Why Fitzgerald doesn't need Russert's testimony to convict Libby.

Why Fitzgerald doesn't need Russert's testimony to convict Libby.

Why Fitzgerald doesn't need Russert's testimony to convict Libby.

A mostly political Weblog.
Nov. 1 2005 5:33 AM

Throw Scooter From the Train

Fitzgerald doesn't need Russert to convict.

Faster Second Thoughts:

"[I]f I were doing that piece again, maybe I'd do things differently."


That's the NYT's Todd Purdum on his smarmily glowing front-page Tim Russert piece. He wrote it yesterday. ... P.S.: Kf's precision sensor technology--including, but not limited to, a close reading of Purdum's buck-passing reference to his "editors"--detects some sort of highly effective, behind the scenes lobbying campaign on Russert's behalf, a sort of unseen Tenth Planet bending press coverage Russert's way (which is the way it has been going, in the NYT, and in Time). ... Why? It may be because Russert's still-secret account of his conversation with indicted Cheney aide Libby is 100% right and Libby's is a total lie, and Russert's people can convince reporters of this. But NBC also has to worry that organizations like Accuracy in Media will get some traction with the argument  that because Russert's now a player in the Bush drama, he should recuse himself from covering it. ... 11:53 A.M.

Vices Carry: A dessert-like smell envelops Manhattan. Where is Adam Gopnik when you need him? The evildoers will stop at nothing, etc. ... Except it's not not a non-joke! Are all these reports just an artifact of greater awareness? The N.Y. Daily News says, "The last mysterious smell to pervade much of the city was a noxious odor in December 1969." That's a long time ago. ... [Syrup-blogging is so last Thursday--ed I had technical difficulties, which included thinking of a joke.] 1:06 P.M.

Lawrence O'Donnell's reputation is intact: From two weeks ago ...

Prediction: at least three high level Bush Administration personnel indicted and possibly one or more very high level unindicted co-conspirators.


2:25 A.M.

Fitzgerald Doesn't Need Russert: Is it "Scooter" Libby's word against that of NBC's Tim Russert and two other reporters? That's how many people are portraying the pending perjury case against Cheney's chief of staff. Here's the estimable Tom Maguire:

The indictment of Lewis Libby pits the word of Mr. Libby against that of three reporters: Matt Cooper of TIME, Judy Miller, currently with the NY Times, and Tim Russert of NBC News.

And here's the Wall Street Journal ed board'shighly misleading account:

So, we are left with this. Did Mr. Libby offer the truth about Mr. Wilson to Mr. Cooper "without qualifications," as Mr. Fitzgerald alleges, or did he merely confirm what Mr. Cooper had heard elsewhere? Did he, or did he not, discuss Mr. Wilson with Tim Russert at all?


But special prosecutor Fitzgerald does not need any of these reporters' testimony to show perjury. He does not, most importantly, need Russert.  Fitzgerald has a simpler perjury charge that doesn't rely on a he said/she said with any member of the press. Specifically, the indictment alleges that Libby testified that

At the time of this conversation [with Russert] Libby was surprised to hear that Wilson's wife worked for the CIA.

(Libby allegedly said, under oath: "[A]t that point in time I did not recall that I had ever known, and I thought this is something that he was telling me that I was first learning.")

In fact, Fitzgerald argues, Libby wasn't surprised. He couldn't have been surprised because

At the time of this conversation, Libby was well aware that Wilson's wife worked at the CIA; in fact Libby had participated in multiple prior conversations concerning this topic ...


Fitzgerald then gives six or seven occasions on which Libby discussed Wilson's wife's employment with other government officials. (The discussions with Judith Miller of the NYT are redundant bonus incidents.)

How could what Russert told Libby possibly matter on the issue of whether Libby was surprised to hear about Wilson's wife? Russert can testify that he never even discussed Wilson's wife, or Wilson himself, in which case Libby can't have been surprised by the information. Or he can admit that he actually disclosed to Libby that Wilson's wife worked at Langley, in which case Libby still can't have been surprised by the information--or at least Fitzgerald can try to prove that.  It's not "he said/she said" because we don't really need to know whether what Russert remembers is accurate (unless he remembers, 'I told Libby and Libby seemed genuinely surprised,').

P.S.: Fitzgerald's lucky he doesn't need to rely on Russert. As Maguire points out  a) Russert's statements remain alarmingly Clintonesque, leaving open the possibility that he did, in fact, tell Libby that Wilson's wife worked at the CIA (just without using her name or revealing that she was an "operative"); b) it's highly probable Russert and Libby in fact at least discussed Wilson, if not his wife, because (as Michael Crowley and TalkLeft note) Libby didn't just call Russert to complain about "some programming," as Brian Williams vaguely put it--the "programming" Libby was complaining about was almost certainly a Hardball program about Wilson!**  What's more, while Fitzgerald said at his press conference that Libby and Russert "never discussed"  Wilson's wife, it's slightly hard to believe they didn't, because in that Hardball episode, Chris Matthews seemed to make the very charge that Valerie Plame's employment was relevant to rebutting--the charge that Wilson was sent "down to Niger" by the "Vice President's office" (as opposed to by the CIA at the suggestion of his wife).***

**--If that's true, then Michael Duffy of Time's suggestion that Libby "confected [the Russert conversation] out of whole cloth" would seem to be wrong, as Maguire argues. And maybe a wee bit defamatory! Duffy's story might certainly have benefitted from at least mentioning that Russert had in fact talked to Libby, probably about Wilson.


