpoena. The issue re the subpoena by Libby (Rule 17 (c)) was whether Miller would be required to turn over directly to Libby the poertions of the notebook that had not been turned over to the grand jury. Miller sought (successfully) to quash that request arguing the redacted poertions did not contain relevant and admissible evidence. Walton reviewed the redacted portions in camera (meaning he personally reviewed the materials after miller gave them to the court without letting the defense see them) and determined nothing that was redacted from the notebooks was relevant and admissible at trial (at least based on what the judge can tell now before Miller actually testifies-- you never know she might testify differently than she has in the past and that could change things). You continue: "There are several counts against Libby, and some other things against Libby may be much easier to prove beyond a reasonable doubt (e.g. his testimony about Russert). I am very wary about anything that Judy Miller said, given that she was not truthful in her first grand jury appearnace and my suspicion on how she suddenly "discovered" her notes." I am sure that Miller's credibility (or lack thereof) will be a major issue at trial. Indeed, Libby was trying to argue that because of that he needed all of the materials because only the defense can adequately determine how anything she might possess could be used as impeachment of her trial testimony. No one questions that but the defense still has to show that the materials it sought by subpoena are relevant to her credibility and admissible for impeachment. Evidently, Judge Walton determined the redacted portions were not related in any way to those issues. since we don't know what those portions were there's really no way to second-guess that at this time.

    Re: New Details about Libby and Judith Miller (none / 0) (#35)
    by Che's Lounge on Fri Jul 07, 2006 at 08:38:14 AM EST
    I hear that a spot on the pardon list opened up this week in Aspen. That's why we call him... All together now... SCOOTER!

    Re: New Details about Libby and Judith Miller (none / 0) (#36)
    by Deconstructionist on Fri Jul 07, 2006 at 08:41:35 AM EST
    On the pardon issue. There is almost very little case law but by practice Presidents have pardoned people charged with no crime let alone charged but not convicted. Remember NIXON! As for the impact on "democracy," I think the "democratic" safeguard is the ability of voters to punish the President and/or his Party if he abuses the pardon power. In some respects, at least arguably, because a President is elected every four years but the federal judiciary is appointed for life, actions by the executive branch are MORE responsive to "democratic" considerations than are the courts. Now, when a President pardons people as he leaves office (e.g., Clinton -Rich or Reagan- Poindexter) he is personally beyond reach of the electorate but the pardon can still be considered by voters with regard to its selection of other candidates. Pardons and commutations can serve good purposes in relieving the innocent of wrongful convictions, mitigating unjust punishment, providing relief, providing a mechanism to "reward" those who have repented and are deserving of some measure of mercy despite being guilty, or just providing a more expedient method of "righting a wrong" than is possible through judicial processes but the pardoning power can also be (and has at both the state and federal levels) abused. The pardoning power is derived from the Royal Prerogative enjoyed by the British monarch and it was incorporated into our system under the Constitution because it provides checks and balances on the judiciary and because it was felt some mechanism for relief was needed. It didn't have to be placed in the Chief Executive but it was and the only real check on the Executive is that the pardon must be officially reported to Congress. Congress has no authority to repeal or modify one but it can hold hearings if it chooses and could pass resolutions condemning a pardon if it wanted and certainly the electorate can consider them when voting.

    Re: New Details about Libby and Judith Miller (none / 0) (#37)
    by MiddleOfTheRoad on Fri Jul 07, 2006 at 08:44:30 AM EST
    I am aware that Libby's lawyers have a (highly) redacted version of the two notebooks. I thought from reading the transcript that the Judge will take a look at the notebooks (or maybe that meant that he will take another look at the notebooks), and that Libby's lawyers were telling him some things that they would look for. I still stand by my original comments - namely that the defense may be able to get something from the unredacted notes that the Judge would not. Since the notes are an important component of Judy's "refreshed memory", I felt that it was only fair that the defense get them unredacted (given the importance of the notes). I am sympathetic to the issue of the entire notes be prevented from going in the public domain. Maybe someone from the defense be able to see the entire notes and then some method of redaction worked out about what can be released in a public trial. As I said I am not a lawyer and do not deal with these issues. Another remarkable thing about these notes is that Miller wrote Valerie Flame on the notes and is not able to tell who gave her the name. If I were on the jury I would have a hard time believing anything Miller said.

    Re: New Details about Libby and Judith Miller (none / 0) (#38)
    by MiddleOfTheRoad on Fri Jul 07, 2006 at 09:30:33 AM EST
    Here is the relevant parts from the transcript: Judge - I GUESS I WILL HAVE TO MAKE THAT FINAL DETERMINATION AFTER I RECEIVE THE UNREDACTED COPY OF THE NOTES. AND I WILL REVIEW THAT AND MAKE THE CALL. Bennett - WE WILL SEND YOU TOMORROW, YOUR HONOR, THE REDACTED PART AND THE UNREDACTED SO YOU WILL HAVE THEM. That says to me that the Judge has not looked at the unredacted notes. It is really a tricky question of what makes something relevant and what does not. Since this is a site run by a defense attorney, I find it surprising that it is I (not an attorney) who is endorsing the request of the defense. Any comments Ms Merritt? Also it is noteworthy that Libby's defense demolished Bennett's claim about Judy's excellent memory.

