Victoria's Secret ~~ Libby Trial Deliberations: 3-1-07

The jury is starting another day of deliberations. No word yet on a verdict — you'll know as soon as we know. And in the meantime…

Also, yesterday afternoon (3:45) the jury asked for another post-it flip chart pad.

Someone has been in too many business brainstorming sessions, I think. Jokes in the media room about "The Libby Trial, brought to you by Post-It."

Remember a few weeks ago, when Jim Marcinkowski challenged Ted Wells to put his punk on the stand –either one of them.

Well, it seems like Marcinkowski is a little bit irked that Wells didn't do so. Because he really lays the slapdown on Victoria Toensing in this post at No Quarter. He starts by reminding her (and who should have to remind Toensing of this, after her rants about Clinton?) that perjury is a crime.

Second, to allege that there first must be an underlying crime to bring a perjury charge is flat wrong, and every first-year law student knows it. Perjury is itself a crime, period. Under the Grand Jury system, evidence is presented to a panel.

If the panel decides that a crime was committed, then an indictment is issued. If not, the case ends. Either way, the evidence submitted must be the truth. You don’t get to lie to a Grand Jury. That’s pretty simple, unless of course you feel that one should be free to lie and suffer no consequence - hardly an argument that should be advanced by an attorney and officer of the court.

To assert that Valerie was not covert is to assert that the CIA operates public branch offices overseas. Victoria, here’s a news flash for you - there are a lot of people in this world that don’t like the United States in general and the CIA in particular. Anyone in the CIA traveling overseas would be as nuts as your op-ed to reveal that association. CIA officers and offices are placed all over the world. I really don’t recall the CIA crest adorning any office or being listed in any embassy directory. Victoria, the CIA is a spy agency, it is full of spies who spy on objects of interest to the United States. There are no non-covert spies.

To add a gloss of legitimacy, Ms. Toensing erroneously cites the law as requiring the covert agent to have had a “foreign assignment,” then concludes that Valerie was not “stationed” overseas.

Nice try. The law uses neither of these descriptions as a basis for defining the criminal act of disclosing the identity of a covert agent. The law only requires that the agent have served overseas within the preceding five years of his or her disclosure. CIA officers may very well serve overseas by meeting with secret sources in third countries.

The fact that they may be “stationed” or “assigned” to Washington, D.C. does not prohibit them from serving overseas by actually engaging in clandestine operations in other countries and returning thereafter to this country.

Would the purpose of the law designed to protect our agents operating overseas be served by distinguishing between the two scenarios? If so, then Ms. Toensing, who claims to have assisted the Senate Intelligence Committee in drafting the law, did a very lousy job.

And finally, he hits the right note of seriousness about a office of the court making false statements.

Rules of professional conduct for attorneys around the country make numerous references to truth telling both inside and outside the courtroom, e.g. “…an advocate must disclose the existence of perjury….” or, “…a lawyer shall not knowingly make a false statement of material fact or law to a third person…”

http://www.americanthinker.com/blog/2007/02/bait_and_switch_and_trap_the_r_1.html

Clarice Feldman and cohort nail it:

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"I've been puzzling over the circumstances surrounding the referral letter that CIA sent to DoJ in what is commonly referred to as the Plame case. My puzzlement arises particularly in light of what Victoria Toensing wrote in the Washington Post on 02/18/2007. First, here are four statements relating to the referral:

Toensing in WaPo:

THIS GRAND JURY CHARGES THE CIA for making a boilerplate criminal referral to cover its derrierre.

The CIA is well aware of the requirements of the law protecting the identity of covert officers and agents. I know, because in 1982, as chief counsel to the Senate intelligence committee, I negotiated the terms of that legislation between the media and the intelligence community. Even if Plame's status were "classified"-- Fitzgerald never introduced one piece of evidence to support such status -- no law would be violated.

