The Volokh Conspiracy

The problem with the comparison to sentencing law is that there are two very different branches of government at work here, each with very different roles.

Except that the Administration, and conservatives in general, are among the chief proponents of mandatory sentencing guidelines, therefore they are relevant.

Because the president has absolute constitutional authority to grant clemency or pardon people, there is no question of law to consider other than that the only remedy for abuse of that authority is impeachment. So, that means any analysis can't be a "legal" one but one of ethics and morality, and on that basis, the comparison to federal sentencing guidelines is more one of moral and ethical estoppel than one of law.

The proper comparison is between Bush's purported justification for Scooter's guideline sentence (i.e., that is was "excessive") and every single thing this Administration has said and done with respect to federal sentencing, including: its strident advocacy of the Feeney Amendment, which sought to blacklist judges who departed below the guidelines and sharply limited judicial discretion in all cases; its longstanding push for mandatory minimum sentences (which, unlike the guidelines, give judges no discretion to depart downward in extraordinary cases) in many different contexts; the SG's opposition to Eighth Amendment relief in the area of "three strikes" laws; its rejection as "soft on crime" of any reform to the crack-powder cocaine sentencing laws, other than raising sentences for powder offenders (and not, as most experts have argued, lowering crack sentences); and, most recently, the Attorney General's proposal that, in response to the Court's decisions on the right to jury trial, nearly all federal sentences be effectively transformed into mandatory minimums. It is this policy background against which the President's judgment on Scooter's "excessive" guideline-based sentence should be assessed -- not DOJ's relatively benign (but probably still wrong) policy on prosecutorial charging as set forth in the Ashcroft memorandum.

Well, I suppose my point is that what the President did was perfectly legal, as pretty much everyone agrees. Your point seemed to be based on aspects of the two branches of government and points of law, or so it seems to me in reading your post late at night. Such an analysis seems sort of unnecessary since there is no legal aspect of the commutation to question, only a moral one. On that basis you seem to be over analyzing the issue in a legal frame that kind of doesn't actually exist since there is no question of law.

You wrote:

Specifically, Bush relied on arguments about what should be relevant to a sentence that his own Justice Department has rejected in the context of legislation and litigation over the Federal Sentencing Guidelines. While I'm critical of Bush's decision, I find this particular criticism to be weak because it overlooks the vital differences between executive and judicial power.

If the Bush Administration thinks that rigid guidelines are the best way to fairly handout punishment then commuting a sentence based accurately on those guidelines specifically for a friend and loyal subordinate is hypocritical. No analysis of the roles of the branches of government is needed to come to such a conclusion.

I'm not sure what your specific question might be? I don't know if my point was unclear, one you disagree with or if you had an issue with my appropriation of the legal term "estoppel" as a way to describe the commutation as being being morally and ethically estopped by the Administration's hypocritical stance on mandatory sentencing?

...so is anyone going to take a stab at the Nixon question, or is that too off-topic?

Orin,

I think I'm more or less just agreeing with Scote, so apologies if I reiterate what you've already answered, and apologies to Scote if I've misconstrued his point. Anyway, it's my point as well: Irrespective of any formal boundaries between judicial and executive function, a President who tries to justify his clemency decision (when no justification is required) on the grounds that the sentence was excessive, makes himself accountable for consistency with the sentencing policy he has advocated.

though I guess that Occam's Razor doesn't generally apply to law

But Orin said he's not talking about law. He's talking about hypocricy and fairness, issues I'd think perfectly susceptible to Occam's Razor.

The issue that lies unaddressed here is that the conservatives have shown exceeding deference to judicial outcomes in many other cases. If the bush administration weren't so miserly about handing out pardons and commutations in other contexts, your point would absolutely be legitimate. However, their general unwillingness to exercise the pardon power highlights the inconsistency between the Libby pardon and their general position on sentencing guidelines.

