The AP phone records scandal is seven years old

Apparently, there is a lot of outrage right now over the trampling of press freedoms occasioned by the FBI’s secret perusal of AP’s phone records.

The president of the Associated Press called it a “massive and unprecedented intrusion” into newsgathering activities, while Dana Milbank at the Washington Post reported today that the press corps at yesterday’s White House briefing was “incensed” over this “extraordinary abuse of power.”

Oddly enough, though, it was exactly seven years ago today that it became public knowledge that the Federal government tracks reporters’ phone records at will. The next day, a “senior federal official” told ABC’s Brian Ross, one of the targets, “It used to be very hard and complicated to do this, but it no longer is in the Bush administration.”

The reason it was so easy was because a few years earlier, Congress had passed a law making it easy—the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, otherwise known as the USA Patriot Act.

Two days later, I asked White House press secretary Tony Snow about it. He issued a brief denial, and no one else at the briefing seemed at all concerned about the matter.

I suppose it’s a good thing that they eventually found their spines, but really it shouldn’t take seven years and a Democratic president for the press to learn that patriotism is the first resort of scoundrels.

61 thoughts on “The AP phone records scandal is seven years old”

  1. It’s arguably too generous to say the establishmemt media “finally found their spines”, as even today most outlets are quailing at the open threat to (partisan) access and (partisan) independence represented by the Obama administration’s bullyboy tactics. Angelina Jolie’s breasts—rather!

    On the other hand one might say it’s overly uncharitable, in that the same establishment media had long summoned the (partisan) spine to join the administration in denying, stonewalling, and obfuscating myriad scandals in order to get Obama over the reelection hump.

    I almost feel sorry for all those doe-eyed liberals who’ve seen their “transformational” candidate, Obama, the one who promised a “New Brand of Politics”, now earning those labels only to the extent he’s markedly exceeding the corrupted (partisan) power-mongering of yore.

    It must seem almost surreal to so many Democrats that they find themself now defending Obama with calls for historical context and, in what must be the the cruellest cut of all, with mitigatory comparative references to the very worst excesses of the Bush administration.

    Rick and Ilsa famously commiserated, “We’ll always have Paris” at the close of “Casablanca”. For the white-guilt Democrats and moderates, it will be “We’ll always have his blackness”. Perhaps in time they’ll also come to realize that was the primary appeal all along.

  2. It was wrong then and it is wrong now, but the GOP are whining louder about it because they think civil rights only belong to them. The poor oppressed Conservatives.

  3. The outrage isn’t about the fact they pulled the phone records for reporters, its the extremely broad scope they used in this particular case. They pulled records for a number of reporters, most alarming was the records they pulled for the general line for different AP offices. In that instance, they weren’t targeting specific reporters, but AP in general.

  4. The biggest appeal,and his primary appeal, was that he wasn’t George W Bush. His blackness had absolutely nothing to do with my voting for him, twice.

    His blackness,on the other hand, is at the root of every bit of obstructionist bullshit the GOP has engaged in since Jan 2009.

  5. Inkberrow, I find it ironic that those who accuse folks of voting for Pres. Obama because he’s Black don’t realize that they are the ones actually hung up on his race. You have a Black man for a president. Get over it.

  6. The AP seems to be arguing for constitutional protection that the constitution doesn’t actually afford them. There is no reporter’s privilege. The Justice Dept. action was perfectly appropriate if one concedes that investigation of the leak in question was an appropriate investigation. Multiple office records were subpoenaed because there were six reporters and an editor involved in the story in question and their calls were not limited necessarily to particular phones.

    1. I think there’s no question that some of the laws and practices instituted during the past decade-plus violate the constitutional prohibition against abridging freedom of the press and freedom of speech, Jack, but even if that isn’t true it seems vastly premature to settle the mantle of perfect appropriateness on what DoJ did. It seems far more likely to me that the reason they didn’t notify the AP about the subpoena and went the third-party route instead was that they thought the subpoena(s) was/were far too broad to survive a hearing in front of a judge with the AP lawyers. Given the attitude this administration has toward leaks that aren’t self-serving products of their own manufacture, offering them the benefit of the doubt seems unduly charitable.

