Go, Stop, Go

[Patsy Stone]

The NYT Op-Ed by Joe Wilson, with annotated talking points by Dick, was part of a discovery request heard by Judge Walton on May 5, 2006. Fitzgerald plans to introduce several articles in the government's case. Fitzgerald wants to introduce the Wilson Op-Ed to show its existence alone was an impetus for action, and "not for truth" as he puts it. What he means is he's not disputing the truth of the assertions in the Op-Ed (was there or wasn't there yellow cake), just saying, "here's an Op-Ed Wilson published in the NYT". Team Libby requested copies of all such articles. That's how this came to be released.

Halliburton's thread on this hearing transcript from the other day includes a link to the court reporter's .pdf. There's lots in here about the Libby defense strategy and who they plan to call and what they are trying to argue. http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=364&topic_id=1174620

Libby's defense team has made a difficult choice. They have decided to go the long way and defend Scooter against every single thing Fitzgerald entered as background, in addition to the actual charges against Scooter. This is what their Motions to Compel Discovery are about. They want huge amounts of information to be able to defend against a million things. They want to show he was way too busy to do anything off the reservation and that he was just a good soldier, doing the master's bidding. They want to prepare to fight each thing, or get Fitzgerald to stipulate that it won't be introduced. A logical strategy. However the logic is faulty in what they're defending against.

Fitz plans to introduce Libby's GJ testimony. The question of declassification was brought up during that testimony. Team Libby plans to say he thought he was okay to talk (and why he's bothering to prove that I don't know, since that's not part of the charges against him), and they want to know what, if anything, Fitz had that could bite them if they said they thought Libby had clearance. Fitzgerald stipulates to the fact that he will not argue about whether or not the information was classified at the time Libby disclosed it. The government wants to introduce the testimony for other reasons.

In the process, however, Wells asks the $64,000 Question: Is there any testimony of George or Dick talking about declassification, or anything else for that matter:

MR. WELLS: I started out making what I characterized as a Brady request to the extent that either the vice president or the president have testified that they did authorize disclosure.

THE COURT: Testified?

MR. WELLS: I'm making a Brady request. I believe there is testimony. I believe there is testimony or interviews.

THE COURT: I didn't know they had testified.

MR. WELLS: I don't know the procedure whether they talked to somebody in somebody's office. But to the extent he has statements from either the vice president or the president, to the extent that disclosure of the NIE was authorized and I believe that maybe that the testimony does not tie it down to a particular day, only that it did take place, I believe I'm entitled to that. All I asked Mr. Fitzgerald from the beginning is are you going to put this stuff in just because of background, because it happened. If you're not contending that there is anything wrong with it, I don't need the Brady. I can open on it with comfort. But if he's laying back and going to say, ah, got you, I have a right, I believe, if such testimony exists, to know it.

Judge Walton agrees that it would be useful to the defense, but, in this next exchange, you'll see that Fitzgerald says he doesn't have anything that puts the declassification before July 8, and, sadly, since he's not arguing it in this case, its existence a moot point anyway as he stipulates to the declassification.

THE COURT: I do disagree with that because it seems to me that if he, as I said before, decides to go down that road and then once he does that the government brings out something during cross-examination or otherwise that would suggest that he wasn't, in fact, being honest when he made that representation, then I think he is entitled to know that before he goes down that road.

MR. FITZGERALD: Your Honor, I will stipulate that the declassification happened. I don't know when. The notion that we're laying low in the tall grass and weeds I think is unfair.

THE COURT: I'm not saying that.

MR. FITZGERALD: I know. I'm saying in the grand jury transcript we asked him there. There was no focus or following up on what happened on July 2, and he says maybe he disclosed it before he had the authority, maybe he had the authority, and that's not a big issue.

THE COURT: But as I understand, Mr. Wells' concern is that if you are in some way going to suggest that when these earlier conversations occurred that there wasn't or potentially wasn't declassification and suggest something sinister as a result of that that he has a right to know that, and I agree.

MR. FITZGERALD: All I am saying is that's not where we are going but my fear, as much as he lays awake at night worrying what I'm going to say, I worry that I say, well, we're not going there and then people stand up and say the government agrees X, Y and Z and start tying our hands.

THE COURT: I understand that he might open the door in some way that would cause you to have to bring in some information but it seems to me that, if you have any information right now that you know would potentially undermine Mr. Libby's credibility or suggest something sinister on his part if he brings out information about these earlier events, then it seems to me he has a right to know that.

MR. FITZGERALD: And he has it. It is the grand jury transcript. It is not a big deal. It is his client saying I'm not sure if I had the authority when I talked on July 2nd or not, and he has it. But it is not a focus.

THE COURT: You don't have anything that would definitively show that he did not have authority.

MR. FITZGERALD: As to the timing, no, I don't have anything that sets the date other than before, my belief is it is before July 8th. Besides saying July 8 it happened by, I can't move the date into June or July, a specific date.

MR. WELLS: Just so the record is clear what the grand jury testimony is. He said that the disclosure of the material was a go, then it was a stop and then it was a go. Then he is asked at some point was it possible that you went too fast. He says I could have made a mistake but I know I was supposed to go, then I was told to stop, and then I was told to go.

