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Rick Ballard

Reporting for duty.

The Goddess may wish to assign a particular paragraph to be developed or simply a set of links to be found and noted. I can also draw water and fetch wood.

clarice

Here are my proposed assignments:I'll take the opener on the Judge's ruling.Rick can you take para 3?
TS can you pull the cites for 3(c)?
I need volunteers for the cites for 3(d) and (e)
and (g)
I'll do 3 (g)


Of course, anyone who finds anything useful to something to which they haven't been assigned, speak or forever hold your peace..

clarice

3 (d)(e) and (f) are the sections for which I need volunteers...(Correction)

JM Hanes

Hi guys. What with piecing this together, I haven't really been able to sit down with the draft yet. If you want to go with putting individual items in their own threads for development, I think I'd cut back on the other original items. We could eliminate "Bullet Points" & "Quotes & Cites." and just post Bullet Point #1, #2, #3a, #3b, etc.

I'd keep the "Ref Links" thread, change "Discussion" to "Suggestions" and get rid of "Why Are We Here?" and "If You Insist."

Once that's done, it might be worth redoing this thread, so it just displays the current Draft, and maybe close the comments? I've already forgotten why I thought that that might be a good idea, so please let me know what you think I should do before we take this baby really public. Actually, I'm hoping you'll just tell me what to do, because my brain's scrambled eggs right now (for a host of unfortunately unrelated reasons!) It's not too late to choose a different venue, if this one doesn't suit! :)

JM Hanes

PS I'll also reword the first two posts to explain whatever set-up we go with.

clarice

I think that's a good idea--The person assigned each point could post and others could add suggestions. It would make final edits much easier..

Simplicity, please...
Maybe draft
Assignments and volunteer '
and Bullet points by number

verner

Walter Pincus' wife was also a Clinton apointee, you could put the same stuff up on him as you did on Cooper. And I would also add Woodward's assertion that he told Pincus--something which Pincus denies. Did Fitzgerald try to find out about that?

Also, this might go under (c), but could he be accused of "selective" investigation? He never tried to establish just how widely Valerie Plame's identy was known--as in, the number of reporters he did not question (Woodward, Dickerson, ANdrea Mitchell, Priest.) and the fact that at the 11th hour, he was still going around asking the neighbors whether or not they knew Plame worked for the CIA.

verner

Also, if I'm not mistaken, he never even questioned Joe and Vlaerie under oath.

clarice

Please begin the letter with this:

In his April 27 , 2006 opinion denying Libby's Motion to Dismiss, J. Walton made clear that the special counsel, though not appointed under the Department's normal regulations regarding special counsl, is nevertheless bound to the sum and substance of the Depaartment's rules and regulations regarding the prosecution of criminal matters.
Here are the relevant portions of the opinion on that score:

"In fact, because the Special Counsel must comply with Department of Justice policies, many of which provide direction for how to proceed in prosecuting cases, the AG, at least in an abstract sense, continues to direct and supervise the investigation and prosecution of this matter."

"But even if violations[of Department policies] as alleged occurred, that does not mean they were authorized by the authority given to the Special Counsel(p. 25, fn 12) ."

"It would be illogical to ignore well-established Department of Justice policies without any clear authorization to otherwise do so.(p. 24) "


"In fact, because the Special Counsel must comply with Department of Justice policies, many of which provide direction for how to proceed in prosecuting cases, the Attorney General, at least in an abstract sense, continues to direct and supervise the investigation and prosecution of this matter(fn. 13)."

cathyf

I have cleaned up the html and all of the typos that I noticed (hey, I'm not autistic, so I'm sure there are some I missed!) I emailed it off, though, because typepad stripped out all of the formatting when I tried to post it as a comment... So I'm not sure if what I did was usefule to anybody :-(

cathy :-)

JM Hanes

Hi cathy! Welcome aboard! I've got the email copy you sent & will fix it up and post it "as new" tomorrow when I re-do the threads.