  7. Well, I agree that it is premature to “settle the mantle of perfect appropriateness” on the DOJ’s action; “inappropriateness” as well. As to not notifying the AP, there is no requirement (legally) on them to do so. It is usually the case that subjects of subpoenas are not notified when third parties are those being served. I assume (without knowing, of course) that they went through the special court set up by the Patriot Act. I think that when the facts are known your real complaint will be with the Patriot Act.

    1. The Patriot Act did not draw up and serve the subpoena.

      “As to not notifying the AP, there is no requirement (legally) on them to do so.” Well yes: that’s why they served the telcoms rather than the AP, so they wouldn’t wind up in court contesting the subpoena, which was guaranteed to happen if they served the AP.

  8. Inkberrow you passive-aggressive slut,

    Despite your fixation/obsession with Jeremiah Wright, the fact of the matter is that people didn’t think it was all that big of a deal, and history has shown that the Boogeyman wasn’t there.

    Perhaps Obama intends to implement some sort of Jeremiah Wright national religion during his second term, but I see no indication of any imminent bombshell from the mysterious Junior Senator from Illinois who was a community organizer who hung out with Bill Ayers and worshiped Saul Alinsky. It’s 2013 Ink. All the Trumpy nonsense has been shown to be just that.

    You can come out now.

    Unless you live in the Middle East and in a neighborhood the CIA suspects that there may be possible Boogeyman activity.

    Then I’d suggest you stay in the grease pit out in the garage.

    The fact that the media swallowed their whistles while John Edwards was getting lap dances during press conferences does not mean they were in the tank for Obama from jump. Have you no memory at all of the Iowa caucuses? Hillary was the prohibitive favorite according to our derpy Fourth Estate. Shocked they were to see Axelrod and Plouffe’s ground game in Iowa. Holy shit, who’s this guy? We thought he was a One-Hit-Convention-Speech-Wonder. And, the dopey media continued to make the 2008 Dem race seem hotly contested until the very end, despite the fact that there was “So Much Talk About the Math and That Hillary Can’t Win.”

    Fact of the matter is that the Dem primary race was over in January…February at the latest. And yet they continued to hype the thing like it was Ali/Frazier. Because that’s what they do.

    And then came their lap-dog routine when McCain picked an Alaska Beauty Pageant contestant-sportscaster-hunter-PartTime Gov to be his running mate. “Can I call ‘ya Joe?- “Thanks Joe.”- “Say it ain’t so Joe….say it ain’t so.”

    Bwaahhahahah. Did you hear what she said? Oh that is fucking brilliant. Run that as the lead-in.

    The media actually treated Sarah Palin as if she were a serious human being.

    T’was a change election year Inkberrow. There was essentially no way the GOP was going to beat him. He got more votes in 2008 than any other candidate in American history. And in his re-election, he got the 2nd most votes in American history. Curiously, Romney/Ryan & McCain/Palin are in the Top 5. Romney pulled 61million & McCain 59mil.

    Now perhaps you might suggest that the GOP electorate was so thrilled about John McCain & Sarah Palin, and then Mitt Romney & Paul Ryan, that they turned out in droves to enthusiastically support the GOP candidates in ’08 and ’12. I’d say your suggestion is borderline delusional if you did, so don’t suggest it.

    The reality is that record numbers of GOP voters have turned out, in very large part, to vote against Barack Obama.

    You may suggest that’s because record numbers of GOP voters are acutely aware of the issues. I’d direct you to the nearest Tea Party/NRA/ ConCon where 100% of those people polled think that Benghazi is the biggest scandal in the history of the US, and a full 54% of them know where Benghazi is on a fucking globe.

    A sizable percentage of those people who turned out in record numbers to vote against Barack Obama don’t know jack-shit about politics, world affairs, or anything that doesn’t involve a Kardashian.

    So we must ask….What is it exactly about Barack Obama they don’t like?

    That has nothing to do with how the media handles the various scandals of late.