***: Note that while the factual preamble section of the indictment alleges "LIBBY did not discuss Wilson's wife with Russert," when it comes to detailing Libby's alleged specific lies the indictment does not claim this. It alleges only that

Russert did not ask Libby if Libby knew Wilson's wife worked for the CIA [i.e., but maybe he told him!], nor did he tell Libby that all the reporters knew it. [Emphasis added, capitalization of "Libby" deleted]

If Fitzgerald's case boils down to whether Russert told Libby the information on Wilson's wife or put it in the form of a question ("Did you know that Mrs. Wilson ... ")--or if it hinges on whether Russert told Libby about other reporters knowing it-- then it's really as trivial as the WSJ makes it out to be. But it won't boil down to that, from all appearances, because Fitzgerald can also nail Libby on Libby's implausible statement that he was surprised by Russert's info. ("[A]t that point in time I did not recall ..."). 1:49 A.M. link

Instapundit's Katrina/Rita Relief donation list.

It Depends What the Meaning of "Law" Is: Polipundit  comes out against Michael McConnell:

[H]e's a solid conservative scholar, but he isn't partisan enough.

McConnell actually wrote what he thought about Bush v. Gore's lack of logic. Wouldn't want that! ... P.S.: Is Polipundit saying Bush v. Gore was a sound decision? I don't think so. He's saying McConnell should have supported it because it benefitted Republicans, period, even if it didn't make sense. ...P.P.S.: Doesn't this make McConnell a near-ideal post-Miers nominee? As proof McConnell's not a crony, Bush can point to the Bush v. Gore critique. When Dems argue McConnell represents a capitulation to the GOP's right wing, Bush can point to crude partisans like Polipundit who oppose him. Yet he's a "solid conservative." ....  1:37 A.M.

Doubts have been expressed about the big front page NYT scoop of yesterday--the one that said George Tenet told Cheney about Plame's status, and that Cheney then told Libby. Obvious Problem #1: If Tenet was such a key figure, wouldn't he have testified before the actual grand jury? Obvious problem #2: Would Libby really have been dumb enough to contradict his own notes (which the prosecutor has had from the start) under oath? ... If the Times story falls apart, will reporters Johnston, Stevenson and Jehl get fired like so many people think Judtih Miller should be fired (given that her WMD stories fell apart)? What if Jehl's big front-page Able Danger scoop  turns out to be a crock too? That would be two big strikes against Jehl! Hey,what do you have to do to get fired at the New York Times? ... This principle of actually holding reporters accountable for the accuracy of their stories could get out of hand. ... P.S.: I do think sacking Miller now is a bit harsh, no? Her WMD reporting was discredited in 2003. It's not like she wasn't convinced it was right at the time! What's she done over the past year  that's horrible enough to justify going from hero to the sidewalk, except spend 85 days in jail as part of a misguided crusade ginned up by the paper's publisher? (OK, so she didn't remember a few things under oath, maybe, to protect her source.) ... The publisher, on the other hand, is facing a multiple count indictment:

1) Falling for Howell Raines' con and hiring him as editor over Bill Keller, only to have to fire him after a scandal and staff rebellion, during which the publisher made an idiot of himself by brandishing a stuffed moose--Bad Move;

2) Bullying his way into control of the International Herald Tribune--probable Bad Move;

3) Leading the aforementioned misguided Judith Miller crusade that has now ripped his paper apart--Bad Move.

4) Taking his star columnists out of the public discourse by trying to charge money for Web access to them--Bad Move.

And, of course, Pinch's overarching, original crime: Freeing a respected national newspaper to become an unashamed cocooning organ of New York liberal political and aesthetic prejudices (with a few exceptions, like Miller, that are slowly being corrected). ... Go Class A Stock! ... 5:51 P.M.

The Forward Lean: Maguire is already talking venue. ... 11:24 A.M.

Laura Rozen asks: "Why was the White House so worked up over Wilson and the Niger hoax ...?" Good question. She thinks La Repubblica'sreporting on the Niger forgeries offers part of the answer. I don't quite see it. (For one thing, if the paramount White House concern was protecting some horrible Italy-related Niger forgery secret, making a big fuss about Wilson would only attract attention to the issue and get reporters swarming all over it.) ... Isn't it possible the White House was extremely alarmed by Wilson's covert (and then overt) appearances on the NYT op-ed page because Cheney, Libby, et. al. were operating under the outdated impression that the NYT op-ed page was where the fate of men and policies gets decided--i.e. that it was still overbearingly influential? [You mean ...--ed Yes! If TimesSelect had been in place in 2003 this whole scandal would have been avoided.] ... 2:32 A.M.

His Race to Lose: The Note approvingly quotes  undead Overspin Ghoul Chris Lehane on the possible presidential candidacy of GOP Senator George Allen:

George Allen will be George Bush without the brains or the fig leaf of compassion. . . a Confederate flag-waving, tobacco chewing, Bob Jones stumping, Bin Laden missing, economy dumping, Schiavo diagnosing, country dividing right winger at a time when the public will be looking for someone who will be a strong leader, non-partisan, capable of making the right choices for the country, and tough on national security and right on the economy. . . And HRC will make that character match-up.

Some people are amazed that bloggers get paid for what they say. I'm amazed that Chris Lehane gets paid for what he says. Is any undecided voter actually convinced to support the Democrats or Hillary Clinton by this sort of Note-macho attempt to cram as many ungraceful, un-nuanced little partisan catch-phrases into a sentence as possible? Isn't it more likely that Lehane only manages to offend people who could like Hillary overall but find at least one in the string of strident Lehane sound-bites too simplistically adversarial--e.g. perhaps because they don't think the Schiavo case is so cut-and-dried? ... One measure of HRC's readiness for higher office will be whether she refuses to hire Lehane. ... Of course, if she doesn't he'll probably be leaking snarky, comments about her to The Note for the entire presidential cycle. (What to do? Maybe hire him to write a column but offer it only to supporters whol pay for it. HillarySelect! It's a proven technique for removing annoying voices from the public discourse.) ...

Update:  Emailer B notes Lehane was aping  this classic Charles Robb/Ollie North format.  But even as an uninventive insider semi-parody, it's representative.  Note how all of Robb's gibes against North ("Commander in Chief-bashing, Congress-thrashing, uniform-shaming, Ayatollah-loving, arms-dealing, criminal-protecting, résumé-enhancing, Noriega-coddling") were appeals to sentiments shared by centrists and undecideds. Lehane's pitch ("Schiavo-diaignosing ... right winger") is an appeal to hard-core partisan sentiment. He even stiff-arms tobacco chewers! This ability to win over Note writers rather than actual voters is one key to Lehane's impressive loss-win record. [Is there a win?--ed. Good question.] ...  1:53 A.M.

