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Mark Barnett, the attorney general of South Dakota, says that Republican allegations of voter fraud in the recent election of Senator Tim Johnson (D-SD) over challenger John Thune (R-SD) are baseless. Barnett is a Republican. Republican National Committee (RNC) officials have turned over 50 affidavits to Barnett’s office, alleging an array of crimes and improprieties. Barnett says only one allegation merits any further inquiry. “Many of the things alleged simply are not crimes,” Barnett says. “Those affidavits simply do not give me cause to think there was an election rip-off.” RNC officials secured affidavits from Republican poll watchers after Johnson’s 524-vote victory over Thune, and gave the affidavits to South Dakota prosecutors in late November. Barnett intends to investigate claims that voters were offered cash to vote. “It’s the two or three affidavits out of 50 that really jumped out and grabbed me as something I need to follow up on,” he says. “I don’t express any opinion on whether those affidavits are true or can be proved. We’re going to have those interviews done.” The “cash for votes” allegation was made in three of the 50 affidavits. One affidavit features a witness claiming she was offered money to vote, and two are from people who say they overheard voters being offered money. The other affidavits allege crimes or improprieties where there were none. “Realistically, many of the things set out in those affidavits are not crimes,” Barnett says. “They are what I would call local election-board management problems. A fair number could be read as complaints about how effective the Democratic get-out-the-vote effort was. They had people watching, then jumping on the phone to one of their drivers.” Even if all of the allegations were true, Barnett says, the results of the election would not change. The RNC says after Barnett’s statement: “The information that the attorney general reviewed is only one area of the problems reported with the election. This is not just about criminal activity but about how the people of South Dakota carry out their elections. They will have to decide at both the local level and the State Legislature whether changes need to be made to the system.” A spokesperson for Johnson says Thune could stop all of the dissension and allegations if he would speak out against them. Thune is referring all questions about the election to the RNC. Some of the unfounded allegations include: poll workers offering variants of names to voters until a match could be found in voting records; stickers being placed over votes for Thune on ballots to fool voting machines into not counting the votes; and what the Rapid City Journal characterizes as “a high degree of coordination between poll workers in some precincts and workers for the Democratic Party.” Barnett is particularly irritated by Republican complaints that Democrats forced polls in some counties to stay open too long. Some county polls stayed open until 8 p.m. Central Standard Time; because the counties in question are in the Mountain time zone, they were required by law to stay open until 7 p.m. Mountain, which is 8 p.m. Central. “Saying the polls were open too long is not an accurate way to describe it. It was opened too early,” Barnett says. “Several affidavits assume that Democratic operatives are the ones who made it stay open. That’s not accurate. It was Republican officials who made the decision, myself among them.… If you screw up and open at 6, you don’t fix a morning screw-up by doing an evening screw-up. If a voter had walked up to a polling place at 6:30 p.m. and found a padlocked door, we would have had the clearest case of a voter-rights violation that I ever heard of. If statute says you’re open until 7, you’re open until 7.” Barnett says many of the complaints were of the effective Democratic efforts of getting voters to the polls in vans, and of Democrats working on those efforts inside polling places. These are extraordinarily low-level infractions, Barnett says, and are routinely committed by workers of both parties in every election. The RNC has refused to provide copies of the allegations to local reporters (Ross 12/10/2002) but will provide them to Byron York, a reporter for the conservative National Review. York will write an article alleging “massive voter fraud” based on the affidavits (see December 19, 2002). Three days later, Barnett will report that the allegations of “vote buying” are groundless. One of the witnesses on the three affidavits could not be located. The second said his signature had been forged on the affidavit. The third said she signed the affidavit after being pressured by a friend. Barnett says: “These affidavits are either perjury or forgery, or call them what you will. They are just flat false.” (Marshall 12/16/2002)
Joshua Micah Marshall of the influential liberal news blog Talking Points Memo (TPM) writes that charges of “massive voter fraud” that supposedly gave Senator Tim Johnson (D-SD) a narrow victory over challenger John Thune (R-SD) are not only spurious, but deliberately “trumped up” by the Republican National Committee (RNC) working with the Thune campaign. Marshall finds the RNC’s allegations of voter fraud being primarily committed on Indian reservations particularly objectionable. The “wild-eyed allegations,” he writes, “were then amplified by a number of local reporters who turned out to be working in embarrassingly close coordination—in one case, cohabiting—with the Republican operatives who ginned up the accusations in the first place.” Marshall calls the allegations a coordinated effort to block Democratic “get out the vote,” or GOTV, efforts, as well as to “stir up politically-helpful racial animosity.” He writes that Thune and the RNC are using advertisements and mailings to accuse Johnson of being personally involved in the purported fraud, and notes that while Thune graciously conceded the election, his campaign operatives fanned out through South Dakota’s reservations collecting affidavits alleging a wide variety of crimes and improprieties. State Attorney General Mark Barnett found the allegations to be entirely groundless (see December 10, 2002). However, the RNC also gave the affidavits to Byron York of the conservative National Review; York is in the process of preparing a lengthy article on the subject (see December 19, 2002). Marshall writes that the only real crimes may have been committed by “RNC operatives caught filing perjurious or forged affidavits to prove their phony case.” (Marshall 12/16/2002) In October, Marshall noted that groundless allegations of absentee ballot fraud were made by a local reporter who lived with a lawyer for the Thune campaign. (Marshall 10/18/2002)
