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June 14, 2007

Comments

"I don't know why Scooter is so damned special that everybody in Washington is having the vapors over the fact that he may have to do time"

He's not. And that is why everybody in Washington is so worried. They are all afraid it could be them.

They are all afraid it could be them.

They are all thus a bunch of fracking bed wetters, no wonder they're looking to Bush to protects us from Osama bin Darth Sauron Laden.

I think both Clinton and Libby got about what they deserved. Both committed perjury. Clinton perjured in a deliberate perjury trap about a personal matter of no national importance. He kept his job but got disbarred. That's about right. Libby perjured about a matter of vital national importance (protecting our ability to collect information on Middle Eastern nuclear programs) in response to a general investigation. Job-related, not to protect himself, vital national interest - about as bad as perjury can get. So he got about the most serious sentence you actually see for perjury, and had to resign from his job. Somewhat soft, but certainly in the ballpark.

In every respect, Libby's misdeeds are far worse than Clinton's, and his punishment is appropriately harsher.

Is this normal though? That is, is it normal for a judge to reject remaining free on bond while the conviction is appealed in this type of case (white-collar, victimless, process crime, little/no flight risk)? Honest question as I really don’t know. Things I had read leading up to this made me think that letting him remain free for now would be likely.

JFTR, I think the liberal blogosphere's conniption about Obama's advisor's argument that a pardon would shift the onus to Bush was kneejerk and wrong.

"Well, that's a slick argument --- if you happen to be a 12 year old."

That's a cutting remark - if you happen to be a middle-schooler.

Is this normal though?

From the reply (via Tom Maguire):

David Safavian, who was convicted of obstruction and false statements, was recently held to be entitled to release pending appeal by a court in this district. Likewise, Frank Quattrone, Kirk Shelton, Martha Stewart, Lynn Stewart, Bernie Ebbers, 7ohn and Timothy Rigas, and Solomon Kaplan (among others) were also convicted of non-violent crimes, and were also afforded the same relief Mr. Libby seeks here.

Is this normal though?

While I don't know for sure, my sense is that the "normal" practice in federal courts is to allow white collar defendants to remain free pending appeal (though this may have changed post-Enron). If this is the case, the question becomes whether Libby is a "normal" white collar defendant (assuming that he's a white collar defendant - which is by no means clear here, at least to me).

IMO, no.

Greenwald was golden on this topic the other day, cutting through the nonsensical arguments about Libby being uniquely punished for something nobody else gets punished for.

OCSteve: this seems to be the relevant statute governing sentencing. It says:

"(b) Release or Detention Pending Appeal by the Defendant. --”
(1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds --
(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142 (b) or (c) of this title; and

(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in --

(i) reversal,

(ii) an order for a new trial,

(iii) a sentence that does not include a term of imprisonment, or

(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.

If the judicial officer makes such findings, such judicial officer shall order the release of the person in accordance with section 3142 (b) or (c) of this title, except that in the circumstance described in subparagraph (B)(iv) of this paragraph, the judicial officer shall order the detention terminated at the expiration of the likely reduced sentence.

(2) The judicial officer shall order that a person who has been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142 and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained."

The second part isn't relevant -- sec. 3142 (f)(1) deals with various crimes for which release should not be ordered, period, and Libby's isn't among them. The relevant part is (1), which says that the judge should order detention unless he finds BOTH that the defendant isn't a flight risk AND that the appeal is likely to result in reversal, a new trial, no prison, or a sentence shorter than time served plus the time spent in appeals. The flight risk is relevant, since if Libby was a flight risk he would automatically get prison, but it's not sufficient, since the judge would also have to find that there was a real possibility that the conviction would be overturned on appeal.

The white collar-ness and victimless-ness of the crime are not relevant, except insofar as they keep Libby from falling under Sec. 2.

OC Steve:

Is this normal though? That is, is it normal for a judge to reject remaining free on bond while the conviction is appealed in this type of case (white-collar, victimless, process crime, little/no flight risk)?

What is abnormal is that some judges seem to have employed a double standard on this question, and give unfounded leniency to certain high profile white collar criminals. The fact that it has happened is hardly a good argument that Libby should also get the same soft treatment.

There is a clear legal standard governing the question -- 18 USC 1343(b)

(b) Release or Detention Pending Appeal by the Defendant.—
(1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds—
(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142 (b) or (c) of this title; and
(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in—
(i) reversal,
(ii) an order for a new trial,
(iii) a sentence that does not include a term of imprisonment, or
(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.
If the judicial officer makes such findings, such judicial officer shall order the release of the person in accordance with section 3142 (b) or (c) of this title, except that in the circumstance described in subparagraph (B)(iv) of this paragraph, the judicial officer shall order the detention terminated at the expiration of the likely reduced sentence.

The judge is just applying the law.

I’m still not clear on how his situation is that different than say Safavian.

Boiling it down, aren’t we talking about the judge deciding that he won’t be reversed on appeal?

Scooter Libby should be shot as a traitor, not jailed as liar

His boss, ElDuce should be shot too, then hung from a lamp post

OCSteve,
I don't think it's too much to think that a judge might have an idea of the likelihood of being overturned and adjust accordingly.

i do love the fact that Libby was Mark Rich's attorney, back in the day. and we all know how the wingnut brigades felt about Rich's pardon, don't we ?

ed pefferman, your comment is in violation of the posting rules.

eh, that's a little over-the-top, ed.

ed pefferman: calling for assassination violates the posting rules, so if you didn't mean to include 'after a trial in which he is convicted of a capital crime', you should have.

OCSteve: I had to look up Savafian, but it seems that in that case, the judge did think there was a significant chance of reversal. I don't think that's an impossible thing for a judge to think in a trial that had complicated issues and tough calls. I have no idea whether Savafian's trial had those things, but I don't think, for what my non-lawyer's opinion is worth, that Libby's did.