Kf Catch-up Graf: To find out the latest in unsubstantiated Plame rumors--and news reports that may hold up no longer than rumors--in addition to the usual places (e.g. Drudge, TPM, HuffPo) I'd check out Washington Note, and TNR's vigorous new Plank. The Plank sows doubt about the NYT's report  suggesting that Cheney found out about Wilson's wife from CIA director Tenet. If Libby's so-called notes got that wrong, what else did the notes, or the NYT, get wrong? [Backfill: See JustOneMinute on why it would be odd indeed  if Libby had testified in a way that contradicted his notes.] ... Die Pincherdammerung: Meanwhile, Arianna Huffington puts the moose on the table, broaching the obvious Next Issue of who might replace the NYT's hapless publisher. ... OK, that moose was already on the table, but Arianna advances it down the field a few yards, scouring the Sulzberger royal family tree for non-mediocrities. She particularly mentions Michael Golden, the Sulzberger cousin who now publishes the International Herald Tribune. But is the IHT doing so well? I hear no. ... Given the current publisher's shortcomings, the cousin with the Ph.D. in molecular biology from Brandeis-- first suggested by David Warsh--looks mighty good, no? ... 5:57 P.M.

Don't Worry About Alberto? The rumor last week was that when Miers goes down, President Bush will be so angry he might just nominate another crony, Attorney General Alberto Gonzales. Not to worry, argues Rick Hasen--at least if, as seems to be the case, Bush is taking C harles Krauthammer's advice and letting Miers' bid die in a face-saving impasse**over access to executive branch documents:

The excuse for withdrawal appears to be a fight over executive privilege. The president won't turn over documents needed to show Ms. Miers' views on legal issues that arose in the White House. If that is indeed the basis for withdrawal, it is doubly good news for conservatives, because presumably it would take AG Gonzales out of the running too. There, the administration certainly won't want to turn over such documents (especially related to torture). Gonzales is probably the leading candidate to substitute for Miers who would be attacked by the right.

A twofer for the right. Maybe that was Krauthammer's plan all along. ...

**--Of course, since this face-saving impasse will undoubtedly be widely reported as a face-saving impasse, it's not clear it will actually be face-saving. ... 4:35 P.M.

"[C]onspiracy to misuse classified information." That has the ring of plausibility, indictment-wise. ... See Maguire for a more thorough analysis. ... 1:27 P.M.

Somebody's wrong:  Survey USA's robo-poll taken in mid-September showed Arnold Schwarzenegger's anti-gerrymandering initiative up by 22 points. The Public Policy Institute of California poll, taken a few days earlier, had the same initiative failing by 37. That's a 59 point discrepancy! ... Survey USA has Schwarzenegger's other initiatives also doing much better than reported in either the PPIC poll or the competing Field Poll, according to Mystery Pollster. They're all serious polling outfits, notes MP--the difference is in the wording of the questions. ... MP also says the best reporting on the pollsterfight is not in the LAT but in the relatively obscure North County Times, where William Finn Bennett has fun describing how PPIC and Field insist on confronting voters with the actual, impenetrable ballot language, while Survey USA arguably oversimplifies. ... kf concludes the truth lies somewhere in between! 10:50 A.M.

It's Getting Webby! Petrelis notes that Judith Miller's latest response to NYT Public Editor Byron Calame has been posted on Calame's Web site. ... The ledes: a) Yes, there's a fact dispute between Miller and NYT Managing Editor Jill Abramson, not some other mystery editor. ...b)  Miller seems mystified by exactly what new development has caused her own paper turn on her. She has a point.   ... c) If she keeps on not going quietly like this the paper's not going to be big enough for her and #1 editor Bill Keller. And it's not clear that Miller's protector, Times publisher Pinch Sulzberger, can afford to favor her in that fight. ...

P.S.--Note to Miller: The left hates you. The right isn't going to come to your rescue. You have no base of support except the man at the top. Just like Harriet Miers! It's not enough for her and it's not enough for you. ... 2:09 A.M.

How the Pros Do It:

"Plame's annoyingly egomaniacal husband, Joseph Wilson ... " -- kausfiles

"A prideful man who enjoys the spotlight, Joseph Wilson ... " -- Newsweek.

That's why they pay Barry, Isikoff and Hosenball the big bucks. ... P.S.: Their piece is actually an excellent trot for those who only have time for one backgrounder on the Plame investigation. 12:31 A.M. 

An Item to Use Or Lose:  There's an obvious parallel between Bush's nomination of Harriet Miers to the Supreme Court and California Gov. Edmund "Jerry" Brown's notorious appointment of his Agriculture Secretary, Rose Bird, to be Chief Justice of the California Supreme Court in 1977.  Bird, like Miers, was a crony of the man who appointed her--she'd started out with Brown as a volunteer chauffeur on his campaign. Bird, like Miers, had never been a judge, but would have been a relatively non-controversial appointment to a lower judicial position, even a lower position on the state Supreme Court. But Brown made her Chief Justice, a post that was far more powerful on California's Supreme Court than the equivalent position on the U.S. Supreme Court (in part because California's Chief Justice controlled a large central staff).  The Bird appointment was a disaster politically--she was voted out of office in the 1986 "retention" election, along with two other relatively liberal justices. Jerry Brown's political career arguably never quite recovered from the bad vibe left by the irresponsibility of the Bird pick. [Brown's about to be elected state Attorney General--ed. Oh, right. Well it took him a long time to recover.] ...