Bush further opened himself to critical analysis when he said Walton ignored the pre-sentence report which recommend 15-21 months rather than 2 1/2 years Walton dished out

To be fair, it was actually the pre-sentence report that messed up the mandatory minimum, which was actually supposed to be about 30 months, which is what Walton gave. So Bush's first argument was moot.

I'm not sure why a President's reasons for exercising his Executive power to commute or pardon need to mirror that President's views about what power judges should have to adjust sentences.

Well, most folks not blessed with a legal education look askance at the "Do as I say not as I do" position. Smacks of royalism.

I think that the "hypocrisy" sort of charge is stronger than you do Orin, and here's why.

The basic sentencing command - a command to sentencing judges - is 18 usc 3553, and it commands the judge to give the least sentence that is sufficient to further various broadly-stated goals such as "promote respect for the law," "provide just punishment," "deter," etc. They are the sort of goals that one would hope that the President thinks about as well - even though the statute doesn't apply to him, it would seem pretty bizarre for him to be making commutation decisions without pondering these factors.

The Bush Administration, through its AUSAs, regularly argues that below-guidelines sentences are insufficient to meet those statutory goals. This argument is so mechanized that it is fair to summarize that the administration's position is that any sentence that is substantially below the guidelines is not enough to "promote respect for the law," "provide just punishment," etc.

Now, the President of course does have the constitutional power to commute sentences below that which is necessary to "promote respect for the law," "provide just punishment," etc. But given the Libby commutation, one of the following embarrassing things must be true: either

(a) the President wasn't even trying to "promote respect for the law," "provide just punishment," etc., and did not consider it material to ponder whether probation would serve those goals; or

(b) the President did think that the revised sentence was enough to "promote respect for the law," etc., and he thereby undermined everything that his administration has said in its attempts to put other suckers in jail for longer.

Bottom line: the "hypocrisy" charge sticks even though the commutation/pardon power is different from the sentencing power, because the statutory factors that a judge is required to consider are also factors that any reasonable and good-faith President would consider.

Come on . . . Does anyone really think the "excessive punishment" argument is anything other than a feeble excuse? Since when has Bush been concerned about excessive sentences?

The real reason is, obviously, that Cheney is afraid that Libby will crack if forced to serve time and will make a deal with the prosecuters to spill the beans.

Given those differences, I'm not sure why a President's reasons for exercising his Executive power to commute or pardon need to mirror that President's views about what power judges should have to adjust sentences.

The Executive branch doesn't just stay within the 4 walls of its Constitutional powers; Presidents have policies that they try to get adopted. Bush has long urged mandatory minimums, ergo the clear inconsistency at work. (see sentencing policy's excellent comment above)

For a devastating analysis of the hypocrisy involved here, from a different point of view, read this.

A question for the attorneys:

If, at some point, Libby is pardoned, does he lose his Fifth Amendment protections, and can he be compelled to answer questions by Fitzgerald or other prosecutors with any sanction if he refuses?

What was the mandatory minimum sentence (if any) for Libby?

"Both Agnew and Libby are Republicans. It does seem excessive to me to give Libby 2 1/2 years in that context. Again, I realize that I'm not a lawyer. I am, however, a historian, and this is the way we tend to think of these things. What has been done in the past?"

the Agnew precedent is not relevant because Agnew copped a plea.

*************

What was the mandatory minimum sentence (if any) for Libby?

there was no mandatory minimum sentence...

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If, at some point, Libby is pardoned, does he lose his Fifth Amendment protections, and can he be compelled to answer questions by Fitzgerald or other prosecutors with any sanction if he refuses?

WHile I'm not a lawyer, I've read a lot about the subject.... acceptance of a pardon is a de facto admission of guilt, and constitutes a defacto waiver of Fifth Amendment rights. However, a pardon does not require Libby to testify truthfully, merely to admit that he was guilty of the crimes for which he was convicted. Were Fitz could put Libby in front of a grand jury, Libby could claim Fifth Amendment rights rather than testify truthfully about his involvement in the Plame outing.