"I don't think it's too much to think that a judge might have an idea of the likelihood of being overturned and adjust accordingly."

If in fact it's usual for bail to be granted and unusual for appeals to be successful, then this is kind of harsh on Libby. Repressing a "ha-ha", it's not unreasonable to point that out - though probably it cuts more against the system than against Libby going to the slammer immediately.

LJ: I don't think it's too much to think that a judge might have an idea of the likelihood of being overturned and adjust accordingly.

OK. I guess I just like to think that these kind of things are applied consistently.

In any case, I look forward to the next chapter in this grand saga.

The thing is, though, that even if I leave aside the fact that I don't see any reason in the sentencing statute for Libby not to be going to jail, I also think, as I said in the main post, that it would be appropriate to be harsher on Libby than on a normal defendant. (As before, not in the sense of adding punishments that the law doesn't allow, but in the sense of not letting him slide when it's a judgment call and the judge has discretion.

If, say, I were convicted of perjury and obstruction of justice, I would have done some very bad things, but I would not also have violated a public trust, nor would my getting off lightly cause anyone to question the basic fairness of the legal system.

Taking the kind of position that Libby held is a privilege, and it entails responsibilities. One of them is to uphold the law. Strict construction of sentencing guidelines goes with the territory.

I suppose in theory being a celebrity lessens the flight risk as it makes it less likely that the person in question can actually mount a successful escape. No good flashing a false passport saying you're Jo Bloggs if your face is so well known that any passerby would be able to say, no, you're Paris Hilton.

Does that really apply to Libby, though?

'I’m still not clear on how his situation is that different than say Safavian."

Um, the Libby case directly involves national security.

Safavian, not so much.

i do love the fact that Libby was Mark Rich's attorney, back in the day. and we all know how the wingnut brigades felt about Rich's pardon, don't we?

The ridiculous thing about the Rich pardon was that, IIRC, he hadn't even been convicted of anything yet - he just took off out of the country before trial and had been overseas ever since. For that alone he shouldn't have been pardoned.

Then Libby (or one of Rich's other attorneys) got Bernie Wolfman and Marty Ginsberg (married to Ruth Bader of SCOTUS fame), two of the most respected tax professor's in the country, to opine that what Rich had done was not criminal. This apparently helped convince Clinton to pardon him - though conditional on Rich paying something like a $100 million fine.

The republican congress then released a hit piece of a report on just about everyone involved in the pardon, including Profs Wolfman and Rich - though certain parts of the made good points (e.g., going outside the normal DOJ procedures for getting a pardon).

Not that it did Rich any good, he's still overseas as he's wanted on state tax evasion charges, something the president can't pardon someone for.

Bottom line- the constitution should be amended to either remove the presidential pardon power, or allow it only if 2/3 of each house of congress agrees.

I looked up the analysis by the court in the Safavian case. Since I can't link, I'll have to excerpt at a bit of length:

A substantial question of law for purposes of 18 U.S.C. § 3143(b) is “‘a “close” question or one that very well could be decided the other way.’” The Court agrees with the defendant that a number of the issues raised in the pre-trial motions, the motion for judgment of acquittal, and motion for a new trial are substantial and some are without precedent in this Circuit. If some of these issues were decided in Mr. Safavian’s favor on appeal, a new trial likely would be required. Although the Court is confident in its decisions and unpersuaded by the defendant’s arguments, it is also aware that some of the issues he has raised (though certainly not all), and particularly those concerning the admission of the e-mail evidence and the legal duty to disclose, present close questions of law that could be decided in another way. If, for example, the court of appeals disagreed with this Court regarding the admission of e-mail evidence, given the importance of that evidence to the government’s case, Mr. Safavian might well be entitled to a new trial. Likewise, if the court of appeals resolves the issue of the legal duty to disclose in Mr. Safavian’s favor, it could result in the reversal of one or more of his convictions under 18 U.S.C. § 1001(a)(1). For these reasons, the Court will grant defendant’s motion to remain on bond pending appeal, and will stay his sentence pursuant to Rule 38(b)(1) of the Federal Rules of Criminal Procedure.

As cleek points out, Libby was Marc Rich's lawyer.

So maybe Libby *is* a flight risk? I'm sure Rich could give him lots of good pointers on living a comfortable fugitive life.

I wonder whether there is some hope here that Libby will come clean on the whole Plame matter. Is it possible that Walton is trying to put some pressure on to induce more forthcoming testimony from Libby?

Maybe Walton's not supposed to do that, but that's not the whole story. I personally would have no objection to granting Libby considerable leniency in exchange for honest and full testimony.

OC Steve:

In any case, I look forward to the next chapter in this grand saga.

Which links to a silly story from USA Today that quotes Sen. Bond peddling the bogus story that it is Plame who has allegedly been untruthful about how Wilson got picked for the Niger trip.

Here is what Plame said in her 2/12/02 internal CIA memo (warning - at page 210 of 229 of 9 mb pdf file)(recently declassified) in which she comments on the possibility that Wilson could help investigate the Niger story based on the CIA's past use of his contacts there to investigate uranium questions. This is now being spun by hacks as "proof" she "lied" when she denies that she picked her husband for the trip:

So where do I fit in? As you may recall, [redacted] of CP/[office 2] recently approached my husband to possibly use his contacts in Niger to investigate [a separate Niger matter]. After many fits and starts, [redacted] finally advised that the station wished to pursue this with liaison. My husband is willing to help, if it makes sense, but no problem if not. End of story.

Plame has always said she was part of the talk about perhaps using her husband to go to Niger -- the issue is whether she instigated it per the "boondoggle" talking point, and not whether she was merely part of the discussion at the CIA. The memo shows her to be part of the discussion -- not an instigator. And it makes sense that she was part of the discussion since she was tasked to handle Iraqi nuclear issues.

