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The Miller’s Tale (And Other Legal Wranglings), Part III

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The Libby filing wasn’t just about Judy Miller and the NYTimes, though.  There are particularly meaty parts reserved for NBC News honchos Tim Russert and Andrea Mitchell and Time reporter Matt Cooper.  Yes, my friends, in this banquet of media finger pointing and information gathering, La Judy is simply the appetizer.

In pp. 24-31, Team Libby lays out its arguments with regard to Andrea Mitchell’s conflicting public statements.  Jane covered Mitchell’s credibility gap extremely well yesterday in her post, but I want to discuss a few points that Team Libby uses in its legal arguments here.

But first, a moment of snark.  On p. 25, Team Libby starts their discussion with a pararaph regarding Andrea Mitchell’s journalistic reputation in the DC power circles:

…and at the time of the indictment was an active reporter on foreign policy and intelligence issues, including the administration’s decision to go to war in Iraq. She is known as an "access reporter" who has well-developed contacts in numerous government agencies, including the CIA and the Department of State.

Translation: She’s a "go to gal" that we’ve found useful on occasion for planting stories.  (She’s not Steno Sue, but hey, who is?  And what’s with the "at the time of the indictment she was an active reporter" bit — what is she now?  Veddy interesting wording, although it may have more to do with the argument to the judge on the necessity of obtaining the information than anything else.)

The big kerfuffle surrounding Mitchell, though, is her series of comments made on CNBC and on Imus and elsewhere.  They are poorly stated, and can be parsed six ways to Sunday, but I still think that Mitchell was puffing a bit instead of truly "in the know" as she clearly wanted to appear.  But whatever in the hell she was trying to do, neither Mitchell nor NBC has sufficiently explained any of this — nor has Russert to my satisfaction — so I’m truly looking forward to an answer or two from that crew, and to the extent that Team Libby pulls some out, well that’s ultimately good for the rest of us who want this water to be a little less muddy.

One of the odder bits is on p. 26, where Team Libby attempts to cast doubt on Russert’s memory of the conversation with Scooter.  Of course, that’s what they are going to have to do in order to defend Libby against that particular charge in the indictment — but, if the understanding of how this conversation came about is accurate, they may have a hard sell.  I think Tim Russert might very well remember an irate Scooter Libby calling to rake him over the coals for Tweety actually doing his job.  I mean, how often can that happen, honestly?

Were I Russert, I’d find that a memorable occasion.  But maybe it’s just me.

We then get into a very convoluted tap dance wherein Team Libby tries to make it seem as though Russert and Mitchell are some sort of Fred Astaire and Ginger Rogers pair of journalism — working in synch on all things Plame, without presenting any evidence that this is so other than some hopeful speculation on Team Libby’s part.  See, for example, on page 28:

The fact that Ms. Mitchell may have known about Ms. Wilson’s employment prior to the Novak column would be important to the defense. It makes it more likely that Ms. Mitchell shared this information with Mr. Russert — and that he in turn asked Mr. Libby if he knew it too. Indeed, Ms. Mitchell’s public statements reveal that she, Mr. Russert and other NBC employees were actively discussing Mr. Wilson and the circumstances surrounding his trip to Niger during the week that Mr. Russert and Mr. Libby spoke.

While all that is a rosy scenario for Scooter’s defense, there has to be some factual residue to back it up beyond the fact that Mitchell likes to make herself look "in the know," and at this point, I’d like to know a whole lot more about the facts surrounding all of this before I’m ready to chalk this up to anything beyond some Andrea Mitchell puffery.

I think that Team Libby makes some valid points on this aspect of the case, especially that Mitchell may have sent some documentary explanation to her superiors at NBC — either an e-mail or via letter — regarding her on-air statements and that, if Scooter intends to call her as a witness, he would like to see such documents.  Whether the judge finds that this is material to Scooter’s defense preparation prior to trial, though, is a discretionary call on the judge’s part.  Guess we’ll see on this, but it will certainly make for some interesting arguments at the motion hearing.

On p. 30, we move on to an argument that is mercifully short:  we learn that Libby spoke with Mitchell during this time period and, apparently, did not mention Valerie Wilson to her, or anything relating to her at all.  Team Libby claims that this is some sort of magic proof that undermines his involvement in an effort to discredit Wilson.  Gee, because Scooter might have other reasons to talk with Mitchell — such as correcting a story to plant some Administration spin on Iraq, or because he might have felt that mentioning Valerie might be distasteful to Andrea’s delicate sensibilties or a bazillion other reasons.  I mean, please, are they going to trot out the shoe shine guy and say that Scooter only talked buffing, and therefore he didn’t have any interest in shopping around the Wilson’s wife bit?  (Okay, that’s a bit snarky, even for me, but one conversation does not a defense pattern make.  It’s a pretty big stretch and smacks ever so slightly of pathetic maneuvering.)

They also reference the David Gregory/John Dickerson potential conversations with Ari Fleischer on the Africa trip and that NBC may have some documents pertaining to the hints to look into why Wilson went to Niger in the first place.  (See p. 31.)  Ari ought to be looking for a target on his back about now, along with Cathie Martin, if the whole of this filing is any indication, because Scooter may be playing pin the tail on the scapegoat.