The difference is that Bird was controversial because she was a liberal judicial activist, while Miers is controversial because she's seen as too non-ideological, at least for the right. And Bird, as a cabinet official, was more of a known quantity (although not all of the knowledge was favorable). But there are obvious similarities in the thinking that went into the appointment--including, I think, a misguided sense of gallantry, as in "I [Bush, Brown] know how good this woman is and I'm going to do a great and just thing for her." And, yes, I suspect this sense of gallantry is non-gender-neutral. A man would be less likely to make the same judgment error about another man. [Does that mean the appointment is in a sense sexist?-ed. You said that.]

[Conflict disclosure: I was clerking for an Associate Justice, Stanley Mosk, when Bird arrived at the court. Brown later appointed my father to a seat on Bird's court.]11:57 P.M.

The Bookers' Cry: 'When Does Kristol Dock?' Someday someone will write a good comedy about the strange era in the early 21st century when America's great public intellectuals spent most  of their lives trapped on cruise ships, milking money out of admiring donors. ... P.S.: Pessimists argue that the Internet encourages cocooning and balkanization by giving political publications an incentive to play to their bases. But if there were no Internet there would still be the boats! ... 9:33 P.M. link

The Times' Incoherent Turn Against Judy Miller: TheNYT's editor, Bill Keller says

[I]f I had known the details of Judy's entanglement with Libby, I'd have been more careful in how the paper articulated its defense, and perhaps more willing than I had been to support efforts aimed at exploring compromises.

Maureen Dowd writes  [$]:

[B]efore turning Judy's case into a First Amendment battle, they should have nailed her to a chair and extracted the entire story of her escapade.

I'm confused. What, exactly, would Keller have learned about Miller--i.e. what does he know now--that would have caused him to change his position on whether the Times would defend her initial refusal to testify? The worst rumor  about Miller, remember--that she told Libby about Plame's employment, rather than hearing about it from him--turns out to apparently not have been true.

Is Keller shocked, shocked to now discover that Miller was 'entangled' with a high-level Bush aide like Libby? And this wasn't already apparent from, say, reading her pieces on WMDs? He knew nothing about how Miller operates? Good reporters get entangled with sources all the time. Does the Times claim that only its reporters who remain clinically uninvolved with real people or their causes get the First Amendment rights the paper righteously demands for itself? You have to be neutral about the plight of the uninsured? If so I can give Keller the names of a half dozen Times reporters to whom the First Amendment doesn't apply. (Jason ... Nina ... John ... Fox ...)

Maybe what Keller would have discovered upon grilling Miller is that she a) had apparently agreed to deceptively identify Libby as "a former Hill staffer", although she didn't actually use that identification  in a story; b) had "misled [Times editor] Phil Taubman about the extent of her involvement" in the Plame story; and  c) had offered testimony (e.g., about not remembering who told her the name "Valerie Flame") that lacked credibility. Keller endorses as "just right" an e-mail from reporter Richard Stevenson that says:

"I think there is, or should be, a contract between the paper and its reporters. The contract holds that the paper will go to the mat to back them up institutionally _ but only to the degree that the reporter has lived up to his or her end of the bargain, specifically to have conducted him or herself in a way consistent with our legal, ethical and journalistic standards, to have been open and candid with the paper about sources, mistakes, conflicts and the like, and generally to deserve having the reputations of all of us put behind him or her. [Emph. added]

But, if you believe what the NYT claims it believes about the need for a press "shield" to prevent reporters from having to reveal their sources, Stevenson's e-mail is nonsense. The paper wants sources to come forward and give its reporters information, which the paper will then publish for the public's benefit. That's the theory. If the paper than decides, unilaterally, to strip the privilege from any reporter it deems hasn't "conducted him or herself" in a sufficiently "open," "candid," or "ethical" manner--or just "generally" doesn't "deserve" protecting--where does that leave the poor sources, or the public's vaunted right to know? Are sources, before they talk to NYT reporters, supposed to ask themselves "Is this one of the fine upstanding Times reporters who will be supported when she goes to jail to protect me, or is this one of those secretive, immoral Times reporters who might later tell a lie to her editors, with the result that the paper decides to sell me down the river?" If you're a source and you want to be safe, before you talk to a Times reporter you'd better get to know her--get to know all about her. But that way lies entanglement!

Keller's incoherent, sloppy retreat on Miller is less impressive than the steadfast lukewarmness of his earlier defense of her. The most plausible way to interpret yesterday's email is as a) an admission that the Times' First Amendment claims were insupportable and ill-advised from the get-go, and the paper should have cut a deal like everyone else even knowing what they knew when the case began;** b) an admission that Miller should have been fired after the flaws in her WMD reporting became apparent, long before any special prosecutor entered the picture; and/or c) a muddled attempt to placate a staff angry that Miller hasn't conducted herself well over the years (and maybe also that she was on the Bushie side of the Iraq War debate).

Nothing Keller has recently learned--or that he might have learned by grilling Miller early on--would seem to change any of this, though it's convenient for him and Miller's other out-of-the-woodwork critics to pretend that it does.

**--Update: Keller is more explicit about cutting a deal in the version of his email sent to Public Editor Byron Calame. ... 11:39 P.M. link

Miller/Libby on a See-Saw? Jake Tapper makes an intriguing point about the attacks on Judith Miller from within her own paper:

Dowd also all-but calls Miller a liar, saying it's not "credible that Judy wouldn't remember a Marvel comics name like 'Valerie Flame.' Nor does it seem credible that she doesn't know how the name got into her notebook and that, as she wrote, she 'did not believe the name came from Mr. Libby.'" She details Miller's myriad other credibilty issues as well…. In other words? The NYT is gift-wrapping Judy Miller as an unbelievable unreliable witness -- along with her self-outed nay-saying colleagues Taubman, Keller, Dowd and Abramson.

The case against Scooter relies upon Judy's credibility -- which the PAPER OF RECORD is undercutting and shredding.