Wilson himself then met with the CIA and State Dept. officials on 2/19/02 with Plame present concerning a possible trip by him, and Wilson indicated that he thought a trip by him was unnecessary. A declassified State Dept. memo regarding that meeting -- see page 5-6. (a small pdf file)

Wilson thought the embassy officials already on the ground could handle it and that he should not go unless someone concluded he needed to go; he was sent anyway by the CIA, and there is zero evidence that Plame had anything to do with this final decision.

One of the disturbing aspects of the Plame story is the extent of sheer factual invention that fuels the right wing talking points.

Libby can be considered a harmless "white collar" criminal only if you believe there was no underlying crime: that Plame, in other words, was not covert, and that no harm was done by outing her.

Those considerations aren't directly relevant to deciding whether Libby should remain free pending appeal. But the guidelines for that are straightforward, and hinge on whether Walton believes the verdict will be reversed by an appellate court.

The appeal will hinge on a few factors: whether Fitzgerald was improperly appointed; whether the exculpatory memory witness was improperly excluded from testifying; and whether Libby's team was improperly barred from receiving documents that would have enabled his defense.

Questions about FItzgerald's status hinge on which previous Court decision regarding special appointments the appellate court considers most on-point, Morrison or Edmond. IANAL, and I have no idea how an appellate court would rule on that. Libby's defense team raised the issue at the beginning of the trial, and Walton didn't buy it then. Since IANAL, I can't gauge how effective the arguments for and against are. From what I can tell, Libby's team (and the amicus brief) are basing their case on a rather tortured interpretation of both decisions, and also on a tortured definition of "supervision" and "power of removal." There's at least anecdotal evidence that Fitzgerald debriefed Comey on the case regularly, so he was supervised. And no one can say he couldn't have been fired if the White House wanted him fired: Kyle Sampson is on record as having suggested it, and no one said "No, we don't have the authority to do that."

The memory expert witness was excluded because, under examination, she consistently contradicted herself, misquoted her own work, and generally showed herself to be unreliable. I think the defense team is being disingenuous here when it claims her testimony would have helped Libby. I think it would have been worse for Libby had she testified, and Fitzgerald tore her apart when the jury was there to hear it.

The document issue is really disingenuous. The two legal teams and Walton argued for weeks, maybe months, over which documents Libby should have access to and what security measures to take to avoid unwarranted disclosure. During those hearings, Libbys' lawyers either stated or strongly hinted that Libby would testify, and Walton's rulings were made with that in mind. And the defense team agreed to the restrictions as Walton made them. But Libby wound up not testifying after all, and now Libby's lawyers are arguing that Walton's rulings need to be reversed because he didn't testify. If they never had any intention of putting him on the stand, and they knew that when they first argued which documents they should have access to, then protesting now is a sly bit of bait and switch.

It's all probably normal defense team maneuvering - setting up grounds for appeal in advance by misleading the court - but it's still pretty nasty, and has nothing to do with the merits of the conviction.

The memo shows her to be part of the discussion -- not an instigator.

Yes...as regards a separate Niger matter. Not sure how that applies, here, as evidence of anything related to this matter.

I have a question I posed on theforvm.org. Nobody replied but I think it is important. Timmy was trotting out the line about Armitage. It goes like this - if Fitz was so worried about the leak and not gunning for an administration official, why wasn't Armitage prosecuted? He did admit to telling Novak that Wilson's wife worked for the CIA.

My question is this - Could it be that Armitage sufficiently convinced Fitz that he didn't know Valerie was undercover, a requirement to be prosecuted under the IIPA?

Possible, but if she was undercover, I'd guess he'd have to have learned it from someone who did know. Or learned it from someone who learned it from someone who did know. Or...

heet: Fitzgerald didn't prosecute anyone for the leak. There are all sorts of hypotheses as to why, but he didn't. Offhand, the most obvious explanation for why he prosecuted Libby but not Armitage for perjury and obstruction is that Libby lied to the grand jury and Armitage did not.

Sure, but I was getting at this whole "no underlying crime" idea. The belief that Plame really wasn't covered by the IIPA may be bolstered by the fact that Armitage was not prosecuted for outing her. If one believes this, then Fitz was on a fishing expedition.

I don't buy it but that's what I've heard.

Slarti writes: "Possible, but if she was undercover, I'd guess he'd have to have learned it from someone who did know. Or learned it from someone who learned it from someone who did know."

But then you get into intention. If someone told Armitage, it's unlikely that their intent was to harm the security of the United States.

heet: we can probably infer from the fact that Fitz didn't prosecute anyone for leaking that he didn't think he had a strong enough case to make it worthwhile, but (a) that's not the same as 'no underlying crime', (b) supposing that there was no violation of the law, there are a ton of reasons why that might have been the case other than Plame not being covert (i.e., people not knowing that she was, or -- my personal favorite -- the fact that Cheney had declassification authority creating enough of a reason for the leakers to think it was OK to do this on his orders that intent could not be proved), and (c), why does 'no underlying crime' matter? Libby committed serious crimes.

" The belief that Plame really wasn't covered by the IIPA may be bolstered by the fact that Armitage was not prosecuted for outing her. If one believes this, then Fitz was on a fishing expedition."

The problem is this studiously ignores that Plame's status under IIPA is the easy part of the case to prove, but the leaker's intention and whatnot also factor in under IIPA. And those are not nearly as clear-cut.

Armitage, no doubt, didn't fall under that part of IIPA. So that leaves the VP office, but Libby's hiding things and lying, which keeps the investigators from determining if Libby or anyone else in the White House falls under the leaker portion of the IIPA.

Anyone focusing on Plame is working very hard to distract you from thinking about what, exactly, the VP office was up to in leaking the name of a NOC working in WMD proliferation, in the middle of a war allegedly launched to prevent WMD proliferation.

CaseyL writes: "The memory expert witness was excluded because, under examination, she consistently contradicted herself, misquoted her own work, and generally showed herself to be unreliable."