    Re: New Details about Libby and Judith Miller (none / 0) (#39)
    by Talkleft Visitor on Fri Jul 07, 2006 at 09:39:36 AM EST
    Thanks for the corrections and quotations to everyone who posted them. Re: the Ford's presidential pardons in the Watergate era: I noticed when I posted earlier that subsquent to them, there were Congressional attempts to emend presidential pardons law, to amend the part of the Constitution governing such presidential pardons, but those attempts failed to gain enough support to do so. The aspect of controversy and subsequent effects on public opinion and outcomes of elections are, as said, the pressure point or check on unreasonable wielding of pardons by presidents. Those Watergate era (and later) pardons were (as people here have said) very controversial, and the controversy may have led to changes in the way some presidents would act on pardons (and some not) to avoid similar controversy (though perhaps not). Re: pre-indictment and pre-conviction pardons: there is the "spare the country. . ." argument that people see through now; after Clinton's impeachment what's another high-profile government scandal trial? But if presidents do still pardon pre-conviction (which, I agree, is an attempt to go around courts and justice by the executive branch, esp. when attorneys general themselves are involved and require presidential pardons), then there is chance that Bush will pardon Libby. But I still don't think there is any kind of pardon being done "secretly" and being done involving a bargain with Fitzgerald. I think Rove is more expendable than that and he has "lucked out" given ambiguities in the testimony before the Grand Jury. Fitzgerald did not have enough to indict him. Re: the publication date of the Vanity Fair article (sorry: I knew I should have double checked that before posting before!): still, it is not clear when Judith Miller made those annotations in question. She claims (conveniently and/or actually) not to remember. Libby's lawyers are on weak ground if they are hanging his defense on her memory, since what she remembers or fails to remember is not verifiable and no one else can testify as to the precise timing of when she wrote what except her--they are her notebooks. Libby knows what he told her (and other people). His memory is at "the heart of this case." I suppose that they are claiming that he/they need access to Judith Miller's notebooks to "refresh" his memory; but as they would be striving to interpret her notebooks to support their own case, that is a hightly dubious endeavor. Re: Libby's being indicted for perjury; whether or not he told someone (e.g., Miller) what he is accused of lying about is germane; if he was asked--Did you tell X about Y's covert status and he did not, then his denial of that is not a lie. All there are are the notes to show what they may have talked about specifically. But if the notes themselves are not clear enough to establish "beyond a reasonable doubt" (BARD) that he told X about Y's covert status, but that he told her something different from that and she figured that the connections out for herself (via earlier and/or subsequent information), then the charge against him (perjury) cannnot be proved BARD. That would seem to be the defense's argument. But I still think it's filled with red herrings, because Libby really does know what he told her (it is doubtful the he cannot remember. If her notebooks do not contemporaneously reveal what he told her precisely and precisely when he told her it (which apparently they do not--since she's been asked to reconstruct a timeline from memory), then the subsquently-made jottings still cannot prove or disprove what Libby's lawyers would argue. They are looking for reasonable doubt, but I don't think they are getting it via the "redactions" in Miller's notebooks. She made the jottings, not Libby, and, regardin them, she not he is the one whose memory is at issue, and memory, being what it is, fallible (as she has claimed hers is on those annotations), it is not the basis for proof. The memory (or lack thereof) thus cuts both ways and is too ambiguous to be convincing, and, possibly, from the pov of the court (the judge), a waste of time. Maybe the lawyers will prevail and Libby and they will get to examine the redacted notebooks in question (as it is true that maybe, unlike a judge, they could perceive something useful to the defense in them); maybe not. But, if they do, and the defense spends a lot of time in court questioning Miller re: them, they will probably still be in the territory of "red herrings" from the pov of a jury listening to all that testimony. If the case would hang on Libby's word vs. Judith Miller's word, then a jury would want to hear from Libby himself, though he does not have to testify against himself; if he did not want to answer certain questions from the prosecution, he could plead the Fifth amendment. But that would not make him look very convincing to a jury otherwise, even if his doing so can't be a basis for his conviction. If Libby and his defense counsel do get to see the redacted notebooks in question, the reason they want to see them is to build such a case for reasonable doubt of his perjury charge (his denial of having leaked Valerie Plame's identity to reporters like Judith Miller): what he said he did not say is germane if he did indeed not say it (as I said before). But I still think these are red herrings, because he himself knows what he talked about or did not talk about, and he, not Miller, is on trial for perjury etc. She has not been indicted for anything. (They seem to be trying to turn the attention to her testimony and away from his.) Of course, all that is just my opinion. Not being a lawyer is problematic in trying to sort out these issues. Again: more help from lawyers here?

