We have just been granted a window on the struggle between Lewis 'Scooter' Libby and the elite media over his access to their internal documents. Libby is charged with federal crimes because his versions of conversations with reporters differ from the accounts of the media people. He seeks evidence from their files about what they knew and what they privately wrote at the time. In a "he said/she said" confrontation, access to supporting evidence becomes critical to the ability to mount a defense. 

Late Monday night Libby filed a Motion in Response to the media's efforts to quash his subpoenas for documents in their possession. At last, after a three year one—sided smear campaign by the elite media and by an unsupervised and careless Special Counsel, Libby gets to show us the flimsiness of the case against him.

He also shows us the considerable embarrassment facing pillars of the media establishment and the utter un—tenability of any further claims for press privilege. Given what these pleadings reveal, a testimonial privilege for reporters would amount to a figurative license to kill those with whom they have political or other disagreements. 

Should this go to trial, the press will suffer a crippling blow to whatever credibility they still have, and Libby will  be proven to have been the victim of political opponents and  an out—of—control prosecution.

The pleadings are reprinted in .pdf form here and here.  Because the Motion is reproduced in two parts, to avoid confusion, any page citations will be to those in the original pleading, not to the pdf pagination.

Libby's Argument

Libby seeks to expand the evidentiary base to give a fuller picture of that testimony and show that it was the reporters, not he, who misstated and misrecollected the substance of their conversations with him. As we have noted, the Special Counsel was very selective in the documentation and testimony he sought from the media. Even in these spare pleadings, Libby's case that the testimony offered by the media was not credible is strong.

The prosecution relies on the testimonial variances between Libby and three reporters—Tim Russert, Matt Cooper and Judith Miller.

Russert has no contemporaneous notes of the conversation. Cooper's notes make no reference to Plame or the CIA although they are virtually verbatim. Miller's notes contain evidence that she knew about Wilson before she spoke to Libby and  further evidence that she knew about Plame and her job from other sources.

Even worse for the prosecution, Miller's notations upon which Fitzgerald relied seem to come from sources other than Libby.

All three reporters had colleagues in communication with Joseph Wilson and others during the time of the conversations at issue, colleagues who seem to have known well of Plame and her position, the worst—kept secret in Washington.

Finally, with respect to both Miller and Cooper, there is at best extreme carelessness about their work, or at worst the stench of a set—up to nail the White House. All of this behavior occurred in the context of a prosecution so fixated on Rove and Libby that it failed to subpoena relevant documents, allowed reporters to testify only about Rove and Libby, and in every other way so manipulated the investigation as to predetermine its result.

The evidence Libby seeks is from the New York Times, Judith Miller (a former Times reporter), NBC News, Matt Cooper and Time, all of whom have moved to quash the subpoenas. Tim Russert of NBC, a key prosecution witness, has responded he has no notes of his conversation with Libby. CNN says they have no responsive documents. The Washington Post has some documents which the Court ruled it need not turn over, presumably respecting Woodward's conversations with the actual first leaker whose identity (apparently Richard Armitage) the Special Counsel is taking special pains to protect, apparently under some benighted notion of good leakers and bad leakers. As to Woodward's notes of his June 27, 2003 conversation with Libby, those have been voluntarily turned over to the defendant.

Libby argues that all of the documents he seeks are relevant, admissible, defined with adequate specificity and may form the basis for eliciting testimony at trial and impeaching the government's witnesses.

He further argues that that there is no First Amendment right of reporters to refuse to provide testimony at trial except for the Fifth Amendment right against self—incrimination. Branzburg v. Hayes, 408 U.S. 665,689—90(1972).

It is absurd to contend that a reporter who deserves no special treatment before a grand jury may nonetheless invoke the First Amendment to stonewall a criminal defendant who has been indicted by that grand jury and seeks evidence to establish his innocence.' (pp. 38—39 of Motion).U.S. v. Liddy, 354 F Supp. At 213 n. 13.

Nor is there, Libby notes, any common law testimonial privilege. But even if there were one, it would be overcome here where the information goes to the 'heart of the matter,' where no other means of obtaining it exists, and where it is necessary to a fair hearing.

What Libby Seeks

With the main legal argument out of the way, let's get down to the details of what he seeks and why. As we do so, you will quickly catch the reek of media mendacity.

Fitzgerald has asserted (in a response to the defendant's third motion to compel discovery) that Libby and others engaged in a concerted effort to discredit or punish Joseph Wilson by disclosing his wife's identity. But one thing that will strike the careful reader immediately is this: the media documentation of conversations with Libby show absolutely no evidence of such an effort. If there was such a campaign, there is no record that Libby played any part in that.