The problem with the comparison to sentencing law is that there are two very different branches of government at work here. On one hand, we have the politically-accountable elected Executive branch . . . .

Which is being held politically accountable in these articles.

Guys, you're arguing that the Executive is hypocritical for using an absolute executive power in violation of the Executive Branch's regulations on when and how requests for Executive action are filed and processed by the Executive's own bureaucracy.

I's not like you're billing by the hour, guys --- this is a pretty silly argument all around.

Accepting a pardon is not the same thing as admitting guilt. Some people who get pardoned are dead and others are pardoned because they are innocent.

One way to address the "excessive" question is to ask how much time Spiro Agnew--the VP, no a top Veep staffer--did for much more serious crimes. He plead nolo, of course. But that hardly presents us with a problem in making an assessment.
***
Again, I realize that I'm not a lawyer. I am, however, a historian, and this is the way we tend to think of these things. What has been done in the past? It doesn't mean that one has to accept Bush's decision. But to my mind it makes it rather difficult to claim that the commutation was well outside the bounds.

There are, I think some important differences. First, Agnew did plead (nolo, but a plea). As a number of posts have noted in these various threads, people who take pleas tend to receive much lighter sentences than those who go to verdict. Second, sentencing standards were very different in the early '70s than they are now. There were no Sentencing Guidelines then, for example. And the "tough on crime" rhetoric which has been a staple of Republican policy since 1968 was still very early. Third, if jail time had been imposed on Agnew, I think there's very good reason to doubt that Nixon would have commuted it. The politics of the time (Agnew resigned on 10 Oct 1973, just 10 days before the Saturday Night Massacre) wouldn't have allowed that. Fourth, Bush has left open the prospect of a pardon for Libby. I assume your assessment would change if Bush were to do so. Fifth, Agnew was guilty of different crimes (money laundering and tax evasion -- crimes for which monetary penalties might be seen as appropriate). That makes it harder to compare the relative sentences.

However, it does seem like the policies promulgated by the Bush administration would give a 30 month sentence as a minimum - and the only "special circumstance" that counts is that Bush knows the defendant.

Indeed, and there is no "seems' about it. One only need look as far as the Victor A. Rita case where the Administration went all the way to the Supreme Court to argue for a 33 month sentence for perjury and obstruction of justice.
NY Times story on the Libby vs. the Rita Case

Funny that. For an ordinary guy, the Administration goes to the Supreme Court to say a 33 month sentence is reasonable but commutes the 30 month sentence for almost the exact same crimes of a a friend and co-conspirtor as "excessive." This is un-reasonable beyond any reasonable argument.

The President shall... have Power to Grant Reprieves and Pardons...


Everything else is political arm-waving and impotent second-guessing.

Fun to watch, though.

One reason the President does not give career prosecutors much discretion is that they are career and they are not trusted. Not unusual for conservatives to not trust bureaucrats, even if they are called Assistant US Attorneys.

The primary reason for requiring judges to follow the Sentencing Guidelines is not that they are unaccountable unelected officials. The purpose of the guidelines is to make sure that all similarly situated defendants get similar sentences.

Bush's action is hypocritical because he is letting Libby get off with no jail time, while all other similarly situated defendants get 30 months in jail. It is hypocritical for Bush to say all the little people get sentenced by the harsh guidelines, but my friends get to go scot-free.

If you really believe in the Sentencing Guidelines, the only time you would commute a sentence is when they worked in a way that was unexpected. There has to be some unusual factor that the Sentencing Guidelines missed in a particular case that makes it appropriate to deviate from them in that one case. Bush made no attempt to show this with Libby.

By claiming he believes in the Sentencing Guidelines' goal of equal treatment and then giving special treatment to his crony, Bush acted hypocritically.