    Re: New Details about Libby and Judith Miller (none / 0) (#40)
    by Deconstructionist on Fri Jul 07, 2006 at 10:21:06 AM EST
    Middle: Remember you are reading a 5/16 transcript. walton issued his order granting the motion to quash the Miller subpoena (and granting in part and deying in part the other mottions to quash filed by other parties) on 5/26/06 AFTER HE HAD CONDUCTED THE IN CAMERA review of the unredacted notebooks. Personally (because where you sit influences where you stand), I favor judges being liberal with discovery requests and subpoenas issued by defendants, but it appears pretty clear that Walton is reining in Libby's defense in terms of granting such requests and a large basis for that appears to be his determination that Libby is seeking things Walton considers not to be relevant to the issues being tried. Libby's lawyers are smart and are trying to get at such materials indirectly arguing that even if the materials are not directly relevant to the issues being tried they are relevant to impeachment of people who will be or might be government witnesses. Walton did grant some of Libby's requests pertaining to subpoenas issued to people other than Miller, but it appears clear that he is not going to give the defense much leeway to obtain materials now that only MIGHT later become relevant and admissible based upon speculation about how they might be used as impeachment. Libby's lawyers can (and no doubt will) renew the requests for the materials that have been denied if subsequent events establish a stronger basis.

    Re: New Details about Libby and Judith Miller (none / 0) (#41)
    by Deconstructionist on Fri Jul 07, 2006 at 10:51:35 AM EST
    I'm also very puzzled about why TalkLeft is portraying this belated reporting as a "scoop." the hearing was held in mid-May and following the entry of Judge Walton's order the outcome was reported in all the major media. I doubt it is the intent, but it could be interpreted as a VERY ill-advised attempt to bolster the credibility of Leopold and Truthout because TalkLeft does --inexplicably-- seem to be deferring to Truthout's self-serving claims it is reporting things not otherwise reported. The only things that truthout has reported that have not been otherwise reported ae things other sources didn't report for a fairly good reason-- THEY WEREN'T TRUE.

    Re: New Details about Libby and Judith Miller (none / 0) (#42)
    by Talkleft Visitor on Fri Jul 07, 2006 at 10:52:00 AM EST
    The germane part of the transcript in the pdf file is too long to quote here, but it goes from: MR. BENNETT: YOUR HONOR, ROBERT BENNETT ON BEHALF 20 OF JUDITH MILLER. through . . . . [JEFFRESS] 15IF WE WERE ABLE TO HAVE THE ORIGINAL NOTEBOOKS, 16 YOUR HONOR, AND ABLE TO EXAMINE IN WHAT CONTEXT -- WHAT IS 17 SHE WRITING ABOUT AND WHO IS SHE TALKING TO, AND WE CAN PUT 18 THAT TOGETHER WITH THE PEOPLE WE KNOW HAD KNOWLEDGE ABOUT 19 WHO MR. WILSON'S WIFE WAS -- AND THESE ARE PEOPLE -- THEY 20 ARE NOT IN THE WHITE HOUSE OR NOT ONLY IN THE WHITE HOUSE. 21 THEY ARE IN ALL KINDS OF DIFFERENT AGENCIES. TO SOME 22 EXTENT, THEY ARE EVEN REPORTERS. BUT IF WE COULD PUT 23 TOGETHER THE ENTRIES THAT SHE PUTS DOWN, IT'S GOING TO BE 24 INCUMBENT ON US TO FIND OR TO BE ABLE TO FIGURE OUT -- TO 25 CROSS-EXAMINE MS. MILLER AT LEAST ON WHERE THIS INFORMATION 11 1 COULD HAVE COME FROM. 2 WE CANNOT DO THAT. WE CANNOT DO THAT WITHOUT 3 ACCESS TO THE ORIGINAL NOTEBOOKS THAT SHOW THE CONTEXT AND 4 THE DATE OFTEN ON WHICH SHE MADE THESE ENTRIES. [bold and italics added.] At the end: Notice the word "Often": it's not "always." Apparently, as she has already testified, she did not date when she went back over her notebooks and added comments to already existing (and dated) "entries" (or, as Jeffress says, may have pre-noted something prior to talking with Libby or others to get confirmation of information unknown to her beforehand): among those comments in her notes are the names. I don't see how that would really help the defense in questioning her, because she already claims in her own sworn testimony not to remember when she wrote them, and it is unlikely that her memory will improve rather than weaken with time. Unlike the comments on these blogs, there are no date/time stamps and they are not audio/video tapes that have such evidence of dates and times. Whether her contemporaneous dating of her notes is even correct could be an issue. Her subsequent and retrospective note-jotting is even more problematic. Nevertheless, it is still possible that the judge will grant the defense access to these materials after reviewing them first. I agree with the previous response by Deconstructionist to Middle re: "discovery": that argument could outweigh the arguments for continuing protection of the redacted material and, in the context of an actual trial (as opposed to a Grand Jury hearing) and the defendant's right to due process and his ability to have a fair trial, the trial judge may want to err on the side of disclosure of this previously-redacted material. Though, as just posted above, it appears that he is moving in the opposite direction. It may be also that Jeffress on behalf of Libby is establishing this issue in the record as bases for later requests both during trial and for subsequent appeals should he be convicted of the charges in this case. (?)

    Re: New Details about Libby and Judith Miller (none / 0) (#43)
    by MiddleOfTheRoad on Fri Jul 07, 2006 at 11:02:47 AM EST
    Thanks Deconstructionist. I presume that the judge is doing everything by the book, and with the intent to prevent a future appeal.