(Curiously, the only government official who told Robert Novak and apparently Woodward about Plame is not only not charged, but being protected by Fitzgerald.)

Judith Miller

Let's start, as Libby does, with Judith Miller. (The indictment refers to three conversations with Miller: Count 1, Paragraphs 14, 17 and 24).

He shows her testimony is so at odds with her various and varied statements as to be not credible on its face.

Using her own contradictory public statements ('bafflegab' is the term commenters at Just One Minute use for it). She told the grand jury that she 'believed' her conversation with Libby on June 23, 2003 was the first time she'd been told Valerie Plame might work for the CIA. ( Libby cites Miller's contradictory own reports in the New York Times, her website, and her colleagues' reports in the same paper, hoisting her by her own petard.) When she described to her own colleagues her grand jury testimony she was yet more equivocal about what she learned in the conversation.

Equally problematic is her recollection of the July 8, 2003 conversation with Libby where she said she

'couldn't be certain whether I had known of Mrs. Plame's identity before this meeting and I had no clear memory of the context of our conversation that resulted in th[e] notation [(wife works in Win Pac)]'

Similarly, respecting her third conversation with Libby on July 12, 2003, she indicates she didn't know if Libby had given her the name 'Wilson.'

But there is much more reason to question the reliability of her recollection. It looks to me that she was trying to set up Libby and is trying to hide that fact. (Something equally obvious about Time's Matt Cooper, as we shall see.)

Even the highly redacted notes she provided Libby indicate she had Joe Wilson's name and phone number in her notebook before she first spoke to Libby. It doesn't appear that Fitzgerald even questioned her about that. Why look for inconvenient facts? That would only complicate an investigation with a predetermined outcome.

These same redacted notes suggest that Miller's notation 'Victoria Wilson' were made before her conversation with Libby on July 12, perhaps again from another source. Notes on preceding pages, not yet provided to Libby, may allow the defendant to ascertain from whom Miller obtained these bits of information and whether she confused those conversations with her talks with Libby.

Similar questions obtain from Miller's redacted notes where in her account of the June 23 conversation she has recorded '(wife works in Bureau?)' and an entry in the July 8 notations '(wife works in Win Pac)'. Miller says she doesn't recall the meaning of the question mark or parentheses, and Libby suggests these may show they were added later and from other sources. (Some careful note taking!)

But even more curious is this. Her notebooks are replete with variant references to Ms. Plame: 'Valerie Flame','Valery Plame', Valerie P', 'VF?' and 'Victoria Wilson—works in unit' (this last permutation appears pages away from the end of her July 8 Libby interview notes). The variety of these terms, of course, suggests a multiplicity of sources.

Adding the problems with her notes to her conflicting recollections of what she said to the grand jury, I do not think she'll prove to be a dream prosecution witness. On the other hand, she may prove one for the defense.

Libby contends that given all the documentation about her notes, emails, etc., he may be able to show at trial that if the topic of Plame was raised at all it was raised by Miller, as was any mention of Wilson and his trip. Further, it is evidence that he neither knew nor had reason to believe at that time that Plame's position was 'classified.' It was too widely known in relevant government and press circles. Surely, it will be entertaining to watch Miss Run Amok and her bizarre note taking skills examined by real lawyers.

The New York Times

Libby has subpoenaed information relating to other employees not named in the indictment or called before the grand jury (or for all we know avoided like the plague by the witless, myopic investigators and prosecutor).

Nicholas Kristof kicked off the Wilson Gambit with a story full of lies about the Mission to Niger, a story obviously and admittedly sourced by Ambassador Munchausen, Joe Wilson himself. Libby suggests he needs to know if there is documentation of conversations between Kristof and Miller.

Libby also seeks notes of the investigation and analysis by the paper itself respecting the events leading to Miller's incarceration and her various published accounts of the events relevant to this case. He notes the paper admits it has such documentation but wants to withhold it until after her testimony. Of course this would make it harder to prepare for her cross examination without substantial delay in the trial.

Libby argues that when it is almost certain that someone will be called as a witness and there is a clear indication of what her testimony will be, this evidence should be turned over before, not after, her testimony, to allow the defense adequate opportunity to prepare for it.   

Libby reveals that the New York Times admits it has documentation of the paper's interviews of other government officials including Libby's subordinates but they

'contain no information regarding...the employment of Mr. Wilson's spouse by the CIA.'

Once again, the weakness of the Fitzgerald claim of a vigorous effort by Libby and others to punish Wilson is found wanting any evidentiary foundation. Perhaps Fitzgerald is thinking of a 'smear' by ESP just as he risibly claimed supervision by ESP (never communicated, undocumented intent) from former Acting Attorney General Comey, a claim we laughed at and the Court quickly kicked to the curb.

