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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  March 9, 2007
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Topic category:  Other/General

Scapegoating Scooter Libby Succeeding

The media purport to report objectively, but much of the time do not do so (example: media coverage of the Duke case in the spring of 2006).

NBC's Tim Russert used his position and programs to influence coverage of the indictment of I. Lewis "Scooter" Libby, then Vice President Cheney's Chief of Staff, even though Mr. Russert was a witness before the grand jury that issued the indictment and figured to be (and became) a prosecution witness in the case.

Accuracy in Media's Cliff Kincaid: "Journalism 101 and common sense tell you that a reporter who is part of a story should not cover or comment on that story. But there's Russert — throwing his weight around to the detriment of Libby's constitutional rights. Libby's lawyers should demand that the indictment be thrown out of court because of prejudicial pretrial publicity."

The media needed to have Mr. Libby convicted, lest people appreciate  how biased and abusive the media is.

The case proceeded to trial, Mr. Russert testified, and a jury convicted on four of five counts (two counts of perjury, one count of making false statements and one count of obstructing justice).

Denis (one n in Dennis) Collins, a former Washington Post reporter, sat on the Libby jury and dutifully and delightedly reported after the verdict just what the media wanted to hear.

But:

(1)  take it from former Assistant United States Attorney General Victoria Tonsing, who drafted the criminal statute designed to criminalize the outing of covert agents: the disclosure of Valerie Plame Wilson's CIA connection did not fall within the ambit of the statute; and

(2) Special Prosecutor Patrick J. Fitzgerald already knew that former Undersecretary of State Richard Armitage had innocently disclosed Ms. Plame's CIA connection, but instead of closing up shop and going home uncelebrated he proceeded to pretend to be investigating to learn what he already knew and unnecessarily created the Libby case, a prosecutorial disgrace in which, at best, a needles investigation resulted in perjury and obstruction of justice and, very probably, faulty memory was made to seem like criminally culpable conduct by a prosecutor who was carrying on when he should have been gone and a jury with an unreasonable conception of reasonable doubt and a longing for "bigger fish" decided that an honest mistake was a criminal lie.

It would have been amusing if a patriotic American who had chosen public service had not been wrongfully convicted.

After the verdict was announced, ONE juror appeared to address the world: Mr. Collins.

Are you surprised?

Are you eagerly anticipating a book on the Libby case by Mr. Collins

Did Mr. Collin have a fair trial by a jury of her peers?

Read what Mr. Collins said in a televised press conference.

"COLLINS: I will say, I'm not extremely excited to be here, but because I was a reporter for a lot of years, I just feel it would have been hypocritical for me to not talk to you."

Translation: "I'm excited, but I want to seem shy."

"I'm not going to mention any of the other jurors' names or numbers. They don't want to speak about this at the moment. Maybe they never will; I don't know."

Translation: "It's just ME!"

"But I just feel like it's kind of I'm happy to talk to you all for a little bit about just what what evidence seemed to convince us and..."

Translation: "My 15 minutes of fame starts now and I'm glad."

"QUESTION: What was your juror number?

"QUESTION: Could you tell us how you drew the conclusion that it was a deliberate lie versus an innocent mistake?

"COLLINS: The primary thing that convinced us on most of the counts was the conversation alleged conversation with Russert. It was either false, which some of us believe it never happened. Or if it did happen, Mr. Libby saying that he was surprised to hear about Mrs. Wilson we had about 34 Post-It pages. By Post-It, I don't mean the little ones you stick on; they were like 2.5 feet by 2 feet. And they were filled with all the information that we distilled from the testimony."

Translation: "Please believe we were thorough and fair.  We put our faith in Tim "the Democrat" Russert."

"We took a long time to do that. We took about a week just to get all these little building blocks there."

Translation: "Coming in with a verdict quickly would not have looked good and I'd have had less to put in my upcoming book."

"And what we came up with was that Mr. Libby either was told by or told to people about Mrs. Wilson at least nine times, and in a period of time that it would be extremely I mean, we were told he had a bad memory and we actually believed he did.

"But Mr. Hanna's testimony that he would forget from morning to evening who told him something was contradicted by Mr. Hanna's testimony that said he had an incredible grasp of details and arguments, so that even if he forgot that someone had told him about Mrs. Wilson who had told him, it seemed very unlikely that he would have not remembered that about Mrs. Wilson."

Translation: "Yes, Mr. Libby had a bad memory, but we chose to say that we believed beyond a reasonable doubt that he perjured himself."

"COLLINS: So we had all these conversations, the dates of, you know, when Grossman contacted him about you know, he had gone to Grossman and said, 'Would you find out about Mr. Wilson?'

"And Grossman came back. And I think those of you who were at the trial have already said, 'Well, I thought it was an interesting tidbit that his wife worked at the CIA as well.'

"We have the Joe Wilson article, with notation from the vice president on the page, saying, 'Was this just a' you know, 'Did the wife just send him on this' whatever it was 'junket or something?'

"There was just so many of those things that it was just very hard not to believe how he could remember it on a Tuesday and then forget it on a Thursday and then remember it two days later."

Translation: "We preferred to believe that Mr. Libby lied."

