As an amatuer musician and mathematics addict I realized a long time ago the two skills were mixed. Some people’s minds are wired to see music, which is tightly coupled to math skills. One interesting way to think about this is to see music as the absence of noise. This may seem strange but if you think about what drummers do, is the strategically place silence in between their poundings. In any event, how one looks at issues or information is very much connected to their skills and experiences.

I tend to look for what is not there, as well as to what is there when assessing information. It is critical in my line of work as an engineer to identify what is missing or incomplete. We can deal with known-unknowns, we hate unknown-unknowns (if your head is hurting already just trust me on this).

So when I read the Libby indictment I noticed immediately what it did not say. And I naively expected good normal people to share my warped insight. My bad. I replayed these insights in this comment at Just One Minute (JOM), and decided to create a post from them and try once again to show how deductive reasoning illustrates how little Fitzgerald has for a case against Libby.

To begin with, while the indictment carries a lot of context (which Team Libby is using to beat up the SP with) the charges are very limited – and telling! The charges involve conversations with three reporters: Russert, Cooper and Miller. Most of the charges are from one conversation Libby had with Russert and one had with Cooper.

The Russert conversations is part of Count 1 (obstruction), all of Count 2 (false statement) and all of count 4 (perjury). Counts 2 and 4 are the same material, different laws (so the jury can select a big crime or a little crime if need be). The Cooper conversations are part of Count 1 again, and all of Counts 3 (false statement) and 5 (perjury). As with Russert, Count’s 3 and 5 are the same subject matter, different law.

So if we look at this, the Cooper/Russer conversations make up 80% of the Counts against Libby, and 66% of the remaining count. The Miller conversations (3 of them) are a small fraction of the charges against Libby (less than 7% if you weight the interaction with a reporter equally). So let’s look at the Russert and Cooper related charges which compromise over 90% of the indictment.

Here are the charges (no context) related to Russert in Count 2 (and repeated in a slightly different form in Count 4):

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

a. Russert did not ask LIBBY if LIBBY knew that Wilson’s wife worked for the CIA, nor did he tell LIBBY that all the reporters knew it; and

b. At the time of this conversation, LIBBY was well aware that Wilson’s wife worked at the CIA;”

Note what Fitz is charging Libby with. In (a) Fitz claims Libby lies because he remembered Russert talking to him about Plame, specifically Russert asked about her job in the CIA and Russert saying he is hearing it from reporters. What Fitz doesn’t accuse Libby of doing is telling Russert about Plame. Why? Well, if we go to section 20, under Count 1 (where 35 sections of background are presented for context) we have this:

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

The argument I was having over at JOM with a delusional lefty was over my contention that Fitzgerald assumes Libby did not leak information to the reporters as part of the indictment. OK, it is clear from these two bits of information this is exactly the basis of Fitzgerald indictment regarding nearly half (45%) of the of the charges in the indictment.

Fitzgerald is clearly claiming Libby was lying when he said HE DID TALK TO RUSSERT ABOUT PLAME! Got that? Libby lied when he admitted talking to Russert about Plame because Russert did not recall the topic. Knock one off. Fitzgerald is calling Libby a liar when he claims he talked about Plame to a reporter.

Let’s now look at the charges on the Cooper conversation. First off it is important to recognize Cooper admits bringing up Plame to Libby, and concurs Libby said something like ‘yeah, I heard that too’. OK, someone tells me they heard Pink Floyd or Genesis was getting back together again I would say ‘yeah I heard that too’ and it would not mean in terms of it being true, or me believing it was true, or me trying to convey it was true to the person I told. So we need to start with the fact everyone agrees, again, Libby did not leak to Cooper. Here are the charges from Count 3 (no context):

