Where There’s Smoke…
This morning’s NYDaily News held quite a juicy tidbit at the very end of a short article on the latest discovery request filings from Team Libby.
Fitzgerald, who is fighting Libby’s request, said in a letter to Libby’s lawyers that many e-mails from Cheney’s office at the time of the Plame leak in 2003 have been deleted contrary to White House policy.
Well, that doesn’t sound good, now does it? So I have spent the day hunting down documents(and having them sent to me by reader angel SD and by Jeralyn at TalkLeft, who had sent me some previous docs), and then reading and re-reading everything to be certain I’d gotten it the way Fitz was intending it…and I must say, these motions and responses and correspondence make for a veddy, veddy interesting read. (These documents are, unfortunately, not available as yet to link — they were pulled from the Federal filing system, but when links become available, I will post them. I’ll summarize and quote below to give you a feel for them.)
And I have to say, I agree wholeheartedly with both Jeralyn and Kevin Drum that this missing e-mail trail is going to require a lot of inquiry, if it isn’t already getting just that — can you say destruction of evidence, conspiracy, obstruction and a whole host of other problems? I thought you could.
But let’s step back from that for just a moment, and look at the whole of the motions and correspondence. Because there is a LOT there above and beyond the missing e-mails from the Vice President’s and President’s offices for certain periods in 2003. (Man, that felt good to type. I’m ashamed to admit it, but it did. It felt good.)
As Neil Lewis reported in today’s NYTimes, the most recent Libby defense motion outlines some of the avenues that Team Libby is contemplating as potential defenses should the case go to trial. It’s the "my job was hard, so I can’t be held responsible for my tired mind making me do illegal things like lying to a grand jury" defense.
The lawyers for Mr. Libby said that the conversations Mr. Libby had with reporters in the summer of 2003 in which he might have discussed Ms. Wilson’s association with the Central Intelligence Agency "occurred in the midst of an unending torrent of meetings, briefings and discussions of far more urgent and sensitive issues, including for example, the detection and prevention of terrorist attacks against the United States," bringing stability to Iraq and the spread of nuclear weapons in North Korea and Iran.
Mr. Libby was "inundated from early in the morning until late at night with the most sensitive national security issues this country faces," his lawyers said, and the relative insignificance of his conversations with reporters about Ms. Wilson "compared to other matters occupying Mr. Libby’s mind at the time, bears directly on whether he deliberately lied (as the government contends) or made honest misstatements."
My hard job made me lie. Well, it’s certainly an original defense tactic, I’ll give them that. But, as Fitzgerald made abundantly clear in his correspondance (appended to the motion as Exhibits B and C), he’s neither sympathetic nor gullible.
In fact, I’d say that both letters from Fitz are politely worded lawyerese for calling bullshit on the entire tactic. For example, when John Cline, in a letter dated 12/14/05 (Exhibit A), requests pretty much any piece of paper that Scooter Libby may have taken a breath near at any time in his employment and then some, Fitz responds on 1/9/06 (Exhibit B) by stating firmly that he will not allow a random fishing expidition without some show of cause as to why the document is deemed related to Libby’s charges of perjury, obstruction and false statements.
On 1/23/06 (Exhibit C), Fitz again responds to further requests for document and other evidentiary production by saying "Nice try, but no." (Okay, he doesn’t actually say that, but that’s what he means.) One of my favorite bits comes at a time when Fitz explains why he is not handing Team Libby a copy of everything he has in this case because it is still an ongoing investigation, and because there is not, as a matter of custom, an "open door" policy of discovery in this circuit, and especially not in matters where classified information is so pertinent to the matter at hand.
As you are aware, your client has not been charged with a substantive violation of Title 18, United States Code, Section 793. Accordingly, your client is not entitled to discovery of sensitive national security materials pertinent only to a prosecution of a substantive violation of that statute. (Ex. C, p.1)
If you add in the words "moron" and "yet" in a couple of places, it becomes a much more amusing read, but you get a feel for the tone Fitz is using with Team Libby in that one snippet. And I can feel that veiled "but I will accommodate you on additional charges if you’d like to push the matter further" there, can’t you?
