PrintJanuary 21, 2007
The Mitchell Mystery at the Libby Trial
Over the weekend an intriguing mystery about Andrea Mitchell surfaced. On Friday, Matt Apuzzo reported:
A federal judge said Friday that he likely would allow NBC News reporter Andrea Mitchell's notes to be used in the CIA leak trial, setting up another potential fight between journalists and the court in the case.Mitchell's notes on her conversation with former White House aide "Scooter" Libby have been under subpoena for nearly a year, but U.S. District Judge Reggie Walton had ruled that, because Mitchell was unlikely to testify at trial, her notes would not be released.Attorneys for I. Lewis Libby said in court Friday that they planned to call Mitchell as a defense witness during his perjury and obstruction trial. Opening arguments are scheduled for Tuesday.Walton reversed course and ordered attorneys for NBC to be in court Monday to discuss the notes. He added: "I don't see how I can deprive the defense of it. (Emphasis supplied.)
WASHINGTON (AP) - Defense attorneys withdrew, for now, their request to use NBC News reporter Andrea Mitchell's notes during the CIA leak case, heading off a potential fight leading up to the trial of former White House aide I. Lewis ``Scooter'' Libby.A federal judge said Friday afternoon that he likely would release Mitchell's notes to attorneys for Libby and scheduled a hearing on the issue Monday. Within hours, network spokeswoman Barbara Levin said the request for the notes had been withdrawn and the hearing canceled.Mitchell's notes on her conversation with former vice presidential chief of staff Libby have been under subpoena for nearly a year, but U.S. District Judge Reggie Walton had ruled that, because Mitchell was unlikely to testify at trial, her notes would not be released.Libby's attorneys said in court Friday that they planned to call Mitchell as a defense witness during his perjury and obstruction trial. Opening arguments are scheduled for Tuesday.Walton reversed course and ordered attorneys for NBC to be in court Monday to discuss the notes. He added: ``I don't see how I can deprive the defense of it.''Though the hearing was canceled and the request withdrawn, defense attorney William Jeffress said he might revisit the issue during the four- to six-week trial.
Apuzzo adds:
"Mitchell's testimony and notes could help Libby's case by describing an atmosphere of tension and finger pointing within the Bush administration regarding intelligence issues on Iraq. That could bolster Libby's claims that there existed a hectic and tumultuous climate in which he could not accurately remember certain conversations." (Id.)
Well, that compounds the mystery.
(1) Why did the judge change his mind?
(2) Why did the defense withdraw its request for the moment?
With a lot of digging in the Just One Minute's attic of old posts (Tom Maguire is taking a richly deserved weekend away ) I found some things which may help explain what is going on. But I still feel that I haven't got a handle on it, and if you've finished your latest mystery book or crossword puzzle and want to consider what's going on, here goes.
On January 26 of last year Libby filed a motion to compel discovery of information regarding reporters and news organizations, including NBC, Tim Russert and Andrea Mitchell.
On May 27 Judge Walton issued an order describing what Libby would be entitled to and what he would not.
It is hard for a judge to determine relevance of documents before he's seen them but in this case the parties voluntarily turned them over to the judge for his in camera inspection before he ruled so he knew what was in them when he did so.
In his opinion he reviewed the obligation of third parties to comply with defense subpoenas for documents in their possession The evidence sought must be exculpatory (tending to establish the defendant's innocence), relevant, admissible (even if only to impeach the third party witness' testimony) and the request seeking the document must be specific, that is, as the Court noted, there must be a "sufficient likelihood" demonstrated through rational inferences, that the documents being sought contain relevant and admissible evidence. (p. 18) And the documents to be produced are only admissible to impeach witnesses who will actually testify and become admissible after the witness has presented his testimony at trial: that is, for cross examination purposes.
The Court noted that most of its ruling with respect to Tim Russert also applied to Andrea Mitchell, but because she was not anticipated to appear as a witness and Russert was, he excused her from producing her handwritten notes.
The Court will not require the production of documents relating to Mitchell. Having reviewed Mitchell' handwritten notes, there can be no plausible argument that they are relevant to the case. Not only do they have no bearing on any issue relevant to this action, but there is no basis for them being used to challenge Russert's recollection or credibility (p. 23).