You should be able to use HTML in the comments, but I'll check to make sure I haven't accidentally turned it off, which would Not. Be. Good. Yikes!

Lurker

Verner's draft of the intro is better.

Speaking about interviewing the Plame's neighborhood, I have a friend that knows friends that are aware of Valerie Plame's CIA employment status. So why did Fitz limit to their neighborhood? Surely Libby can find such people.

Lurker

(e) how about a brief historical summary of Fitz's original objective that transitioned into perjury and obstruction of justice?

cathyf

This is my version with mostly formatting changes, and to test how badly typepad mangles my html... (The main mangling is that typad strips out the type="a" and type="i" qualifiers on the nested in list. When this is a real html document the inner list is a, b, c,... while the innermost list is i,ii )

As I said over in the "bullet point" thread, my vote for format would be a bulletted outline, which is a standalone document making assertions of each complaint. Then following would be a longer document which fleshes out each outline summary point with the supporting documentation.

cathy :-)


In his April 27 , 2006 opinion denying Libby's Motion to Dismiss, J. Walton
made clear that the special counsel, though not appointed under the Department's
normal regulations regarding special counsel, is nevertheless bound to the
sum and substance of the Department's rules and regulations regarding the
prosecution of criminal matters.
Here are the relevant portions of the opinion on that score:

In fact, because the Special Counsel must comply with Department
of Justice policies, many of which provide direction for how to proceed
in prosecuting cases, the AG, at least in an abstract sense, continues
to direct and supervise the investigation and prosecution of this matter.
But even if violations[of Department policies] as alleged occurred,
that does not mean they were authorized by the authority given to the
Special Counsel(p. 25, fn 12) .
It would be illogical to ignore well-established Department of
Justice policies without any clear authorization to otherwise do so.(p.
24).
In fact, because the Special Counsel must comply with Department
of Justice policies, many of which provide direction for how to proceed
in prosecuting cases, the Attorney General, at least in an abstract sense,
continues to direct and supervise the investigation and prosecution of
this matter(fn. 13)


If we are wrong and the OPR feels that under the particular circumstances
of the appointment it has no jurisdiction, we'd appreciate a public statement
to that effect for we believe it is relevant to the trial court's ruling
and to any which may be made subsequently by a reviewing court.
We believe that to date Fitzgerald has violated the rules and regulations
and his ethical obligations as an attorney representing the government in
the following respects:

The false statements in the November 5, 2005, press conference which
misstated the facts and represented an effort to smear Libby and poison
public opinion against him [detail misrepresentations];
The misleading representations to the Miller Court, including the footnote
upon which Tatel relied;[detail]
The setting up of a perjury trap by reading out of all sense his mission
(to protect a whistleblower, rather than to find a leaker).I'd quote
his good leak/bad leak statement. His mission was to find the leaker
and he had found that person before he compelled the testimony of Miller.His
statement of the law in the footnote to the Miller court was misleading
and wrong. He knew at the time he went to the Ct of Appeals that he has
no grounds to believe there had been a violation of IIPA or the Espionage
Act. Both statutes were inapplicable.
That he has conflated normal testimonial variances into perjury and
false statements acts
He is engaged in selective prosecution, charging Libby with false statements
and conspiracy and not charging the leaker who, it appears, was really the
first to leak, someone who it seems disclosed Plame's identity
to two reporters both of whom told others and one of whom, in fact, published
that information leading to this investigation;
He has improperly criminalized a political dispute.[Let's quote
lots of his stuff ..including that bit about good leaks/bad leaks to
show
that he is not impartial, but in deciding what is a good leak selects
the anti-Administration statements of a serial liar (cite SSCI report)
and a bad leak anyone who quite understandably sought to set the record
straight. Wilson was a partisan with deep ties to the President's opponent,
he publicized his false charges widely and they were charges of significant
moment and import.The Administration had every right and reason to respond
and Fitzgerald's singular interpretation of what he is doing is proof
that he has politicized this matter.
He has improperly criminalized the normal and proper functioning
of executive branch officials and their assistants in the exercise of
constitutional executive branch authority over the bureaucracy. He has
taken descriptions of executive officers and their staffs exercising
the most basic day-to-day functions of their offices (supervising executive
branch bureaucrats, questioning agency procedures as to legality and
good judgement, declassifying information and publicizing it) and wrapped
it in accusatory language.
He has gratuitously used the proceedings to smear the Administration
for reasons unrelated to the advancement of the case:

The NIE claim in his pleadings which he waited a week to correct.
The Cheney annotations assertion which he knew to be false and
certainly not probative of Libby's state of mind




Above and beyond this, what we do know on the public record is that the investigation
he oversaw was a one-sided one, designed to target Libby and Rove and not to
get at the truth. PUK on Fitzgerald's idee fix and notation about never apparently
having asked Wilson if he himself had ever told anyone about his wife's employment.
There is substantial public record evidence, for example,that Plame's identity
was well known to many reporters (including, for example, David Corn of the
Nation who first floated the revenge outing and Plame was covert fables)
and the only reporters who were questioned were those who had spoken to Libby
and Rove. moreover, in questioning selective reporters he limited his questioning
of them to discussions with Libby and Rove, leaving out that they had other
sources, thus skewing and distorting the investigation to a predictable end.
One example of this is the questioning of Cooper who does not seem to be asked
if he had knowledge of Plame outside any discussion with these two. As his
wife was a prominent Clinton appointee that seems a reasonable likelihood.
As his co-author Calabresi spoke to Wilson before and after his discussion
with Libby that seems a certainty. That Cooper's call, in fact, was pretext
seems a certainty for his written account is at complete odds with his testimony.
Indeed, the agreement that the prosecutor made with reporters to only reveal
certain sources was certain to skew the record. Here is but one example:

Judith Miller statement on agreement with Special Counsel to limit testimony
to Libby.
Published: September 30, 2005
Following is the transcript of
a statement by Judith Miller on Friday afternoon, as recorded by The New
York Times
Once I got a personal, voluntary waiver my lawyer, Mr. Bennett,
approached the special counsel to see if my grand jury testimony could be limited
to the communications with the source from whom I had received that personal
and voluntary waiver. The special counsel agreed to this and that was very
important to me.
Walter Pincus also received information from someone revealing Plames
identity and position and was not required to testify: The Washington Post reported
last year:
I understand that my source has already spoken to the special
prosecutor about our conversation on July 12 [2003], and that the special prosecutor
has dropped his demand that I reveal my source. Even so, I will not testify
about his or her identity, Pincus said in a prepared statement. The
source has not discharged us from the confidentiality pledge, said The
Post's executive editor, Leonard Downie Jr.
Subsequently, Bob Woodward says , he too, conveyed this information to Pincus
which hed received from his source.News reports say that Pincus has
no recollection of that discussion. But because the Prosecution never questioned
Pincus we do not have on the record confirmation of that. In any event, perhaps
if he had been questioned about other sources, the Prosecution may have learned
earlier about Woodwards source.
In sum and substance you have a prosecutor who is misusing his office in a
way which violated ethical standards and the department's rules and regulations
which codify those standards of conduct

cathyf

I think that 3c (which shows up as 3.3. here) should not mention the "perjury trap" argument at all, and should instead focus on imprisoning Judy Miller for 85 days for no real reason. Then 3d (or 3.4.) should include both the perjury trap and normal-variation-converted-to-perjury discussions. (By someone who really understands the argument and the issues -- Cecil?)

