The Scooter Libby trial: Who coordinated with whom?

Previously, York and Lomonaco discussed the roots of the case, reacted to Tuesday’s guilty verdicts and discussed if anyone else in the Bush administration blocked Patrick Fitzgerald’s investigation.

‘Coordination’ is not ‘conspiracy,’ but it’s still bad
By Jeff Lomonaco

Byron,

I continue to be struck by your closing assertion from a couple of days ago that we know what happened in the CIA leak case. But that does not seem to be the case. Witness the fact that people who were always on the administration’s side have seized on the fact that multiple members of the Bush administration who did not all get along were blowing Plame’s cover at the same time as evidence, strangely enough, that there could not have been a concerted effort to do so. But in fact the trial (and pretrial phase) presented convincing evidence that -- alongside the leaks from Richard Armitage, who had his own reasons; Ari Fleischer, who learned of Plame from Libby; and Karl Rove -- there was a narrow, indeed compartmented effort, by Libby and Cheney, to disclose Plame’s CIA employment to one reporter in particular: Judith Miller. In light of the confusion on this point, I’d be interested to hear which parts, if any, of the following, which is based on the evidence produced at trial and in the pretrial phase, you think did not happen. Let’s set aside the question of criminal liability and talk about what happened.

It turned out, to most people’s surprise (including mine), that the jury found Judith Miller to be a credible witness when she testified that Libby disclosed to her on July 8, 2003 that Joe Wilson’s wife worked at the CIA. It helped that she had notes to support her recollection. In fact, Libby’s July 8 meeting with Miller was of considerable significance to him and to Vice President Cheney. The trial presented evidence that Cheney and Libby carefully decided Libby should talk to Miller, and strategized in advance of the meeting about what he would say. John Hannah, Libby’s replacement as National Security Advisor to Cheney and a defense witness, acknowledged in testimony that if Libby took up to two hours out of his very busy schedule that week to meet with Miller, it must have been an important meeting. Libby’s explanation for the meeting was that he was giving Miller an exclusive leak of portions of the October 2002 National Intelligence Estimate, specially and secretly declassified by President Bush in authorizing Libby, via Cheney, to leak it to reporter(s). The trouble with that explanation is that Libby had already leaked the key portion of the NIE -- its claim that Iraq was vigorously pursuing uranium in Africa -- to two reporters, Bob Woodward and David Sanger, in the two weeks preceding his meeting with Miller.

Instead, one important purpose of the meeting with Miller was to leak to her the fact that Wilson’s wife worked at the CIA.

One particularly striking piece of evidence -- for the jury as well as for any observer -- was Vice President Cheney’s underlined and annotated copy of Joe Wilson’s July 6 op-ed. Cheney made a series of rhetorical questions critical of Wilson’s mission culminating in this: “did his wife send him on a junket?” This obviously demonstrated Cheney’s knowledge of Wilson’s wife’s CIA employment at the time and its perceived importance to him.

But Fitzgerald also introduced evidence that showed that Cheney personally overhauled the OVP’s talking points about Wilson in light of his reactions to the Wilson op-ed. The significance of that evidence is not simply that Cheney’s communications staff did what he told them to do. The new primary talking point for public consumption raised the question of who had sent Wilson -- just the question to which Cheney was privately asserting the answer was “Wilson’s wife.” Put simply, the fact that Cheney was using Plame’s CIA employment as his criticism of Wilson in his notes, and the fact that Libby was giving out the information to Miller shortly thereafter, makes it very unlikely that Cheney did not communicate his knowledge of and criticism of Wilson’s wife’s CIA identity to Libby when they did their compartmented preparation for the Miller interview. That they kept the Miller interview secret from Cathie Martin, Cheney’s chief press aide, and that Cheney did not include the information about Plame in his talking points, instead publicly seeking only to raise a question he thought he had the supposedly damning answer to, suggests that he knew the information was sensitive.

Now, whether Cheney explicitly told Libby to blow Plame’s cover, or only communicated the information about Wilson’s wife working at the CIA to him and repeated his refrain from that week that he wanted to get all the facts out, get everything out -- we don’t know, since Libby testified that he could not have heard from Cheney about Plame in preparation for the meeting with Miller since he only learned the information, as though it were new, from Tim Russert a few days later.

As for why Libby and Cheney would have singled out Judith Miller when Libby did not blow Plame’s cover to other reporters he was speaking with at the time, there’s a very simple answer. No other reporter combined, to the same extent, ideological sympathy with the OVP worldview (along with investment in defending robust prewar claims about Iraq’s WMD) and prominence of publication venue at the very heart of the MSM. Or, as Libby himself put it to the grand jury, “I selected Judy Miller because I know her to be a responsible reporter.”

The leak failed, because Miller was not really being allowed to publish at the Times, but not for lack of trying on Libby’s part.

Not all coordinated efforts have to be vast conspiracies. And the fact that others were conducting themselves inappropriately at the same time should hardly get Cheney and Libby off the hook of public accountability.