Most tellingly, she insisted she'd never met Fitzgerald, but Fitzgerald stated in detail that they had met - I think in another case.

I am sure it isn't supposed to factor into the judges decision about bail, but as someone who figures Bush's last act is to pardon Libby, I am glad to see his bail denied. I figure this is pretty much the only way he sees any actual fallout from perjuring himself in a way that actually threatens national security (as opposed to the hypothetical and hysterical threats dreamed up by perpetual 9/12ers).

It's very important that Libby do time. What he did was very bad, and it's sad to think you can obstruct a serious criminal investigation and have thousands of people making silly technical excuses on your behalf. If all the people bleating all the talking points take note of the fact that no matter how they see the world, their guy is actually in jail, maybe reality will start to sink in.

Does anybody have any examples of a person convicted of perjury and obstruction of justic, facing a few years in the pokey, being denied bail during appeal? That's the relevant comparison here. Certainly there are many similar cases (mentioned above) where bail was granted.

I also get the sense this may be primarily directed at the possibility of "delay until pardon" which is quite unusual but very real here. If I were the judge I'd be inclined to deny bail, for the specific goal of frustrating a consequenceless pardon. If it were 2009 and somebody else were president I'd be arguing he deserves bail during appeal. We have never been in a situation before where the President repeatly and publicly defies the law and that introduces some unusual considerations.

Slarti:

Yes...as regards a separate Niger matter. Not sure how that applies, here, as evidence of anything related to this matter.

The beginning of the Plame memo (which I did not excerpt indicates that it is about the Iraq Niger question, and the separate matter reference in the memo refers to the portion redacted during declassification in which Plame identifies a prior instance in which Wilson was used by the CIA regarding a Niger question.

It is clearly about the Wilson going to Niger to look into possible Iraqi uranium purchase and the context of Plame's involvement in Wilson being sent.

It goes like this - if Fitz was so worried about the leak and not gunning for an administration official, why wasn't Armitage prosecuted?

Actually, the talking point obfuscation falsely portrays Armitrage as the leaker rather than one of many sets of loose lips sinking ships (the known blabbers are Armitrage, Rove, Libby, Fleischer, and there were probably others). Armitrage has the distinction of being the one who first talked to Novak (Rove did too later), who was the only journalist who ran with the "CIA operative Plame sent Wilson on a boondoggle" talking point.

The focus on Armitrage is based on the bogus idea that the only leak that "matters" is the one that actually resulted in a press story -- as if Libby leaking to Miller and Cooper becomes irrelevant since Novak ran the story first. Right wing logic at work, here.

Any and all of the leakers could have been prosecuted if Fitz believed he could also show beyond a reasonable doubt that the leaker also knew Plame was covert CIA as opposed to just a CIA employee.

The one person who clearly knew Plame was covert was Cheney, but Cheney did not himself talk to the press. And Cheney was also a major instigator of the "boondoggle" talking point. It appears that Libby then disseminated this talking point within the administration by talking to Fleischer and Rove, and all three of them talked to the press. (Armitrage apparently learned indirectly from a memo that was prepared by the State Dept as part of Libby's research into the boondoggle talking point). There does not appear to be proof that when the talking point was disseminated, it also included the point that Plame was a NOC as opposed to just CIA.

So many of the leakers probably had a very good defense that they did not knowingly leak a NOC.

But Libby's perjury prevented any proof of this distribution chain, and proof that Cheney knowingly directed that a NOC's identity be leaked.

Looks like some friends of Italian opera, eh, pardon, Scooter Libby threaten the judge and his family by phone and mail (source: AP and NYT).

NYT

For one thing, Judge Walton revealed that he had received threatening letters in recent weeks. At first he just discarded them, he said, but as they kept coming, he began collecting them and has turned them over to the authorities.

AP

Washington - The U.S. judge who oversaw the CIA leak trial of a former aide to Vice President Dick Cheney said Thursday that he received threatening letters and phone calls after sentencing I. Lewis "Scooter" Libby to prison.

"I received a number of angry, harassing mean-spirited phone calls and letters," District Judge Reggie B. Walton said. "Some of those were wishing bad things on me and my family."

Walton made the remarks as he opened a hearing into whether to delay Libby's 2 1/2-year sentence. He said he was holding the letters in case something happened but said they would have no effect on Thursday's decision.

dmbeaster: Which links to a silly story from USA Today that quotes Sen. Bond peddling the bogus story that it is Plame who has allegedly been untruthful about how Wilson got picked for the Niger trip.

It seems a little less bogus if you include the final paragraph:

12 February 2002:
The report forwarded below has prompted me to send this on to you and request your comments and opinion. Briefly, it seems that Niger has signed a contract with Iraq to sell them uranium. The IC [Intelligence Community] is getting spun up about this for obvious reasons. The embassy in Niamey has taken the position that this report can't be true — they have such cozy relations with the GON [Government of Niger] that they would know if something like this transpired.

So where do I fit in? As you may recall, [redacted] of CP/[office 2] recently approached my husband to possibly use his contacts in Niger to investigate [a separate Niger matter]. After many fits and starts, [redacted] finally advised that the station wished to pursue this with liaison. My husband is willing to help, if it makes sense, but no problem if not. End of story.

Now, with this report, it is clear that the IC is still wondering what is going on… my husband has good relations with both the PM and the former minister of mines, not to mention lots of French contacts, both of whom could possibly shed light on this sort of activity. To be frank with you, I was somewhat embarrassed by the agency's sloppy work last go-round, and I am hesitant to suggest anything again. However, [my husband] may be in a position to assist. Therefore, request your thoughts on what, if anything, to pursue here. Thank you for your time on this.

“…and I am hesitant to suggest anything again. However, [my husband] may be in a position to assist.”