    What they don’t like is that Barack Obama has become even blacker to them.

    That’s got nothing to do with media adoration of Barack Obama Ink.

    I guess the real difference between the media of 7 years ago vs the media of today is what flavor of bullshit they’re serving up.

    People disliked George W Bush more than they dislike Barack H Obama.

    Or Bea Arthur’s breasts rather!

    1. Gatewood’s distinguishing characteristic is Foghorn Leghorn Syndrome, which whatever one says about Ink’s theses, doesn’t afflict his writing.

  9. Really, Weldon? Really? Since this site doesn’t (apparently) offer a ‘reply’ function, how’d you know who my remarks were directed toward if there wasn’t at least some similarity? Some of berrow’s comments here and recently could have just as easily been cut & pasted from Gatewood’s offerings from the primary season run-up to the 2008 general election through mid-2009. Verbatum. Let’s just leave it at this, he sounds more and more like Gatewood’s slightly more erudite brother.

    1. I knew it was him because he’s the only person on the thread who qualifies: fray alumnus and conservative. To me, though, the distinguishing thing about Gatewood was that he invariably used 50 words when one would do, and none of the 50 were the one that would do.

  10. I want to reword part of what I said above. To call his black identity Obama’s “primary appeal” does Obama a disservice. I should have said it was (and still is) his dispositive appeal among others.

    Barack Obama is the most important recipient ever of affirmative action, in precisely the way affirmative action was intended to work by its most devoted supporters, as a targeted boost among otherwise roughly equal candidates.

    Obama in 2008 was a pre-scandal John Edwards with less experience. Like Edwards he had the anti-war credentials Clinton lacked, but what took him to the promised land was his cross-demographic, anti-racist appeal.

    American public school products used to demonstrate their worth with paeans to flag and country, and longed for Horatio Alger-esque opportunities to display public morality by, e.g., returning a lost cash-stuffed wallet.

    Today, public school products demonstrate their civic worth by weeping for the Middle Passage and denouncing the Gadsden Purchase. They tremble for the opportunity to demonstrate their anti-racist bona fides. Obama resulted.

  11. I’m not sure I understand your objection to the subpoena process. You apparently agree that there was no obligation to notify AP but you seem to think they should have anyway so that AP could delay the process. There’s no likelihood that a judge would have ruled in AP’s favor had they tried to quash the subpoena. I think that your earlier comment that you think some of the legal processes violate the 1st amendment freedom of the press is your real point. The courts don’t agree with you but of course that happens to us all.

    1. DoJ had two options: serve AP with the subpoena requesting that the organization produce its phone records, or serve the telcoms. They chose the latter because they didn’t want to have to justify casting such an astonishingly wide net in front of a judge, which they would have had to do if they served AP directly. A judge might not have quashed the subpoena altogether but AP might well have been able to negotiate a narrower one, which does happen. Since it now appears that John Brennan is actually the leaker, the whole episode looks even more fishy.

      Your position seems to be that anything legal is fine, but you know as well as anyone that prosecutors can be homicidally abusive within the confines of the law.

  12. Ink~

    Why do you try to hide your racism behind euphemisms?

    Nut up and call a spade a spade man.

  13. No, I don’t think anything legal is OK, although by definition it is legal and not a constitutional violation.
    As to the details of the leak and the total back story,I’ll await further developments to see what I think about that.
    I will admit to a bias against news (so called) organizations in their insistence that the 4th Amendment means more than it does. In the rather mundane practice of litigating tort cases, time and again, I would run into situations in which news organizations had possession of evidentiary items like immediate after occurrence scene photos or witness interviews that could not be obtained after the fact other than by subpoena and they would resist turnover of these items, none of which involved confidential sources. Ultimately, they would be required to turn them over but not until costing the litigants unreasonable effort and expenses “to deter such activity in the future.”
    In the present AP issue, it is apparent that all we’re talking about is an AP “scoop” and nothing involving a whistleblower. Something published in the public interest? ‘Er, no.

  14. “I should have said it was (and still is) his dispositive appeal among others.”