cathy :-)

clarice

Cecil made several good points which I captured.This one details the misstatements of fact and law and we should try to figure out how to work this in:
1. who had carried out covert work overseas within the last 5 years
2. Not only was it classified, but it was not widely known outside the intelligence community.
3. LIBBY confirmed to Cooper, without qualification, that LIBBY had heard that Wilson’s wife worked at the CIA;
4. the first official to disclose this information outside the government to a reporter
5. Defendant understood that he was to tell Miller, among other things, that a key judgment of the NIE held that Iraq was “vigorously trying to procure” uranium.
6. he knew or should have known it was classified
7. Those annotations support the proposition
8. The June 2003 New Republic article is relevant
Further, several of these are misleading or misstate the applicable law as well. For example: "covert work" is meaningless; "not widely known" is irrelevant, as is "should have known" and Libby's reluctance to speak of Wilson's (then-classified) trip in June, '03. Fitz's reliance on red herrings and flat falsehoods makes one wonder why, if his case is so good, he can't tell it straight. (A concept you'd think those on the left would embrace.)

I think after detailing these misstatements we should say, these statements seem designed to attack the Administration, defame the defendant, and poison public opinion and the jury pool.

Published reports of the proceeding is uniformly false and while ignorance and bias may account for a good deal of that, it cannot be denied that the Prosecution's misstatements beginning with his press briefing have added to the confusion about the case and the discrediting even before trial of the defendant. The errors are not harmless.

______________________

Cecil's other point--copied here without editing --and it needs some--is also good:

The prosecutor has advanced in this same period notions of the criminal law that strain any rational reading.He has recently said, for example, that he need only show that Libby "knew or should have known" that Plame held a "classified" position for if he did he had a motive to lie about the disputed conversations with reporters.

Whether it's espionage act ("Whoever knowingly and willfully communicates . . . ") or IIPA: ("knowing that the information disclosed . . ."), the standard is knowing, not "should have known." ("Or reasonably should know" is listed as a basis for [civil] liability per the SF 312, but I don't think that's material to this case.)
Further, based on previous filings, I don't think Fitz can show that. Per Tatel:
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.
The referenced bit from the affidavit:
In order to establish a violation of Tide 50, United States Code, Section 421, it would be necessary to establish that Lobby knew or believed that Plame was a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years. To date, we have no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work.
That last bit appears subtly misstated, as the way I read the IIPA, there is no requirement for knowledge of covert work. And the consistency between the statements makes me think Fitz is trying to skirt the edge of a charge he knows he can't sustain and imply something he knows he can't prove.

clarice

After my introductory remarks about J. Walton's decision..please add:


It would thus appear that regardless of the singular nature of this counsel's appointment he is bound by the rules of conduct set forth by the Department, rules it is the task of your office to enforce.

In any event, by appointing as special counsel a man who simultaneously serves as a U.S. attorney the Attorny General has not stripped your office of jurisdiction to consider whether his conduct in this matter violates Department rules and regulations governing ethical professional standards.

clarice

I checked an earlier article of mine in which I noted these misstatements and inappropriate statemewnts in the presser..Check to see they are all in the letter:

that the case involved “compromising national security information”;

- that Libby lied to the FBI and grand jury;

- that the damage “was done to all of us”;

- and that a prosecution for obstruction of justice was a way of holding the defendant accountable for such uncharged conduct.

“When you do a criminal case, if you find a violation, it doesn’t really, in the end, matter what statute you use if you vindicate the interest. If Mr. Libby is proven to have done what we’ve alleged—convicting him of obstruction of justice, perjury and false statements—very serious felonies—will vindicate the interest of the public in making sure he’s held accountable. It’s not as if you say,’ Well, this person was convicted but under the wrong statute.’”

Sara (Squiggler)

I will be back from the missing here as soon as I get my house in order for the real estate company to do their open house. I've asked Ed Brown to start working on the cites until I can get back to giving my full attention.

As a long time Typepad user for The Squiggler blog, I would like to make a couple of suggestions.

