Nowhere in the coverage of Victoria Toensing’s testimony before Congress, where she echoed the same old defamatory smears against the Wilsons, could I find any mention that Toensing had argued substantially the same points two years earlier – as a lawyer representing Fox News, ABC, CBS, NBC and CNN, and just about every other major news organization.
Toensing, along with Baker & Hostetler, drafted an amicus brief backing Judith Miller’s and Matt Cooper’s efforts to avoid testifying. The brief argued that “there is ample evidence on the public record to cast considerable doubt that a crime has been committed.” Any law student can tell you this puts the cart before the horse. Grand juries are gathered to determine whether a crime has been committed. Since grand jury proceedings are secret, Toensing was obviously ignorant of the evidence being reviewed.
The brief never proffered any bona fide evidence. No judge would rely on the esteemed Washington Times, using anonymous sources who claimed Mrs. Wilson’s identity was first disclosed in the mid-1990's, as evidence. It’s clearly hearsay, inadmissible at trial. No judge would rely on Robert Novak’s claim that the CIA “failed to give him a serious request not to publish her name” as the basis for pre-empting a grand jury investigation.
The brief cited the usual red herring – Joseph Wilson publicly spoke about his travels to Niger on behalf of the CIA, as if that somehow that made his wife’s CIA-status an open secret and somehow newsworthy. So, ”there should be abundant concern that the CIA may have initiated this investigation out of embarrassment over revelations of its own shortcomings.” Huh? Judges aren’t stupid. They know the difference between fanciful speculation and real evidence.
Nor were Baker & Hostetler and 36 major news organizations stupid. No one expected the brief to affect the outcome of the case. But the filing enabled the Washington Post to report, “The 40-page brief [15 pages of substantive text], … argues that there is ‘ample evidence . . . to doubt that a crime has been committed' in the case.” And, ”Attorneys for the news organizations said yesterday that their decision to submit the brief underscores deep concern in the journalism community over special prosecutor Patrick Fitzgerald's tactics.”
In the interest of brevity, neither the ”ample evidence” nor the prosecutors ”tactics” were specified. The unstated truth was the brief had no legal basis; it was merely an attempt to neutralize the Wilsons in the media before the day of reckoning arrived. In 2007, let’s not forget that no one from the mainstream media has totally clean hands.