That certainly seems to open the door to legitimately ask how that does not contradict her sworn testimony before Congress:

In February of 2002, a young junior officer who worked for me -- came to me very upset. She had just received a telephone call on her desk from someone -- I don't know who -- in the office of the vice- president asking about this report of this alleged sale of yellow cake uranium from Niger to Iraq. She came to me, and as she was telling me this -- what had just happened, someone passed by -- another officer heard this. He knew that Joe had already -- my husband -- had already gone on some CIA mission previously do deal with other nuclear matters. And he suggested, "Well why don't we send Joe?" He knew that Joe had many years of experience on the African continent. He also knew that he had served -- and served well and heroically in the Baghdad Embassy -- our embassy in Baghdad during the first Gulf War. And I will be honest. I had -- was somewhat ambivalent at the time. We had 2-year-old twins as home, and all I could envision was me by myself at bedtime with a couple of 2-year-olds. So I wasn't overjoyed with this idea. Nevertheless --

REP. LYNCH: I get it

MS. PLAME WILSON: We went to my branch chief, or supervisor. My colleague suggested this idea, and my supervisor turned to me and said, "Well, when you go home this evening, would you be willing to speak to your husband, ask him to come into headquarters next week and we'll discuss the options? See if this -- what we could do" Of course. And as I was leaving, he asked me to draft a quick e-mail to the chief of our Counterproliferation Division, letting him know that this was -- might happen. I said, "Of course," and it was that e- mail, Congressman, that was taken out of context and -- a portion of which you see in the Senate Select Committee on Intelligence Report of July 2004 that makes it seem as though I had suggested or recommended him.

From the trial, we know that the VP was briefed on “this alleged sale of yellow cake uranium from Niger to Iraq” on February 13th, a day after she says in that memo “…and I am hesitant to suggest anything again. However, [my husband] may be in a position to assist”.

Also from the trial we know just how important these timelines and little details are. I’d hate to suggest she may have a memory problem here, but this certainly seems like fair game after all that has transpired.


Curt Adams: If I were the judge I'd be inclined to deny bail, for the specific goal of frustrating a consequenceless pardon. If it were 2009 and somebody else were president I'd be arguing he deserves bail during appeal.

You really want judges taking broad political consequences into consideration when sentencing an individual?

More facts vs. right wing spin re Plame.

An odious talking point is that Fitz was "out of control" as allegedly evidenced by the fact that he kept on going even after he learned that Armitrage was the "real culprit."

Armitrage came forward and confessed to the DoJ his role as Novak's source in October, 2003. After Ashcroft and the DoJ knew this, Ashcroft recused himself and Fitz was appointed on December 30, 2003.

Fitz was appointed even though the DoJ already knew who the leaker was to Novak, and knew that Armitrage had not known Plame was covert. But the broader scope of probable criminality uncovered by the DoJ and Ashcroft resulted in the recusal and appointment of Fitz.

Libby had already lied to the FBI about his role in October and November, 2003 before Fitz was appointed.

So why was Fitz appointed if the only "real" case was limited to Armitrage's leak to Novak? Ask Ashcroft, Comey and the other DoJ guys who punted this to Fitz.

OC Steve:

It seems a little less bogus if you include the final paragraph:

No -- the Plame testimony that you quote and her memo are entirely consistent. Sorry for not quoting the entire memo -- no intent to mislead you. I just excerpted the part that I thought mattered, and linked to the balance.

Bond is falsely assuming that Plame's memo was the first mention of Wilson going by anybody, and that the prior conversation between Plame and the CIA staffer did not occur. The memo makes perfect sense as Plame following up on the staffer's suggestion to send Wilson which Plame has always admitted was her role.

The CIA has also supported Plame's version of this -- that a staffer suggested it and Plame carried that message to others in the CIA and her husband. And Plame was involved because she was already in the CIA division discussing Iraq nuclear issues. Those same people also knew of her husband's link to Niger since he had previously done work with the same CIA people based on his connection to Niger.

Bond's attack on Plame is sleazy -- note that he completely misstates the explanation by Plame of what happened, and omits any reference to the CIA indicating that it happened as Plame describes it. Anyone who want to rely on the Plame memo as "proof" she "lied" has to demonstrate that she did not write the memo after the CIA staffer suggested her husband and asked her to get the ball moving on that suggestion.

From the trial, we know that the VP was briefed on “this alleged sale of yellow cake uranium from Niger to Iraq” on February 13th, a day after she says in that memo...

So what? The CIA was independently following up on the Niger issue whether or not Cheney was interested, and Cheney found out about it at the same time the CIA was doing that. The CIA independently thought about using Wilson -- no one has ever contended that Cheney picked him. Of course, on February 19 when the CIA met with Wilson to discuss his possible trip, Cheney's instruction to the CIA to follow up was clearly in the air.

Wilson has always indicated that he thought the prime impetus for his going was Cheney's demand for follow-up from the CIA. Wilson himself did not think it necessary for him to go -- that local embassy assets could do the job. The CIA decided to send him anyway -- Wilson thought because of the impact of Cheney's demand for follow-up.
________

Your rebuttal about sentencing Libby is entirely correct. It should not be a political decision at all, although I suspect that there is a past history of applying the legal standard differently for white collar criminals.

But another factor is that white collar crimes tend to be complex cases, period, and therefore more likely to raise serious issues on appeal. They also have more skillful lawyers better able to articulate those issues.

The underlying problem is that the legal standard for bond on appeal (likely to result in a material difference or reversal) is a rubbery one that depends on the good faith of the judge in applying a discretionary standard in a manner consistent with the spirit of the law -- the law does not tell him how he should rule with any precision.

the separate matter reference in the memo refers to the portion redacted during declassification in which Plame identifies a prior instance in which Wilson was used by the CIA regarding a Niger question

Yes, it's pretty clear what the memo was about, just as it's pretty clear that Plame not being an active party in Wilson's involvement is clearly in reference to that separate matter.