The New York Times BMOC club will amply supply defense exhibits A through Z for Mr. Libby, should he ever need them. [Emph. added]

Of course, some of Miller's evidence is in the form of written notes, which rely less on her credibility. And a jury might choose to believe what she says when it incriminates her WMD-ally Libby but disbelieve the statements Dowd cites, which tend to help him. ... Still, there may no easy answers for the anti-Bush, anti-war camp in the wish-fulfillment department. Only tough choices! Miller trashed, or Libby jailed? Sometimes you can't have it all. 10:01 P.M. link

A New York Times Co. press release from Thursday  boasts of an increase in page views at the free portions of the paper's Web site--including "profiles of the Supreme Court nominees"--but somehow neglects to mention the stunning success of TimesSelect's pay-for-pundits service. How long will they be able to keep hiding their light under a bushel? [Thanks to T.M.] ... Update: N.Z. Bear, keeper of the TTLB Blogosphere Ecosystem, notes that even the traffic numbers the NYT boasts about make it only slightly bigger than Daily Kos. ... But, hey, it's 4 or 5 times bigger than a lone law professor blogging in his spare time from Tennessee! ... P.S.: Don't worry, Pinch. Eric Alterman says Wall Street doesn't care about these quotidian Web stats. Not one tiny bit!  ...12:10 P.M.

Maguire buries the lede: He argues that by the time she was named as a CIA operative as the result of nefarious administration leaks,  Valerie Plame had already been "outed"  as an agent either by Aldrich Ames or by an inadvertent leak to Cuba. Seems plausible enough! But that doesn't explain those eight redacted pages  discussing Fitzgerald's brief that are thought to detail harm to U.S. interests. ... Maguire's more powerful point would seem to be: If the harm to the country was so great, why did Plame's annoyingly egomaniacal husband, Joseph Wilson, thrust himself into the public spotlight in a way almost guaranteed to eventually cause his wife's employment to be discovered and publicized? (It's not as if Wilson thought he was the only thing stopping the country from going to war, remember. The Iraq invasion had already taken place by the time Wilson went public. We were in the recriminations phase.) 5:01 P.M. link

Kinsley mocks the New York Times'positions on the questions of a) a "journalists' privilege" and b)  limiting how much a candidate can spend campaigning:

[T]he Times believes that its First Amendment right to speak includes a right (for journalists only) not to speak when subpoenaed in a criminal investigation. Meanwhile, it cannot see how a right to speak includes the right to spend money on speech.

[Column not available in the L.A. Times] ... 12:07 A.M.

Miers in the Senate: Perhaps, as the Senate finds ways other than a vote or a filibuster to signal that it really doesn't want to confirm someone--e.g., leaking negative reviews, sending back questionnaires, asking for more documents, etc.--the old Hollywood rule applies:

Absence of Yes + Time = No

5:20 P.M.

Note to Dems: Choose BS! Isn't the advice that ABC's The Note gives Democrats about the Plame scandal (in the form of a fictional memo from Democratic media strategists Fabiani, McCurry and Lockhart) almost completely, and revealingly, wrong. ** The Dems have a nice little (or not-so-little) scandal going in the Plame investigation. High Bush officials may be indicted. The gist of the crime is that a CIA agent's cover was blown, and potential intelligence assets endangered. The best propaganda the Dems could produce would be the many patriotic CIA officials angry that an agent was compromised. So what does the ventriloquizing Note argue?

This cannot be a case about a leak (since the press doesn't like to cover leak stories as most of them are recipients of leaks and it sounds small bore); this cannot be a matter about White House aides (most people think Scooter Libby is something you ride on, and Karl Rove isn't as famous as you think he is); this cannot be about an isolated incident that smells, feels, and tastes like business as usual in Washington, DC (since that won't break through).

It's got to be about big things that impact the real lives of real Americans — and about how Bush pushed our country into a war.

Here are the specific steps to take:

(1) Message: Make this much bigger so that there is a political narrative that draws the connection between the manipulation of intelligence and the war in Iraq.

The Bush Administration manufactured and manipulated information in order to fool elected officials and the public into supporting a war where nearly 2,000 American soldiers have been killed. ...

But this is a case about a leak! It's not about whether the Iraq war was justified or whether there were weapons of mass destruction or even whether Saddam tried to buy yellowcake in Niger. (Sorry, Arianna!) Cheney, Libby, Rove et al could have quite easily manipulated intelligence about Iraq and pushed the country into war without violating the U.S. Criminal Code. The point of a prosecution would be that they didn't.

In essence, the Note tells Dems, in classic, media-consultant fashion, that instead of basing their pitch on the reality of the case (the leak) they should base it on BS (that somehow the prosecution is refighting the Iraq war). Shouldn't it be a general premise of Democratic politics that it's reality-based and not spin-based? And while Dems might get a majority of Americans to agree that the Iraq War was a bad move, they'd get about 95% to agree that compromising covert American agents is a bad move. Why not make the latter the issue?

Democrats can refight Iraq anytime, and they should. Their arguments (should they decide to make them by, say, nominating a candidate who didn't actually vote for the war) can stand or fall  on their own. They can certainly include evidence of pre-war deception that has only come to light thanks to the Fitzgerald investigation. But the indictments won't be indictments for waging an imprudent war, or slanting intelligence. They'll be indictments for improper leaks. Democrats should be able to pocket the winnings that come from these leak-related criminal charges, and then separately make the case about Iraq based on what's happened in Iraq. If the latter isn't enough to make the anti-Bush argument, pumping Fitzgerald's case up into something it is not isn't going to make up the difference.

P.S.: It's also quite possible that Fitzgerald will indict several Bush aides, who will then beat the rap at trial. Would acquittals be a vindication of Bush's Iraq policy? Of course not. But if the Democrats put the Iraq war on trial, they might be seen that way.