The National Review’s Byron York publishes a detailed article alleging that, in November 2002, Democrats committed massive voter fraud in South Dakota in order to ensure Senator Tim Johnson (D-SD) won re-election against opponent John Thune (R-SD). York accuses South Dakota Democrats of using Native American votes to “throw” the election. York reports that Democrats “deployed” 10,000 lawyers nationwide, including the contingent sent to Mission, to ensure that voting rights would be protected. In South Dakota, he writes, “compelling evidence” based on testimony from South Dakota poll workers shows that some of the Democratic lawyers “engaged in illegal electioneering, pressured poll workers to accept questionable ballots, and forced polling places in a heavily Democratic area to stay open for an hour past their previously-announced closing time. In addition, the testimony contains evidence of people being allowed to vote with little or no identification, of incorrectly marked ballots being counted as Democratic votes, of absentee ballots being counted without proper signatures, and, most serious of all, of voters who were paid to cast their ballots for Senator Johnson.” The allegations, if true, would constitute voter fraud on a massive scale. York says the testimony is collected “in more than 40 affidavits collected by Republicans in the days after the election and obtained by National Review,” and supplemented by “interviews with state and local officials.” York alleges that “hundreds of votes” for Johnson “were the product of polling-place misconduct.” Johnson won the election by a few hundred votes. “Had those votes not been added to his total, it seems likely that the senator, who won by just 524 votes, would instead have lost, and John Thune would today be South Dakota’s senator-elect.” (York 12/19/2002)
Allegations False, Says South Dakota Attorney General - South Dakota Attorney General Mark Barnett, a Republican, has said the most serious of the affidavits are either “perjury or forgery,” and says the allegations of illegality are “flat[ly] false.” Barnett said most of the accusations were not illegal, but simply evidence of effective get-out-the-vote (GOTV) efforts by Democrats (see December 10, 2002). And liberal news blogger Joshua Micah Marshall wrote that the only verifiable crimes may have been committed by Republicans who fraudulently concocted bogus allegations of voter fraud (see December 16, 2002). (Ross 12/10/2002; Marshall 12/16/2002)
Illegal Operations inside Polling Places? - York recounts accusations from an election board member, Noma Sazama, in Mission, South Dakota, that “out-of-town” Democratic poll watchers tried to “intimidate” her as they coordinated GOTV efforts from a Mission polling place. A Republican poll watcher in Todd County, Ed Assman, recounts a similar story to Sazama’s, of Democratic lawyers from out of town setting up shop inside a polling place, this one in Parmalee; a third witness who refuses to be identified says he saw Democratic poll workers running carpools “out of the polling place.” Holding such operations inside a polling place is illegal under South Dakota law, and South Dakota officials admitted after the election that such operations may have indeed taken place. State election supervisor Chris Nelson told a Todd County reporter, “That type of office operation to conduct a partisan campaign operation should not have been happening at the polling place.”
Allegations of Paying Voters - Assman says he personally watched Democratic poll watchers give cash to van drivers who were transporting voters back and forth from the polls. Another witness, who refuses to be identified, tells York that the watchers gave out “wad[s] of twenties.” That same witness says a Democratic poll watcher later explained the money was for gas. A Republican poll watcher in Mission makes similar allegations. York says that the stories “have raised suspicions that Democrats were perhaps buying more than gasoline,” suspicions that are bolstered by three witnesses in Todd County who say that van drivers offered them cash to vote for Johnson. All three affidavits say that the witnesses were offered $10 to vote, presumably for Johnson. York writes: “None [of the affidavits] explicitly says the voters accepted the money—this would be a confession of a crime—but there is little doubt that they did. And even if they did not, simply offering money for a vote is a crime under South Dakota law, which forbids anyone ‘to pay, lend, contribute, or offer… any money or other valuable consideration’ to anyone for a vote.” In an update to the article, York notes that Barnett has found two of the three affidavits and considers the third “suspect.” Barnett believes the affidavits may be the work of a single man on the Rosebud Indian Reservation, though that man, a registered Democrat, says he knows nothing of the affidavits. The man has told a Sioux Falls reporter that “people on the streets” told him that “they” were paying people with $10 bills or cigarettes to go vote, “and if you couldn’t get there, they would give you a ride.”
Time Discrepancy - Todd County auditor Kathleen Flakus twice published notices in the local press that polls would be open on Election Day, November 2, from 7 a.m. to 7 p.m. Central Standard Time (CST). According to government maps, Todd County is west of the time-zone line that splits South Dakota, placing the county in Mountain Standard Time (MST). The Todd County populace routinely operates on Central time. On Election Day, a Democratic election official named Iver Crow Eagle showed up almost an hour late to one Todd County polling place, forcing that polling place to alter its hours from 7 a.m. - 7 p.m. to 8 a.m. - 8 p.m. The time change is allowable under state law. However, Democratic poll watchers asked that all the Todd County precincts be allowed to stay open until 8 p.m. Todd County is heavily Democratic, York says, providing a possible motive for the request. The Democratic lawyers also asked that precincts in Mellette County be allowed to stay open until 8 p.m.; like Todd, Mellette is technically in Mountain time but the populace keeps Central time. The lawyers argued that the polls should stay open until 7 p.m. MST, which is 8 p.m. CST. York says Flakus and the “[l]ocal election officials were flabbergasted” by the request. However, state officials found that the Democrats were legally correct, and the precincts stayed open until 8 p.m. CST. Republican officials attempted to force the polls to close at 7 p.m. CST, York reports, calling the extra hour an “unconstitutional” dilution of other counties’ votes, whose citizens cast their votes “during proper hours.” The Republicans also asked that the ballots cast after 7 p.m. CST be segregated from the other ballots in case a judge ruled in favor of the original closing time. A state circuit judge dismissed the requests without comment, and the polls stayed open an extra hour in the two counties. Witnesses later tell York that they saw well over a hundred voters cast their votes during the extra hour. “Given the voting patterns of the area, it’s likely that nearly all of those extra votes were Democratic,” York writes. “[I]t seems reasonable to estimate that the extended voting hours gave Tim Johnson an additional 200 or so votes” in Todd County alone.