I would suggest starting one post that can be the COMMENT post for all other posts. Then I would post each draft as a separate post. You will lose HTML formatting by trying to post in comments. You can go in and manually enter HTML in comments, but it won't retain the links of a cut and paste document. This is not true for posts themselves. All links will be preserved in a copy and paste operation for a new post.

If we do it this way, I would suggest listing the Drafts or any Separate Documents with their titles such as Draft - Letter#3 or Draft - Document#3 then refer to that designation when entering a comment. New posts will show up on the index in the sidebar making it easy to refer.

I haven't tried this yet, but if it works, then I would also suggest that at least for the draft versions that we use the legal line numbering function in Word or Word Perfect to prepare the letter, again making it easier to link a comment to a specific line in the draft. That way as cites are gathered we can upload them to comments with note that it belongs with Line xx on Draft - Letter#x. One of us with Guest Author permissions can then easily insert the cite at the proper location with a quick cut and paste and upload a new post with the updates included.

I hope I've made my suggestions understandable.

Sara

clarice

Draft III

(I will be gone for several days beginning on Sat. Those who wish to participate please move it. In the meantime, I've redone the first bits and post this as Draft III)


.In his April 27 , 2006 opinion denying Libby's Motion to Dismiss, Judge Walton made clear that the special counsel, though not appointed under the Department's normal regulations regarding special counsl, is nevertheless bound to the sum and substance of the Depaartment's rules and regulations regarding the prosecution of criminal matters.
Here are the relevant portions of the opinion on that score:
"In fact, because the Special Counsel must comply with Department of Justice policies, many of which provide direction for how to proceed in prosecuting cases, the AG, at least in an abstract sense, continues to direct and supervise the investigation and prosecution of this matter."
"But even if violations[of Department policies] as alleged occurred, that does not mean they were authorized by the authority given to the Special Counsel(p. 25, fn 12) ."
"It would be illogical to ignore well-established Department of Justice policies without any clear authorization to otherwise do so.(p. 24) "

"In fact, because the Special Counsel must comply with Department of Justice policies, many of which provide direction for how to proceed in prosecuting cases, the Attorney General, at least in an abstract sense, continues to direct and supervise the investigation and prosecution of this matter(fn. 13)."


It would thus appear that regardless of the singular nature of this counsel's appointment he is bound by the rules of conduct set forth by the Department, rules it is the task of your office to enforce.
In any event, by appointing as special counsel a man who simultaneously serves as a U.S. attorney the Attorney General has not stripped your office of jurisdiction to consider whether his conduct in this matter violates Department rules and regulations governing ethical professional standards.