Best,

Jeff

Jeff Lomonaco is an assistant professor of political science at the University of Minnesota, where he specializes in political theory. He has been doing analysis of the Libby trial for The American Prospect Online.

Did you even watch Judith Miller’s testimony?
By Byron York

Jeff,

This may be of interest only to hard-core Plameologists, but did you watch Judith Miller’s testimony?

You seem to think it is very important that Libby told Miller aboutValerie Plame Wilson on July 8, 2003, a meeting that had “considerablesignificance” to Libby and Vice President Cheney. The two men “carefully decided” and “strategized in advance” about what Libby would tell Miller, specifically that he would blow Valerie Plame Wilson’s cover. And Cheney’s state of mind -- very angry about Joe Wilson and ready to get back at him -- was indicated by the annotated copy of Wilson’s July 6, 2003 New York Times op-ed, which you call a “particularly striking” piece of evidence. Cheney scribbled his notes on the op-ed and communicated his concerns to Libby “shortly thereafter,” making it highly likely that Cheney told Libby aboutMrs. Wilson as part of their “compartmented preparation for the Millerinterview.”

It’s all there, you seem to suggest. Just look at it.

So my question again is, did you watch Miller’s testimony? For that matter, did you watch the trial?

Miller testified that Libby first told her about Mrs. Wilson in a meeting on June 23, 2003 -- two weeks before the meeting you cite on July 8. It was also almost two weeks before Joseph Wilson’s July 6 Times op-ed. In June, Wilson was taking anonymous potshots at the administration -- most notably as a source for the Times’ Nicholas Kristof. People in the government, including in the vice president’s office, had figured out who he was, and Libby knew that when he met Miller in the Old Executive Office Building on June 23.

“Mr. Libby appeared to me to be agitated and frustrated and angry,” Miller testified. “He is a very low-key and controlled guy, but he seemed annoyed.” (All the quotes are from my notes from Miller’s testimony.)

“Did he indicate what he was annoyed at?” asked prosecutor PatrickFitzgerald.

“He was concerned that the CIA was beginning to backpedal, to tryto distance itself from the unequivocal intelligence estimates it hadprovided before the war, by what he called a ‘perverted war of leaks.’”

“Did the topic of Mr. Wilson come up at that meeting?”

“Yes,” Miller said. “He said that his office had learned that Mr. Wilson had been sent overseas.”

“Was Mr. Libby indicating to you that the vice president’s office had sent Mr. Wilson on the trip?”

“No, it was to the contrary. He said that the vice president did not know that Mr. Wilson had been sent on the trip. He said that the vicepresident did not know Mr. Wilson and that the vice president did not get a readout of what he found on the trip.”

“Was there any discussion of Mr. Wilson’s wife?”

“Yes. When Mr. Libby was discussing the intelligence reporting from the CIA he said that his wife, referring to Wilson, worked in the bureau.”

“What did you understand ‘bureau’ to mean?”

“I was a little unsure what he meant by that, but in the context of our discussion it became clear that he was referring to the CIA.”

“Did you write anything about his wife working for the bureau in your notes?”

“Yes.”

Okay. So all that happened before the July 8 meeting and beforeWilson’s July 6 op-ed. Listening to that testimony, you can see virtually all the points that later appeared in talking points -- the VP’s office didn’t know Wilson, the VP’s office didn’t send Wilson on the trip to Africa, the VP’s office didn’t know the results of his trip, Wilson’s wife worked for the CIA -- that you seem to think came from the “compartmented preparation” for the July 8 interview. So it simply didn’t happen that way.

Then you write:

Did you know that Libby testified before the grand jury that heoriginally learned about Mrs. Wilson from the vice president somewherearound June 10, 2003?

You ask, “I’d be interested to hear which parts, if any, of the following, which is based on the evidence produced at trial and in thepretrial phase, you think did not happen.” The way I’d phrase it would be to ask which parts I think you got right. And the answer is: None of it.

Byron York is White House correspondent for National Review. His coverage of the Libby trial can be read at nationalreview.com.

Fitzgerald thought it went deeper
By Jeff Lomonaco

Byron,

Thanks a lot for the response. I should have been clearer, I think, in making the point that there are numerous alternative explanations for Fitzgerald not charging on underlying crimes: 1) clearly, he judged he had the stronger case on these charges against Libby, and my understanding is that it’s pretty standard for federal prosecutors to (have the relative luxury to) pick and choose among the charges for the strongest ones; 2)with regard to Libby and Cheney themselves, charging on underlying crimes would also have put Fitzgerald’s prosecution at much graver risk of succumbing to greymail than here -- and you saw how hard it was to avoid that even here with the CIPA process. Indeed, my view is that Fitzgerald barely got past it here -- all to have Libby not testify! (which is a separate issue); 3)he really doesn’t feel confident that he cracked, with the requisite precision, the cover-up he believes happened. And frankly, I think the key issue is neither Russert nor Cooper, but Judith Miller, particularly on July 8, 2003.

