*** updates at the end ***

Tom Maguire has begun his analysis of the latest Libby filing here. Tom also has links to the documents. It is a large 45 pager which I will be reviewing and commenting on in this post as time permits. Keep checking back for updates as the day (or days) progress.

From the first PDF. There are lots of tidbits in there. I will try not to repeat Tom’s findings, but I don’t have the time to cross reference – so my apologies for being repetitive. I like the premise of the argument that the press has not fundamental right to privacy when it comes to providing an America citizen a fair trial.

The central value of our criminal justice system is the defedant’s right to a fair trial – one in which the government’s case can be rigorously challenged and the defense fully presented. …To that end, the Constitution affords criminal defendants the right to obtain evidence and, when necessary, to compel its production.

Anyone who argues against that basic premise is just not thinking straight. The press is not above the law, and too many times its irresponsible, callous and greed driven actions have injured good, decent people without consequences. It is time to put responsibility back into ‘responsible journalism’.

I find it interesting, and sadly representative of what a shoddy or deliberately biased job Fitzgerald did in executing his charter to find who leaked Valerie Plame’s namd, that the information being sought by Libby was not sought (can we say ‘ignored’) by the SP. Page 6:

Accordingly, he [Libby] has issued his own subpoenas to obtain from those same reporters and news organizations [subpoened by the SP] evidence that the Special Counsel did not obtain, and that Mr. Libby will use to attack the government’s case and prove his innocence at trial. Among other things, the documents sought will ehlp to show whether it is Mr. Libby or the reporters who have misstated or misrecollected the facts.

This is Fitz-Magoo’s Achilles Heel. He knew early on neither Libby nor Rove where the ones who leaked Plame’s name to the media – the charter and sole purpose of his investigation. But he went on a witch hunt anyway, and has been caught withholding and now ignoring exculpatory evidence he must have known to exist.

An interesting foot note on PDF Page 7 (Page 2 using document numbers) thats states Tim Russert and CNN had no applicable documents and the Washington Post stated they only held a memorandum of the interview of Mr. Libby by Robert Woodward on June 27, 2003 (which they provided). Team Libby as agreed this satisfied their subpoenas. The footnote does indicate the SP has documents from the WaPo but accepts the court’s ruling they will not gain access.

More as I am able!

Addendum: OK, back at it for a bit. Libby is bold in this filing, something you might not want to do at this stage. The question is whether Team Libby is being forced to take a strong stand on what the requested documents may show (so they can get access to the documents) or are they confident what they will show. I’ll let the reader decide from the language in the filing (page 11 PDF):

As explained below, the documents sought are likely to contain evidence that some, if not all, of his [Libby’s] testimony was correct and that it is the reporters who have the unreliable recollection or have misstated the facts.

That’s a pretty bold claim. I was expecting the claim to be more of form ‘who can tell what happened when all sides have stated their memories are vague on the details?’. But no, Team Libby appears to be saying they will prove the reporters are in error in so many cases that no one can rely on anything they stated with any confidence, let alone Fitz-Magoo’s niave assumption they reflect cold, hard, immutable facts. The boldness doesn’t end there. Related to conversations Libby had with government officials, which form the core of Fitzgerald’s weak case (page 11 PDF again):

As detailed below, the documents sought likely contain evidence that the government’s witnesses [from the adminstration] are mistaken about those alleged conversations, or are shading their testimony to protect themselves or others.

Wow. How could information from reporters undermine testimony by administration sources in terms of veracity and motive? Did Cooper and Miller and Mitchell comment on what others like Grossman and Fleischer were telling them to Libby? How does Team Libby know reporters are holding information of that kind? The imagination can create a lot of interesting theories on that one!

Sorry for the continues interruptions – more later.

Addendum: Sorry folks. Went on a nice evening bike ride with the twins and LJStrata. Beautiful day! More on the withholding of exculpatory documents which challenge Fitz-Magoo’s contention that Libby (and others) were supporting a campaign against the Wilsons (page 12 PDF):

…the government believes – and may attempt to show at trial – that Mr. Libby anb other White House officials conducted “concerted” efforts to discredit or punish Mr. Wilson by disclosing his wife’s CIA identity. … Documents showing that Mr. Libby and other official talked to reporters about Mr. Wilson during this time but never mentioned his wife will help to show that there as no such campaign – ir that if there was, Mr. Libby had nothing to do with it. The Movants admit that they have such documents but refuse to turn them over.

Like I said, this is where Fitzgerald made his tragically stupid mistake. The fact that Plame was mentioned maybe once out of ten or twenty discussions is going to destroy Fitzgerald’s claims this was about getting back at Joe through Val. Not only did Fitzgerald admit in his previous filing that he withholding documents from government records showing not all the discussions about Wilson involved Plame, seems these reporters have a boat load showing them same picture as well. This is the egg that will be on Fitz-Magoo’s face the rest of his career. It will turn out that he will have only seen what he wanted to see, and went on witch hunt after he had learned what he was charged to find out – and it had nothing to do with Libby. There is no worse image than a dupe who falls for the Kool-aid and then breaks his pledge to uphold the law to fabricate charges by hiding evidence.

