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Dear WSJ…

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Dear Wall Street Journal

I will type slowly, as if speaking to small children who clearly have comprehension problems about large world events and ethical issues such as lying to federal agents and endangering undercover CIA operatives and such. 

Today you write

All of this matters because it suggests that Mr. Fitzgerald is scrambling even now to explain why a seasoned attorney such as Mr. Libby would lie to a grand jury. The prosecutor’s original indictment doesn’t mention a motive. And his mention of our editorial suggests he’s now trying to invent a motive out of Mr. Libby’s attempt to defend the White House from Mr. Wilson’s manifestly false allegations at the onset of a Presidential election campaign. (Mr. Wilson joined the Kerry campaign until he was dropped after the official probes destroyed his credibility.)

There is all the difference in the world between seeking to respond to the substance of Mr. Wilson’s charges, as Mr. Libby did, and taking revenge on him by blowing his wife’s cover, which was the motive originally hypothesized by Bush critics for the Plame exposure. The more of Mr. Fitzgerald’s case that becomes public, the more it looks like he has made the terrible mistake for a prosecutor of taking Joe Wilson’s side in what was essentially a political fight.

Might I suggest you take your own advice from back in June of 2005:

To the extent that the Washington Post’s reporting influenced Judge Sirica, it played a critical if not decisive role. The reporters’ task is of course to report what they can find out, and it’s notable that in their Watergate coverage Messrs. Woodward and Bernstein played the role of old-fashioned diggers, not cable-TV partisans. The rest of the press corps ultimately joined their digging, and Nixon came to have few media defenders.

That was all very different from the Clinton era, when many good reporters did similarly important digging. (Susan Schmidt at the Washington Post and Jeff Gerth of the New York Times come to mind.) But far from being praised for their enterprise, they often became pariahs at their own newspapers and the targets of White House attacks. Much of the media took political sides, rather than stick to their higher obligation of ensuring that a President doesn’t misuse his Constitutional authority. This was the motive for our own extended coverage of Whitewater and the other ethical corner-cutting of the Clinton years.  (emphasis mine)

Why, here’s something that I dug up that you might want to read — it might help you to understand the "ethical corner-cutting" and the issue of "stick[ing] to your higher obligation of ensuring that a President [and his political staffers don’t misuse their] Constitutional autority."   This might make all those clouds disappear a bit for you:

With respect to Miller, the special counsel seeks evidence regarding two exchanges with I. Lewis "Scooter" Libby, Vice President Cheney’s Chief of Staff and National Security Adviser: first, an in-person meeting in Washington, D.C. on July 8, 2003, and second, a telephone conversation on July 12, 2003. Before the grand jury, Libby testified that although he had previously learned about Wilson’s wife’s employment, he had forgotten it by July 8 and recalled no discussion of Wilson during his meeting with Miller. (I-105, 134-35, 279.) As to the July 12 conversation, Libby stated, "I said to her that, that I didn’t know if it was true, but that reporters had told us that the ambassador’s wife works at the CIA, that I didn’t know anything about it." (I-208.) Because other testimony and evidence raises oubts about Libby’s claims, the special counsel believes Miller’s testimony is "essential to determining whether Libby is guilty of crimes, including perjury, false statements and the improper disclosure of national defense information." (8/27/04 Aff. at 28; see also id. at 1-2.)

The special counsel’s argument is persuasive. As Libby admits, in mid-June 2003, when reports first appeared about the Niger trip, the vice president informed Libby "in an off sort of curiosity sort of fashion" that the Niger envoy’s wife worked at the CIA’s counterproliferation division. (I-50-55, 245-46.) In addition, handwritten notes by Libby’s CIA briefer indicate that Libby referred to "Joe Wilson" and "Valerie Wilson" in a conversation on June 14. (8/27/04 Aff. at 12.) Nevertheless, Libby maintains that he believed he was learning about Wilson’s wife’s identity for the first time when he spoke with NBC Washington Bureau Chief Tim Russert on July 10 or 11 regarding coverage of the Niger issue by MSNBC correspondent Chris Matthews. (I-162-69; 8/27/04 Aff. at 9-10.) According to Libby, Russert told him, "[D]id you know that Ambassador Wilson’s wife works at the CIA? . . . [A]ll the reporters know it." (I-166.) Claiming to have been "a little taken aback by that," Libby testified, "I said, no, I don’t know that intentionally because I didn’t want him to take anything I was saying as in any way confirming what he said, because at that point in time I did not recall that I had ever known, and I thought this is something that he was telling me that I was first learning." (I-166.)