    Yes, that would have sounded slightly less racist.

    However, it would have called attention to the entire issue of Obama’s “otherness” which the GOP has been, unsuccessfully, trying to frighten the GOPeep sheep with.


    When did you lose you balls?

  15. Weldon, an amusing turn of phrase perhaps, but fails to take into account the fact the premises underlying berrow’s various arguments are lifted whole from Gatewood. More words? check. Better words? mostly. Scratch the surface, though, and you find the logic flows from deeply flawed and frequently bogus premises. If Gatewood were a ventriloquist’s dummy, you would find him sitting on berrow’s knee.

  16. Like I said, I’ll await more detailed information on the back story. What you have provided confirms my impression that, from AP’s point of view, all we’re talking about is a “scoop” and not anything of real importance to the public. Should they be allowed to scoops? Of course but not at the expense of classified information. Notice that the administration asked them to delay their publication to try to minimize damage. They couldn’t avoid damage altogether because they couldn’t prohibit publication eventually. That doesn’t mean that the publication didn’t do any damage. I appreciate your suspicion of government. I share it. I also have suspicion of the news media. I don’t think you share that, more’s the pity.

    1. I think you misunderstand my concerns, Jack. Surely you misunderstand my attitude toward the press, which surprises me given the quantity of press criticism I’ve written over the years. It isn’t the quality or the social value of this particular AP story that’s at issue; it’s future stories that may be more valuable but can’t be written without sources likely to be discouraged by the nature of the government’s actions here. The question of whether the government went overboard isn’t answered by whether the story they freaked out about is worthwhile.

      I’m not sure what your point about the publication delay is. The government asked and AP complied, publishing only after the CIA said they had no additional security concerns.

  17. Weldon and Ryerson—

    The comparison with Gatewood is inapt in a couple of ways. The less important one concerns Gatewood and me specifically. Right or wrong, for better or worse, I believe I’ve remained consistent in saying what I mean and meaning what I say, and engaging other pretty honestly. To me, Gatewood was striking poses, adopting personae for effect more than anything else, which made him ultimately, in old Fray parlance, a social poster.

    More importantly, the comparison is, er, unimportant. Or should be, if the debate is on the merits, as opposed to what predominates in news and news media comments sections, namely some version of the hoary old Lenin/Alinsky/Atwater ad hominem strategy of reflexively consigning ideological opponents into categories of stupidity, insanity, or bad faith. Maybe it beats addressing whether the Obama administration is comprised of corrupted incompetents.

    1. The merits of your “public school” compare and contrast remarks aren’t apparent to me, Ink. As for the nature of the Obama administration, I’m on record on the “corrupt and relatively competent” side.

      I’m confident that had Clinton won the Democratic primary in 2008, which she could have done with a better campaign and without people like Mark Penn, she would also have clocked McCain in the general, probably by a significantly larger margin than Obama did; in which event you would be talking about the attractions for liberals of voting for a female prospective president, and the thuggish feminist totalitarianism of the Clinton administration. You would mistake her for a leftist just as you do Obama, because there’s no dramatic tension without that and the tandem thuggery. If there’s a white guy atop the Democratic ticket next time, I will expect people in your ideological vicinity to attribute it to buyer’s remorse about the black guy on the part of liberals.

      Let’s look at outcomes here. Wealthy white people and corporations are the almost exclusive economic beneficiaries of the Obama years. The lower economic and social classes have suffered inordinately. Banks are doing wonderfully well, and are immune from criminal prosecution. Wages are down, corporate profits are up, labor’s leverage continues to decline because of high unemployment and the administration is openly waging war on teachers unions, in cahoots with corporate charter school and standardization flim-flammers. Democrats are attacking Social Security and embracing austerity. And yet somehow, you see the people presiding over this epic ratfucking of every traditional liberal constituency as fearsome, ruthless leftist thugs. But incompetent ones. I guess it’s the incompetence that’s the key.