Every year the President pardons a turkey for no good reason, nobody gets upset about that. Or starts looking up the federal sentencing guidelines for turkeys to see if there is any inconsistentcy.

Then I suppose I should have felt just fine about the eleventh hour pardon of Marc Rich.

The President shall... have Power to Grant Reprieves and Pardons...

Everything else is political arm-waving and impotent second-guessing.

The president also has the power to instigate armed conflict. That doesn't mean we can't criticize him if he uses that power in an ill-advised way, such as invading Canada. Who cares that the president has the power to do this? That's not the point. He has the power to do a lot of sleazy and hypocritical things. Commuting Libby's sentence was one such thing.

Did anyone of the above respondents read the letters to the judge in support of clemency for Libby? I read all of them (available online) and they convinced me that the judge did impose too harsh a sentence. The writers included former officials in the Clinton administration, a professor of linguistics at Georgetown and self professed bleeding heart liberal, neighbors, and even a French student who had done an internship in the US.

Some of those writing in support of Libby are known for their probity and moral standards. I was particularly impressed that a letter of support came from Natan Sharansky who was awarded both the Congressional Gold Medal and the Presidential Medal of Freedom. These honors are rarely awarded to non-US citizens, and I believe that he may be the only non-citizen to be awarded both. (He also spent nine years as a guest of the Soviet government in an all expense paid get-away facility.)

Victor Rita did not have public figures as varied as Henry Kissinger, Natan Sharansky, and Leon Wieseltier asking for clemency on his behalf.

I was particularly impressed that a letter of support came from Natan Sharansky who was awarded both the Congressional Gold Medal and the Presidential Medal of Freedom. These honors are rarely awarded to non-US citizens, and I believe that he may be the only non-citizen to be awarded both. (He also spent nine years as a guest of the Soviet government in an all expense paid get-away facility.)

Sharansky is also a neo-con friend of Libby's, not a disinterested noble guy.

Orin,

I note the differences between executive and judicial power re: sentencing, and I think your comparison between the commutation and the Ashcroft memo is telling. Nonetheless, I still think that Bush's decision to commute Libby's sentence is germane to the debate re: sentencing, if only because of the reasons Bush offered.

Let me first say that I recognize that Bush was under no obligation to offer any reason for the commutation.

That said, he chose to give a reason. And the reason that he chose was that Libby's sentence was "excessive." This is the same standard that courts of appeals apply in reviewing district courts' sentences (whether they say they're reviewing for "reasonableness" or to see whether the sentence imposed is "excessive," both words mean really the same thing, when a defendant challenges his sentence).

Especially in light of the Supreme Court's opinion in Rita, it seems rather alarming that a constitutional officeholder would conclude that a within-Guidelines sentence is excessive (i.e., not reasonable), unless that determination is based upon factors that the Guidelines and 18 U.S.C. sec. 3355 do not consider. Bush emphasized the toll on Libby's reputation and the suffering of his family, and intimated that those factors were punishment enough. But these factors are considered under the Guidelines and sec. 3355. So Bush has done nothing to distinguish Libby's case from the minerun of cases under the perjury statute.

Implicit in Bush's proffered reason, then, is the conclusion that the Guideline sentence -- at least for perjury committed by a first-time offender -- is unreasonable. Although this determination is in no way binding upon courts, it certainly seems relevant to sentencing determinations.

Why am I wrong?

Clinton's pardons:

http://www.usdoj.gov/pardon/clintonpardon_grants.htm

There is no comparison with Bush. None. N-O-N-E.

But feel free to continue flailing away. It's fun reading.

If the issue is fairness, should we not be examining all 20,000 presidential pardons given in the last 100 years. That only seems fair.

Clinton's pardons:

http://www.usdoj.gov/pardon/clintonpardon_grants.htm

There is no comparison with Bush. None. N-O-N-E.

But feel free to continue flailing away. It's fun reading.