As to her emails which fell into another category of Libby's request, "all correspondence between Mitchell and Ari Fleischer, Mark Grossman, Eric Edelman, Bob Grenier, Cathy Martin, Joseph Wilson, George Tenet and Bill Harlow", the Court ruled they would be admissible if her testimony is inconsistent with the statements in that correspondence.
The Court specifically noted that there was no clear indication that she'll even be called to testify at trial.
So, it would appear that while, as Apuzzo noted, the original ruling was made before there was any indication she would testify at court, he overlooked, it would seem, that there was more involved. That something had happened to persuade the Court rather suddenly that these notes did have a bearing relevant to an issue in this action or to challenge Mitchell or Russert's recollection or credibility.
Since it seems evident to me that Cooper and Miller are weak reeds upon which to base this prosecution, some new development that might weaken Russert's credibility and recollection may be far more significant than the Apuzzo story telegraphs.
So what is in Andrea Mitchell's handwritten notes that might challenge the "recollection or credibility" of the prosecution's key witness, Tim Russert or which makes them suddenly relevant besides the mere fact that she might testify in the case?
Tom Maguire reviewed the transcript of the pretrial hearing on these notes and reported at the time:
"Per the transcript, Andrea Mitchell spoke with Lewis Libby in roughly the relevant time frame, but no one can pin down the date; Libby has testified about this, but it seems that Ms. Mitchell has not. Ms. Mitchell has one page of barely decipherable handwritten notes that do not indicate that Wilson's wife was discussed, and the defense would like these notes.The defense wants to play "heads I win, tails you lose" - either Ms. Mitchell did not get a Plame leak from Libby, in which case the defense can argue, gee, look at all the reporters he talked to without leaking, maybe he got confused.Or, if he did leak to Ms. Mitchell (in apparent contradiction of his own testimony), then perhaps Ms. Mitchell mentioned it to her boss, Tim Russert. That might explain how Russert learned of it, and later told Libby, who by this time had clearly forgotten his leak to Andrea and was surprised to learn of Plame from Tim. Confusing? Wait until the defense hires a Russian novelist to explain it."
Possibly correct theories, but as Tom has also observed, it is obvious that in the time period most relevant to this trial, Andrea Mitchell, who worked for Russert, reported a number of leaks all of which seemed to have come from the Department of State, the very place that the leaks to Woodward and Novak came from:
in late June Ms. Mitchell had a scoop from State about the misplaced INR dissent (on Saddam's nuclear aspirations) in the NIE; she sat in for Russert and interviewed Joe Wilson on the July 6 'Meet The Press'; on July 8, she told the world that CIA sources told her that Wilson was sent by low-level CIA "operatives" (a word later used by Novak, to great controversy); on July 20, she had a public spat with Richard Armitage, who was no longer returning her phone calls; and on Sept 26 she broke the news of the CIA criminal referral of the Plame case.And of course, there was her famous Oct 3, 2003 response that prior to Novak's column it was "widely known" amongst the journalists covering the Niger story that Wilson's wife was with the CIA. She has since disavowed that.So - she was covering the Niger-uranium story; she was talking with Armitage, until they fell out; she claimed at one time that Ms. Plame's CIA employment was "widely known" among reporters; and she works with Tim Russert. She might have something helpful for the defense. (Id.)
I think Mitchell, while covering the Department of State, picked up stuff about the Wilson trip to Niger and mentioned it to her boss, Russert .At the time they both talked to Libby their knowledge was somewhat sketchy but their remarks were sufficient to trigger Libby's recollection and to suggest to him that these two reporters knew about Plame and her role in the trip.
At the time Tom explored this, he guessed that Armitage was Mitchell's source. Subsequently we have all learned Armitage was the source to two other reporters, Woodward and Novak. Is it so impossible to believe that he was Mitchell's source (and ultimately through her, Russert's, too?)
In fact, the very fact that she was regularly disseminating leaks to advance the Department of State's positions in the internecine warfare then raging in Washington might even explain why she was so angry when Armitage stopped talking to her and was instead interviewed on Fox. Perhaps she was saying to him the equivalent of "I'm good enough to sneak around with but you won't introduce me to your parents!"
So let's see what both Mitchell and Russert have publicly said about their knowledge in this case. To see if that provides any guidance about what Russert and Mitchell knew about the Wilsons and the trip and what they told the prosecutor.