When we get into the details on each reporter – the defense strategy becomes clear. For Miller the challenge idea is to expose the caveats and hedges in Miller’s statements regarding the three conversations she had with Libby (which only go to count 1, which is the weakest charge). The filing notes Miller’s own words which completely undermine Fitzgerald’s tortured interpretations that there are hard facts among all these vague recollections:

For example, she [Miller] has written that she testified to the grand jury only that she ‘believed [her June 23 meeting with Mr. Libby] was the first time [she] had been told that Mr. Wilson’s wife might work for the CIA.” …She was even more equivocal with her New York Times colleagues, telling them that her notes ‘leaves open the possibility that Mr. Libby told her [on June 23 that] Mr. Wilson’s wife might work at the agency.”

As I pointed out in this earlier post, when you read Miller’s account of discussions regarding the June 23rd meeting it is clearly possible (and likely) Libby never mentioned the name “Joe Wilson” at all. Libby is noted as saying “some clandestine guy” by Miller early on. Then there are notes discussing Wilson. But the notes are not quotes form Libby – as if Miller had known before hand the guy Libby was anonymously referring to! Read her comments:

But he [Libby] added that the C.I.A. “took it upon itself to try and figure out more” by sending a “clandestine guy” to Niger to investigate. I told Mr. Fitzgerald that I thought “clandestine guy” was a reference to Mr. Wilson – Mr. Libby’s first reference to him [Wilson] in my notes.

If Miller knew the guy sent by the CIA was Joe Wilson, all her notes using that name was expressing her knowledge – not Libby’s comments. Instead of writing ‘clandestine guy’ all the time she simply knew to replace that with “Joe Wilson’. In fact, she is trying to tell Fitzgerald the ‘clandestine guy’ is a REFERENCE to Joe Wilson. Check out how things are worded later – in Miller’s own recollections:

My [Miller] notes indicate that Mr. Libby took issue with the suggestion that his boss had had anything to do with Mr. Wilson’s trip. “Veep didn’t know of Joe Wilson,” I [Miller] wrote, referring to the vice president. “Veep never knew what he did or what was said. Agency did not report to us.”

Notice how Miller is very precise (and being a journalist you would expect her to be) in clearly saying ‘I wrote’ and not ‘Libby said’. I would wager there is no place in those notes where Miller can say Libby used the name Wilson once. If I am right then Fitzgerald was just hallucinating and imagining meanings in statements that just do not exist.

The filing by Team Libby notes that this so called outing of Joe Wilson and his wife was not even memorable to Judith Miller! Page 16 PDF:

Notably, Ms Miller did not remember that the June 23 conversation had even occurred until after her first grand jury appearance when she came across a notebook recording the interview.

This is a double whammy against Fitzgerald. He has Libby and Rove having to come back and fill in forgotten details, and getting charged for perjury for doing it, but a reporter who does the EXACT SAME THING is treated like her recollections were complete and 100% accurate. Fitzgerald is going to have a lot of trouble explaining that double standard between journalists (paid to leak) and administration officials (paid to keep the record straight).

There are numerous more examples of Miller saying she cannot recollect what was the source or impetus for comments in her notes regarding Plame. She is clearly saying she is fuzzy on the sequence and sources. She specifically said to the Grand Jury, according to the filing, that she ‘didn’t know and didn’t want to guess’ about whether Libbyt had ‘given her the name Wilson” – which supports the point I made above. Her notes do not clearly and unambiguously tie the name Wilson to Libby (and in fact might actually do the opposite).

What is surprising is Miller/Bennet admit to having information that can further establish this probable set of events, but have motioned to squash the request because (following Fitzgerald’s lead) they do not go support Libby’s defense.

Ms Miller has identified the following specific materials that are responsive to those requests: two original, unredacted notebooks, work-related phone records, and an appointment calendar.

That ain’t going to fly! Want to be Miller heard of Wilson before June 23 (probably because she was being asked to verify Kristof’s earlier articles). If I was right about this, then Fitzgerald’s case will crumble super fast. Without the June 23 meeting as one fo the key times ‘Wilson’ was mentioned by Libby, Fitzgerald’s time lines start to crumble. Even worse if Miller blurted out the name Wilson to Libby!

More Later.

Short Addendum: I had to find a complete copy of Judith Miller’s NY Times acount so I could be sure, but I am correct that if there was no mention of the name ‘Wilson’ on June 23 Fitzgerald is hosed. The subsequent meetings were after Wilson outed himself! So if Libby talked about some clandestine guy who was sent on the mission by his wife, he is not exposing Valerie Plame! Joe Wilson did that when he went public. More from Miller in the NY Times:

My notes indicate that well before Mr. Wilson published his critique, Mr. Libby told me that Mr. Wilson’s [aka the ‘clandestine guy’s’] wife may have worked on unconventional weapons at the C.I.A.

My notes do not show that Mr. Libby identified Mr. Wilson’s wife by name

Boy, am I going to laugh if it turns out Wilson outed his own wife when he went public! This ties into how Tim Russert explained his reaction to the Novak article. It cleared up discussions that had occurred in an NBC meeting about someone’s wife. Again, in Russert’s own words on his own TV show:

RUSSERT: Well, that’s exactly right. “Meet”–Joe Wilson had been on “Meet the Press” on Sunday, which you moderated because I was on vacation.
MITCHELL: And…
RUSSERT: I came back after that interview, after The New York Times piece, and there was a discussion about Joe Wilson and I didn’t know very much. And then when I read Novak’s column the following Monday, I said, `Oh, my God, that’s it. Now I see. It’s his wife, Valerie Plame, CIA, sent him on the trip. Now I understand what everybody was trying to figure out.‘

More later.