**--I know, ABC's Halperin & Co. might say they are only parodying hack Democratic media advice. But even if they are, the parody (like all good fiction) reveals a depressing truth about modern Dem politics. Also, they're not. They clearly buy into it. 12:38 P.M. link

Articles of Confederation: The essential mistake was thinking you could replace a centralized, dictatorial regime with a looser decentralized regime and not have old power centers rise up and sow mischief and chaos--resulting in something close to civil war. But I've written enough about the New York Times under Bill Keller! 12:59 A.M. link

How McCain Can Blow It: According to ABC's "The Note," Senator McCain was asked on Tuesday if the critics of his immigration plan were racist.

McCain said he doesn't like to make those kinds of accusations, before adding, "We'll let other people draw those conclusions."

What's wrong with just answering, "No"? ... P.S.: Does McCain really think he's going to win the GOP nomination by enlisting the media in calling Republicans who disagree with his policies bigots? ... P.P.S.: The parallel with welfare reform--where proponents of press-favored liberal policies were always implying that their conservative critics were racists, until the critics (who happened to comprise a large majority of voters) carried the day--seems too obvious to mention. I'll let other people draw those conclusions. ... 12:57 A.M. link

Jane Hamsher suggests that Cheney aide "Scooter" Libby's notorious "Aspen" letter may not be the amusing/tedious Plame-obsessive side issue it seems, but rather somewhere near the heart of Fitzgerald's current case against Libby. And she fingers a likely leaker. ... 2:40 P.M.

Brady Westwater offers a sober three-graf assessment of the achievements and failures of Edmund Bacon, the Philadelphia urban planner who died last week. I only learned about Bacon from his crazed cameo in the excellent documentary, "My Architect." ... 12:45 P.M.

Stenchblogging Update: The Washington Post seems to think the cause of the Mystery Stench in D.C, at least, has been discovered. The alleged culprit--the Washington Suburban Sanitary Commission--denies it, so some mystery remains. (And do "roots, gravel and cigarette butts, [and] human personal items" really smell like methane gas?) [Thanks to reader M.12:13 P.M.

Giorgetto Giugiaro, the greatest living auto designer, seems to have definitively lost the magic. His latest is a Ferrari that's, yes, a hack pastiche of styling cliches! ... P.S.: Here is the magic. (And here  ... and here.) 1:54 A.M.

Judybats: Why the feverish interest in  the Judith Miller subplot (as distinct from the Plame investigation of which it is a part)? Howie Kurtz asks the question, and answers it:

It's the war, of course. We're re-fighting the war through this case.

Kurtz is right. (He might have added that it's particularly anti-war ground on which to refight the war, since it is really refighting the WMD rationale for the war--clearly based on error--as opposed to the substantive result of the war, which is still a mixed picture.)

But Kurtz is also not right. Plenty of other people wrote reports that, in retrospect, exaggerated the threat of WMDs in Iraq. I don't notice a flurry of knives out for, say, Kenneth Pollack, author of The Threatening Storm: The Case for Invading Iraq, or for Jeffrey "Aflatoxin"  Goldberg. Why the "cannibalistic frenzy," as Christopher Dickey calls it, over Miller? There seem to be several factors, other than the war, at work in her case:

a) Treason: Miller wasn't just perceived as in cahoots with neocons in foisting the war off onto the public. She was doing it from within the New York Times, which the Left correctly perceives as one of "its" institutions. As a traitor within the liberal camp, she has to be expelled and punished, in a way she wouldn't be punished if she'd been an equally mistaken and influential reporter for National Review. The host body rejects her.

b) Regicide and Meritocracy: There's a sense, as Arianna Huffington noted during the summer, that this is "the straw that could break the Gray Lady's back."  In particular, publisher Arthur "Pinch" Sulzberger is perceived by many (including me) as a near-mediocrity who inherited his position and is not up to the job--and is also a friend and defender of Miller's.** The underlying suggestion is that maybe the current crisis will finally be his downfall--even if many journalists aren't eager to say this out loud, just in case it isn't.

c) Revenge I: Resentment of the NYT because it's been the arrogant top dog (a resentment I sampled when I foolishly opened the floodgates to reporters who claimed the Times ripped off their stories).

d) Revenge II: Miller throws her weight around, pulls rank, etc.

e) Democracy: The self-righteous, simplistic, condescending posturing of the Times--under Sulzberger (see (b))--in claiming special constitutional privileges for itself in the name of  "the public's right to know"--without even addressing the issue of what, in 2005, makes the Times sosuperior to the bloggers who now are much of the public.

It's overdetermined! But yet not overdetermined enough. Are those factors really enough to explain the current ferocity of anti-Judyism? There's also:

f) Sex: Miller was for many years the femme fatale of Washington, D.C., an interesting type in itself, almost always the focus of obsessive interest, jealousy and resentment. This carefully-worded  New York story (and this Huffington column) get at some of it.

My friends tell me I'm wrong, but I tend to think factor (f) is more significant than we'd like to admit, and maybe more significant than factors (b) through (e) combined. If Miller were a man who looked like Drew Carey we might have found another vehicle for re-fighting the war. ...

**--Pinch Takes Hostage? It seems highly unfair for Miller's critics to target current NYT editor Bill Keller along with Sulzberger, as some do. Keller's predecessor as editor was Howell Raines, who was pushed out after the Jayson Blair scandal in 2003. Within the Times, Miller was a Raines person and a Pinch person, not a Keller person. Miller's flawed WMD stories  ran on Raines' watch. When Keller replaced Raines as editor, he tried to clip Miller's wings. (According to the NYT's account, he "told Ms. Miller that she could no longer cover Iraq and weapons issues.") Given Keller's relative innocence, one subtext of the Judy-out-of-jail story was the way Sulzberger got Keller to publicly walk the gangplank with him in embracing Miller--jointly taking her to the Ritz-Carlton for a "steak dinner"  right after her release. ... 12:38 A.M. link 

How Do You "Free Fall" When You're on the Floor? Mystery Pollster isn't buying  the much-publicized Bush "free-fall" among blacks in the recent NBC/WSJ poll. Small sample size. Bush's favorable approval rating with African-Americans, MP estimates, is more like ... 10%!  Meanwhile, the President's overall slide continues. ... P.S.:  MP also points to this highly useful page on the various polls' habitual biases ... sorry, "house effects." 1:37 P.M. link

Was Judith Miller just a fan of the Starlight Mints? See track #5. ... 1:26 P.M.