On pages 2 and 3 of Exhibit C, we discover that Fitz has a substantial collection of notes and papers on the Wilson trip obtained from CIA sources and from the VP’s office, and I get the impression that the LATimes story about Libby’s meticulous notekeeping and information gathering about the Wilson’s may have been even more accurate than we all thought at the time. That’s going to be interesting to watch play out at trial.
At the top of page 4, Exhibit C, Fitzgerald politely points out to Libby’s attorneys that they misrepresented both what he has said to them and what he did in a motion to the Court, and that he does not take kindly to such misrepresentation. In no uncertain terms. Methinks that whole "Fitz doesn’t like a liar" rumor that we’ve all heard is true…in spades.
In the middle of the same page, there is this revelation:
We also advise you that we understand that reporter John Dickerson of Time Magazine discussed the trip by Mr. Wilson with government officials at some time on July 11 or after, subsequent to Mr. Cooper learning about Mr. Wilson’s wife. Any conversations involving Mr. Dickerson likely took place in Africa and occurred after July 11. (emphasis mine)
Sounds like that Presidential trip to Africa just got a whole lot more interesting, now doesn’t it? And which official coughed up this hairball for Fitz and his team — which must have been discovered after the January 18, 2006, conference call referenced in the letter? Sounds to me like the investigators in this case are still going full bore. And that the grand jury may have heard some new evidence along with playing catch up from the prior grand jury’s work, if so. Isn’t that interesting?
Shall we play a game of guess which officials (and note the use of the plural in Fitz’s correspondence) opened their yaps to Mr. Dickerson? And whether Mr. Dickerson was the one who spoke with Fitz’s team — or whether Fitz has a mole on the inside of the WH? (Is that you, Karl, trying to save your hide again by pointing fingers at your fellow employees?)
Additionally, Fitz says at the top of page 5, Exhibit C, that they are working on the CIA referral and will likely hand over a copy to Team Libby in discovery. (Ooooh, and wouldn’t that make for a good read? I suppose it is too much to hope that the initial CIA referral would become public, but a girl can dream.)
Fitz also refers to what is called 404(b) evidence (evidence of "other crimes") — there is a long legal explanation for this, which I’ll detail in a separate post later, but suffice it to say Fitz dangles out an intriguing tidbit: Libby disclosed information regarding the National Intelligence Estimate (NIE), and was authorized to do so by his superiors, according to Libby’s own testimony to the Grand Jury. Fitz goes on to say that the NIE information was a basis for his discussion with Judy Miller on July 8, and that it is "inextricably intertwined with the narrative of events of Spring 2003," as Libby’s testimony makes plain. Well, isn’t that juicy?
Finally, we get to the big reveal of the day. As a sort of throwaway line, Fitz tosses out a live grenade to flush the game out of the underbrush, if there is any to be found.
We are aware of no evidence pertinent to the charges against defendant Libby which has been destroyed. In an abundance of caution, we advise you that we have learned that not all email of the Office of Vice President and the Executive Office of President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system. (Ex. C, p. 6)
I have to say, I have no idea what that means in terms of the technical ramifications because I don’t know what is normally archived or how it is done in the WH computer system. But I will say this: John Ashcroft, Alberto Gonzalez and Andy Card have a chunk of hours to answer for between when the WH was notified and when they officially locked the system down from staff. And the fact that Fitz is announcing that he knows this in a letter this bluntly says he’s holding one hell of a hand that we can’t see.
It’s going to be a fun few days to see whether anyone gets flushed out of the underbrush. Myself, I’d like to see a big, fat skunk get his hands caught in the cookie cache.
(The lovely photograph via Mayhem and Chaos Photoblog. Hope they don’t mind me using the image, it was so lovely that it made me want to curl up with a cuppa tea and a pile of reading material.)
UPDATE: Raw Story has put up the Exhibit C 1/23/06 letter here (Download a PDF). (Hat tip to Valley Girl.) So now you can read it in its entirety.
UPDATE #2: Georgia10 has more at DKos.