Libby seeks from the New York Times documentation of conversations with government officials, including Ari Fleischer, who reportedly had the classified document which mentioned Plame's role in the Mission to Niger, her position at the Agency and name.

Libby also seeks documentation of conversations with former Department of State official Marc Grossman, who some news accounts claim charged White House  officials with  smearing Wilson, perhaps to divert from the fact that his boss, Richard Armitage, is the most likely source of the first press disclosure of Plame by Bob Novak.  

Bill Harlow of the CIA press office is another source to reporters about whom Libby seeks media documentation. He notes that there is public record evidence that Harlow spoke to Valerie Plame and Robert Novak, Ms. Martin of the White House press office and others about Plame and her position.

Libby also notes that in his laughably misnamed book The Politics of Truth, Ambassador Munchausen states his wife spoke to Harlow after he (Wilson) spoke to Novak.  There is moreover a suggestion, Libby observes, that Harlow's disclosure to Novak was okayed by Tenet or Grenier at the CIA, which if true would preclude prosecution of Harlow, but would still not clarify the mystery of why the CIA referred for investigation a leak it generated itself by Harlow's confirmation of Plame's employment.

Another reporter at the NYT whose documentation Libby seeks is David Sanger who interviewed Libby about the 19 words in the State of the Union Address.

Evidence in the paper's possession about Judith Miller is also sought. (p. 23) Libby notes that after their July 8 meeting by her own account, she recommended the paper investigate whether Libby was trying to 'smear' Wilson. But publicly, her editor has denied this claim.

Naturally, this conflict goes to Miller's recollection and credibility. The documentation supports the defendant's claim that he did not use any of this information to discredit or punish Wilson, but simply to rebut his monstrous lies. Telling on this score is the quoted statement Miller made to the New York Times legal counsel, Freeman,

'I knew Valerie Plame's name. I knew who she was. I talked to many people in the government about her before and after Novak's article.'

NBC

Libby testified that on July 10 or 11, 2003 he had a conversation with Tim Russert of NBC. According to Libby's grand jury statement, Russert asked him if he (Libby) was aware that Wilson's wife worked for the CIA and told Libby 'all the reporters knew it.'

According to the indictment Libby and Russert did not discuss this at all.

Enter Andrea Mitchell. As Libby notes she is an 'access' reporter with close contacts in the Department of State and CIA. She is Russert's subordinate. On July 6, 2003 the very morning of Wilson's inflammatory and false op—ed in the New York Times, Wilson appeared as a guest on Andrea Mitchell's show, an appearance which certainly required some preplanning, knowledge of Wilson's identity and background, and of the planned op ed. Three months later she publicly said:

'It was widely known  among those of us in the intelligence community and who were actively engaged in trying to track down who among the foreign service community was the envoy to Niger'(p. 25)

She subsequently and not credibly has tried to modify or back off this statement.

But she has also said:

'I wasn't aware of her actual role at the CIA and that she had a covert role involving weapons of mass destruction, not until Bob Novak wrote it.' (p.28)

The Government never issued a subpoena for documents to NBC, Russert, Ms. Mitchell or anyone else at the network. Not only does this yet again reveal the weakness of the investigation, it also means that if Libby cannot subpoena them he will have no way to view this material.

Tim Russert

Russert says he has absolutely no notes documenting his conversation with Libby, so it is his recollection versus Libby's. NBC will not even turn over its documentation respecting its public statements about Russert's testimony to the grand jury or Mitchell's damaging (to the Prosecution) admission.

Libby suggests that these public statements by NBC were so carefully parsed that they may reveal that Russert, like Mitchell (and likely from her) knew on the date of his conversation with Libby of Ms. Wilson's employment with the CIA.

As Tom Maguire has observed long ago and repeatedly, the NBC statement was exceedingly finely crafted. Libby picks up on this point (p. 27):

We note that NBC's carefully worked public statements have never completely disclaimed that Russert knew that Mr. Wilson's wife was employed by the CIA prior to July 14, 2003 [the date of the Novak article].

NBC says

'Mr. Russert told the Special Prosecutor that, at the time of the conversation he did not know Mrs. Plame's name or that she was a CIA operative and he did not provide that information to Mr. Libby.' But Mr. Libby 'never testified that Russert mentioned Mrs. Plame's 'name' or her 'role' at the CIA.' (p. 27)

(Good enough for Government work as they say.)

How great a leap is it to believe that Mitchell told her boss, Russert, what she knew about Wilson and his wife? Not much. It is exceedingly likely, which makes Libby's testimony — that Russert said everyone knew and did he, too — more, rather than less credible.