Mitchell is quoted here by Taranto in a variety of seemingly compromising statements:
Oct 3, 2003 (Taranto, WSJ):And this is an exchange between host Alan Murray and guest Andrea Mitchell on CNBC's now-defunct "Capital Report," Oct. 3, 2003 (transcript not available publicly online):Murray: Do we have any idea how widely known it was in Washington that Joe Wilson's wife worked for the CIA?Mitchell: It was widely known among those of us who cover the intelligence community and who were actively engaged in trying to track down who among the foreign service community was the envoy to Niger. So a number of us began to pick up on that. But frankly I wasn't aware of her actual role at the CIA and the fact that she had a covert role involving weapons of mass destruction, not until Bob Novak wrote it. (Emphasis supplied.)
And from the same cite, here is her attempted backtrack later on Imus:
Don Imus asked Ms. Mitchell about this following the publication of the Taranto piece. Ms. Mitchell's first disavowal was on Nov. 10, 2005. Here is a NewsMax transcript:IMUS: Apparently on October 3, 2003, you said it was "widely known" that Joe Wilson's wife worked at the CIA.MITCHELL: Well, that was out of context.IMUS: Oh, it was?MITCHELL: It was out of context.IMUS: Isn't that always the case?MITCHELL: Don't you hate it when that happens? The fact is that I did not know - did not know before - did not know before the Novak column. And it was very clear because I had interviewed Joe Wilson several times, including on "Meet the Press."And in none of those interviews did any of this come up, on or off camera - I have to tell you. The fact is what I was trying to express was that it was widely known that there was an envoy that I was tasking my producers and my researchers and myself to find out who was this secret envoy.I did not know. We only knew because of an article in the Washington Post by Walter Pincus, and it was followed by Nicholas Kristof, that someone had known in that period.IMUS: So you didn't say it was "widely known" that his wife worked at the CIA?MITCHELL: I - I - I said it was widely known that an envoy had gone - let me try to find the quote. But the fact is what I was trying to say in the rest of that sentence - I said we did not know who the envoy was until the Novak column.IMUS: Did you mention that Wilson or his wife worked at the CIA?MITCHELL: Yes.IMUS: Did you mention . . .MITCHELL: It was in a long interview on CNBC.IMUS: No, I understand that. But at any point, in any context, did you say that it was either widely known, not known, or whether it was speculated that his wife worked at the CIA.MITCHELL: I said that it was widely known that - here's the exact quote - I said that it was widely known that Wilson was an envoy and that his wife worked at the CIA. But I was talking about . . .IMUS: OK, so you did say that. It took me a minute to get that out of you.MITCHELL: No, I was talking about after the Novak column. And that was not clear. I may have misspoken in October 2003 in that interview.IMUS: When was the Novak column?MITCHELL: The Novak column was on the 14th, July 12th or 14th of '03.IMUS: So this was well after that?MITCHELL: Well after that. That's why the confusion. I was trying to express what I knew before the Novak column and there was some confusion in that one interview.IMUS: Who'd you find it out from? Russert?MITCHELL: I found it out from Novak. (Id.
Eyebrows were raised at that lame attempt at a track back, so at a few weeks later Mitchell went on Imus again to try to put aside the suspicions she raised on October 3 when she'd said "everyone knew" about Plame.
MITCHELL: I know the question now. I've gone back and reread it. And I frankly - I thought - I think that I thought he was asking about, did I know there was an envoy. But I know that I didn't know about Joe Wilson's wife until after the [Novak] column. Because when the column came out I went in to my producer and said - "Look at this. How the heck did we not know that?"And at the same time we were talking with [Tim] Russert and everyone else. You know - this is a different part of the story that we didn't know about.So clearly back in Oct. of '03, I screwed it up.IMUS: Well, [Alan Murray's] question seems plain. "Do we have any idea how widely known it was in Washington that Joe Wilson's wife worked at the CIA. And you said that his wife worked . . .MITCHELL: When you look at my answer, I said: "It was widely known - and we were trying to track down who among the foreign community was the envoy to Niger." So far, so good. Okay? [Quoting herself again.] "So some of us began to pick up on that. But frankly I wasn't aware of her actual role at the CIA and the fact the she had a covert role involving weapons of mass destruction, not until Bob Novak wrote it.IMUS: Well, that part is clear.MITCHELL: That's clear. So, what's not clear is that I didn't know about her role at the CIA until Bob Novak wrote it. And I obviously got it muddled.IMUS: Well, what this suggests to me is that, you knew she worked at the CIA but you didn't know what she did there.MITCHELL: Yes, but that's not . . .IMUS: Is that fair? Did you know that?MITCHELL: I didn't.IMUS: Well, then - why did you say you did, Andrea?MITCHELL: Because, I messed up.IMUS: Oh.MITCHELL: I think that I was confused about the timeline. We weren't all as focused on the timeline then as we really are now. And I think I just was confused.IMUS: Did you ever have a discussion with Russert about it?MITCHELL: Sure, after the fact.IMUS: Oh.MITCHELL: Well, I think Russert, conversations with Russert, obviously after Joe Wilson came out on "Meet the Press" - and we all talked about those 16 words. That's what we were focused on. We were focused on Niger, uranium, were there WMD? That's what the whole focus was. Not on his wife.Then Joe Wilson's wife was mentioned by Bob Novak and it became a major issue when the CIA referred it to the Justice Department for investigation. . . . . [Snip]IMUS: Have you ever - have you talked to Fitzgerald informally?MITCHELL: No - in no way. (Id. Emphasis supplied.