It is clearly about the Wilson going to Niger to look into possible Iraqi uranium purchase and the context of Plame's involvement in Wilson being sent.

Sure. That part is clear. What I'm disputing is your representing Plame's passive role in that separate matter as her passive role as regards the later mission. One of these things is not like the other.

Or perhaps I've missed something.

If all the people bleating all the talking points take note of the fact that no matter how they see the world, their guy is actually in jail, maybe reality will start to sink in.

Unfortunately, no.

Since they have decided he did nothing wrong, the natural conclusion will be that it's a miscarriage of justice. They will tend toward the conclusion that going to jail is just an occupational hazard of being a high government official.

And next time a high-ranking democrat goes to jail for some trumped up charge they'll say it serves him right for being a high-ranking democrat, and there's nothing wrong with payback.

That reminds me, has anything important turned up on the Sandy Berger case? Nobody disputes that he was stealing classified documents from the National Archives. Have those documents been leaked? If not, why not? If they would embarrass the Clinton administration or democrats generally, but not embarrass republicans, it's unbelievable that they would still be secret. So what are the odds they embarrass neither side versus both sides?

Slarti:

What I'm disputing is your representing Plame's passive role in that separate matter as her passive role as regards the later mission.

Dispute all you want -- just try to connect to something factual.

As for Wilson's Niger trip, no one including Plame is saying that her role was "passive." Plame's testimony describes her role as facilitating someone else's suggestion that Wilson be sent to Niger, and that she was neutral about it. The 2/12 memo clearly evidences that neutrality. Wilson himself did not see why it was useful to send him as opposed to using local assets. He went because someone at the CIA other than Plame or Wilson wanted him to go.

The issue here is the right wing talking point that she arranged to send him on a boondoggle, and has lied about it in her testimony in front of Waxman. That nonsense is clearly false despite Bond's attempt to miscast the memo as supporting right wing spin.

dmbeaster: No -- the Plame testimony that you quote and her memo are entirely consistent.

I can’t agree but I admit that it may come down to the interpretation of a couple sentences.

Feb. 12, 2002 memo:
…and I am hesitant to suggest anything again. However, [my husband] may be in a position to assist.

House Committee on Oversight and Government Reform testimony:
MS. PLAME WILSON: No. I did not recommend him, I did not suggest him, there was no nepotism involved.

Now the later statement seems pretty clear: “I did not recommend him, I did not suggest him”. So if there is any ambiguity it must be in the earlier statement.

Just as I defer to the house lawyers on legal matters, I’ll defer to the house Editor in Chief on the written English language. So if Gary wants to tell me that:

“…and I am hesitant to suggest anything again. However, [my husband] may be in a position to assist”

can not be reasonably interpreted as suggesting and recommending then I’ll withdraw my comments on this.

...and her suggestion had what to do with Libby lying ?

I can't speak to if that is an incorret interperation, but the intertation that she was simply stating options seems much less strained. For example “…and I am hesitant to suggest anything again. However, a car could be aquired through theft” is clearly saying, "its a bad idea, but you could get a car by stealing it"

I think the crucial distintion is between "we can do x" and "we should do x"

An alternate way to look at it, is Wilson did have assets (in terms of contacts and such) that could have helped. She would be remiss in her job if she had intentionally omitted a possible tool

OCSteve, I don't think it will ever be decided to everyone's satisfaction that there is no contradiction. I understand why you think there might be, although I respectfully disagree with your interpretation.

A larger point is that in the discussion of Libby it is irrelevant if she contradicted herself or not. Let's assume that she blatantly went to her superiors and said "I higly recommend and suggest you send my husband." So what?

The problem is that in the righteous fury of the right over Libby being tried, convicted and sentenced for something that he did, the right is attempting to distract and divert attention elsewhere. It is the same, "move along, nothing to see here, look at the bad people over there" scenario that has been used for the past 7 years.

The same is true of the "no underlying crime" meme. That is also irrelevant. And in fact, although there is plenty of evidence that highly suggests that a crime was committed, the right has produced no evidence that no crime was committed.

Thanks, dmbeaster -- Byron York wrote that up a couple of weeks ago, & I had no luck finding anyone refuting his point.

Jon: If someone told Armitage, it's unlikely that their intent was to harm the security of the United States.

Given that the version of the story about how Armitage found out Plame worked for the CIA is certainly hearsay, and is almost certainly untrue, whoever told Armitage may have been trying deliberately to obscure who leaked Plame's identity. Which could be kindly interpreted as indifference to the security of the United States, if you were feeling kind.

(Armitage's story was "And they know 'cause Joe Wilson's been calling everybody." Armitage doesn't claim that he himself received a phonecall from Wilson, so this is hearsay in any case; and no one out of the "everybody" whom Armitage claims were called, has come forward to say that yes, Wilson called them. What it comes across as is that someone else told Armitage that Wilson was "calling everybody" - and Armitage doesn't say who that was.)

OCSteve, I also have trouble seeing the inconsistency between Plame's testimony and the memo you cite. Her story goes like this:

1. A junior officer told her that Cheney's office was asking about yellowcake.

2. Another officer overheard the conversation and said, "Hey, why don't we send your husband to check that out?"

3. That officer and Plame went to see Plame's supervisor, where the other officer said, "I think we should send her husband to Niger to check this out."

4. Plame's supervisor asks her if she'll go home and discuss it with her husband. He also asks if she'll email the big boss and let him know about the scenario.

5. Plame sends an email to the big boss asking for his thoughts on the idea of sending her husband to Niger.

It seems like a perfectly believable story to me. I don't see what about the email is supposed to establish that steps 1-4 never happened. Frankly, the email does sort of suggest to me that she was hoping her boss would shoot the idea down.