Of course there's no comparison, because Bush is still in office. Until 2009, it's apples and oranges.

But if you like reading about Clinton's pardons so much, here's what he had to say about his most infamous, Marc Rich. When we do get around to that grand comparison, I certainly look forward to reading Bush's op-ed, in which he lets us in on the process and reasoning behind his Libby decision.

Ranger states;

One could say the same thing about Fitz. By arguing so strongly that everyone must tell the truth and then excusing Armitage's deceptions to investigators, he acted hypocritically. Fitz was even more hypocritical because he went futher to argue before the court that Armitage's identity as the first leaker should be concealed because he had "done nothing wrong."

But Fitz didn't argue that everyone should always tell the truth all the time. He argued that people shouldn't commit perjury ie., that they shouldn't lie in court, depositions or at any other time when they know that perjury attaches. Lying to investigators can be a crime to...but typically its a misdo.
BTW, this is the first I've heard of Armitage lying or attempting to influence witnesses, so I'm assuming what you say is accurate.

The other reason that Bush would never be prosecuted for this, above and beyond the likelihood that this action is absolutely immune, is that no president is going to go along with it, first because it would reduce his own powers, and secondly, it would be an absolutely horrid precedent - that he might himself be prosecuted for something he did as president. And, yes, if Democrat X were the next president, and prosecuted his predecessor for obstruction of justice, and then was followed by Republican Y, Republican Y would likely return the favor.

Political hardball is one thing, but presidents do worry about their own power, and in the end, that is more important to them than proving some obscure point.

Clinton's abuse of the pardon and commutation power is blatant in the case of Raymond Phillip Weaver. (Scroll down)

http://www.usdoj.gov/pardon/clintonpardon_grants.htm

How could anyone in his right mind put a psycho like that back on the street?

Chico--I think you're right. But looking at the posts above, we have lots of anti-Bush folks who seem to be aware of "something I don't know": Bush commuted Libby's sentence, and will pardon him in January 2009, in order to protect himself, Cheney, Cardinal Richelieu, and Shoeless Joe Jackson. I don't see what benefit comes from this clairvoyance and gnosticism.

Chico's Bail Bonds

I have never heard anyone accuse Armitage of lying to the investigators. I just checked the Wikipedia article on PlameGate and it says Armitage credits his not being charged to his candor. He turned over his computers, his relevant documents and never hired a lawyer.

Unless you know something I don't know about Armitage, your argument against Fitz doesn't hold water.

Well, Armitage would say that. But if he was so candid with investigators then why did he fail to disclose his role as the first leaker for almost 2 years. Armitage only came forward because Bob Woodward told him he could no longer remain silent about Armitage's leak to him in early June. After listening Fitz's press conference on the Libby indictment where Fitz flatly stated Libby was the first leaker, Woodward called Armitage and directly told him that they both knew that wasn't true because Armitage had told him about Plame 2 weeks before Libby spoke with any reporters about her. Armitage's response was something to the effect of 'Your right. I have to come forward. I have to tell the truth.'

Now, Armitage claims that he simply forgot about his conversation about Plame with Woodward (just as Libby claims he forgot about Plame for two weeks then heard it again 'as if for the first time'). It is hard to believe that, if Plame was as important as Fitz says she was at the time, Armitage would forget his conversation with Woodward about her. This raises the question of why Fitz was so forgiving of Armitage's 'forgetfulness' yet so unforgiving of Libby's.

Also, Armitage made one clear effort to influence Novak's testemony by having a friend call Novak to 'just let him know that Armitage's disclosure was inadvertant.' We also learned during the Libby trial that Armitage went to Marc Grossman's house the night before Grossman's first interview with the FBI specificly to tell Grossman that he had already confessed to being the source of Novak's article. We are left to imagine what other topics might have been discussed that night.

Yes, Armitage turned over all of his personal documents and computers to the investigators, but we do not know if that was before or after his memory improved.

