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Finishing our analysis of the Government’s Response Brief of 4/5/06.  Beginning on page 19 is where the discussion of what President Bush authorized in terms of a targeted leak of selective information from the NIE to Judy Miller at the NYTimes and other reporters, at the urging of Vice President Dick Cheney.

Defendant’s participation in a critical conversation with Judith Miller on July 8…occurred only after the Vice President advised defendant that the President specifically had authorized defendant to disclose certain information in the NIE. (pp. 19-20)  (See also, Jane’s fantastic posts on the Miller conversations, notes and otherwise — including the fabu dust bunnies post – here, here and here.  And some of mine here, here and here.)

Libby testified that this was a singular instance, in his recollection, of being asked to leak information of this high level classification nature, having been unilaterally declassified by the President, in his long career in government. Further, it was such an unusual occurrance, that Libby sought legal counsel from David Addington, then the Veep’s legal advisor, as to whether or not such a unilateral declassification was even valid and/or appropriate, and whether his disclosure of the information therein would be legal.  (And I am not saying that it is or it isn’t here, merely that Libby sought an opinion from Addington on the subject.  I’m sure the legality of this will be debated for quite a while.)

On pages 22 and 23, we get a round-up of the NIE discussion with Judy Miller at the St. Regis on the morning of July 8, 2003.  There are a lot of odd bits that we’ve all been contemplating:  why ask for an attribution of "former Hill staffer" when the President had "declassified" the portions of the NIE that Libby was disclosing to her?  Was he still unsure of the legality?  Was he protecting the President’s plausible deniability in the court of public opinion — or the Veep’s?  Or were they trying to do the media bait and switch again — having Libby plant the item, and then having another official substantiate it later?  (There was a reference yesterday to Woodward having been used like a Kleenex — you have to wonder if the whole of the Washington press corps isn’t feeling this way in light of all these revelations, don’t you?)

And why, if the "declassification" process was so legal and on the up and up did the President, the Veep and Libby keep that fact from the rest of the staff — including cabinet level officials who were later asked to re-declassify the very same sections of the NIE?  (See p. 24 for who was in the know.)  Can you say CYA?  I sure as hell can.

On p. 24, Fitzgerald refers to Libby being directed by Dick Cheney to brief reporters in place of his then-press secretary, Cathie Martin.  Fitz says that "this is relevent to show the importance that defendant and his boss placed on the conversation concerning which he later testified."  Meaning it’s awfully hard to think that Scooter forgot about this trifling matter of the political smackdown of Joe Wilson that week when he was tasked with the importance of the political smackdown of Joe Wilson that week by the Veep himself.  (I’m just saying…)  And because this was done in the context of and using the pretext of discussions about the NIE, there is no way to present the facts of Libby’s conduct without one and the other — they were intertwined, and Fitzgerald knows it.

We get to another amusing footnote moment on page 25, fn. 8, wherein Fitz provides a narrative based on Libby’s statements about what he did or did not say to Hadley (and presumably backed up to some extent by Hadley’s statements and testimony).  There is a feeling of skepticism about the story on keeping Hadley out of the loop — and I can’t quite get a read as to whether Fitz thinks Hadley was really in on this, and both he and Libby are lying about this aspect while trying to keep their stories straight.  Or whether Fitz sees this as part of a bigger pattern of subterfuge from Libby, the Veep and the President — but I can’t shake the feeling that Fitz thinks there is something more there.

Page 26 is a goldmine of Traitorgate goodies.  In the first paragraph, we find this:

However, the government has declined to identify to the defense, or produce documents concerning, some government officials on the grounds that (a) such officials are either subjects of the ongoing grand jury investigation or "innocent accused" whose identities are protected from disclosure by Fed. Crim. P. 6(e), as this Court has held; or (b) such materials are irrelevent to any issue in the case. (p. 26, emphasis mine)

And then this, in the second paragraph on page 26:

Indeed, there exist documents, some of which have been provided to defendant, and there were conversations in which defendant participated, that reveal a strong desire by many, including multiple people in the White House, to repudiate Mr. Wilson before and after July 14, 2003. (p. 26, emphasis mine)

Well, all I can say to that is: game on!  Anyone who thought this investigation was just going to dry up and blow away with the indictment of Scooter Libby had best think again.

Fitz then goes on to lay out in detail Scooter’s attempt at ass-covering via Scott McClellan, and how it took arm-twisting by the Veep in order for the WH to provide him any cover with the press.  (pp. 27-28)

There is then a detailed discussion about agency alignment with the prosecution or not for purposes of discovery.  This is a bit arcane in legal terms, but it boils down to this:  when the DoJ is investigating members of its own branch of government, there is naturally a dual relationship there — one of kinship, because they are governmental allies and often work hand-in-hand in other types of investigations, but also an adversarial one — because you wouldn’t expect someone under suspician to just hand over incriminating documents willy nilly without the government going through the appropriate legal procedures to get them.  (You know, silly things like warrants, subpoenas, the sort of thing George Bush has decided doesn’t matter under FISA law.  Constitutional duty and all that.)

What Fitz does not want to happen is that a precedent is set for future cases wherein the executive branch is put in a position to have to fork over everything to someone who would abuse that power — they should be required to follow the law on all sides.  (At least that’s how I’m parsing his argument, although I think there is room for differing opinions on this point.)  This was my favorite phrasing of the exchange:

To the extent there was a steady flow of documents produced, that flow of documents was responsive to a steady flow of subpoenas. (p. 34)

Which puts the whole dual relationship question in a sharp perspective, I think.  They have to walk a fine line between being certain Libby is given every piece of evidence to which he is entitled so that he can adequately defend himself balanced against long-term governmental interests and the protection of the ongoing criminal investigation.  I truly do not envy the judge who is making all of these decisions.

Bottom line here:  George Bush jumped the shark with all of his public protestations about leakers being bad — because his sureptitious attempt to plant stories via Judy Miller through a Scooter Libby who clearly was trying to hide his identity behind a "former Hill staffer" attribution far away from the WH makes Bush look like a weasel.  A weasel who has been pointing fingers at his critics, at the press, at everyone — but hasn’t taken any responsiblity on himself for his own mistakes, and his cherry-picking of intelligence that he used to lie our way into war with Iraq. 

President Bush been exposed as a snake oil salesman, whose holier than thou attitude about leakers was designed to hide the fact that — all along — he’s been pulling the strings behind the scenes as the Leaker-in-Chief. 

And, fyi, there was no denial at all from the WH today that anything Libby said in testimony was untrue.  Steve Soto has more on this at Left CoasterThe WaPo has more on this as well.

The question now is — do they turn the machine on Libby, or will he be willing to turn it back on them to save his own hide?  Did I say game on?

(Massive graphics love to the wonderful DarkBlack.)