Voter Registration Fraud? - Democrats from the state and national party worked to register thousands of new voters during the run-up to the November election, specifically working on Indian reservations. The effort secured some 17,000 new voters, York says. However, he cites a news report that alleged “bounty hunters” were paid ”$3 per head” to register new voters, which he calls “an invitation to fraud.” One Democratic volunteer, Becky Red Earth Villeda, made almost $13,000 from registering new voters. Before the election, state prosecutors said that 15 “phony ballots,” in York’s words, were “associated with Villeda.” The prosecutors were investigating 1,700 others and were considering filing charges against her. South Dakota Deputy Attorney General Larry Long told reporters: “It appears that we were able to get her stopped before she actually cast any fraudulent ballots. But it’s conceivable that she was able to get ballots cast that we don’t know about.” York says that at least three absentee ballot requests—not ballots—from the Cheyenne River Indian Reservation, in Dewey County, may have also been fraudulent. A witness at a Dewey County polling place later alleges that he saw “15 or 20” people come to vote, only to find that records indicated they had requested absentee ballots when they said they had not made such requests. One of those voters told election officials that the signature on the ballot request was not his. At another precinct, another witness says the same thing happened with ten voters, and a third witness says a similar occurrence happened to seven voters at another Dewey County precinct. York says it is “reasonable” to presume that many other occurrences took place, and many improper absentee ballots may have been cast. Sazama tells York that she saw ballots cast at her Todd County precinct that “didn’t look right.” She says she saw several signatures that appeared to match the voters’ signatures, but they “all looked like they had been signed by the same person.” Those votes were counted. York says that along with the “suspicious” absentee ballot issues, “there were widespread problems with voter identification,” including a number of instances where voters presented themselves to an election judge, found that their given names were not listed, and were given the opportunity to vote under what a Republican witness in Mellette County calls “alternate names.” Another unnamed observer says similar instances happened at a polling place in Shannon County, home of the Pine Ridge Indian Reservation. And Assman says he saw similar instances in Todd County. York says that Democratic lawyers at polling places “pressured election officials to allow people to vote, whatever the problem with names,” and quotes an unnamed Republican election official as saying the lawyers “intimidated” local officials.
Vote Surge Gives Johnson the Victory, Votes May Be 'Improper' - York writes that the voting improprieties may be the reason why Thune maintained a narrow lead in vote counts throughout the evening of November 2, until late in the vote counting, when Thune led by almost 1,000 votes with only six precincts remaining. Five precincts in Shannon County gave Johnson the victory, York says, coming in at an “unusual” 91.4 percent of votes cast going to Johnson. Shannon County is an “overwhelmingly Democratic area,” York concedes, but alleges that many of the Shannon County ballots had “significant problems” that caused them to be rejected by the optical scan machines counting the votes and processed by a resolution committee. The problems with the optically scanned votes caused the Shannon County votes to be among the last reported. Later, a Republican member of the resolution committee named Lee Linehan says she may have inadvertently let “improper” votes go through, due to her exhaustion and unfamiliarity with the process. York implies that her Democratic committee partner, whom he only identifies as “a lawyer,” may have influenced her to send ballots through regardless of their possible improprieties. Linehan tells York, “I believe the race would have been much closer had we paid more attention.”
Conclusion - York alleges that, in conclusion, Johnson and “an army” of Democratic lawyers improperly threw the election for Johnson. “[T]he accounts of dozens of eyewitnesses at the polling places,” he writes, suggests “the electoral system was not fully trustworthy and in fact failed to stop serious violations of election laws committed by Johnson’s supporters.” The small number of votes in one county after another—200 in Todd, 250 in Shannon, 100 in Dewey, and around 200 in other counties—may have given Johnson the edge he needed to claim a narrow victory. York writes, “[I]t seems reasonable to conclude that, had Democratic misconduct not occurred in those counties, John Thune would have won.” Thune chose not to ask for a recount, as was his right under South Dakota law. York explains that Thune did not wish to put the state’s voters under what Thune called a “long, drawn-out, painful, and protracted struggle over 524 votes.” York goes on to note that Thune dropped broad hints that he felt improprieties cost him the election. Some of the problems were most likely “homegrown,” York says, and cites what he calls previous “allegations of voting irregularities on some of the reservations, particularly in tribal elections.” However, the improprieties that he says cost Thune the election “went far beyond local fraud, and are instead attributable to the team of party operatives sent to South Dakota from the DNC’s headquarters in Washington.” York says the local Republican officials should have been prepared for just such problems, citing Democratic National Committee (DNC) chairman Terry McAuliffe’s promise that lawyers would be at polls in every state, and implying that McAuliffe and the DNC concocted a scheme to steal elections throughout the nation through the auspices of this “army” of lawyers. “[T]he evidence from South Dakota suggests that some of them were on the lookout to commit voter fraud,” he writes, “to steal the election under the guise of preventing it from being stolen.” York concludes that the Democrats’ success in South Dakota will only encourage them to try even harder to steal elections in future elections. (York 12/19/2002)
Purged - The National Review will later purge the York article from its database.
Washington Post reporter Bob Woodward meets with Deputy Secretary of State Richard Armitage, who informs him that Valerie Plame Wilson is a CIA officer working on the issue of WMD in the Middle East. Plame Wilson is the wife of Joseph Wilson, who was sent to Niger to determine the truth behind the Iraq-Niger uranium claims (see February 21, 2002-March 4, 2002 and July 6, 2003). (Woodward 11/16/2005; Shenon 8/23/2006; MSNBC 2/21/2007) Armitage has just received the information from State Department intelligence officers, who forwarded him a memo marked “Secret” that included information about Wilson’s trip, his findings, and the fact that his wife is a CIA agent (see June 10, 2003). (Hamburger and Efron 8/25/2005)
Revealing Plame Wilson's Identity - Woodward asks Armitage why the CIA would send Wilson to Niger. “It was Joe Wilson who was sent by the agency,” Woodward says, according to an audiotape Woodward plays for the court during the Lewis Libby trial (see February 12, 2007). “I mean, that’s just—” Armitage answers, “His wife works in the agency.” The two then have the following exchange:
Woodward: “Why doesn’t that come out? Why does—”
Armitage: “Everyone knows it.” (It is unclear who or what Armitage is referring to. Columnist Byron York will later write that Armitage is referring to Wilson being the anonymous foreign ambassador criticizing Bush in the press.)