Armitage's faulty memory clearly obstructed the investigation because Fitz made it clear in his press conference that his entire theory of the case up to that point was that Libby was lying to conceal the fact that he was the first leaker. Libby's statements that he was hearing about Plame from reporters had to be false because he was the first one to tell a reporter. Armitage's 'bad memory' allowed the FBI and the prosecutor to create a completely false premis and use that false premis to persue the investigation against Libby.

Armitage also had motive to lie to conceal his conversation with Woodward on two levels. His leak to Novak looked innocent because by July many reporters had already heard about Plame. But the early June leak to Woodward was the first leak and Armitage got that information only a day or two earlier by reading a Top Secret State Department memo, so it was clearly information that he had from only classified sources.

And yet, despite all this, the prosecutor actually argued that Armitage's name and actions should remain secret because he "had done nothing wrong." Last time I checked revealing information you learned from reading a classified memo is 'wrong' unless you check to see if the specific information is unclassified. I was also under the impression that contacting witnesses before they are interviewed or testify about your actions to make sure they get your side of the story right was 'wrong.' I also thought that 'forgetting' an important fact central to an investigation that might put you in a very negative light with investigators was 'wrong.' But clearly, my ideas of 'wrong' are different from Fitz's.

Hense why the Libby sentence looks "excessive" when viewed in the context of the entire investigation.

A question for VCers: NB: NOT ARGUMENTATIVE! I just seem to have *missed* this.

But Ranger's post above reminded me that I wanted to ask: Why--in Fitzgerald's assessment--was Libby lying? Did he [Scooter] /think/ he was the first leaker, and thus think he was doing cya?

I'm not clear on his motive. (I know he was convicted of lying, etc.--Again, I'm not looking for an argument or trying to justify his actions. I'm just wondering what Fitzgerald concluded Libby was hiding.)

Methinks that refuting the hypocracy charge is little more than the wind blowing at a straw man. What does a charge of hypocrisy mean in this rarefied context? Where the object of the conviction is the President's own aide who obstructed an investigation into potential misconduct of the Executive Branch involving, perhaps, the President himself? It's not like the President has had a whole bunch of commutation applications of such individuals. In context, though, I'd be tempted to say that the only hypocracy would be if the President did not ignore the basic constructs of the law in this case, having demonstrated a willingness to do so for his own purposes in so many other circumstances (e.g., equal protection of the vote, torture, environmental requirements, application of intelligence, etc.)

Scote laid this one to rest early on in the thread:

You see sentencing guidelines as an issue of delineation of power to determine appropriate length of criminal punishment between the branches of government where as I see them in a more general context as mandatory inflexibility--the idea that one sentence fits all and that justice requires that all people receive the same sentence irrespective of mitigating details.

I doubt that Orin actually sees the sentencing guidelines as a delineation of power to determine the appropriate length of criminal punishment, independent of the other concern that justice requires that all people receive similar sentences. The latter was a fundamental basis of the original Sentencing Commission. Creating a polemic, even an intelligent polemic, of the variety displayed by Mr. Kerr here makes me wonder -- why the need to try to rehabilitate such an egregious decision as the President made? It reminds me of the talkingpoints response when Dick Cheney was trying to assert that he's not of the Executive Branch: "This is a dispute for legal experts to take up. People may have differing opinions."

I just don't get it. The President laid an egg. It's an egg that is, however, consistent with the loosely shrouded disdain for the law and the arrogation of power that has characterized this administration. As lawyers (as many of us are), I would think we have an obligation to defend the law. Why waste the energy trying to rationalize the President's contortions of it?

Ranger,

We've gone through all this many times before. Grossman was not the only government witness presented by Fitzgerald, and I invite you to name each witness Fitzgerald presented, give the details of their testimony, and explain exactly why you do not find their testimony "credible".