    Re: New Details about Libby and Judith Miller (none / 0) (#44)
    by Deconstructionist on Fri Jul 07, 2006 at 11:21:19 AM EST
    Susan: Again, the Judge did review the materials in camera before issuing his order. He knows though that such determinations are impossible to be made definitively now. He may very well allow access if after testimony it becomes clear that information in the withheld materials directly bear on the credibility of a witness. What he was saying in effect is that materials that will only become relevant upon the establishment of a future condition THAT MAY OR MAY NOT be established, he is not going to allow access because it is, in his view, a fishing expedition by the defense seeking to use subpoenas as a discovery device to obtain materials that MIGHT LEAD to relevant admissible evidence when under the CRIMINAL (as opposed to the much broader civil) rules of procedure, subpoenas are more limited and must pertain to materials that ARE relevant and admissible. The case against Libby is not a great one (perjury and false swearing charges are rarely brought even when the evidence is far stronger and more difficult to refute than in this case because it is so difficult to show both a statement of material fact so unambiguous it cannot possibly be reconciled with any version of the "truth" and because even if that can be done it is still hard to show the required level of intent. On the other hand, beliefs about the difficulty of convicting for perjury and false swearing may be in the nature of self-fulfiiling prophecies because prosecutors limit the data available to really judge how difficult they are by bringing so few cases.) With regard to miller, Walton apparently determined the redacted portions were as Bennett portrayed them -- simply things she took down during the same time frame that have nothing to do with the Plame/Wilson matter. Note, that Walton did require Time/Cooper to turn over things written down that were not entirely consistent with what was later written because that does go directly to impeachment. If you say two different things both can't be true and regardless of which one (if any) a factfinder believes, there can be no arguing that a person who says two different things at different times is generally less reliable as a reciter of facts.

    Re: New Details about Libby and Judith Miller (none / 0) (#45)
    by Talkleft Visitor on Fri Jul 07, 2006 at 12:07:55 PM EST
    Thanks to both Middle and Deconstructionist (are you in literary criticism too?) for clarifications re: this matter. Being an interpreter of literature is sort of the opposite of being an interpreter of the law at times and at times it's pretty good training for the law. Students often call these distinctions professionals revel in "nitpicking." Sometimes those "nits" can be the basis for attaining one's freedom from unjust imprisonment, or the basis for convicting those who are guilty beyond a reasonable doubt. Undergraduate English departments frequent tout their programs as good for "pre-law" majors; more advanced degrees in literature in tandem with law degrees might not be a bad combination either. Still there are no excuses for lack of knowledge of the law when people are trying to argue pro or con a legal argument that depends on knowledge of the law! Again, apologies for any mistakes throughout, due to such lack of such knowledge and the time to fill it in (e.g., the Vanity Fair issue date)! Once an an "English major" always an "English major"--as per Garrison Keillor!--at least we know both how to Google and to do library research in printed materials. ;)

    Re: New Details about Libby and Judith Miller (none / 0) (#46)
    by Talkleft Visitor on Fri Jul 07, 2006 at 12:09:31 PM EST
    Here are some unlawyerly observations I've made along the way that might be considered. I can provide links at the end of the workday but time is short right now. James Comey is an important element in the investigation. He was at odds with the Bush admin during his time and Bush didn't care much for his nonpartisan justice. Comey assigned the investigation to Fitzgerald, an old and Trusted friend, right before he left to go to Lockheed. Comey had this authority as Ashcroft recused himself but Ashcroft was providing (BushCo) updates up until that time as well as helping cover. BushCo had counted on the friendlier DoJ and the press to stand on not revealing sources as a way to avoid any ugly investigation. This was working until Comey appointed Fitzgerald. There were inconsistencies in testimony from the DOJ/FBI interviews and the GJ testimony from the start. If Libby could be indicted for inaccuracy/lying then it's fair to assume others have been looked at hard for more serious violations. The notice to preserve evidence that was violated by Ashcroft-Gonzales-Card is clear when later on more email was found that was thought to be destroyed. This also pits Cheney against Libby, Rove and others for future testimony. Seeing as how very few have even been sworn in for most public testimony, it's hard to imagine this ever going to public trial. Fitzgeralf seems to be honest and dedicated but mostly sincere to the oaths of his duty/office. I've read accounts of some hideously hard but legal tactics to get his convictions but the public's integrity seem to have been his main objective. I say this because I believe he will do what is required but he will also use the system to his advantage. The GJ secrecy is perfect to avoid public disapproval from all sides and to avoid disclosing anything damaging or embarrassing. He is not required to file a report when he's done. If authority above him seals any proceeding I'm sure he would guard that against any possible disclosure. He made a point to be public when he requested the 'Nigergate' documents from Italy. Rove was allowed 4 or 5 appearances to straighten out his testimony to avoid indictment Early on...July 2004 (?) Bush hired the same lawyer as had been representing Ken Lay...James Sharp, when Bush was required to 'interview' with Fitzgerald. Plame was strongly identified with WINPAC.

    Re: New Details about Libby and Judith Miller (none / 0) (#47)
    by Talkleft Visitor on Fri Jul 07, 2006 at 12:25:37 PM EST
    thanks all for your due diligence on getting the relevant documents, guys and gals. i found rumi's posting at 6:11 to be the most disturbing. some of the quotes sounded as though they would do the job in the present cover-up. The prosecutions of the individuals I am pardoning represent what I believe is a profoundly troubling development in the political and legal climate of our country: the criminalization of policy differences. i remember when they trotted this out in relation to Cheney's Enron-Energy Task Force. (and now we all know about the integrity of 'Kenny-Boy'.) What an unimaginative, corrupt den of thieves inhabit Bush's scandal-ridden white house.