In fact, Libby adds, Mitchell's own public statements reveal she shared what she knew of the Wilsons with other NBC employees, and they discussed this during the very week of the Russert—Libby conversation.

Are we expected to believe that she told a lot of people but not her boss?

It's news to me, but Libby observes (p. 30) that Mitchell had a conversation with him during this time, and NBC says those notes do not mention that Mrs. Wilson's wife worked for the CIA. NBC claims that makes them irrelevant. They make the same mistake Fitzgerald does, ignoring the mountain of evidence that Libby and his staff didn't mention Plame and didn't try to smear Wilson, and suggesting the exact opposite. (To paraphrase Secretary Rumsfeld, in this situation absence of evidence really is evidence of absence.)

Time

While they demanded this special prosecution to get to the truth, the truth they have manipulated and distorted from the very beginning, Time and Matt Cooper come off no better than Miller, the New York Times or NBC. All seem to have played a game of hiding the truth and doing what they can to prevent it from being known, even if that means denying the means to clear his name to the man they helped smear. 

Matt Cooper is the main actor at Time. Libby doesn't mince words about Cooper, spouse of Clinton appointee, Mandy Gruenwald.

None of Mr. Cooper's documents produced to date—including contemporaneous notes of the call—support the indictment's allegations that Mr. Libby confirmed Ms. Wilson's involvement in her husband's trip. (p. 31)

In fact there is no mention in these nearly verbatim notes, in subsequent emails with colleagues, or elsewhere that Mr. Libby confirmed Ms. Wilson's involvement in her husband's trip.

Compare that with the indictment (Count 3, paragraph 2) which says Libby told Cooper that reporters were saying that Ms. Wilson worked for the CIA but he didn't know if this was true and Cooper's sworn version (credited by Fitzgerald) that he asked if Libby had heard that Ms. Wilson was involved in sending Wilson to Niger and Libby said 'Yeah. He heard that, too' or 'words to that effect.'

Macsmind has been saying for a long time that Cooper is on the hot seat, and I believe him more than ever after reading this pleading. Libby observes that from what we know on the public record Plame was clearly a topic of conversation in Time's Washington Bureau. (Indeed, I think bureau employee Viveca Novak's public reports of what she told Luskin, Rove's lawyer, offer but a hint of the detail she provided, detail that should give Cooper pause to repeat his story on the stand, for I think it obvious that he is in trouble.)

Libby more than suggests this:

It is hard to believe the government's allegation——that Mr. Libby confirmed this affiliation[of Plame with the CIA]——if not a single employee of Time took a moment to memorialize this fact. This is particularly true given that, according to Mr. Cooper, Mr. Libby's comment about Ms. Wilson was used to support statements in A War on Wilson? [an article Cooper coauthored with Massimo Calabresi charging the Administration was smearing Wilson by disclosing his wife's employment.] (p. 30)

Especially since Calabresi called Wilson before the Cooper and Russert talk and afterwards (p. 36.)

It gets even better:

Mr. Cooper, one [internal] email suggests, viewed Mr. Libby's alleged comments during the call as part of a personal attack on Mr. Wilson rather than as his own notes reflect—a fact based criticism of the merits of Wilson's claim.

Creative writing as news reporting, I take it.

Throughout Libby argues that he and his staff considered Ms. Wilson a "peripheral issue." The NBC documents undermine the prosecution claim that Libby confirmed 'without qualification' that he heard Plame worked at the CIA.

The case is full of holes.

This Star Chamber proceeding continues on without cessation despite the credibility problems of the reporters upon whom the prosecution rests.  Libby's latest pleading is based on the very small amount of documentation in his possession and the public record (which apparently the Prosecutor reads very selectively).

Anyone with good judgment and discretion would have told Fitzgerald long ago that reliance on such selective testimony and documentation by the media, whose credibility is so unworthy of his trust, was folly. The fundamental problem of the case is that Fitzgerald has no supervision to provide the necessary outside larger perspective.

Former Attorney General  Ashcroft, who recused himself, and interim AG Comey, who turned this over to Fitzgerald without any supervision or control, have both been replaced. It's past time for the Department of Justice to pay attention. After all, it was just last week that Judge Walton assured us that they were still in a position to exercise meaningful supervision and direction over this case when he denied Libby's Motion to Dismiss.

The DoJ should take Judge Walton at his word and call in Patrick Fitzgerald to review his handling of this case, and exercise the supervisory responsibilities Judge Walton says are theirs.

Where are they as this travesty lumbers on?

Clarice Feldman is an attorney in Washington, DC and a frequent contributor.