Apart from the fact that Fitzgerald probably came to believe he had a crappy witness in Miller -- both in the sense that she would not make avery credible witness for the prosecution and in the sense that she gave him pretty much only what she had to on the basis of her notes, initially denying (in keeping with Libby’s recommendations in the famous Aspens letter) a relevant June 2003 meeting before finding them under her desk after being pressed about it and continuing to deny that Libby gave her Wilson’s wife’s name -- what Fitzgerald does not have is good direct evidence of what passed between Cheney and Libby in the day(s) between the publication of Wilson’s op-ed and Libby’s interview with Miller, as well possibly as before the Wilson op-ed. And that is, it seems to me, where Fitzgerald suspected the not-vast, not-great coordinated effort took place.

As for the fact that Miller did not publish, well, Libby himself in his grand jury testimony pointed to the ineptness of his and Cheney’s efforts to leak to her -- only, of course, he was talking only about leaking portions of the NIE to her in a purported exclusive, purported because it turned out that Libby had leaked at least the key portion to Woodward and Sanger in the two weeks preceding the July 8 meeting with Miller. But Libby admitted that he didn’t know that Miller was on double public probation at the Times because of her problematic reporting on Iraqi WMD and WMD-related programs. And Miller wanted the Times to publish the information about the Wilsons. So it was an inept leak, but a leak nonetheless, and only because of some contingencies, it appears, did Novak publish while she did not.

One other note on trial tactics and strategy: I take it Fitzgerald would not want to argue that Libby did commit another crime, the investigation of which Libby obstructed, because then that claim becomes subject to proof, doesn’t it? So it makes more sense to suggest it, just as a matter of trial strategy. But perhaps I’m wrong on that.

As for Armitage, I of course wouldn’t expect Fitzgerald to spend a lot of public time at this point drawing attention to the fact that he evidently did not charge Armitage while he charged Libby, perhaps because he made some judgment that Armitage did not and Libby seems to have had a certain state of mind while committing the outwardly identical act of blowing Plame’s cover to reporters. I actually am puzzled that Armitage was charged with nothing, even after the Woodward revelation. But I don’t think it’s because Fitzgerald, like Armitage, are members of the anti-White House party of weakness or whatever.

I’d also add that while Armitage’s leak to Woodward makes him the first known leaker, Libby was leaking to Miller before Armitage was leaking to Novak, even if we don’t count Libby’s June 23 leak to Miller.

I’m not sure what to make of your clever finish on Libby and Armitage are you suggesting that Armitage did precisely what Libby is accused of doing, lying by saying he was just passing along the Plame information as gossip? Or is it that Libby was telling the truth and only doing what got Armitage off the hook?

On that note, I’m curious about what you think happened with regard to the underlying conduct. Feel free to answer or not, but do you think that Libby knew that Wilson’s wife worked at the CIA immediately before he talked to Tim Russert on July 11 or so, 2003 -- or before Libby might have heard the information from reporters, whichever one or ones, in July 2003? Do you think Libby knew that he had learned the information from government sources at that point? Do you think Libby disclosed that Wilson’s wife worked at the CIA to Judith Miller on July 8? Do you think Cheney directed him to do so as part of what appears to be his undisputed directions to Libby to talk to Miller and leak information related to the 16 words controversy in criticism of/response to Wilson to her?

Not saying that any of that necessarily constitutes a crime, of course. Just curious whether you think it happened like that, more or less.

Where’s the underlying crime?
By Byron York

Jeff, the reason I speak so confidently about “the lack of an underlying crime” and say that Fitzgerald was “unable to find sufficient evidence to charge anyone with those very serious crimes” is because Fitzgerald investigated the case three years and never charged anyone with an underlying crime. That seems pretty clear.

But you say I should consider the possibility that Libby’s alleged obstruction kept Fitzgerald from discovering an underlying crime. Okay. Now that we know (and have known since late October 2005) which particular lies Libby is accused of telling, we can evaluate whether it is reasonable to conclude that those alleged lies so obstructed Fitzgerald’s investigation that he was not able to get to the truth of the crimes that some believe lay underneath.

Let’s say Libby did not testify before the grand jury that Tim Russert told him about Valerie Plame Wilson and did not swear that he, Libby, told Matthew Cooper that reporters had told him about Mrs. Wilson. (Those are the two main offenses alleged in the current trial.) Would that have given Fitzgerald the key he needed to uncover the great underlying crime? I find it hard to believe that anyone would argue that. Fitzgerald got testimony from everybody -- Grenier, Schmall, Grossman, Martin, et al -- and heard their stories, presumably true, about their discussions with Libby.

And of course, those who want to argue that there was an underlying crime are not helped by the fact, barely acknowledged publicly by Fitzgerald, that the original leaker of Mrs. Wilson’s identity was Richard Armitage. During the trial, we actually heard Armitage leaking her identity to Bob Woodward (a conversation thankfully recorded by Woodward). But don’t worry, that wasn’t a crime -- in his closing arguments, prosecutor Peter Zeidenberg said that exposing a CIA agent’s identity wasn’t criminal if it was just “passing along gossip.”

That’s good to know. Maybe Libby should have told investigators that he was just passing along gossip and Fitzgerald would have gone away.