Woodward: “That have to be a big secret? Everyone knows.”
Armitage: “Yeah. And I know [expletive deleted] Joe Wilson’s been calling everybody. He’s pissed off because he was designated as a low-level guy, went out to look at it. So, he’s all pissed off.”
Woodward: “But why would they send him?”
Armitage: “Because his wife’s a [expletive deleted] analyst at the agency.”
Woodward: “It’s still weird.”
Armitage: “It’s perfect. This is what she does—she is a WMD analyst out there.”
Woodward: “Oh, she is.”
Woodward: “Oh, I see.”
Armitage: “[Expletive deleted] look at it.”
Woodward: “Oh, I see. I didn’t [expletive deleted].”
Armitage: “Yeah, see?”
Woodward: “Oh, she’s the chief WMD?” (asking if Plame Wilson is the head of the Iraqi WMD bureau within the agency—see April 2001 and After).
Armitage: “No, she isn’t the chief, no.”
Woodward: “But high enough up that she can say, ‘Oh yeah, hubby will go?” (see February 19, 2002, July 22, 2003, October 17, 2003, and July 20, 2005).
Armitage: “Yeah, he knows Africa.”
Woodward: “Was she out there with him?”
Woodward: “When he was an ambassador?”
Armitage: “Not to my knowledge. I don’t know. I don’t know if she was out there or not. But his wife is in the agency and is a WMD analyst. How about that [expletive deleted]?” (New York Sun 6/13/2003; Apuzzo 2/12/2007; York 2/13/2007)
Woodward Does Not Report Plame Wilson's Identity - Woodward does not report this information. But Armitage’s divulgence may be the first time an administration official outs Plame Wilson, an undercover CIA agent, to a journalist. Woodward will later call the disclosure “casual and offhand,” and say the disclosure “did not appear to me to be either classified or sensitive.” He will note that “an analyst in the CIA is not normally an undercover position.” Woodward tells fellow Post reporter Walter Pincus that Plame Wilson is a CIA agent, but Pincus will say he does not recall the conversation. Woodward will note that on June 20, he will interview a “second administration official” with a notation to ask about “Joe Wilson’s wife,” but according to the recording of their conversation, the subject never comes up. Woodward enjoys extraordinary access to the White House for preparation of his second book on the Bush administration, Plan of Attack. (Woodward 11/16/2005; Shenon 8/23/2006; Unger 2007, pp. 310; MSNBC 2/21/2007)
US Representative Darrell Issa (R-CA) and 13 other representatives sign a letter to Attorney General John Ashcroft protesting the Justice Department’s policy towards prosecuting “alien smugglers,” or “coyotes,” who bring illegal immigrants across the US-Mexican border. Issa, who wrote the letter, says that the DOJ should adopt a “zero-tolerance” policy towards “alien smuggling” and should prosecute everyone accused of such a crime. Issa refers to decisions by US Attorney Carol Lam of the District of Southern California (see November 8, 2002) not to prosecute persons charged with the crime of “alien smuggling,” and references the case of Antonio Amparo-Lopez as an example of a “missed opportunity” to prosecute such an alleged criminal (see February 2, 2004). Issa writes: “It is unfortunate and unacceptable that anyone in the Department of Justice would deem alien smuggling, on any level or by any person, too low of a priority to warrant prosecution in a timely fashion. In our view, a lack of available resources for prosecution is not a valid reason for a decision not to prosecute and, in fact, would signify a mismanagement of your department’s priorities.” (US Department of Justice 3/23/2007 ) Issa represents California’s 49th District, which centers on San Diego and is part of Lam’s federal district. (Healthy City 8/2011 ) Assistant Attorney General William Moschella will send Issa a brief reply defending the Justice Department’s prosecution practices (see (December 30, 2004)). Issa’s spokesperson Frederick Hill will later tell columnist Byron York: “We were stumped in terms of getting information to explain the scope of the problem. We put the word out on the street that we were interested in getting more information about this.” York later writes, “Issa was hoping for a tip—perhaps from someone inside a law-enforcement organization—to give him the information he had been seeking.” (York 3/28/2007)
Nineteen US Representatives, headed by Lamar Smith (R-TX) and Darrell Issa (R-CA), send a letter to President Bush warning of a “crisis along the Southwest border” of the nation “that needs immediate attention.” Smith and his fellow signatories complain that “coyotes,” or criminals who smuggle illegal immigrants across the border in attempts to avoid immigration procedures and the US Border Patrol, constitute a grave threat to national security. Smith references the case of Antonio Amparo-Lopez, a “coyote” whom, after being arrested, was let go by Carol Lam, the US Attorney in Southern California (see February 2, 2004 and July 30, 2004). Lam and other Justice Department officials have cited a severe lack of resources in their decisions not to prosecute low-level alleged criminals such as Amparo-Lopez. The signatories ask Bush to “dedicate additional resources and direct US Attorneys in the Southwest region to make the prosecution of human smugglers a priority.” Representative Randall “Duke” Cunningham is one of the signatories; he is under investigation by Lam’s office for corruption. Six weeks later, the Justice Department’s Office of Legislative Affairs sends what conservative columnist Byron York will call “a brush-off letter” in response. (US Department of Justice 3/23/2007 ; York 3/28/2007)