    Re: New Details about Libby and Judith Miller (none / 0) (#48)
    by Talkleft Visitor on Fri Jul 07, 2006 at 12:47:36 PM EST
    I just returned to post a blogger's link (also posted in an archived thread by TL) to the ''Vanity Fair'' article from Jan. 2004: here it is. What I meant earlier is that since Judith Miller couldn't attest to when she wrote the names in for "Victoria" (Valerie) Wilson and "Flame" (Plame), etc., she could have read or heard about the article (or about them from "sources" other than Libby--people or other kinds of sources [publications, rumor, gossip]) and made her annotations both after talking with Libby and after the article was published. The article was published in Jan. 2004, Miller's subpoena was issued in Aug. 2004, and she testified later. She could have made those annotations apparently before the meeting with Libby but actually after the Jan. 2004 publication of the VF article and also before her subsequent testimony but not dated them and not remembered precisely when she wrote them (plausibility issues there?) She could have written those annotations in preparation for her testimony. Only she really knows when she wrote them, and she says that she doesn't remember. My guess is that she will stick to that (or risk being charged with perjury herself). A really shrewd person trying to doctor the record (perhaps to protect her source, Libby) could have purposely filled in "Victoria" instead of "Valerie" and "Flame" instead of "Plame" to cover up her actual knowledge (not to ferret confirmation out of Libby, as his defense claims in the May 2006 transcript) at the time and to make it appear that she did not know what she did in fact know. I'm not saying that she did so, but it is possible. She had custody of her own notes up to a point in time (I don't know exactly when she handed over the notes to the Grand Jury for examination--it should be in one of the timelines.) The "newly discovered notes" that seem to have gotten her off the hook are not referred to in the NYTimes interactive graphic leak timeline until later in 2005 (Oct. 12, 2005) (after the publication of the Vanity Fair article). Hindsight can be everything (or nothing), in this case. Hard to tell as there are such verifiability issues. If someone fools around with evidence, it is not always clear what their motivations might have been after the fact (from the pov of Libby's lawyers, e.g.); reconstructing factual history based on potential falsehoods (lies) is fraught with problems of interpretation; what might seem likely can be very unlikely, given the peculiarities that human beings and their personal motivations introduce. If someone is actually telling the truth, then things may seem a great deal more consistent and easier to sort out, because "facts" match. "If the glove doesn't fit, acquit. . . ." is a case in point. "Facts" (gloves not fitting) do not always match reality when there are intricate webs of lies; things can just be coincidences and make lies look like truths. And then some coincidences are made to look like facts, when they are mere consequences of chance (or when time makes material facts and judgments of them shrink to match desired circumstances and wished-for results). (I often wonder why that is why OJ looked so surprised at his ultimate acquittal in the criminal case and was so annoyed that he didn't get the same break in the civil case; it's as if, once acquitted, he came to believe in his own innocence of a crime that many people still believe he must have committed. Having followed that whole case in real time, I was about as taken in as the jury; all I know is that the defense proved "reasonable doubt" and that led to his acquittal; whether or not he committed the crime is an entirely other issue; he was acquitted in what ultimately was a fair trial (given all the problems with the handling of the evidence), though not necessarily a "just verdict." (Granted, probably only an "English major" might have this kind of take on these matters.)

    Re: New Details about Libby and Judith Miller (none / 0) (#49)
    by Talkleft Visitor on Fri Jul 07, 2006 at 12:51:13 PM EST
    in 2005 (Oct. 12, 2005)
    : sorry folks: that was a typographical error (and I did preview!). In both instances, I meant to type "2004." The subpoena to Judith Miller occurred Oct. 12, 2004; the VF article was published Jan. 2004.

    Re: New Details about Libby and Judith Miller (none / 0) (#51)
    by Talkleft Visitor on Fri Jul 07, 2006 at 01:21:37 PM EST
    And here's the pdf file of the subpoena (Aug. 2004). The notes were not even asked for until then; that was after the publication of the VF article in Jan. 2004. How does one know ''when'' Judith Miller made those annotations. The annotations may appear on notes of a 2003 meeting, but the notes themselves were not acquired by the Grand Jury as a result of the subpoena until after Aug. 2004 (and after her release from imprisonment for contempt of court ended), when she claimed "victory" for "freedom of the press." It is plausible that she could have made those annotations after the fact of 2003 and after Aug. 2004; how can anyone know when she made them? (In going over her own notes at any point before the meeting in 2003 or after the meeting in 2003 and before the Grand Jury got the notes from her, she could have reviewed those notes and written things on them. By then everyone knew the actual names "Valerie Plame" and "Mrs. Joseph Wilson" to be the same person and a covert CIA operative, due to the Grand Jury investigation and the press about it. Why would she have written "Victoria" and "Flame?" If she were being devious, it would be to throw people off the track? Or, as Libby's counsel Jeffress argues, it could have been prior to meeting with Libby. Or not. . . . ??? Again, without actual truthfulness or perfect memory from Judith Miller, what is there? Personally, being a writer who interviews people on tape and then goes over my transcript of the interview and annotates it, I find it very hard to believe that Judith Miller does not remember when she wrote what. Most of us have a nearly- photographic memory for our own recorded notes and can find them in piles of papers strewn every which way and that way (much less in neatly-arranged notebooks)--as if they were needles in haystacks. We actually do remember where we put things according to our memory of WHEN we worked on them, indicating what part of a pile to dive into. Some of these arguments involving notes and notebooks and timelines just are counterintuitive, run counter to ordinary (journalisitic) experience. Maybe, in part at least, that is why Judith Miller no longer works for the Times: her fellow journalists do not accept her account of the events. At least that's how it seems to me from this vantage point in time. I could be entirely wrong about that, and she could be wholly telling the truth about everthing, but an awful lot of people (incl. some posting above) just instinctively do not trust her account. That, however, is hardly evidence "beyond a reasonable doubt." It's just regular old doubt (mistrust), I don't know whether or not it's "jury"-level "reasonable," and, after all, she's not on trial (at least not yet); Libby is. Let's see how his defense does on building "reasonable doubt" with a jury (if it gets to trial in 2007, and he hasn't been "pre-trial" pardoned before then (edger's concern). According to some above, the case against Libby is a "weak" one, however, and so he might not even be convicted. Perhaps he'd rather be acquitted in a court of law than pardoned in a questionable gesture by an increasingly-questionable president (who could be hauled into any number of federal and international criminal courts himself some day)--if things go well. ;)