  18. My point about publication delay is that while it may have reduced the potential damage, it did not eliminate damage. The problem from the government’s point of view is that classified information was released to the press. Even if the press had never published it at all, the fact of the leak is a legitimate concern of the government. I agree that you have criticized the press over the years and I didn’t mean to imply the contrary. As to the nature of the story in question, I think that can be important in the event that it involves a whistleblower and/or a matter of obvious public importance. The Pentagon Papers comes to mind. Of course, even there,long before the Patriot Act, the source of the “leak” was sought and found.
    Here, the issue of how the leak occurred, by whom, and its importance remain somewhat murky to me and I withhold judgement on the wisdom of the decision to subpoena the AP’s phone records.
    I don’t share your concern with possibly chilling future leakers. They shouldn’t do it even if it seems to be a way of life in the political world.

    1. No leakers, no stories. No Pentagon Papers stories, no CIA torture/black sites stories, no illegal wiretap stories, nothing. Just a government who get to do what they want in the privacy to which they wish to be entitled. Sometimes newspapers will do damage, but no newspaper can ever do anything close to the damage that governments routinely do.

  19. There will be stories because leakers will continue to leak no matter the consequences. But you really can’t have it both ways. You can’t punish outing Valerie Plame and give the leakers you like a pass. If you want to argue that no information can be classified, be my guest,but if we’re going to classify information, there have to consequences for violating the classification. It’ a little like civil disobedience generally. One has to be willing to be arrested and maybe jailed.

    1. “if we’re going to classify information, there have to consequences for violating the classification” is sort of tautological, seems to me.

      Nobody was punished for outing Valerie Plame. Scooter Libby went to jail for perjury and obstruction. He’s probably lucky the affair didn’t linger into the Obama administration, or he may have been charged under the Espionage Act. I would point out that Fitzgerald didn’t take a blunderbuss approach to media subpoenas, and the ones he issued were almost uniformly contested in court in real time. Regardless, I don’t know why one can’t have it both ways. People make value judgments about all sorts of things. Certainly the administration are having it both ways by not investigating self-serving leaks they obviously sanction. Again, though, my objection is not on behalf of whoever the DoJ was pursuing here, but against the way they’re pursuing him or her.

  20. Weldon—

    The public school reference above was to illustrate the substantive ideological impact of liberal teachers and professors replacing moderate and conservative ones. Oppression theory is the current civic religion, with its attendant saints, martyrs, and villains. Fold in materialism, hedonism, and various forms of social-justice victimhood and entitlement mentalities, and you have the indolent Democratic voter base.

    Agreed generally on your remarks on Clinton, but you elide my affirmative action point. Obama jumped the line, over Clinton, Edwards, and others. Give credit where credit is due—his talents—but also give credit where credit is due—his race-based appeal. How many Democratic and moderate voters found themselves puffing out their chests with, “It’s Just The Right Thing To Do”?

    I realize you are a critic of the Democratic establishment from the principled Left, and to some extent I think we are talking past each other. Obama is a statist before he is a true small “d” democratic leveller, but that’s as a means to a long term global collectivist end, wherein America and Europe’s horns are trimmed for the sake of Third World “victim” constituencies.

  21. Nobody was punished for “Plamegate” because Plame could only be “outed” as a Langley pencil-pusher and Georgetown coctail party habitue in the first place. Libby was convicted a la Martha Stewart of a procedural offense against a substanceless investigation.

  22. So you don’t think you’ve become like Gatewood. Good for you. I see a material erosion in your arguments that reminds me of him in the same way that I commented on a mysterious similarity between the recently arrived greeneggsandham and cinc. Nothing ad hominem about commenting on what I think is obvious but since you failed to get my drift how about this: No, the members of the Obama administration are not made up of corrupted incompetents. The tiresome reaching of the rightwing windbag machine for equivalence with Nixon or Bush II is bullshit.

  23. Weldon, the perjury conviction clearly resulted from the outing of Plame but all good things must come to an end, like this debate. It’s your site so you are, of course, entitled to the last word.

  24. I demand the last word! Fitzgerald could not indict anyone for the “outing” of Plame because she could no longer be considered a covert operative under the applicable law. Libby was convicted for lying and obstructing justice in relation to an investigation with no “there” there.