Russert recalls this conversation very differently. In his deposition, describing Plame’s employment as a fact that would have been "[v]ery" significant to him –one he would have discussed with NBC management and potentially sought to broadcast–Russert stated, "I have no recollection of knowing that [Wilson’s wife worked at the CIA], so it was impossible for me to have [told Libby] that." (I-43, 32.) Asked to describe his "reaction" to Novak’s July 14 column, Russert said, "Wow. When I read that–it was the first time I knew who Joe Wilson’s wife was and that she was a CIA operative. . . . [I]t was news to me." (I-433.)

Also contrary to Libby’s testimony, it appears that Libby discussed Plame’s employment on several occasions before July 10. (See 8/27/04 Aff. at 11-12.) For example, then-White House Press Secretary Ari Fleischer recalls that over lunch on July 7, the day before Libby’s meeting with Miller, Libby told him, "[T]he Vice-President did not send Ambassador Wilson to Niger . . . the CIA sent Ambassador Wilson to Niger. . . . [H]e was sent by his wife. . . . [S]he works in . . . the Counterproliferation area of the CIA." (II-545-47.) Describing the lunch as "kind of weird" (II-590-91), and noting that Libby typically "operated in a very closed-lip fashion" (II-592), Fleischer recalled that Libby "added something along the lines of, you know, this is hush-hush, nobody knows about this. This is on the q.t." (II-546-47.) Though Libby remembers the lunch meeting, and even says he thanked Fleischer for making a statement about the Niger issue, he denies discussing Wilson’s wife. (I-108-09, 156, 226-27.)

As to the July 12 conversation, * * * * * [REDACTED] ** * * *

Libby called several journalists, including Cooper and Miller. (I-202-03.) As Libby tells it, Cooper, whom he reached first, asked him why Wilson claimed Cheney had ordered the trip, to which Libby responded, "[Y]ou know, offthe-record, reporters are telling us that Ambassador Wilson’s wife works at the CIA and I don’t know if it’s true. . . . [W]e don’t know Mr. Wilson, we didn’t know anything about his mission, so I don’t know if it’s true. But if it’s true, it may explain how he knows some people at the Agency and maybe he got some bad skinny, you know, some bad information." (I-203- 06.) According to Libby, Miller, too, said something that "triggered" him to mention that "reporters had told us that the ambassador’s wife works at the CIA." (I-207-09.)

In contrast, in a deposition limited to Cooper’s contacts with Libby (see II-32-33, 107), Cooper said that he (Cooper) asked Libby "something along the lines of what do you know about Wilson’s wife being involved in, you know, sending him on this mission?" (II-53.) According to Cooper, Libby responded, "[Y]eah, I’ve heard that too" (II-54), which Cooper took as confirmation (II-81-91).

* * * * [REDACTED] * * * * *

Given the evidence contradicting Libby’s testimony, the special counsel appears already to have at least circumstantial grounds for a perjury charge, if nothing else. Miller’s testimony, however, could settle the matter. If Libby mentioned Plame during the July 8 meeting–and Miller’s responses to the documentary subpoena suggest she has notes from that conversation (see 8/27/04 Aff. at 19-20)–then Libby’s version of events would be demonstrably false, since the conversation occurred before he spoke to Russert. Even if he first mentioned Plame on July 12, as he claims, inconsistencies between his recollection and Miller’s could reinforce suspicions of perjury.