“As defendant LIBBY well knew when he made it, this statement was false in that:[1] LIBBY did not advise Cooper on or about July 12, 2003 that reporters were telling the administration that Wilson’s wife worked for the CIA, [2] nor did LIBBY advise him that LIBBY did not know whether this was true; rather, [3] LIBBY confirmed for Cooper, without qualification, that LIBBY had heard that Wilson’s wife worked at the CIA;”

Emphasis and numbering mine. The first claim [1] is a supposed false statement from Libby saying he thought he told Cooper he heard the story about Plame from reporters. Well, all Cooper would confirm is Libby saying ‘ I heard that too’ – which Fitz admits in [3]. Libby contends that was his intended meaning. Fitz, in [3], plays mind reader and claims Libby meant that as a confirmation. Sorry, but without facts (and since Cooper did not take the meaning of Libby’s words the way Fitz claims) there is nothing there.

But I want to focus on [2], because the same wording is used in the Miller conversations which make up one third of Count 1 where it is combined with these very same Cooper and Russert claims to build the Obstruction of Justice count (where was the judge when he let this garbage go to trial?). Here is two again, isolated:

“As defendant LIBBY well knew when he made it, this statement was false in that: …[2] nor did LIBBY advise him that LIBBY did not know whether this was true;…”

Libby has testified he believed told reporters that he did not know whether the story about Plame was true. He is claiming he tried to warn them it may not be true. He is claiming he clearly, pro-actively was not confirming the story. Fitz says he is lying. But Fitz is NOT claiming Libby told reporters the story was TRUE! If Libby had told reporters it was true, then the indictment would actually be a strong and serious case. Here is why.

Let’s do some deductive reasoning through what if scenarios. Let’s assume Libby talked to Cooper about Plame, and then he said ‘it is true, we have the information, she is from the CIA’. The reporter, when asked, would have to say Libby vouched for the authenticity of the story – he would have said Libby confirmed it. So, under this scenario Libby is testifying he told reporters he could not confirm it, but in reality he did confirm it and reporters recall the confirmation. This is the ‘leak actually did happen’ scenario.

Well if this was the case, does anyone think Fitzgerald would have simply charged Libby with falsely claiming he gave an explicit ‘no confirmation’ to reporters? Of course not! If Fitzgerald had evidence that Libby explicitly CONFIRMED the Plame story, and then testified he had explicitly NOT CONFIRMED the story, the perjury and false statements would be solid charges.

This is what I meant above about what was NOT in the document. Simple logic shows Libby says he was explicitly not confirming the story (per Fitzgerald himself and testimony) and Fitzgerald is claiming he made no such statement. He is also not claiming he made the opposite assertion confirming the story – so therefore Fitzgerald is also assuming from the evidence Libby did not confirm (and did not ‘not confirm’) the story with Cooper!

OK, now we have shown over 93% of the indictment demonstrates Fitzgerald is assuming Libby did not leak Valerie’s story to Russert and Cooper.

Now onto Miller. Here it get’s murky because in the context sections of Count 1 Fitzgerald makes claim after claim of Libby telling Miller about Plame. But it is all to establish Lilbby knew about Plame before he talked to Russert. Fitzgerald never tries to use the Miller conversations to show, again, Libby confirming the rumors or stories about Plame. Strange? Well, not when you compare the charges related to Miller in Count 1 to the charges related to Cooper in Count 3:

“LIBBY did not advise Judith Miller, 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 her that LIBBY did not know whether this assertion was true;”

Yep, we have that same lack of ‘confirmation’ and ‘non-confirmation’ as we did with Cooper. I guess Fitzgerald thinks he can slip by only half the facts to the jury and judge. I guess we have to admit he got it by the judge. Clearly Fitzgerald cannot show Libby confirmed the Valerie Plame story with Miller either – because if he did he would have Libby in a real lie.

So, I stand by my claim. Fitzgerald’s indictment shows, without a doubt, he assumes there was no confirmation (and therefore leak) to Miller and Cooper. And he himself claims no discussion about Plame with Russert. I rest my case.