    1. Ink, if you weren’t wrong you could have the last word, but in fact Fitzgerald established that Plame was a covert agent under the law at the time her employment was revealed.

  25. Don’t ask me why, but for years I thought there was some there there vis a vis Ink.

    I was wrong.

    He’s got the depth of a wading pool.

    He’s BA.

    Color me embarrassed.

  26. Weldon—

    I realize Fitzgerald and others stated Plame met the requiremrnts, but I don’t recall any documents proving she’d been working out of the country within the requisite timeframe. You may believe that Bulldog Fitzgerald really quailed at the prospect of having to prove a “knowing” culpable mental state in Scooter Libby and his colleagues, but I don’t.

    Big “S” “Schmutzie”—

    Are you really Schmutzie? But not the small “s” one?

    I was BA.

    1. “I realize Fitzgerald and others stated Plame met the requirements …”

      Others including her employer, whence Fitzgerald got his information and who would presumably know. You’re taking a birther approach to this: there is nothing that would satisfy you. Were the CIA to produce travel records or time-stamped videos, your response would be that they’re in the forgery business so nothing they divulge can be trusted.

      Regarding your public-schools-as-mineshaft-canary riff, probably you should find a way to work in the social conditions prevailing during your years of patriotism and optimism and Horatio Alger novels (they were novels, you know).

  27. Well, if the CIA said so, then fine! And Fitzy after the point was moot, and once no documents need be produced to prove it up. But “covert operative” was never litigated. I suppose there could be middle ground on mens rea if Fitzy thought Libby et al mistakenly believed Plame was not covered by the statute.

    I like the mineshaft-canary figure, but I was thinking more observationally than diagnotically. It’s not that there wasn’t too much establishment “Good America” jingoism back in the day; it’s that the pendulum has now swung too far to “Bad America”. The heirs of Marcuse did their work well.

  28. “Covert operative was never litigated.” Things don’t have to be litigated to be true.

  29. JackD—

    Obamacare is “true” and waterboarding is torture in large part depending on the last the thing the highest court said, eh?

    But this is your bailliwick—to be guilty (of the outing) Libby had to know Plame was covert under the law and not care, am I right?

    Is any colorable interpretation of “covert” to the contrary, even if erroneous, a potential mens rea defense? Must Libby himself know and believe it?

    1. Jaysus. Waterboarding has been recognized as torture for centuries, Ink. It was torture when the Inquisition did it, it was torture when the Japanese did it, it was torture when the Khmer Rouge did it, it was torture when we prosecuted people for doing it and it was torture when we did it. It was devised as torture. Its nature has not changed.

      “Not care” is not actually part of the law, which is not ambiguous.

  30. Weldon—

    By “not care” I just meant must Libby or anyone be certain between his ears that he is outing a covert agent as defined. Could he for instance have maintained a legal/factual analysis that was ultimately wrong, but still be deemed guilty? Conversely, is he still guilty if he believes Plame covert and outs her, but actually she is arguably not covert after all under at least one plausible reading of the statute?

    I think waterboarding is torture too, but I also think for instance affirmative action is unconstitutional. As with fed spooks, “torture”, and “24” scenarios, universities for years simply rename, reconfigure, and recontextualize racial set-asides after adverse court rulings, with a view to the next time the question will be contested and argued, and with an often self-serving assumption that the changes made or new circumstances are now distinguishable from that forbidden by the previous ruling.

    1. The laws says that someone has to know an agent is covert, and that the government is actively trying to keep them covert, and that the leak will expose them as a covert agent. I’m not a lawyer, but as I read it, the successful prosecutor would have to:

      1. establish that the agent was covert under the meaning of the law;
      2. establish that the government was actively trying to keep her that way;
      3. establish that the defendant knew 1 & 2; and,
      4. establish that the defendant knew the leak would expose the agent as a covert agent.

      Fitzgerald obviously thought he could meet the first two requirements, so he must not have been confident he could meet all of the others, whether with Libby or Armitage or anybody else involved.