OCStever: You really want judges taking broad political consequences into consideration when sentencing an individual?
No, but I do want judges to take into consideration the fact that a likely conspirator has pardon power. If a judge knows that corruption within the government may impede or prevent fair execution of justice, he/she should take steps to protect justice from said corruption. Within legal bounds, of course, but there's no dissent that the judge has the *authority* to deny bail, whether or not it's customary.

cleek: and her suggestion had what to do with Libby lying ?

john miller: Let's assume that she blatantly went to her superiors and said "I higly recommend and suggest you send my husband." So what?

Probably nothing. The Wilsons have been portrayed as innocent victims throughout. Many on the right see it quite differently naturally. So yes, it’s more of a gottcha moment.

the right is attempting to distract and divert attention elsewhere

I think it’s less that than “what’s good for the goose is good for the gander”. I mean he has been tried, convicted, and sentenced – what is there to distract from? (A possible pardon, but there is no way anyone is going to miss that.)

So I think it is more like Libby is going to jail for perjury, so if she perjured herself in her sworn testimony then let’s see that brought to trial as well. I think more “righteous fury” than distraction.

As I said originally, I just look forward to the next chapter. I mean if this thing is put to rest think of all that unused Internet bandwidth. ;)

Steve: The memo was Feb. 12th. The VP was not briefed on Niger until Feb. 13th.

The VP was not briefed on Niger until Feb. 13th.

Are we getting confused between the VP's staff and the VP, personally? Plame's testimony states:

She had just received a telephone call on her desk from someone -- I don't know who -- in the office of the vice- president asking about this report of this alleged sale of yellow cake uranium from Niger to Iraq.

Consider for a moment the alternative scenario you're proposing. On February 12, Valerie Plame makes an unsolicited suggestion that her husband be sent to Niger to check out yellowcake. The very next day, by the most amazing of coincidences, Dick Cheney's office asks the CIA if they can have someone check into yellowcake in Niger. I don't think the story makes any sense if you tell it in this order.

The Wilsons have been portrayed as innocent victims throughout. Many on the right see it quite differently naturally.

This always puzzled me, the Wilson's were plotting, back in February 2002 to do...what, exactly?

The Wilsons have been portrayed as innocent victims throughout. Many on the right see it quite differently naturally.

Seconding Ugh's question. Would be interested if you wanted to write it up for Taking It Outside.

So I think it is more like Libby is going to jail for perjury, so if she perjured herself in her sworn testimony then let’s see that brought to trial as well. I think more “righteous fury” than distraction.

"Self-righteous" fury, more like. "Righteous fury" logically requires the furor to be on the side of, well, right. As opposed to attacking Plame for... er, what, exactly?

(The claim that she perjured herself sounds really quite extraordinarily thin, no matter how you stare at it.)

Steve: Consider for a moment the alternative scenario you're proposing. On February 12, Valerie Plame makes an unsolicited suggestion that her husband be sent to Niger to check out yellowcake. The very next day, by the most amazing of coincidences, Dick Cheney's office asks the CIA if they can have someone check into yellowcake in Niger. I don't think the story makes any sense if you tell it in this order.

Well York as already been mentioned. So he can do the heavy lifting, but summarized:

-CIA intelligence report about Niger, Iraq, and uranium published on Feb. 5 and makes its way through the intelligence community.
-Feb. 12 memo, she is already looking into it: “Now, with this report, it is clear that the IC is still wondering what is going on”. Nothing to do with the VP’s office, the intelligence community is wondering what is up. Non-suggestion/recommendation of her husband.
-Cheney briefed on that Feb. 5 report the morning of Feb. 13 and requests an assessment of it.
-Plame sends a cable February 13 at 3:42 P.M. Washington time where she says “both State and DOD have requested additional clarification” and “indeed, the vice president’s office just asked for background information on the Niger report”.


Jes: Seconding Ugh's question. Would be interested if you wanted to write it up for Taking It Outside.

Next time I’m in the mood for a 3-4 day battle-royal. ;)

OC Steve:

This is to the quibbling stage, but what the heck.

The following Plame testimony that you quote:

MS. PLAME WILSON: No. I did not recommend him, I did not suggest him, there was no nepotism involved.

Should be matched against this testimony that you quote:

In February of 2002, a young junior officer who worked for me -- came to me very upset. She had just received a telephone call on her desk from someone -- I don't know who -- in the office of the vice- president asking about this report of this alleged sale of yellow cake uranium from Niger to Iraq. She came to me, and as she was telling me this -- what had just happened, someone passed by -- another officer heard this. He knew that Joe had already -- my husband -- had already gone on some CIA mission previously do deal with other nuclear matters. And he suggested, "Well why don't we send Joe?" He knew that Joe had many years of experience on the African continent. He also knew that he had served -- and served well and heroically in the Baghdad Embassy -- our embassy in Baghdad during the first Gulf War. And I will be honest. I had -- was somewhat ambivalent at the time. We had 2-year-old twins as home, and all I could envision was me by myself at bedtime with a couple of 2-year-olds. So I wasn't overjoyed with this idea. Nevertheless --

REP. LYNCH: I get it

MS. PLAME WILSON: We went to my branch chief, or supervisor. My colleague suggested this idea, and my supervisor turned to me and said, "Well, when you go home this evening, would you be willing to speak to your husband, ask him to come into headquarters next week and we'll discuss the options? See if this -- what we could do" Of course. And as I was leaving, he asked me to draft a quick e-mail to the chief of our Counterproliferation Division, letting him know that this was -- might happen. I said, "Of course," and it was that e- mail, Congressman, that was taken out of context and -- a portion of which you see in the Senate Select Committee on Intelligence Report of July 2004 that makes it seem as though I had suggested or recommended him.