Subtle tonal nuance detected: The fourth-to-last and third-to last paragraphs in the NYT's Judith Miller takeout--

She said she thought she would write a book about her experiences in the leak case, although she added that she did not yet have a book deal. She also plans on taking some time off but says she hopes to return to the newsroom.

She said she hopes to cover "the same thing I've always covered - threats to our country." [Emph. added]

"Hopes"? "Hopes"? Why of course she'll return. You'd think the Times editors would have paid close attention to the wording here. Don't they hope she'll return? She's the paper's triumphant First Amendment hero! Why wouldn't she return? ... She'll be coming back, right? ... Right? ...  Backfill: Greg Mitchell pointed to "hopes" on 10/15. ...12:19 A.M. link

Frank Rich Escapes TimesSelect Ghetto: Frank Rich's Miller-Plame column appears to be  available for free  on the New York Times Web site, even for those who haven't subscribed to the paper's TimesSelect service. As T.M. notes, "Maybe Times Select is only for the unimportant pieces." ... P.S.: When it was launched, TimesSelect promised:

exclusive access to 22 columnists of The Times and the IHT, including online dialogues with Thomas L. Friedman, Paul Krugman and Frank Rich ...

Hmmm. Read that sentence closely and you realize that for $49.95 you've only really been offered "exclusivity" with respect to the "online dialogues," not the actual columns. Where is Elliot Spitzer when you need him? ...[I asked for "link-rich copy," not Rich-link copy, you moron-ed.] ...  Update--Back to your cell, pundit! The non-subscription Rich link is now dead. ... During its heady hours of freedom, Rich's column visited the Huffington Post  and took in a Broadway show. It was re-apprehended in a strip club near Times Square. ... P.P.S.: Meanwhile, Rich's fellow columnist Thomas Friedman did not seem too happy with TimesSelect in this passage from Howie "Stretch" Kurtz's "Reliable Sources" show:

[O]ne of the greatest things about "The New York Times" online is I got to reach an audience that just was exponential to what you got in the dead-tree edition of "The New York Times." And I particularly -- because I write about international affairs, so I got a lot of young people in India and Egypt and what not. And for them, $50, that may be their -- that may be their tuition for half a year. So I honestly am torn. I really hope this works, because I want "The New York Times" to have a platform that is sustainable. But at the same time, I hope we can eventually find a way to re-engage those people, because definitely, we've lost some of them. [Emph. added]

[thanks to S.K.]12:51 P.M.

Fitzgerald's Choice: If, like me, you often find yourself lost in the tedious underbrush of the Plame story, this Maguire post--unlike some other Maguire posts!--provides a clarifying template. ...12:32 P.M.

1. Preposterous blog speculation congealed into conventional wisdom  that turned out to be wrong: The   idea that   NYT reporter Judy Miller toldCheney aide Libby that Bush critic Joe Wilson's wife worked at the CIA, rather than vice versa.

2. Preposterous blog speculation congealed into conventional wisdom that turned out to be right: The idea that Libby seemed to be coaching Miller in his infamous 'aspens are turning' letter, which noted pointedly that other reporters had testified "they did not discuss Ms. Plame's name or identity" with Libby. Special prosecutor Fitzgerald actually asked Miller about this possible coaching, and Miller says the thought occurred to her too:

I replied that this portion of the letter had surprised me because it might be perceived as an effort by Mr. Libby to suggest that I, too, would say we had not discussed Ms. Plame's identity.

In the event, while Miller's notes undermined Libby's claim that he didn't discuss her "identity," she certainly seems to have done the best job possible of minimizing the connection between Libby and Plame's name, given its appearance in those notes.  The aspens may have intertwined roots after all.

3. Did Judy's lawyer scam the special prosecutor? According to the NYT, Miller's lawyer,

Mr. [Robert] Bennett, who by now had carefully reviewed Ms. Miller's extensive notes taken from two interviews with Mr. Libby, assured Mr. Fitzgerald that Ms. Miller had only one meaningful source. Mr. Fitzgerald agreed to limit his questions to Mr. Libby and the Wilson matter.

But a key question is who told Miller the name "Valerie Plame," which she miswrote as "Valerie Flame" in her notebook. Miller says she's not sure it was Libby. Therefore it might have been someone else--i.e. she might well have had another very "meaningful" source, contrary to Bennett's alleged representations to the prosecutor.  Am I missing something, or does Fitzgerald have grounds for being extremely p-----d off? (Arianna  also makes this point.)

4. Why is Pinch ashamed?

"Maybe a deal was possible earlier," Mr. [NYT publisher Arthur] Sulzberger said. "And maybe, in retrospect, looking back, you could say this was a moment you could have jumped on. If so, shame on us. I tend to think not."

Of course a deal was possible earlier. That seems fairly obvious reading the NYT's account.  But why should Sulzberger feel shame if that was the case? Surely his position is he was upholding a valuable principle and sometimes there are misunderstandings that delay a resolution when you are trying to figure out whether a source's seemingly uncoerced "waiver" is really, truly uncoerced. (Especially when you don't want to "hound" him!) Or is Pinch really ashamed because  ....

5. Isn't this a major blow against testimonial immunity for reporters, in practice? Here is how the NYT itself reported the final argument made on behalf of Judith Miller before she was jailed:

Robert S. Bennett, a lawyer for Ms. Miller, urged Judge Hogan to conclude that Ms. Miller would never talk, making confinement pointless.