But the big guns in this filing are aiming at Matt Cooper of Time Magazine (beginning on p. 31), which says to me a couple of things:  that they fear Cooper is a likeable, credible kind of guy — the sort of person with whom the jury can identify and who could sink Scooter if they believe Cooper’s version of events (and I base this solely on Cooper’s interview persona and the personality that comes out of his writing style and my trial experience in front of multiple juries, watching how witnesses are perceived); and that Team Libby is willing to pull out all the stops to either intimidate Cooper or to find a chink in his nice guy armor.

All through the Cooper section of the filing, Viveca Novak’s name keeps popping up.  That call to Luskin to give her legal pal a heads up will be a big complication for her, and it ought to be — interfering in a criminal investigation can get you charged with a crime.

On pp. 34-35, Team Libby tries to paint Cooper as having a pro-Wilson bias (rather than as a journalist who was trying to call the facts as they actually were, because clearly truth has no relevance, but I digress…).

In addition, these requests are likely to reach evidence establishing Mr. Cooper’s pro-Wilson bias when he talked with Mr. Libby, afterwards he drafted A War On Wilson?, and finally when he testified….Mr. Cooper, one e-mail suggests, viewed Mr. Libby’s alleged comments during their call as part of a personal attack on Mr. Wilson rather than as what his own notes reflect — a fact-based criticism of the merits of Mr. Wilson’s claims.

Well, except for the fact that Libby’s own fellow WH compadres thought that Scooter’s obsession with getting even with Wilson was way over the line, that whole "Matt Cooper hearts Joe Wilson" thing might be…erm..well, it’s just not all that plausible, is it?  Remember this LA Times article:

The compendium used boldfaced type to call attention to certain comments by Wilson, such as one in the Daily Iowan, the University of Iowa student newspaper, in which Wilson was quoted as calling Cheney "a lying son of a bitch." It also highlighted Wilson’s answers to questions from television journalists about his work with Sen. John F. Kerry, the Democratic presidential nominee.

The intensity with which Libby reacted to Wilson had many senior White House staffers puzzled, and few agreed with his counterattack plan or its rationale, former aides said….

The documents and interviews portray Libby as highly attuned to detail. He dictated the format for internal memos, including that paragraphs be indented.

The documents and interviews show that, when it came to monitoring media coverage of Wilson and other issues affecting the vice president’s reputation, Libby was meticulous. Staffers were instructed to use Nexis and Google to watch even the most obscure publications.

Look, I’m sympathetic to the plight of those who are hip to attention to detail, but honestly, when your own fellow WHIG pals think you’ve gone overboard with the revenge mode, how far over the line are you?  And could you honestly blame Matt Cooper for picking up on your "dislike of Joe Wilson, get even with him at all costs for making Dick Cheney look bad" vibe when you are running around with a Joe Wilson clippings notebook and a tabbed and color-coded staff compiled laundry list of everything he’s ever done to piss you off?  I mean, honestly, jurors are a lot of things, but you can’t depend on every single one of them being a rube who will be willing to buy your Arizona ocean-front property at twice the market price.  That’s a pretty enormous roll of the dice if that’s your bet.

And that is especially true if Patrick Fitzgerald has those notebooks to plunk down in front of the jury, for them to take back to the deliberation room and thumb through at their leisure, look at your every scribbled notation or highlighted passage or e-mail to subordinates about checking out the University of Iowa college newspaper for quotes from Wilson.  It gets tougher and tougher to make an argument stick that Cooper was off base in thinking that maybe Scooter was a little peeved with Wilson, doesn’t it, in that context?

There are some references to members of the Time reporting staff contacting others — Fleischer, Joe Wilson himself, Rove, etc. — and trying to shift the blame onto what Cooper may have known.  This is a typical tactic — point the finger at the witness rather than your own client, but ultimately what the jury (and the judge) will be considering is the indictment and the evidence presented at trial.  And that indictment has Scooter Libby’s name on it, not Matt Cooper’s or anyone else in terms of who is charged therein.  And Libby will have to be answerable for  his own conduct — and the heaping amount of evidence that all adds up to the Federal grand jury signing off on the five-count felony indictment in the first place.

On pp. 37-45, there is an extensive argument regarding the claimed reporter’s privilege under the First Amendment, and why that ought not be recognized by the court.  For my money, this is the strongest part of the entire brief — it is well argued, clear and concise, with only a few areas where any questions need be raised.  And I think it is going to be a difficult argument to overcome for the reporters and news organizations asserting it.

All in all, a very interesting filing from Camp Scooter.  We’ve known for quite a while that the media credibility issue was going to be a big defense area, and this maps out a bit more clearly where they are testing for weak spots (which is exactly what you would expect a competent defense counsel to do).  But this all depends on Judge Walton and how narrowly he reads the question of materiality for Scooter’s particular indictment — and how generous he wants to be in advance of trial.  And there are a lot of open questions in my mind as to how muchof all this information Libby will ultimately get out of these subpoenas — he’s likely to get some, but I’m not sure how much toward all of it he’ll be able to go.  But all of this makes for a very interesting set of arguments come May 16th — and I, for one, am looking forward to it.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com

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