In any event, you are attempting to retry the case, not answer Hoosier's question, because Hoosier was asking about why in Fitzgerald's assessment Libby would lie. So, when you start by claiming Fitzgerald was wrong about the lies Libby told, you obviously are not answering Hoosier's question.

Hoosier,

Why--in Fitzgerald's assessment--was Libby lying? Did he [Scooter] /think/ he was the first leaker, and thus think he was doing cya?

Well, at trial Fitz claimed the motive was an effort to conceal the fact that he had violated his non-disclosure agreements regarding classified information. That would have required Fitz to prove that Libby knew the information was classified when he passed it along (which Fitz was never either willing or able to do).

Of course the same logic could be applied to explain why Armitage concealed his role as the first leaker. In fact it has more power in Armitage's case because he got the information from a clearly classified document.

This also goes to show the significant partiality of the investigation. Marc Grossman stated in his Grand Jury testemony that he told Libby around the 12th of June that 'We're hearing at State that Wilson was sent by the CIA because his wife works there.' Now, if Fitz had actually been conducting a leak investigation he would have gone to the State Department and investigated who had that information in early June and might have passed it along to reporters. If he had done that he would have discovered the Top Secret INR memo and that Armitage had read a copy of it. He also would have discovered that Armitage had a meeting with Bob Woodward just a couple of days after seeing the INR memo. That would have lead him to discover that Woodward had learned about Plame from Armitage and then asked Libby about Plame later in June (Woodward has his preperation notes for that interview which clearly show that Wilson's wife was a specific question he intended to ask). Once he had the information Libby's claim that he was hearing about Wilson's wife from reporters at the end of June or early July would not have appeared as a deliberate lie to conceal his role as the first leaker, but rather, an honest representation of what was going on at the time.

And, for good measure, we still do not know what other conversations with reporters Armitage "forgot" about between the time he learned about Plame and the time Novak's article hit the press.

But, Fitz wasn't conducting a leak investigation and he never really wanted to know who the first leaker was. The FBI was sure it was Libby and niether they nor Fitz was going to let the fact get in the way of their theory.

Ranger,

Actually, I withdraw that invitation. On reflection, I'm not particularly interested in why you would not find the other witnesses presented by Fitzgerald credible.

jukeboxgrad,

That, of course, is part of the absurdity of all this. Even assuming Fitzgerald is a disloyal anti-Bushie filled with hate, there is no particular reason for him to hate Libby more than any of the other leakers.

So, the "why not Armitage?" (or Rove or Ari) question is not a bad one to ask (although we would need Fitzgerald to tell us the answer), but there is no reason to believe this question leads where they would want. But logical reasoning is not a virtue among the loyal Bushies.

I'm no Plame aficionado, but I thought Armitage was not "the first leaker" (as Ranger and others are describing him). It's just that of the four leakers, it was Armitage's leak (with Rove's confirmation) that lead to publication. But Libby's leak to Miller was actually chronologically before Armitage's leak to Novak, no?

Ranger,

Several of those conversations were before the Russert phone call according to the witnesses presented at trial (but I know--in your world none of those witnesses are "credible").

Crust

But Libby's leak to Miller was actually chronologically before Armitage's leak to Novak, no?

Yes, Armitage's leak to Novak was after Libby's conversations with Miller, but Armitage's leak to Woodward was two weeks before Libby's conversations with Miller. It is clear from Miller's notes and her own statements that she knew about Plame before she talked about her with Libby, and that she had at least one other source who she stayed in jail to protect, but she now "cannot remember" who that person was.

Armitage was the first leaker (telling Woodward at the end of the second week in June) he just forgot to tell the investigators that for about two years.

Ranger, I stand corrected, thanks. I'd forgotten about Armitage's leak to Woodward.

ATRGeek:
Ranger,

Several of those conversations were before the Russert phone call according to the witnesses presented at trial (but I know--in your world none of those witnesses are "credible").