The Washington Post publishes a report that reveals special counsel Patrick Fitzgerald corrected an earlier statement he made in an April 11, 2006 court filing. On April 5, 2006, Fitzgerald wrote that indicted felon and former White House aide Lewis Libby had, during his conversations with New York Times reporter Judith Miller (see June 23, 2003, 8:30 a.m. July 8, 2003, and Late Afternoon, July 12, 2003), misrepresented the significance placed by the CIA on allegations that Iraq had attempted to purchase uranium from Niger. According to Fitzgerald’s original filing, Libby called the CIA finding a “key judgment” from the October 2002 National Intelligence Estimate (see October 1, 2002). The term “key judgment” indicates that the entire US intelligence community concurred with the finding. The assertion was not part of the NIE’s “key judgments,” and was found later in the document. Yesterday, Fitzgerald wrote to Judge Reggie Walton that he wanted to “correct” the sentence that dealt with the issue. That sentence said Libby “was to tell Miller, among other things, that a key judgment of the NIE held that Iraq was ‘vigorously trying to procure’ uranium.” Instead, the sentence should have conveyed that Libby was to tell Miller some of the key judgments of the NIE “and that the NIE stated that Iraq was ‘vigorously trying to procure’ uranium.” (Linzer 4/12/2006) Post reporter Dafna Linzer does not reveal that her knowledge of the Fitzgerald correction comes from information improperly leaked by Libby’s defense lawyers (see April 21, 2006). A column attacking Fitzgerald, written by Byron York and published by the National Review, is also based on the information leaked by Libby’s lawyers, as is a news report by the New York Sun’s Josh Gerstein. (Gerstein 4/12/2006; York 4/13/2006; Jane Hamsher 4/21/2006)
Conservative columnist Byron York writes that in his view, one of the overarching conflicts between Patrick Fitzgerald’s prosecution team and the defense team of Lewis Libby is that of the “size” of the case. Fitzgerald wants to focus on the “little case,” the narrow parameters of the perjury charges Libby faces: namely, did Libby lie under oath when he told Fitzgerald’s grand jury that he learned of Valerie Plame Wilson’s CIA identity from NBC reporter Tim Russert (see June 23, 2003, 8:30 a.m. July 8, 2003, 2:24 p.m. July 12, 2003, Late Afternoon, July 12, 2003, and July 10 or 11, 2003)? Fitzgerald, York writes, has abandoned his pursuit of the larger case—who leaked Plame Wilson’s identity, why was it leaked, and did it violate the Intelligence Identities Protection Act, the Espionage Act, or some other law? York writes: “He has learned about the Big Case as much as one man with subpoena power, no supervision, unlimited funds, and no hesitation to threaten reporters with jail can learn. He just doesn’t want to talk about it.” On the other hand, Libby’s team wants to focus on the larger case. Was Libby merely following orders from senior Bush administration officials who felt “under attack” by Plame Wilson’s husband, war critic Joseph Wilson, and others? York writes: “Libby might have simply forgotten some of the details, and because of that testified incorrectly, his lawyers contend, because he was focusing on the big picture. If Libby’s defense team had its way, the whole thing—the Big Case—would be re-fought in the courtroom.” Judge Reggie Walton is trying to balance the two interests, York observes, and finding it understandably difficult to do so. (York 5/10/2006)
In an article printed on the progressive news Web site Truthout, reporter Jason Leopold claims that special counsel Patrick Fitzgerald has indicted White House political strategist Karl Rove in the Valerie Plame Wilson identity leak case. Leopold writes that on Friday, May 12, Fitzgerald served indictment papers on Rove through the law firm of Patton Boggs, which represents Rove. According to Leopold, Fitzgerald has charged Rove “with perjury and lying to investigators related to his role in the CIA leak case, and instructed one of the attorneys to tell Rove that he has 24 business hours to get his affairs in order.” Leopold credits “high level sources with direct knowledge of the meeting” for the story. Leopold’s sources also say that Rove spent most of the day in consultation with his lawyer, Robert Luskin, and that Fitzgerald is likely to include an obstruction of justice charge. Leopold has reported that Rove has already informed White House officials, including President Bush, of his upcoming indictment (see May 12, 2006). (Leopold 5/13/2006) Rove spokesman Mark Corallo flatly denies the story. He tells conservative columnist Byron York that Fitzgerald did not come to Patton Boggs on May 12, did not meet or communicate with Rove’s lawyers or other representatives, and did not inform Rove’s lawyers or representatives that Rove had been indicted. (York 5/14/2006) Leopold’s story causes a storm of controversy, celebration, and uncertainty among many progressives and critics of the Bush administration, with many questioning why other, more mainstream news sources have not picked up on or verified Leopold’s story (see May 15, 2006). (Daily Kos 5/14/2006) Leopold’s reporting is incorrect; a month later, Fitzgerald will announce that he is not charging Rove with anything (see June 13, 2006).