2.. If we are wrong and the OPR feels that under the particular circumstances of the appointment it has no jurisdiction, we'd appreciate a public statement to that affect for we believe it is relevant to the trial court's ruling and to any which may be made subsequently by a reviewing court.
3. We believe that to date Mr. Fitzgerald has violated the rules and regulations and his ethical obligations as an attorney representing the government in the following respects:
(a) the false statements in the press release announcing the Libby indictement which misstated the facts and represented an effort to smear Mr. Libby and poison public opinion against him [detail misrepresentations0;
(b) the misleading representations to the Miller Court, including the footnote upon which Tatel relied;[detail]
(c) the setting up of a perjury trap by reading out of all sense his mission (to protect a whistleblower, rather than to find a leaker).I'd quote his good leak/bad leak statement. His mission was to find the leaker and he had found that person before he compelled the testimony of Ms.Miller.His statement of the law in the footnote to the Miller court was misleading and wrong. He knew at the time he went to the Ct of Appeals that he has no grounds to believe there had been a violation of IIPA or the Espionage Act. Both statutes were inapplicable.
(d) that he has conflated normal testimonial variances into perjury,conspiracy and false statements acts
(e) he is engaged in selective prosecution, charging Libby with false statements and conspiracy and not charging the leaker who, it appears, was really "the first to leak", someone who it seems disclosed Plame's identity to two reporters both of whom told others and one of whom, in fact, published that information leading to this investigation;
(f) He has improperly criminalized a political dispute.[Let's quote lots of his stuff..including that bit about good leaks/bad leaks to show that he is not impartial, but in deciding what is a good leak selects the anti-Administration statements of a serial liar (cite SSCI report) and a bad leak anyone who quite understandably sought to set the record straight. Wilson was a partisan with deep ties to the President's opponent, he publicized his false charges widely and they were charges of significant moment and import.The Administration had every right and reason to respond and Fitz' singular interpretation of what he is doing is proof that he has politicized this matter.
(g) He has gratuitously used the proceedings to smear the Administration for reasons unrelated to the advancement of the case:
(i) the NIE claim in his pleadings which he waited a week to correct.
(ii) the Cheney annotations assertion which he knew to be false and certainly not probative of Libby's state of mind
Above and beyond this, what he do know on the public record is that the investigation he oversaw was a one-sided one, designed to target Libby and Rove and not to get at the truth. PUK on Fitz' idee fix and notation about never apparently having asked Wilson if he himself had ever told anyone about his wife's employmentThere is substantial public record evidence, for example,that Plame's identity was well known to many reporters (including, for example, David Corn of the Nation who first floated the "revenge outing" and Plame was "covert" fables) and the only reporters who were questioned were those who had spoken to Libby and Rove.
moreover, in questioning selective reporters he limited his questioning of them to discussions with Libby and Rove, leaving out that they had other sources, thus skewing and distorting the investigation to a predictable end. One example of this is the questioning of Mr. Cooper who does not seem to be asked if he had knowledge of Plame outside any discussion with these two. As his wife was a prominent Clinton appointee that seems a reasonable likelihood. As his co-author ,Mr. Calabresi, spoke to Wilson before and after Mr. Cooper's discussion with Mr. Libby that seems a virtual certainty.That Cooper's call, in fact, was pretextual seems a certainty for his written account is at complete odds with his testimony.
Indeed, the agreement that the prosecutor made with reporters to only reveal certain sources was certain to skew the record. Here is but one example:
Judith Miller statement on agreement with Special Counsel to limit testimony to Libby.
Published: September 30, 2005
Following is the transcript of a statement by Judith Miller on Friday afternoon, as recorded by The New York Times
"Once I got a personal, voluntary waiver my lawyer, Mr. Bennett, approached the special counsel to see if my grand jury testimony could be limited to the communications with the source from whom I had received that personal and voluntary waiver. The special counsel agreed to this and that was very important to me."
http://www.nytimes.com/2005/09/30/politics/30transcript-miller.html?ex=1148270400&en=6f361ab70706e9ad&ei=5070
Walter Pincus also received information from someone revealing Plame’s identity and position and was not required to testify:
The Washington Post reported last year:
[quote] "I understand that my source has already spoken to the special prosecutor about our conversation on July 12 [2003], and that the special prosecutor has dropped his demand that I reveal my source. Even so, I will not testify about his or her identity," Pincus said in a prepared statement.
"The source has not discharged us from the confidentiality pledge," said The Post's executive editor, Leonard Downie Jr. [/quote]
Subsequently, Bob Woodward says , he too, conveyed this information to Pincus which he’d received from his source.News reports say that Pincus has no recollection of that discussion. But because the Prosecution never questioned Pincus we do not have on the record confirmation of that.In any event in that instance the Prosecutor seems untroubled by the memory lapse whereas in any variance in memory between Mr. Libby and others Mr. Fitzgerald claims evidence of wrongdoing, not normal human behavior. In any event, perhaps if he had been questioned about other sources, the Prosecution may have learned earlier about Mr. Woodward’s source.
In sum and substance you have a prosecutor who is misusing his office in a way which violated ethical standards and the department's rules and regulations which codify those standards of conduct


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