    Re: New Details about Libby and Judith Miller (none / 0) (#52)
    by Deconstructionist on Fri Jul 07, 2006 at 02:09:26 PM EST
    Susan: Yuu write: "The notes were not even asked for until [8/04]; that was after the publication of the VF article in Jan. 2004. How does one know ''when'' Judith Miller made those annotations[?} The notes themselves are hearsay and are very unlikely to be admissible themselves. The only hearsay exception i can think of (off the top of my head anyway) that might apply is "recorded recollection" which (paraphrasing) allows for admission of a writing concerning a matter about which the witness once had knowledge but now can't remember. But, (and this appears to be a very significant "but" in this case) in order for the writing to be admissible the witness must be able to testify the writing was made when the matter was fresh in her memory AND that the writing accurately portays the knowledge she had at the time in question. Given, her testimony already in the record that makes it unlikely her notes will ever be admitted and published to the jury. Assuming that foundation could be laid, the notes would be authenticated by Miller herself by testimony the offered exhibit is her notes and the exhibit accurately reflects the contents of the notes as of the time to which they are relevant. (again, that might to be problematic given her testimony about not remembering things). (this sort of illustrates why Walton did not require the entire notes to be produced. It is apparently in his view unlikely they would be admissible. (Tactically, even if they are admissible I can't see Libby really wanting them admitted. Introducing something which is arguably inculpatory to the defendant to attack the witness's credibility it is a dangerous approach. It is safer tto use other means to impeach the credibility of such a witness. you nver know. seeing the notes could very well cause some to believe Miller's testimony where they would not have believed it without seeing the notes. I'd probably sticking to her prior testimony she doesn't remember everything and not risk at least some jurors thinking well she says she wrote it down accurately at the time and that's believable and it supports some of what she said otherwise. "The annotations may appear on notes of a 2003 meeting, but the notes themselves were not acquired by the Grand Jury as a result of the subpoena until after Aug. 2004 (and after her release from imprisonment for contempt of court ended), when she claimed "victory" for "freedom of the press." "It is plausible that she could have made those annotations after the fact of 2003 and after Aug. 2004; how can anyone know when she made them?" Sure, it's plausible and only she can testify as to when the notes were made and whether they were subsequently altered. "Again, without actual truthfulness or perfect memory from Judith Miller, what is there?" "Actual" truthfulness is often an unknowable concept. The issues would more accurately be whether the judge finds her reliable if he has to make evidentiary rulings on whether an adequate foundation for admissibility exists, and, if that hurdle is crossed, whether the jury then finds her reliable and persuasive when it is considering the evidence for the purpose it is admitted. "Personally, being a writer who interviews people on tape and then goes over my transcript of the interview and annotates it, I find it very hard to believe that Judith Miller does not remember when she wrote what." Well, I guess Jeffries and Fitzgerald might both want to consider that when selecting the jury.