Conservative columnist Byron York asserts that former CIA official Valerie Plame Wilson and her husband, former ambassador Joseph Wilson, have filed a lawsuit against Vice President Dick Cheney, White House aide Karl Rove, and former White House aide Lewis “Scooter” Libby for monetary gain (see July 13, 2006). Without substantiating his accusations, York writes that Plame Wilson is using the lawsuit to heighten interest in her forthcoming book on her CIA career (see October 22, 2007), while Wilson is using the lawsuit to spur interest in his (presumably paid) speaking engagements. Both want to, in York’s words, “keep interest in the flagging CIA leak case alive.” (York 7/20/2006)
Columnist Byron York, writing for the conservative National Review, writes that two of the five felony counts against Lewis Libby have so little basis in evidence that it is difficult to see how Libby could be found guilty on those charges. York writes that a charge of perjury and a charge of making false statements depend entirely on the testimony of one person, former Time reporter Matthew Cooper, who testified for the prosecution the day before the column is published (see January 31, 2007). York states that both charges rest on a single line of hastily typed notes from Cooper: “had somethine and about the wilson thing and not sure if it’s ever,” and Cooper’s “shaky” testimony. York interprets Cooper’s testimony as indicating he is not now sure what he meant when he typed that line, and is unsure if it applies to the question of whether Libby told him about CIA official Valerie Plame Wilson. Cooper testified that Libby confirmed for him that he had “heard” Plame Wilson was the CIA official who sent her husband, Joseph Wilson, on a fact-finding mission to Niger (see February 21, 2002-March 4, 2002 and July 6, 2003). According to York, Cooper’s testimony before the Fitzgerald grand jury in 2005 (see July 13, 2005) and the snippet of Cooper’s notes “gave the jury all the evidence it would receive on Counts Three and Five of the indictment. Count Three accused Libby of making a false statement to the FBI during interviews on October 14, 2003 and November 26, 2003. That false statement consisted of Libby telling the FBI that when he talked to Cooper, he told Cooper that he, Libby, had been hearing about Mrs. Wilson from reporters. That statement was false, Fitzgerald alleged, because Cooper said it never happened.” York argues that Cooper’s trial testimony does not support his testimony before the grand jury. (York 2/1/2007)
Based on Monday’s parade of reporters testifying that they were not told of Valerie Plame Wilson’s CIA identity by former White House official Lewis Libby (see February 12, 2007, February 12, 2007, February 12, 2007, February 12, 2007, and February 12, 2007), National Review columnist Byron York asks the same question Libby’s lawyers are asking during the trial: if Libby leaked Plame Wilson’s identity to reporters Judith Miller and Matt Cooper (see June 23, 2003, 8:30 a.m. July 8, 2003, 2:24 p.m. July 12, 2003, and Late Afternoon, July 12, 2003), why didn’t he leak it to the other reporters who testified? York writes: “Each was covering events in Washington during that intense period in mid-2003 when the Bush administration came under attack from former ambassador Joseph Wilson over its case for war in Iraq. Each interviewed Libby, then Vice President Dick Cheney’s chief of staff. And each heard nothing from Libby about Valerie Plame Wilson.… Did Cheney, who is portrayed in some scenarios as the mastermind of the leak, tell Libby to disclose Mrs. Wilson’s identity to Matt Cooper and not to Bob Woodward? To Judith Miller and not to Robert Novak?” These are the questions York says the defense hopes the jury will ask. York notes that Washington Post reporter Walter Pincus directly contradicted former White House press secretary Ari Fleischer’s claim that he did not tell Pincus of Plame Wilson’s identity, an exchange York says heavily damages Fleischer’s credibility. The defense contends that Libby may have learned of Plame Wilson’s CIA identity from other, unnamed reporters; Libby, the defense says, later “misremembered” his source as being NBC’s Tim Russert (see July 10 or 11, 2003 and February 7-8, 2007), who has contradicted Libby’s claim that he learned of Plame Wilson’s CIA identity from him. York says that the most telling moments came during the testimony of Post reporter Bob Woodward, who played an audiotape of his conversation with then-Deputy Secretary of State Richard Armitage, who told him of Plame Wilson’s identity well before Libby exposed the CIA official to the press (see June 13, 2003). Armitage’s statement that “everyone knows it” refers, York writes, to Joseph Wilson being the anonymous former ambassador criticizing the Bush administration in the press, but York notes that some in the jury might take the reference to mean that “everyone knows” of Plame Wilson’s CIA status. “In any event, none of it had anything to do with Libby, except that Libby was not the one leaking,” York concludes. (York 2/13/2007)
Columnist Byron York, writing for the conservative publication National Review, explains to readers why neither former White House official Lewis Libby nor Vice President Dick Cheney testified during Libby’s trial on perjury and obstruction charges (see February 13-14, 2007). York says that once the decision was made for Libby not to testify, there was no reason for Cheney to testify. “The vice president would likely have testified about Libby’s state of mind in May, June, and July of 2003, when the Bush administration’s case for war in Iraq was under attack by former ambassador Joseph Wilson,” York writes. “The Libby defense has maintained that he, Libby, was tremendously busy at the time and might well have forgotten about the particulars of how he learned, and then forgot, about the identity of Valerie Plame Wilson. With Libby not testifying, it followed that Cheney wouldn’t either.” York then addresses the decision to keep Libby off the witness stand. For York, the question was not whether the jury needed to hear Libby talk about his role in exposing Valerie Plame Wilson as a CIA official, but whether the jury needed to hear it again, after listening to eight hours of Libby’s grand jury testimony (see February 5, 2007 and February 6, 2007). “[B]y the time Libby had to decide whether to testify,” York writes, “the jury had already heard a lot of Lewis Libby testifying.” It had also heard audio of special prosecutor Patrick Fitzgerald quizzing Libby. York writes: “Libby’s defenders are betting that jurors took from those recordings an impression not only of the defendant but of the prosecutor. And the impression that Libby’s supporters hope jurors will have is that of a prosecutor trying too hard to find a crime where there was none.” What jurors did not hear during those hours of audio evidence, York notes, was Fitzgerald asking Libby about former Deputy Secretary of State Richard Armitage’s leak of Plame Wilson’s CIA identity (see June 13, 2003). York concludes: “[T]he entirety of Fitzgerald’s grand jury questioning might leave jurors with a more nuanced impression: that of a prosecutor who had received faulty information, or incomplete information, from other witnesses and who looked to Libby—and not those who had omitted or failed to remember key acts during their testimony—as the suspected criminal. The grand jury tapes reveal a prosecutor who had had sand thrown in his eyes—to use Fitzgerald’s famous image—but it had not been thrown by Lewis Libby.” (York 2/15/2007)