THE COURT: The government is not going to make, as I understand, an issue of that. They're not going to suggest that he did anything inappropriate when he revealed that.

MR. WELLS: Fine.

All of that background was because I need help with this bit from above regarding Libby's actions (and because I, too, would love to know if Bush and Cheney testified or chatted or shared over an International Coffee moment):

MR. WELLS: Just so the record is clear what the grand jury testimony is. He said that the disclosure of the material was a go, then it was a stop and then it was a go. Then he is asked at some point was it possible that you went too fast. He says I could have made a mistake but I know I was supposed to go, then I was told to stop, and then I was told to go.

Go, Stop, Go? What is this? Mother May I? Anyone have any idea why this wouldn't be a "go" the whole time?

[bleever]

1. Stop? Where did that come from?

The official story, as we know it, is that if the words come out of the president's mouth, they are declassified in the process of passing his lips.

Cheney further avers that the president signed an order making his own mouth, regardless of asymmetry, a similar portal through which the classified becomes un-.

So Scooter was good from the get-go. And yet, Wells fears that this isn't really true.

Further, he hints that Scooter received contradictory instructions after beginning to leak. From whom, and why? This further undermines confidence in the notion that the declassification process via magic lips was, in fact, fully vetted by in-house legal beforehand, and may actually be a CYA dodge put forth ex-post facto.

I think you're on to something here. Thanks for all the reading and analysis.

:patriot:




ed: just say no to double-negatives.

[Patsy Stone]

5. I can only figure it's that he thought

it wasn't declassified. But when? And as you said, why? If it came from "magic lips" and all... :rofl:

The whole exchange in that transcript was fascinating. I actually took two hours to read it yesterday. During those two hours, Will posted his article. I was away for two hours and look what happens! :)

[Catrina]

2. Could it be that Libby's lawyers are concerned that during the trial,

if Libby's team as part of his defense against the lying charge, wants to talk about the pre-classification date, that such a 'road' might put Libby in jeopardy of being charged with the more serious crime of violating the Intel. Id. Act? Because if some of Libby's conversations with reporters that reveal Valerie Plame's ID came before the declassification, how free is he to go into detail about those conversations, without being charged with that crime?

Maybe I'm reading it wrong, but it seems that Libby's lawyers are trying to find out whether, in conversations with Bush and Cheney, Fitzgerald has a date as to when the declassification took place. I do remember that Libby realized the legal danger he was in and had asked Bush and Cheney to make a statement exonerating him by saying that the material he used in his Reporter contacts was already declassified. They did not help him ~

Fitzgerald says that the date he can give is July 8th ~ maybe Libby was hoping that it would have been an earlier date, that the 'fixers' were taking care of it?

So, while all this seems irrelevant, the lawyers may be very concerned about another, more serious charge and are trying to see what leeway they have in their defense of the perjury and obstruction charges before jeopardizing their client.

[Patsy Stone]

4. I agree with all of that

And I don't understand why Libby would even want to bring up classification if Fitz isn't going to just because of what you said. The case is about perjury and OOJ, not releasing classified info. And that's why Fitz doesn't want to tie his hands now as he says.

When, though, did this become a "stop"? I couldn't just pose that question without a little background, but that's what I can't figure out. What was it that made Libby think it was a "stop"? Was it that he didn't think he had classification?

ed: verbosity. :)

[Catrina]

7. Well, I don't think Libby does want to bring up classification, but his

attorneys may have intended to say that he was ordered by his bosses, Cheney and Bush, to release the information about Plame to reporters, Judith Miller eg. Both of them must have realized that if Fitz. knew about the early meeting in June, (long before the declassification) he could have charged Libby with violating the IIPA. That's why they both 'forgot' that meeting.

The problem seems to be that Libby's team doesn't know what Bush and Cheney told the prosecutor in their interview with him.

They seem to be worried that Fitz knows something (like maybe Bush & Cheney gave a date of when Bush declassified the NIE) that he could use to trap Libby with. The judge seems to agree that if there is such a possibility, that Libby's team should be told about it. Fitz says that in terms of the TIMING he has nothing although I don't get that. Libby had talks with reporters before July 8th.

But Fitz doesn't seem to want to give out the info on Bush/Cheney. He seems to be saying that Libby has no reason to worry that he will be charged with that crime.

Maybe Fitz is satisfied that Libby will pay for his role, but is now after bigger fish, ie, Cheney and/or Bush ~

As far as 'stop' 'go' 'stop' ~ I took that to mean that Libby was confused by the directions he was getting from Cheney. That he was given the go-ahead that the NIE was declassified, then told it wasn't and then told it was. He may be saying that as far back as June when he talked to Judy Miller, he was told the material was declassified, then panicked when he found out it wasn't, but then was reassured that it was?

But Fitz's date is July 8th ~ yet he's not planning to charge Libby ~ there's so much we don't know yet ~

[Recursion]

9. Option C:

Libby lied to his lawyers and they're only realizing it now, after they stipulated things they now realize won't hold up. Tough place for a lawyer to be in.