There is no better evidence that the CIA was only covering its rear by requesting a Justice Department criminal investigation than the fact that it sent a boiler-plate referral regarding a classified leak and not one addressing the elements of a covert officer's disclosure. [emphasis added]

Judge Reggie Walton to the trial jury:

Walton announced that not only did the jurors not know Mrs. Wilson's status but that he didn't know it, either. "I don't know, based on what has been presented to me in this case, what her status was," Walton said. "It's totally irrelevant to this case." Just so there was no mistake, on January 31 Walton said it again: "I to this day don't know what her actual status was." (From an article by Byron York, NR, 02/05/2007) [emphasis added]

Team Fitzgerald to Team Libby:

But in a letter to the Libby team last Tuesday, Fitzgerald's deputy, Kathleen Kedian, said the special prosecutor will not give up the referral and that Libby simply did not need to know what was in it.

"After consultation with the CIA, we advise that we view any such documents in our possession as not discoverable," Kedian wrote. "The documents remain classified and contain information compiled for law enforcement purposes that is neither material to the preparation of the defense, nor exculpatory as to Mr. Libby." (From an article by Byron York, NR, 02/27/2006) [emphasis added]

Deputy AG Comey to Special Counsel Fitzgerald, 12/20/2003:

I hereby delegate to you all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity...

What can we draw from these four statements?

1. I assume that Toensing doesn't just mouth off without knowing basic facts. She asserts as a fact that the referral was for "a boiler-plate referral regarding a classified leak and not one addressing the elements of a covert officer's disclosure."

I have to believe she has good information for that assertion, namely that the referral was general in nature and specifically did not address the elements of Plame's status that would allow a reader of the referral to come to preliminary opinion as to whether Plame was "covert" for purposes of the Intelligence Identities Protection Act (IIPA).

2. Judge Walton's statement to the jury would appear to confirm Toensing's assertion, because if the referral had addressed the question of Plame's covert status he would be unlikely to make such a statement to the jury, nor tell Libby's attorneys that there was no relevant information in the referral that would be of any use to them.

It seems unlikely that the CIA could have sent a referral regarding the disclosure of a covert officer's identity without presenting prima facie evidence that that officer did in fact qualify as "covert" under the IIPA--the CIA could hardly have said, hey, we don't know whether our own employee was covert but we want DoJ and the FBI to investigate it. Therefore, again, the referral would seem not to have been based on the IIPA.

3. But, running counter to these indicators is Comey's delegation of "authority" (not of "function" as the statute reads) to Fitzgerald, which specifically states that it relates to "the alleged unauthorized disclosure of a CIA employee's identity..."

What strikes me about this delegation is that it makes no reference to specific criminal statutes that may have been violated.

It essentially states: here is a factual situation, investigate it.

Now, there was in fact a very public allegation that a specific statute had been violated: the IIPA. Anyone who had followed the whole Plame kerfuffle in the newspapers and on the internet would have expected that the IIPA, which was referenced almost immediately after Robert Novak's article which referenced Plame appeared.

Moreover, as Toensing knows better than anyone, that statute was written as a direct response to--as a solution to--the problem of unauthorized disclosures of covert officers' identity.

What's going on here?

4. The answer may lie in the wording of Comey's delegation. Rather than referencing "the alleged unauthorized disclosure of a [covert] CIA [officer's] identity..." the delegation only makes a vague reference to an "alleged unauthorized disclosure of a CIA employee's identity..."

Viewed through this prism, Comey's phrasing may constitute confirmation of Toensing's assertion: the referral makes no reference to covert status but only vaguely suggests that the disclosure of Plame's employment somehow violated a statute prohibiting unauthorized disclosure of classified information.

5. In the event, the investigation disclosed no violations of law whatsoever.

Nevertheless, in his closing statement Fitzgerald made repeated references to the possibility that a covert officer's identity had been disclosed maliciously and that people might die as a result--in spite of the fact that the referral letter apparently never referenced covert status as an issue.

6. Beyond pointing up the essentially unethical nature of the Libby prosecution--long obvious--these factors suggest to me that there may have been a type of bait and switch at the heart of the entire investigation.

The operation of this bait and switch relied on the public outcry in the MSM about the disclosure of a covert officer's identitity. The reality, if the above analysis is correct, is that the referral letter did not reference such a possibility because it was known that Plame was not "covert" for purposes of the IIPA.