Libby claims he dose not remember those conversations, and many of the witnesses themselves either did not remember them until much later or have significantly changed their stories as time passed. Therefore Libby's memory issues are not out of the norm given the testemony provided by the government's witnesses.

Let's recap a few shall we:

Marc Grossman: Initially recalled three seperate phone conversations, but the phone records do not support that claim, so he now remember one face to face conversation.

The CIA briefer: Has no recollection of discussing Wilson or Plame with Libby before the Novak story came out. There is one page of a briefing book that has the words Joe Wilson, Valeri Wilson written on it, but he has no recollection of when he wrote that or what it refers to as there is nothing on the page ther relates to Niger or anything else the Wilson's might have been connected to.

A CIA emplyee: Who states he must have told Libby because when he read about Libby being accused of leaking Plame's name a year after the Novak story appeard he felt guilty, so that tells him he must have told Libby about Plame.

The VP office press representative: Who initially remembered all the conversatoins about Plame happening after Wilson was on Meet the Press, but a year later decided they must have taken place the second week of June because she recongnized who Joe Wilson was on Meet the Press.

Tim Russert: Who, in his initial FBI interview stated he could not rule out the possibility that the subject of Wilson's Wife came up in his phonecalls with Libby, but is not absolutly certain that it would have been impossible. The same Tim Russert that once completely forgot about two phone calls he made, going so far as to accuse the other party of lying that the phone calls ever happened, until he was presented with documentary evidence that they actually did take place.

And those are the most credible witnesses the prosecution had. The rest were even worse.

jukeboxgrad,

Simple question: if Libby thought he was providing Miller with unclassified information, why did he insist that she hide his identity?

A simple answer: political reality. The atmosphere around the issue of pre-war intel was already so divisive that if the source of the information would have been the OVP's office, then many people would have simply disregarded it. Sourcing it back to a "former hill staffer" meant the information could have come from anywhere in the government, and therefore would have to be evaluated on its own, not based on the affiliation of the source (it could have been either a Republican or a Democrat).

The CIA briefer: Has no recollection of discussing Wilson or Plame with Libby before the Novak story came out. There is one page of a briefing book that has the words Joe Wilson, Valeri Wilson written on it, but he has no recollection of when he wrote that or what it refers to as there is nothing on the page ther relates to Niger or anything else the Wilson's might have been connected to.

oh really?

The June 14 Schmall notes on the TofC for Libby's briefing includes the question "[Why?] was the Amb[assador] told this was a VP office question" above the names "Joe Wilson" and "Valerie Wilson."

http://www.usdoj.gov/usao/iln/osc/exhibits/0124/GX70201.PDF

ANyone who thinks "this" wasn't a reference to Wilson's trip vis a vis Niger/Uranium is simply not serious.

ranger, here's more proof:

Q. And Vice President Cheney talked about it with you for the first time that your notes reflect, he brought up that Wilson's wife worked at the CIA in the functional Office of Counterproliferation. Correct?
A. Back in June.
Q. Back in June.
A. Yes, sir.

atr: "Several of those conversations were before the Russert phone call according to the witnesses presented at trial (but I know--in your world none of those witnesses are 'credible')."

Indeed. And, as I've explained, one of those "witnesses" (who testified that Libby was discussing Plame with various people long "before the Russert phone call") was Libby himself.

Then again, we do indeed know that Libby isn't 'credible.' But Ranger feels differently, I guess.

ranger: "It is clear from Miller's notes and her own statements that she knew about Plame before she talked about her with Libby"

You've already burnt your pants to a crisp, but you seem to determined to repeatedly reignite them, as best you can.

This is what Miller said:

Soon afterward Mr. Libby raised the subject of Mr. Wilson's wife for the first time. I wrote in my notes, inside parentheses, "Wife works in bureau?" I told Mr. Fitzgerald that I believed this was the first time I had been told that Mr. Wilson's wife might work for the C.I.A.

If by "knew about Plame," you mean 'knew that Wilson was marri