New York Sun reporter Josh Gerstein, in an analysis of the Lewis Libby trial, says the jury has a “plethora of reasons to acquit Libby” if it chooses to do so. Gerstein runs through the defense’s attempts to paint Libby as having tremendous memory problems (see February 13, 2007), and reminds readers that the memories of several government witnesses have been challenged by the defense (see January 23-24, 2007, January 24-25, 2007, January 24, 2007, January 25-29, 2007, January 29, 2007, January 30-31, 2007, January 31, 2007, February 1-5, 2007, February 7-8, 2007, February 13, 2007, and February 14, 2007). The defense has also offered three different theories to explain Libby’s prosecution, including his victimization by reporters, the CIA, and State Department, and White House officials attempting to protect deputy chief of staff Karl Rove. “You throw out as much as you can, hoping to get one juror,” says criminal defense lawyer Edward Hayes. “People like conspiracy theories.” Another defense lawyer, Benjamin Brafman, says: “It’s not inconceivable you could get a couple of jurors to say, ‘I don’t think he’s guilty because of memory. We all forget some things.’ A couple of jurors might not like that argument but might be persuaded by the suggestion he’s a sacrificial lamb and the administration is protecting Rove.” On the other hand, the defense’s “scattershot approach” might make the jury lose faith in its arguments. Branfman says: “I think you have to be very careful throwing defenses into a case. [Prosecutor Patrick] Fitzgerald is going to look at the number of defenses and comment on that. If something was made in their opening statement and they didn’t deliver, he has the right to comment on that.” And Hayes adds that the defense should be careful in suggesting that all the prosecution witnesses are “out to get” Libby: “What you can’t do is argue that every single witness is a bad person, lying, and out to hurt somebody. That’s just too much.” Most of the defense lawyers interviewed by Gerstein say they agree with the defense’s decision not to allow Libby to testify. Brafman agrees with an argument recently advanced by conservative columnist Byron York (see February 15, 2007), that the jury had already heard Libby’s testimony through audiotapes of his previous testimony to a grand jury (see February 5, 2007 and February 6, 2007), and to allow Libby to restate his earlier testimony and be cross-examined again would be “superfluous and perhaps reckless.” Gerstein concludes with praise from Brafman about lead defense attorney Theodore Wells. “Ted Wells is probably one of the most eloquent criminal defense lawyers in the United States. He’s a very charming man,” Brafman says. “He’ll probably deliver one of the best summations anyone has ever seen in any case.” (Gerstein 2/16/2007)
Media responses to the closing arguments in the Libby trial (see 9:00 a.m. February 20, 2007, 11:00 a.m. February 20, 2007, and 3:00 p.m. February 20, 2007) are strong and varied.
'Strongest Arguments Yet' of Cheney's Complicity - New York Sun reporter Josh Gerstein writes that prosecutor Patrick Fitzgerald’s “explosive” statements were his “strongest arguments yet” that Vice President Dick Cheney directed former chief of staff Lewis Libby to out CIA official Valerie Plame Wilson. Libby was “not supposed to be talking to other people,” Fitzgerald said. “The only person he told is the vice president.… Think about that.” (Gerstein 2/21/2007)
Fitzgerald Put 'Vice President on Trial' - Newsweek reporter Michael Isikoff writes, “Fitzgerald pretty much made it clear to the jury that Libby, in the prosecution’s mind, was protecting the vice president of the United States.” Tom DeFrank of the New York Daily News adds: “I think Fitzgerald and his fellow prosecutors put the vice president on trial, even though he was not charged with anything. But he was very much front and center in this trial from start to finish.” (Froomkin 2/21/2007)
Fitzgerald 'Sinister,' 'Overcaffeinated'; Wells 'Erratic' - Conservative columnist Byron York is somewhat taken aback at Fitzgerald’s focus on Cheney, calling Fitzgerald “quite sinister” in his statements about Cheney’s apparent complicity in the leak. York sums up the two sides’ arguments and presentational styles. He calls both sides “uneven,” and says that defense attorney Theodore Wells’s performance “was erratic, sometimes appearing to defend his own honor more than his client’s, and sometimes brilliantly dismantling the credibility of key prosecution witnesses.” York writes that Fitzgerald “seemed overcaffeinated and overreaching, perhaps overwhelming the jury with the minutiae of the case.” He concludes, “How their closing summations will play with jurors is anybody’s guess.” (York 2/21/2007)
Praise for Wells - The Washington Post’s Linton Weeks is more complimentary of Well’s closing statement. Weeks’s analysis of Wells’s close is similar to the glowing profile published by the New York Times earlier in the trial (see February 10, 2007). He portrays Wells as “tall, athletic, mustachioed—like a fighter imaging the bout to come,” and possessed of “an inner toughness of someone who will use any combination of punches to win big.” He notes that Wells paused during the proceedings to check on his elderly mother, watching her son from a wheelchair in the courtroom aisle. Though Weeks writes that Wells had “moments [that] seemed out of sync,” hurrying through a PowerPoint slide presentation, “[a]t other times, he was impressive, trying to convince the jury that the prosecution was attempting to ruin Libby based on a few conversations with reporters.” Weeks quotes one of Wells’s colleagues, Washington lawyer Stanley Brand, as saying Wells “has a wonderful demeanor… a master tactician… a bulldog, but in a gentle way.” Brand calls Wells “one of the five best trial lawyers in the country.” Weeks then spins an admiring biography of the “tough defense attorney who has mastered the balance between easygoing and hard-charging,” and uses Wells’s high school and college football career upon which to hang his final metaphor: “There in the middle of the courtroom, Wells was playing center again, helping call the plays and protecting the guy with the ball. Laughing in the beginning, crying in the end.” (Weeks 2/21/2007)