The relevant officials at CIA and DoJ knew that this public scenario, replete with images of Administration officials frog marching out of the White house, bore no relation to the reality of the situation--especially in light of what those officials had learned from Richard Armitage.

So, the investigation was an open ended warrant to find a violation of any statute or, failing that, to induce a process violation in the course of the investigation. The bait and switch relied on the public hue and cry to provide cover for turning the White House inside out in search of a crime--any crime.

7. The real targets of the investigation (Cheney, Rove, Libby) would be told that they were not targets as such but merely witnesses.

They would be required by the President to appear over and over before the Grand Jury, ostensibly to give evidence to assist the investigation of what publicly appeared to be the disclosure of a "covert" officer's identity.

These targets would rely on the Special Counsel's representations because they had not committed the acts that appeared from public statements--including Comey's letter--to be the focus of the investigation.

The Special Counsel had deniability in the form of Comey's letter, although all Fitzgerald's actions have revealed all too clearly that they were in fact targets and not merely witnesses.

No doubt the Special Counsel hoped that the targets' sense of their own innocence of what was publicly alleged would lead them to reveal some factual situation that could be construed as a criminal violation--or, failing that, become involved in a process violation.

Had the investigation in fact concerned the disclosure of a covert officer's identity, the true target would of course have been Armitage. The lack of prosecutorial interest in Armitage gives the game away.

8. Finally, the release of all 8 hours of Libby's testimony before the Grand Jury disclose the inordinate amount of time Fitzgerald spent grilling Libby about the declassification of the National Intelligence Estimate (NIE) and when Libby talked to reporters about that.

This is a clear indication that Fitzgerald was fully aware that there was no hope for a violation of the IIPA, despite the outrageous statements he made to the trial jury.

It is further apparent from the record that the CIA did not want the declassification of the NIE to take place quickly even though that left the Administration hanging out on a cliff, unable to respond to Wilson's charges.

Moreover, when DCI Tenet made his July 11 mea culpa he refused to do what the Administration wanted him to do--state publicly that the CIA, not the Office of the Vice President (OVP) had sent Wilson to Niger.

From all the above, it is clear beyond dispute that this entire disgraceful episode was manufactured deceitfully as part of a campaign to undermine and even bring down the Bush Administration."

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She is an absolute jewel.

Empty brain .. er .. wheel .. mindlessly speculates on Libby and his wife.

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http://www.firedoglake.com/

Unmasking Scooter
By emptywheel @ 8:13 am

One thing we've talked a lot about is the way in which Libby and his wife pose for the pictures. Every time they enter or leave the courthouse, there's a phalanx of photographers waiting to take almost the same picture they did of him the day before. I joked with one of the reporters yesterday that–for days like yesterday when there was no news–it ensures you have something to put below the headline reading, "Still Waiting."

Mind you, I'm not faulting Libby or his wife for posing for these photographers. The case against the Administration and the case for a pardon are being made in the public sphere, and it is just as important for Libby to wear his game face for those photos as it is to mount a credible defense in the court room.

In almost all of those pictures, Libby has had a huge grin on his face, almost a howdy doody smile. Even when we're waiting in line at the Starbucks cart in the morning (I seem to be on the same caffeine schedule as the defense team), it's that same big smile, a smile that makes me think of both senses of the word, "plastered."

But it seems like the stress of deliberation is taking its toll on Libby's ability to maintain that mask. Yesterday, for example, as the teams left the court room after the jury's head fake ("Sorry, we don't want your stinking instructions after all! Psyche!"), Libby had to come back for a portfolio he had left behind.

He was distracted. The mask was down. He had a haunted (or, perhaps more generously, just exhausted) look. At other times, the mask looks exaggerated, which when you're starting with a howdy doody smile, is really saying something.

Again. I'm not blaming Libby.

Consider the stress Judy Miller was very visibly under when she was on the stand. She didn't maintain her game face, either. Heck, liar extraordinaire Ari Fleischer couldn't even do it, not when Jeffress asked him if he had been indicted for perjury about the Pincus conversation. Take the stress they experienced on the stand, multiply that by the days we've been waiting and the real possibility of jail time, and I'm sure my game face would be cracking too.

But I get the feeling that that mask is really close to cracking.

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