The memo was written in this context. It reflects her passing on the recommendation and suggestion of others. The point of her denial of recommending or suggesting was denying the right wing spin that she was the primary mover and shaker in recommending and suggesting him. That is the fair context here -- not a gotcha game in which you find some marginal level of involvement in recommending or suggesting as proof that she has not been truthful.
_________

As for the Feb. 12 and Feb 13 point, there is no evidence that Feb. 13 was the first instance in which Cheney or any one else in the VP office learned of the Niger uranium issue. We know that was the date Cheney got a CIA briefing about the Niger issue. The issue had been around since 2001, and heated up on 2/5/02 when the CIA received the Italian's Niger report (without the forgeries, but which report was based on the forged documents). Everyone started jumping from that date on -- it is entirely reasonable that someone from the VP office called on 2/12, even though Cheney also got a CIA briefing on the subject on 2/13. There is no testimony or evidence out of the VP office on any of this -- you cannot fairly draw the inference that it was impossible for the VP office to call on 2/12 because allegedly no one at the VP office knew anything about it before 2/13. But that is the right wing argument on this.

Hilzoy, I love your analysis here (as always), but you get serious style points for referencing that wonderful scene in Annie Hall. It's my favorite. "If only life were like this!"

dmbeaster: This is to the quibbling stage, but what the heck.

True of course. But I’ll have to come back with one more (a quibble that is) then I've had enough. ;)


After Cheney’s Feb. 13 briefing he asked for an assessment, and they wanted something for the next day:

The VP was shown an assessment (he thought from DIA) that Iraq is purchasing uranium from Africa. He would like our assessment of that transaction and its implications for Iraq’s nuclear program. A memo for tomorrow’s book would be great.

So it makes sense that someone picked up the phone at that point, early in the day Feb. 13 (they wanted something for the next morning’s brief). So no, it is not impossible that there was no earlier call, but from the evidence we do have we know a request was made on Feb. 13.
And again, her Feb. 12 memo mentions nothing about the VP, but specifically mentions “it is clear that the IC is still wondering what is going on”. Wouldn’t most people (certainly most bureaucrats) drop mention of the VP in there? In a note to a higher up? I can not imagine any cog failing to mention the VP’s involvement in a memo to a higher up…

In her Feb. 13 afternoon cable she says “both State and DOD have requested additional clarification” but then adds “the vice president’s office just asked for background information on the Niger report” – how would most people interpret “just asked”? Would you intend it to mean sometime in the past, or today, the last few hours?

not a gotcha game in which you find some marginal level of involvement in recommending or suggesting as proof that she has not been truthful

“Mrs. Wilson told the CIA inspector general that she suggested her husband for the trip, she told our committee staff that she could not remember whether she did or her boss did, and told the House committee, emphatically, that she did not suggest him,” Bond writes.

That sounds a little more than marginal. But I leave it to Bond. Meanwhile, Wingnuttia will keep it alive I’m sure. ;)

"...and her suggestion had what to do with Libby lying ?"

Posted by: cleek

Well, it's allowed certain parties to hijack this thread; it helps spread a story of 'they're all guilty of something, so why is Libby doing time?'.

Barry:

All Libby threads devolve into Plameology.

Its addicting because the info came out in dribs and drabs, and even now there are huge unknowns since Fitz never leaked.

Barry: Well, it's allowed certain parties to hijack this thread

If that is your take then I’ll apologize to you and anyone else who feels that way. I’ll just note that I started out very on topic, and when I introduced it I meant it to be a parting shot, and then found some replies I felt obliged to respond to this morning. Still, I did introduce it so, guilty as charged.

I think more “righteous fury” than distraction.

i have no idea what that feels like. ... :)

So I think it is more like Libby is going to jail for perjury, so if she perjured herself in her sworn testimony then let’s see that brought to trial as well.

yes, let's. and if she isn't within 6,9,12 months(?) will the right please STFU about it ?

(i tease)

if she isn't within 6,9,12 months(?) will the right please STFU about it ?

Have we shut up about Clinton?

I keeed, I keeed...
;)

"If that is your take then I’ll apologize to you and anyone else who feels that way. I’ll just note that I started out very on topic, and when I introduced it I meant it to be a parting shot, and then found some replies I felt obliged to respond to this morning. Still, I did introduce it so, guilty as charged."

It seems to me that unless the blog owners announce a policy whereby comments should be restricted to the topic of posts, that accusations of "threadjacking" are nonsense -- a way for people to attack others despite an utter lack of substantive grounds.

It's relatively clear in most cases when a troll is trolling (sometimes they'll even admit to having no interest in sincere discussion). Thread drift, on the other hand, is the absolutely inevitable norm of human conversation.

On Usenet, mother of online dicussion, some newsgroups established a "rule" of stomping on thread drift. That's fine. Other newsgroups adopted a "rule" that thread drift was the norm. That's fine, too.

I'm not aware that any ObWi blogowner, let alone the founders, ever put forth any hint of a suggestion of a clue of a rule that thread drift should even be faintly discouraged.

Naturally, the current set of blog owners are free to announce any new such rule, or guideline, or suggestion, or request, or hint, if they like.

Until such time, however, accusations of "threadjacking" deserve to be thoroughly laughed at: hahahahahaha.

OCSteve: you have nothing whatever to apologize for, silly boy. You're guilty of friendly conversation.

Well, I mean, as far as threadjacking goes, there's OCSteve, and then there's Bril. I think we all understand the difference.

No apology needed as far as I'm concerned.

What always puzzles me is that the right seems to think the sending of Joe Wilson was something he should be gratefull for, a boon. Otherwise, why think that his wife suggesting him might be nepotisme.

But *where* is the benefit for Wilson? He didn't earn a lot of money, he had allready seen the environment plenty and his home is in all likelyhood more comfortable that the hotel there. What is he supposed to have gained?

I know who The Left is, but who is The Right?

Ssenzibron.

What I'd really like to know is: did Fitz get any information from the VP's office, particularly in re yellowcake information to and from the office circa Feb 13th? I'm not asking if we know what that information is -- I'm fairly sure we don't -- just whether or not the relevant information was disclosed to him.

I think we all understand the difference.

yup. like i said... i was only teasing.

(in case anyone missed that)

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