It's now clear confinement wasn't pointless. It worked for the prosecutor exactly as intended. After a couple of months of sleeping on "two thin mats on a concrete slab," Miller decided, in her words,  "I owed it to myself" to check and see if just maybe Libby really meant to release her from her promise of confidentiality. And sure enough-- you know what?--it turns out he did! The message sent to every prosecutor in the country is "Don't believe journalists who say they will never testify. A bit of hard time and they just might find a reason to change their minds. Judy Miller did." This is the victory for the press the Times has achieved. More journalists will now go to jail, quite possibly, than if Miller had just cut a deal right away, before taking her stand on "principle."

6. Does Howie Kurtz have support for his lede? CNN/WaPo media critic Howie Kurtz, covering the Miller story for Post, begins his account with these paragraphs:

Vice President Cheney's chief of staff discussed with New York Times correspondent Judith Miller the fact that the wife of a White House critic worked for the CIA on as many as three occasions before the woman, Valerie Plame, was publicly identified, according to a Times account published today.

During one of the 2003 conversationswith I. Lewis "Scooter" Libby, Miller said, she wrote a version of Plame's name in her notebook. [Emph. added]

Huh? Did Miller really say she wrote a version of Plame's name in her notebook during a conversation with Libby? Not if the version in question was "Valerie Flame."  Miller says explicitly

[a]s I told Mr. Fitzgerald, I simply could not recall where that came from, when I wrote it or why the name was misspelled. [Emph. added]

The other time Miller wrote a version of the name ("Victoria Wilson") in her notebook came in July, when she had a phone talk with Libby. Here is her account:

I told Mr. Fitzgerald I believed that before this call, I might have called others about Mr. Wilson's wife. In my notebook I had written the words "Victoria Wilson" with a box around it, another apparent reference to Ms. Plame, who is also known as Valerie Wilson.

I told Mr. Fitzgerald that I was not sure whether Mr. Libby had used this name or whether I just made a mistake in writing it on my own. Another possibility, I said, is that I gave Mr. Libby the wrong name on purpose to see whether he would correct me and confirm her identity.

I also told the grand jury I thought it was odd that I had written "Wilson" because my memory is that I had heard her referred to only as Plame. Mr. Fitzgerald asked whether this suggested that Mr. Libby had given me the name Wilson. I told him I didn't know and didn't want to guess. [Emph. added]

Does Miller here admit to writing the name during the Libby conversation? Not as far as I can see. In the first paragraph, she seems to suggest she might have written the name down before the call began ("had written"). ... P.S.: Maybe Kurtz can be excused for being a bit sloppy or for exaggerating the evidence in his lede. After all, he had a big CNN show to plan! ... 3:12 A.M. link

If only professional journalists get extra speech privileges, is that an Equal Protection violation? I've received several emails along the following lines:

Only "suspect classes" can assert an equal protection challenge.  Or, more correctly stated, only suspect classes stand much chance of winning.  Suspect classes include race, gender, ethnicity, etc.  Poor people are not a suspect class.  ... So I'm guessing bloggers would not qualify, either.  If not a suspect class, a legislative body only needs a "rational basis" to treat different groups of people differently. [from reader M. G.]

Supreme Court doctrine has been evolving, but when I went to school there were two things that could trigger "strict scrutiny" (and, usually, invalidation) under the Equal Protection clause. One was if a law discriminates against a "suspect class." But the other was if it i nfringes on a "fundamental right."  What's a "fundamental right" if not speech? Is the "fundamental right" trigger no longer operable? ... P.S.: Whether the Court recognizes it or not, the so-called "rational basis" test is a crock. See Robert F. Nagel's famous law review note, "Legislative Purpose, Rationality, and Equal Protection," 82 Yale Law Journal 123 (1972). Every law is perfectly rationally related to the goal of doing exactly what it does. The question is whether some goals are impermissible, a question that can't be answered on the basis of "rationality." That much I remember! ... 3:13 P.M. 


Drudge Report--80 % true. Close enough! Instapundit--All-powerful hit king. Joshua Marshall--He reports! And decides!  Wonkette--Makes Jack Shafer feel guilty.  Salon--Survives! kf gloating on hold. Andrew Sullivan--He asks, he tells. He sells! David Corn--Trustworthy reporting from the left.  Washington Monthly--Includes Charlie Peters' proto-blog. Lucianne.com--Stirs the drink. Virginia Postrel--Friend of the future! Peggy Noonan--Gold in every column. Matt Miller--Savvy rad-centrism. WaPo--Waking from post-Bradlee snooze. Keller's Calmer Times--Registration required.  NY Observer--Read it before the good writers are all hired away. New Republic--Left on welfare, right on warfare!  Jim Pinkerton--Quality ideas come from quantity ideas. Tom Tomorrow--Everyone's favorite leftish cartoonists' blog.  Ann "Too Far" Coulter--Sometimes it's just far enough. Bull Moose--National Greatness Central. John Ellis--Forget that Florida business! The cuz knows politics, and he has, ah, sources. "The Note"--How the pros start their day. Romenesko--O.K. they actually start it here. Center on Budget and Policy Priorities--Money Liberal Central. Steve Chapman--Ornery-but-lovable libertarian. Rich Galen--Sophisticated GOP insider. Man Without Qualities--Seems to know a lot about white collar crime. Hmmm. Overlawyered.com--Daily horror stories. Eugene Volokh--Smart, packin' prof, and not Instapundit! Eve Tushnet--Queer, Catholic, conservative and not Andrew Sullivan! WSJ's Best of the Web--James Taranto's excellent obsessions. Walter Shapiro--Politics and (don't laugh) neoliberal humor! Eric Alterman--Born to blog. Joe Conason--Bush-bashing, free most days. Lloyd Grove--Don't let him write about you. Arianna's Huffosphere--Now a whole fleet of hybrid vehicles. TomPaine.com--Web-lib populists. Take on the News--TomPaine's blog.  B-Log--Blog of spirituality!  Hit & Run--Reason gone wild! Daniel Weintraub--Beeblogger and Davis Recall Central. Eduwonk--You'll never have to read another mind-numbing education story again. Nonzero--Bob Wright explains it all. John Leo--If you've got political correctness, he's got a column ... [More tk]