[bunny planet]

13. Hi Patsy.

I'm not sure if I'm correct but I think I read somewhere, among the myriad of mind bogglingly involved things I read about this subject, that the identity of an undercover NOC is one of the things that even the President is not able to declassify, 'magic lips' or not. Not sure if this comes into play in the go stop go discussion or not.

[Patsy Stone]

15. Of course he can't...

What's ridiculous is that Libby is trying to do defend everything in the indictment. Fitz wasn't even going to bring it up, but he feels he has to. At one point Wells asks that they be allowed to refute the substance of Wilson's op-ed. What does that have to do with lying? :)

[bunny planet]

16. Maybe they want to force Fitz's hand in revealing just what he has on

any aspect of this case, regardless of what Libby is charged with currently. I honestly don't know.
As far as the go, stop, go, maybe Cheney told Libby that the President would cover everything with his 'magic lips' declassification powers but neglected to mention to him that there was one little itsy bitsy technicality, that those powers didn't cover outing a CIA NOC under any circumstances. Maybe they just wanted Wilson discredited, and Plame's undercover work disrupted so badly, they were ultimately willing to go forward with it, thinking perhaps, at the time, that Asscroft would cover their asses for them. We really have to put ourselves in the mindset of that time, just three short (though seemingly endless) years ago when these thugs thought they were the 'Untouchables' (Al Capone variety, not the Hindu caste variety, although hopefully they'll switch categories of untouchable before too long).

[DoYouEverWonder]

3. Both Bush and Cheney

were interviewed by the prosecution,

[Patsy Stone]

6. I know

and I want to hear all about it.

[KharmaTrain]

8. Fitz Is Squeezing Up

A very well done post!

From an Chicago DU'er, I saw Fitz put the clampers on George Ryan by working first on his underlings...who at first tried to cover for the boss but then turned on him giving Fitz the smoking guns and hammer to nail Ryan. Seems like Team Libby is all set to help him do this on Crashcart.

First...the Circus De Soliel (ht Redhead) defense Libby is putting on is, as you stated, to portray that poor Irving was too hard worked and his brain was over-tasked to remember if, when and who he talked to...and if he did it was like a Pavlovian response to an order he'd been issued. Of course to do this, Wells needs to show Libby was on autopilot and Chenney was doing all the dirty work here.

Methinks Fitz encouraged the kitchen sinking by Team Libby since it reveals more divisions in the White House and polarizes the various principals into adversarial positions. He held back indicting Rove to see what the Libby indictment would shake out (Vivecka Novak, Woodward's confession, this NYT article and probably other pieces he's still holding for use at the proper time. The wide range that Wells is trying to bring into defending his client works against the narrow focus someone like a Rove or Chenney prefer and is the first step to drive a wedge in the conspiracy and see who cracks.

By keeping Rove dangling, Fitz could count on Money Bags Luskin to try to distance himself from Libby and others just to keep his client from being indicted. Seems like Luskin's pretty much served Fitz purpose and, yes, I expect Rove will be indicted on some kind of Conspiracy (throwing dirt in the umpire's eyes) charge within the next week or so. But before he could do that, he looks like he's starting to drive the next wedge. By putting out the Wilson article with Crashcart's scribblings, now the ante on both Libby and Rove have been upped. It's now obvious there was an attempt to "Get Wilson" from the get-go and now it's who ordered the Plame outting...and both Luskin and Wells are going to tag team Chenney. Now it may take a year or two, but the pressure of this case has taken its toll on all involved and Fitz has the clock on his side. Team Libby may regret asking to delay their trial until next year as each request they make gets turned down and Fitz drips a little more that is meant to rattle all the targets.

Get plenty of popcorn...this will be a show that is just beginning.

Cheers...

[Patsy Stone]

17. The Cheney piece of the puzzle

will be the sweetest part. That moment where you sit back and admire the whole picture.

Thanks for that thoughtful response. I agree for many reasons, but I have to feel that the only reason that Wells wanted these articles so badly (and they talked about them quite a bit that day) is that he knew that this annotated copy existed and he wanted it out there. I mean, after all, they were publicly available articles. He had to know or suspect that there was something special about the particular copies Fitz had, don'tcha think?

Move over. Let's all watch together...

[crispini]

10. Dumb question

Who is Mr. Wells?

Good post, Patsy!

[stop the bleeding]

11. Lawyer for Libby if I remember correctly - Libby has quite a few on

his team.

[H2O Man]

12. Interesting.

Mr. Fitzgerald charged Mr. Libby with 5 violations of proceedure. Libby's attorneys are arguing about the substantive issues, and he wasn't charged with them. Judge Walton will continue to keep the trial focused on the charges at issue.

[Patsy Stone]

14. Here's my theory: big problems for Dick...

In that hearing, Wells says that Libby testified to the GJ that it was a go, and then a stop, and then a go. Why wouldn't it have been a "go" all the time? Did Dick think because he said it was declassifed, it was declassified (as he purports); then he thought better of it, told Libby to hold; made Bush say he declassified it, and then told Libby to go? That's a big problem for Dick, no?

And yes, you're right: At one point they argued about "trying the war". Talk about misplaced focus...

ed: more thoughts.