    Re: New Details about Libby and Judith Miller (none / 0) (#53)
    by Talkleft Visitor on Fri Jul 07, 2006 at 03:13:23 PM EST
    Deconstructionist- You appear to be mistaken on the narrow scope of Fitzgerald's investigation and the posiibilities of who/what else 'the facts have led'. That would make some of the subsequent arguments inaccurate.
    APPOINTMENT OF SPECIAL PROSECUTOR TO OVERSEE INVESTIGATION INTO ALLEGED LEAK OF CIA AGENT IDENTITY AND RECUSAL OF ATTORNEY GENERAL ASHCROFT FROM THE INVESTIGATION December 30 2003 MR. COMEY:... ...The first development is that effective today, the attorney general has recused himself and his office staff from further involvement in this matter. By that act, I automatically become the acting attorney general for purposes of this case with authority to determine how the case is investigated, and if warranted by the evidence, prosecuted. ... I have today delegated to Mr. Fitzgerald all the approval authorities that will be necessary to ensure that he has the tools to conduct a completely independent investigation; that is, that he has the power and authority to make whatever prosecutive judgments he believes are appropriate, without having to come back to me or anybody else at the Justice Department for approvals. Mr. Fitzgerald alone will decide how to staff this matter, how to continue the investigation and what prosecutive decisions to make. I expect that he will only consult with me or with Assistant Attorney General Ray, should he need additional resources or support ... Q: How will he juggle it with his duties based in Illinois? ... MR. COMEY: Well, that's a call he'll have to make. He understands the priority here. I told him that my mandate to him was very simple: Follow the facts wherever they lead, and do the right thing at all times. And that's something, if you know this guy, is not something I even needed to tell him. ... Q: Could you fire Fitzgerald? .. MR. COMEY: That's a great question. (Laughter.) Now I believe that I could revoke the delegation of authority that I've given to him. I don't believe that I could -- .. Q: So how does that move it outside the traditional chain of command, as you put it? ... MR. COMEY: Well, because what I've done with Fitzgerald is -- the normal outside counsel, appointed outside, or the ordinary U.S. attorney, if he needs to issue a subpoena involving the media, for example, or if he wants to grant immunity to somebody or if he wants to take an appeal, has to come for approval to the Department of Justice. Pat Fitzgerald will not, for these purposes. .... Q: You mentioned that the -- you felt that Fitzgerald will have a broader -- actually a broader mandate, broader abilities than an outside counsel. Can you expand on that a little bit? In what respect will he have a -- ... MR. COMEY: Yes. An outside counsel has a -- the regulations prescribe a number of ways in which they're very similar to a U.S. attorney. For example, they have to follow all Department of Justice policies regarding approvals. So that means if they want to subpoena a member of the media, if they want to grant immunity, if they want to subpoena a lawyer -- all the things that we as U.S. attorneys have to get approval for, an outside counsel has to come back to the Department of Justice. An outside counsel also only gets the jurisdiction that is assigned to him and no other. The regulations provide that if he or she wants to expand that jurisdiction, they have to come back to the attorney general and get permission. ... Fitzgerald has been told, as I said to you: Follow the facts; do the right thing. He can pursue it wherever he wants to pursue it. ... An outside counsel, according to the regulations, has to alert the attorney general to any significant event in the case; file what's called an "urgent report." And what that means is just as U.S. attorneys have to do that, he would have to tell the attorney general before he brought charges against anybody, before maybe a significant media event, things like that. Fitzgerald does not have to do that; he does not have to come back to me for anything. I mean, he can if he wants to, but I've told him, our instructions are: You have this authority; I've delegated to you all the approval authority that I as attorney general have. You can exercise it as you see fit. ... And a U.S. attorney or a normal outside counsel would have to go through the approval process to get permission to appeal something. Fitzgerald would not because of the broad grant of authority I've given him. ... So, in short, I have essentially given him -- not essentially -- I have given him all the approval authorities that rest -- that are inherent in the attorney general; something that does not happen with an outside special co ...full Q and A at link above
    Re: New Details about Libby and Judith Miller (none / 0) (#54)
    by Talkleft Visitor on Fri Jul 07, 2006 at 05:16:42 PM EST
    Does anybody know when Sealed vs. Sealed is supposed to be unsealed? Thought it was any week now, according to Truthout and Co.

    Re: New Details about Libby and Judith Miller (none / 0) (#56)
    by Talkleft Visitor on Sat Jul 08, 2006 at 07:39:44 AM EST
    Dc- What authority or intentions would Fitzgerald have to request the Niger forgery document investigation from Italy, to present to a (the) grand jury concerning the Plame investigation?

    Re: New Details about Libby and Judith Miller (none / 0) (#57)
    by Talkleft Visitor on Sat Jul 08, 2006 at 07:47:52 AM EST
    Posted by phi x174 July 7, 2006 06:16 PM Does anybody know when Sealed vs. Sealed is supposed to be unsealed?
    I think it's the transcript featured in this thread from what I've seen elsewhere. If so, that would kill the sealed v sealed theory being a Rove indictment, wouldn't it? Other possibilities would still remain but this might justify other claims.

    Re: New Details about Libby and Judith Miller (none / 0) (#58)
    by Deconstructionist on Sat Jul 08, 2006 at 10:04:12 AM EST
    There are two cases in the DC District Court with "128" in the case number/ one is a miscellaneous action relating to the actions brought to quash subpoenas in the Libby case; the other is in fact a sealed criminal matter before the District Court. this has been causing confusion from the outset. there is no reason to connect the sealed criminal case to Fitzgerald beyond the fact he is operating with a D.c. District Grand Jury. As for Fitzgerald's ability to subpoena Niger related documents that could be done and the custodial agency[ies] could file motions to quash and then there would have to be a showing that the documents requested related to the investigation within fitzgerald's delegation. One thing to note is that there is a difference between a subpoena issued by a GRAND JURY and one issued by a PARTY (prosecution or defense). Party subpoenas are limited to specific requests for documents or objects that are admissible and relevant at trial. GJ subpoenas may be enforced where the object of the subpoena does not meet that standard because GJs are investigatory bodies. With a GJ subpoena it would not be necessary to show the requested documents would be relevant and admissible at a trial based on known specific charges. In general, all that would be required is a showing they are sought for a proper investigatory purpose within the jurisdiction of the GJ (although in this particular case "classification" issues exist and a motion to quash might be granted based "national security matters.