What’s more, if Libby mentioned Plame’s covert status in either conversation, charges under the Intelligence Identities Protection Act, 50 U.S.C. § 421, currently off the table for lack of evidence (see 8/27/04 Aff. at 28 & n.15), might become viable. Thus, because Miller may provide key corroboration or contradiction of Libby’s claims–evidence obviously available from no other source–the special counsel has made a compelling showing that the subpoenas directed at Miller are vital to an accurate assessment of Libby’s conduct.

Regarding Cooper, * * * * *[REDACTED] * * * *

…In any event, as with the Miller subpoenas, the evidence sought from Cooper appears essential to accurate understanding of events and could obviously provide information unavailable elsewhere. Thus, again, the special counsel has shown that this evidence is crucial to accurate decision-making by the grand jury.

As to the leaks’ harmfulness, although the record omits specifics about Plame’s work, it appears to confirm, as alleged in the public record and reported in the press, that she worked for the CIA in some unusual capacity relating to counterproliferation. Addressing deficiencies of proof regarding the Intelligence Identities Protection Act, the special counsel refers to Plame as "a person whose identity the CIA was making specific efforts to conceal and who had carried outcovert work overseas within the last 5 years"–representations I trust the special counsel would not make without support.(8/27/04 Aff. at 28 n.15.) In addition, Libby said that Plame worked in the CIA’s counterproliferation division (I-53-55, 245-46), * * * * * [REDACTED] * * * * *

Most telling of all, Harlow, the CIA spokesperson, though confirming Plame’s employment, asked Novak to withhold her name, stating that "although it is very unlikely that she will ever be on another overseas mission . . . it might be embarrassing if she goes on foreign travel on her own" (II-168-69), a statement that strongly implies Plame was covert at least at some point. While another case might require more specific evidence that a leak harmed national security, this showing suffices here, given the information’s extremely slight news value and the lack of any serious dispute regarding Plame’s employment.

Finally, while it is true that on the current record the special counsel’s strongest charges are for perjury and false statements rather than security-related crimes, that fact does not alter the privilege analysis. Insofar as false testimony may have impaired the special counsel’s identification of culprits, perjury in this context is itself a crime with national security implications. What’s more, because the charges contemplated here relate to false denials of responsibility for Plame’s exposure, prosecuting perjury or false statements would be tantamount to punishing the leak. Thus, given the compelling showing of need and exhaustion, plus the sharply tilted balance between harm and news value, the special counsel may overcome the reporters’ qualified privilege, even if his only purpose–at least at this stage of his investigation–is to shore up perjury charges against leading suspects such as Libby * * * * * [REDACTED] * * * * * (via Talkleft’s transcription)

Gee, that does come from a Federal Judge, but let’s just assume he’s not some partisan crazy with an axe to grind, shall we. (Especially given his long record on the bench and all that points to his being rather cautious on matters of national security.)

Try spinning your inaccuracies on a public that is less willing to see them for what they are:  a desparate attempt to prop up a failing administration and its failures, and to cover the ass of Scooter Libby and his cronies for breaking the law.  Try practicing journalism for a change instead of working as an extension of Tony Snowjob’s press office.  You’ll find it infinitely more rewarding in the long run.  The facts are what they are — and making excuses for one lawbreaker after having going over the top in so many other cases only shows you for the shills you are.

And it does a disservice to your readers, who are neither stupid nor dupes.  You and your Republican Rubber Stamp Congressional cronies would do well to remember that your shrinking constituency does not include only zombie rubes who are willing to lap up whatever spoilt milk you happen to be serving that day.

PS — Try talking to real lawyers who have spent time in a criminal courtroom, who can tell you the difference between presenting evidence as part of a 404(b) "motive, opportunity, intent" sort of thing, and not for the "truth of the matter asserted."  You’ll find it might make your reporting more, dare I say, accurate in the future.  And pssst…PR flacks who pose as knowledgeable legal information sources often…erm…aren’t.  There’s no substitution for checking your facts, even in a shrill editorial.

PPS — Apologies to the ladies of the Chicken Ranch — the use of illustration in no way equates you with the level to which the WSJ has sunk. 

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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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