Sincere and Insincere Emotions - Author Marcy Wheeler, writing for the blog FireDogLake (see February 15, 2007), says that assistant prosecutor Peter Zeidenberg baited Wells into going into a sincere rage at the beginning of his argument. In the first portion of the prosecution’s close, Zeidenberg told the jury that Wells had not proven the White House conspiracy he alleged, and, Wheeler writes, Wells spent the first 20 minutes of his closing argument defending his trial strategy. “This was real rage,” she writes, “but it was rage in the service of Ted Wells, not rage in the service of Scooter Libby.” By goading Wells into losing his composure and defending his own actions, Wheeler writes, Wells was forced to rush his climactic argument. Wheeler says that Wells “really does have a schtick, one that the journalists who have seen him before all recognize. He finishes the rational part of his case. Then he spends the last 20 minutes or so summoning rage for his client. He brings all the emotion summoned for his client to a crescendo. And then he weeps, demonstrating clearly to the jury how deeply he believes that his client has been wronged.” But because Wells wasted the first 20 minutes defending his own actions, he “had no time to get into character, and he went immediately from a rushed but rational argument about memory into his emotional appeal.… [C]ompared to the real rage Wells had shown earlier in the day, it looked fake. Utterly, completely fake. Because Wells reacted to Zeidenberg’s barbs, he showed the jury true emotion that made all his elaborate schtick—the thing that Wells does best, normally—look like an act.” Moreover, Fitzgerald was able to mock the outrage that Wheeler believes to be “schtick” (see 3:00 p.m. February 20, 2007) all the more effectively because he almost never raised his voice or displayed any passion throughout the trial. (Marcy Wheeler 2/21/2007)
Facts vs. Emotion - Sidney Blumenthal, a former Clinton administration adviser who has written a book critical of the Bush administration, writes that the prosecution depended largely on a structure of facts and evidence, while the defense relied much more on emotional appeals to the jury. He writes, “[T]he final argument on behalf of Scooter Libby was Libby’s last disinformation campaign.” Of the defense’s attacks on the credibility of news reports and the journalists who make them, Blumenthal writes: “This extraordinary defense—that nothing in any newspaper can be considered true—was the reductio ad absurdum of the Bush administration’s use and abuse of the press corps. Having manipulated it to plant stories on weapons of mass destruction to legitimize the Iraq war, Libby, who was centrally involved in those disinformation efforts, was reduced to defending himself on the basis that newspapers cannot be trusted to publish the truth.” Of Fitzgerald’s pronouncement of a “cloud” over Cheney, Blumenthal writes that “Fitzgerald made clear that he believed that Cheney was the one behind the crime for which he was prosecuting Libby. It was Cheney who was the boss, Cheney who gave the orders, and Cheney to whom Libby was the loyal soldier, and it is Cheney for whom Libby is covering up.” (Blumenthal 2/22/2007)
Writing in anticipation of a judicial sentence for convicted felon Lewis Libby, columnist Byron York publishes a column in the conservative National Review criticizing the sentencing recommendation made by prosecutor Patrick Fitzgerald. Though Libby could theoretically be sentenced to up to 30 years in prison for his four felony convictions (see March 6, 2007), Fitzgerald is asking Judge Reggie Walton to sentence him to 30-37 months in jail (see May 25, 2007), appropriate, Fitzgerald says, because of the seriousness of the investigation which he obstructed. York argues that Fitzgerald never proved anyone in the White House violated the Intelligence Identities Protection Act or the Espionage Act, but in his recommendation Fitzgerald argues that his grand jury “obtained substantial evidence indicating that one or both of the… statutes may have been violated.” York states that Fitzgerald is asking Walton to sentence Libby as if he had indeed committed such a violation: “Because the investigation defendant was convicted of endeavoring to obstruct focused on violations of the IIPA and the Espionage Act, the court much calculate defendant’s offense level by reference to the guidelines applicable to such violations.” York argues that because Fitzgerald was never able to prove that any violations of either the IIPA or the Espionage Act were committed, Walton cannot sentence Libby in light of his obstruction of that investigation. York says that a pre-sentencing report poses a different view: As quoted in Fitzgerald’s brief, the report states, “The criminal offense would have to be established by a preponderance of the evidence [but] the defendant was neither charged nor convicted of any crime involving the leaking of [Valerie Plame Wilson’s] ‘covert’ status.” The pre-sentencing report therefore supports a lighter sentence. Fitzgerald continues, “The reasons why Mr. Libby was not charged with an offense directly relating to his unauthorized disclosures of classified information regarding Ms. Wilson included, but were not limited to, the fact that Mr. Libby’s false testimony obscured a confident determination of what in fact occurred, particularly where the accounts of the reporters with whom Mr. Libby spoke (and their notes) did not include any explicit evidence specifically proving that Mr. Libby knew that Ms. Wilson was a covert agent.” (York 5/29/2007) Libby will be sentenced to 30 months in prison (see June 5, 2007), but will have his sentence commuted before he serves any time (see July 2, 2007).
Republican presidential candidate Mike Huckabee, the former governor of Arkansas, says that he does not know of the newly released National Intelligence Estimate concluding that Iran has long ago shut down its nuclear program (see December 3, 2007), but he does not believe it. “I don’t know where the intelligence is coming from that says that they suspended the program and how credible that is versus the news that they actually are expanding it,” he says. “And then I’ve heard the last two weeks supposed reports that say that they are accelerating and could be having a reactor in a much shorter period of time than originally they thought.” (Pearson 12/4/2007) Huckabee made light of his ignorance of foreign policy earlier in the day, joking on a radio talk show that he’s “not an expert… but I did stay at a Holiday Inn Express last night.” (National Journal 12/4/2007) Conservative pundit Byron York attacks Huckabee: “Beyond doing nothing to resolve doubts about his foreign policy qualifications, the exchange underscores the fact that Huckabee doesn’t really have much of a campaign, in the sense that [fellow Republican presidential candidates Rudolph] Giuliani and [Mitt] Romney have campaigns, with teams of advisers and carefully-thought-out policy positions. In important ways, he has been flying by the seat of his pants, relying on his unequaled talents as a retail campaigner. But now that he is leading in Iowa, and moving up nationally as well, the deficiencies of his campaign might come more and more into the spotlight.” (York 12/4/2007)
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