    Re: New Details about Libby and Judith Miller (none / 0) (#59)
    by Talkleft Visitor on Sat Jul 08, 2006 at 02:03:01 PM EST
    Dc- The clarification on Fitzgerald's authority was found in the 2nd letter, available on the Fitzgerald website and probably the same one you refer to. The bold emphasis is mine and notes the greater authority, in my opinion. For instance, if the facts led to criminal activity that was established to be done as part of a greater effort that the original alleged crime involved, then it's open to pursue as part of this investigation. If a number of events that occurred were related as part of a retaliation against Wilson, then all of those events would be included.
    At your request, I am writing to clarify that my December 30, 2003, delegation to you of "all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity" is plenary and includes the authority to investigate and prosecute violations of any federal criminal laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses...
    I think Fitzgerald requested and received the Niger Dossier from an international entity.

    Re: New Details about Libby and Judith Miller (none / 0) (#60)
    by Deconstructionist on Mon Jul 10, 2006 at 08:14:15 AM EST
    That delegation is limited to: "unauthorized disclosure of a CIA employee's identity" is plenary and includes the authority to investigate and prosecute violations of any federal criminal laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses" That delegation does not provide authority to prosecute crimes not related to the disclosure of Plame's identity or the obstruction of the investigation into THAT disclosure. As I said, if Fitzgerald were to happen upon evidence tending to show OTHER crimes were committed, he would need to seek an expanded delegation to pursue charges. That is not the same as being unable to have the GJ seek documents which may or may not contain evidence of other offenses where those documents are believed to possibly contain information which helps explain events related to the disclosure.

    Re: New Details about Libby and Judith Miller (none / 0) (#50)
    by Deconstructionist on Thu Jul 13, 2006 at 11:27:36 AM EST
    Susan: No, I'm not a literary critic (or for that matter a "deconstructionist" in the sense it is commonly used in philosophy. I really use the moniker ironically because I very much believe language/expression relates to ideas and thooughts that have "extra-textual" significance and meaning). rumi: Well, Comey is gone now. I'm not sure who would be now charged with delegating Fitzgerald a broader mandate if he sought one to pursue charges outside his existing delegation (which is limited to the disclosure of Plame's status with the CIA and obstruction offenses committed during that investigation). I'm not sure that Bush/Cheney really had particular concerns over the selection of Fitzgerald. In many respects his approach has been helpful to the Administration; he is cautious and appears to view his job as strictly limited to prosecuting crimes-- and only those crimes he believes he has strong reason to expect convictions. It is Fitzgerald who is working to keep this case narrowly focused and not have it devolve into a "show trial" over the administrations handling of intelligence and response to its critics. He is also very circumspect regarding publicity and the media. I think this whole thing is far more politically significant than legally significant. a different prosecutor with a different approach could have potentiually greatly exacerbated the political ramifications. I have no doubt that the WH always has been concerned more over political fallout than criminal justice proceedings. It seems to me (and this undercuts Libby's defense) that the motive for obstructing the investigation into the leak was not to prevent more prosecutions but from preventing disclosures that would be damaging politically. That undercuts Libby's defense because it is in large part built on the premise HE LACKED MOTIVE to lie and subject himself to these charges because neither he nor anyone else was ever in serious jeopardy of being convicted of "outing" Plame. that may well be true but he still had a HUGE MOTIVE TO LIE insofar as politcally the disclosure that the WH outed Plame was very damaging regardless of whether any crime was committed in doing so. In one way of looking at it, the whole course of events has helped the Administration because attention has been diverted from the best argument Bush opponents have: It was unethical and morally wrong for the Administration to LEAK as it did and Bush is reneging on his pledge to fire any leakers. [remainder deleted due to length, please be respectful of bandwidth.]

    Re: New Details about Libby and Judith Miller (none / 0) (#55)
    by Deconstructionist on Thu Jul 13, 2006 at 05:52:35 PM EST
    rumi: No, I am not mistaken. You read the statements made by Comey too broadly. Look at the actual letters of delegation to Fitzgerald. Available here: [link deleted not in html format] Fitzgerald's delegation is limited to investigating and prosecuting potential crimes committed in the "outing" of Plame and those committed to obstruct THAT investigation. He DOES NOT have an open ended mandate. He has the authority of the AG ONLY WITHIN THE PARAMETERS OF HIS DELEGATION. Should he desire to expand his investigation and pursue prosecutions of potential crimes outside that narrow scope he will need to seek a broader delegation. Hypothetically, if someone he debriefed during this investigation were to tell him that "Official X paid a bribe in 2002 to a foreign government to manufacture false intelligence," fitzgerald could not prosecute that case without going back to the AG's designee and seeking a new delegation that would allow him to pursue it. DOJ could then grant the request and broaden Fitzgerald's delegation, appoint a DIFFERENT special counsel to pursue that, pursue through regular DOJ offices or decline to pursue it. Fitzgerald has LIMITED authority and cannot act outside his delegation. Certainly, it would be politically difficult for the Administration to refuse to broaden his delegation if he requested it, but there is no question it could be done and there is nothing fitzgerald could do about it.

    New Details about Libby and Judith Miller | 60 comments (60 topical)