  31. Full circle back to the tension between “knowing as correct” and “knowing as believing”, especially as here where there remains a colorable, unrefuted-by-litigation interpretation of the statute that Plame was not in fact “covert” after all. My opinion is that Fitzy would have made short work of three and four by reasonable inference if he’d one and two nailed down.

    “Knowing” after all, as the applicable culpable mental state, must or should apply to every material element. Is Plame actual covertness an element, or an attendant circumstance objectively established? I read that one can convict a fellow of delivery of drugs within a codified protected school zone even if he has no idea of the special protection or even of a school’s proximity.

  32. You’re still skipping over the know-versus-believe tension.

    If #1 and #2 were so cut and dried, it’s perfectly reasonable to infer #3 and #4 merely from the proofs of the outing behavior and the “gotcha” reactions in the first place. This is Fitzy the Bulldog we talking about!

    When folks are convicted of knowingly turning over stolen property, I assume there is rarely a tape recording with, “I just love being a fence!”. And in the Libby case some sort of smoking gun would be more likely, not less.

    1. Infer is not the same as prove. I’m not skipping over anything. You keep injecting this “bulldog” bullshit, but Fitzgerald has to meet the same burden as any other prosecutor. If he couldn’t produce some actual evidence that a defendant knew all of the things necessary for a guilty verdict, he would likely not get a guilty verdict. I know people in your position don’t like to acknowledge that there was actual evidence in the Libby trial, by way of witnesses and Libby’s own notes and more, that he did the shit he got convicted of, but there was. It wasn’t simply a matter of Fitzgerald hypnotizing the jury with his bedazzling charismatic relentless juju.

  33. There’s nothing wrong with inferences. In fact, juries usually can’t do their jobs without them. That’s why they are constantly reminded by prosecutors that “beyond a shadow of a doubt” is not the operative standard, and nor should it be. Fingerprints themselves are circumstantial evidence requiring an inference.

    Finally, I call Fitzy the Bulldog because that was his reputation, and a well-earned one, I assume. As I said before, not the type to quail at the prospect of having to prove “knowingly” under these particular circumstances, and certainly not imagining he’d need the type of proof you appear to be positing as necessary for conviction.

    1. What Ink is saying, Jack, is that without litigation he won’t believe it was true, and that if it was true it would have been litigated because if it was true, a jury would magically convict without any evidence supporting the other requirements for a conviction. Since nobody was charged, Plame must not have been covert. It’s like the Cirque de Soleil of logic.

  34. Ink,
    I see that you changed the subject again. What I said didn’t have to be litigated to be true was Plame’s covert status as opposed to Libby’s or anyone else’s knowledge of it and that the government was trying to maintain it. As to the rest, I’ll let you non lawyers argue on into the night. I will comment that Fitzgerald may have had problems of proof with which we are unaware. Generally speaking, prosecutors ordinarily do not offer reasons for the decision not to prosecute. As I recall, Fitzgerald didn’t in this case.

  35. I don’t recall him using this sort of obvious obfuscation. Likely I’m recalling Fray discussions in a more flattering light than they deserve….sorta like Cheney fans like Ink viewing 2000-2008 though rosy glass.

  36. Back in the day when I was trying cases I used to sit my clients down to make sure that they understood that juries and/or judges are not God. Funny how difficult it is for Americans to accept that obvious fact.

    1. A good friend of mine handled a lot of drug case defenses. He wanted to go to trial in two circumstances, when he was confident of an acquittal and when his client’s only hope was to keep things rolling long enough for somebody on the other side to screw up. Assuming ability to pay.

  37. JackD—

    The subject was whether Plame’s covertness under the statute was a settled matter, from which Weldon, after answering in the affirmative, er, inferred that Libby was not charged because of a lack of proof of culpable mental state. That conclusion I challenged by asking how “knowing” interfaces with factual and legal statuses which are predictions unless and until proven up. Apparently the deficit of proof on “knowingly” also need not be litigated to be true, even as Fitzy never detailed the reasons for his decisions. Weldon, I’d say that’s more at Blue Man Group logic….

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