What about Tim Russert? NBC cut a deal with the prosecutor permitting Russert to reveal only what he said he told Libby. And bloggers from all sides of the political spectrum have noted that he has been far from forthcoming about his testimony as Tom Maguire details here
Let's note the explanation from the NBC press release from Aug 2004 that careful readers found to be so vexing:Mr. Russert told the Special Prosecutor that, at the time of that conversation, he did not know Ms. Plame's name or that she was a CIA operative and that he did not provide that information to Mr. Libby. Mr. Russert said that he first learned Ms. Plame's name and her role at the CIA when he read a column written by Robert Novak later that month.Ahh, but did he tell Mr. Libby that Wilson's wife worked at the CIA?
Comparing Russert to the "Manchurian candidate" Tom documented that Russert refused to address whether he told Libby that Wilson's wife worked at the CIA repeating monotonously that he didn't know Plame's name or her role at the CIA.
Since it has rather definitively been established by Michael Crowley of The New Republic and Jeralyn Merritt of Talkleft that the program Libby called Russert to complain about was a Matthews program on July 8 about Lewis Libby, Joseph Wilson and Niger, how likely is it that if Russert knew anything about the back story he didn't raise it, even if only to see if Libby could provide more detail or perhaps to assuage an angry, highly placed government official.
My own guess is that without perhaps knowing her name or her specific job or even the specific role Plame played in her husband's trip to Niger, Mitchell in some way did raise the issue vaguely with either or both Russert and Libby and Libby either conflated what he heard from Mitchell with what he'd heard about the same time from Russert or both Mitchell and Russert dropped the bits of the story they knew to Libby .These remarks caused Libby to recollect more detailed information that he had forgotten and also caused him to believe that a number of reporters knew and were talking about it.
Here are some odds and ends, relevant to solving the Mitchell mystery:
1. In June who had the classified INR report, details of which she leaked? We know Carl Ford and Marc Grossman of the State Department had it. Anyone else? No one in the White House is known to have seen if before the 2d pressing on July 7 when for mysterious reasons instead of putting a cover letter on it, Grossman caused it to be reprinted with a new date and more broadly distributed.
2. Why did both Mitchell and Novak use the terms "CIA operative" in their stories--the same description Novak said Armitage gave him? Was Armitage her source for the INR leak? Was Grossman for that and Armitage for the second leak? Is it just a coincidence?
3. And who leaked to Mitchell the explosive news that the CIA had sent over the referral? This was explosive because it built up pressure for the appointment of outside counsel.
4. And finally, why did the FBI fail to question her about any of this? Is this just another example of the reverse Battleships nature of this matter? That is, in contrast to the game where you try to find stuff, here the investigation seems to have been geared not to find stuff - "stuff" being anything that would establish the Wilson-Corn storyline of a vengeful outing by the White House was a fairytale.
Back to the questions I asked at the outset.
1. Why did the defense withdraw the request for Mitchell's notes? I don't know. Possibly an informal exchange of information was worked out with NBC. More probably, the defense can just as easily deal with it later should it prove necessary. Perhaps Russert's testimony will be more forthcoming than his public statements and this won't be necessary.
2. Why did the judge change his mind and say the handwritten notes were relevant? What has turned up in the pretrial period that has made these notes relevant and her testimony likely? Ah, there's the mystery. And I still wish I knew the answer.