"Now, having said that, I will say that there was a tremendous amount of sympathy for Mr. Libby on the jury. It was said a number of times, 'What are we doing with this guy here? Where's Rove, where's you know, where are these other guys?'"

Translation: "WE REALLY WANTED TO CONVICT KARL ROVE AND 'OTHER GUYS' TOO, BUT CONVICTING MR. LIBBY WAS ALL WE COULD DO.   BUT PLEASE THINK OF US AS TREMENDOUSLY SYMPATHETIC TOO!

"We're not saying that we didn't think Mr. Libby was guilty of the things we found him guilty of but that it seemed like he was to put it in Mr. Wells' point, he was the fall guy. He was now, he made bad judgments, and..."

Translation: "I speak for the jury as a whole, and getting the Bush administration is my goal."

"QUESTION: Was he the fall guy for Vice President Cheney? Was that the belief of the jury?

"COLLINS: The belief of the jury was that he was tasked by the vice president to go and talk to reporters. We never made any you know, came to any conclusion, or we never even discussed whether Cheney would have told him what exactly to say."

Translation: "I won't be trapped into saying we jurors did not stay on point."

"QUESTION: But what about the motive, as far as the jury's feelings about the motive for Scooter Libby to lie to the FBI and lie to the grand jury?

"Did the vice president, Mr. Cheney, come up in your discussions about Mr. Libby's motives?

"QUESTION: Was he covering for the vice president?

"COLLINS: We actually never discussed that, because that was not what we were assigned to do."

Translation: "I know better that to say that."

"QUESTION: What do you think?

"COLLINS: I have really don't know."

Translation: "I'm not going to admit bias!"

"One thing about being on this jury, the people who were on this jury there was some incredibly good managerial-type people who just took everything apart into the smallest piece, put it in the right places.

"And it got to a point where you just couldn't opinion had very little to do with it. You just came to this conclusion that, 'Wow, OK, here it is right before us.'"

Translation: "Trust that we jurors got it right."

"QUESTION: Why was it taking why did it take 10 days, then? What was it about the process that took the time that it did?

"COLLINS: Because we took every count and went back and went back over all the testimony. And as we went back we'd have all these different sheets, you know motivation to tell the truth, motivation to lie, believability, state of mind.

"So we never got to the point of we didn't start to do a straw vote right away and said, 'Well, what do you think?' Well, it was too big, it was too much, it was too important. We just didn't do that. So that's why it took so long."

Translation: "We were so very thorough.  Read my upcoming book."

"(CROSSTALK)

"QUESTION: Was there somebody or a number of jurors who were digging in their heels?

"COLLINS: No. It was confusion you mean the one about the...

"(CROSSTALK)

"COLLINS: ... conversation with Cooper?

"QUESTION: Right.

"COLLINS : There was confusion by someone about whether the truth of the statement was at the point or was it just that he had said that statement.

"And so we figured...

"QUESTION: (inaudible)

"QUESTION: Did the jury have a discussion about the significance of the underlying information about the wife whether it was classified, was this sensitive? And did you have a discussion about...

"(CROSSTALK)

"COLLINS : We were told that that information wasn't relevant. That information wasn't relevant. So we never talked about that.

"The only time anything like that came up was when somebody would say, you know, 'This word in court deciding seems to be a level or two down from what before we went into the jury we supposed the trial was about or had been initially about,' which was who leaked Valerie Plame or Mrs. Wilson's name."

Translation: "We wanted to convict someone a level or two above Mr. Libby, but we did what we could."

"COLLINS : And, you know, it just seemed again, like I said, some jurors commented at some point, "I wish we weren't judging Libby, you know? This sucks. This is, you know, we don't like being here, doing this." But that wasn't our choice."

TRANSLATION: "We'd rather have convicted Karl Rove or Vice President Cheney."

"(CROSSTALK)

"QUESTION: Can you tell us about the not guilty (inaudible) and why you found not guilty?

"COLLINS: I don't really like to say this, but the Cooper count it was on the conversation with Mr. Cooper, and his version of what was said and Mr. Libby's version of what was said. OK?

"QUESTION: And was it the perjury or the obstruction of justice?

"(CROSSTALK)

"COLLINS : Wait, let me just finish this, OK?

"And the evidence that he had said, "Oh yeah, I heard that too," came from Mr. Cooper, and in some part Cathy Martin, because she had said she was listening to the phone call from one end. But she also said she went away to make another phone call, so that diminished her importance.

"But Mr. Cooper so it was basically his word against Mr. Libby's word.

"Now, so what's the evidence that we saw that maybe favored one or the other? If Mr. Cooper had gotten an affirmation of that information, it seemed unusual that he wouldn't have put that he had already heard it from Rove, so this would've been his second confirmation. He would've put it in the story he wrote that day. That's one thing.

"Secondly, he had nothing in the notes about it, so there was no evidence there.

"There was that, kind of, trick thing about the sentence I don't know, if you're not familiar with it, you'll have to look it up. But, you know, if he had said, 'Yeah, the Libby the Wilson thing, but I'm not ever sure' blank.

"Now, Wells did that, took a lot of time to say that this letter was this and this letter was that.

"COLLINS : And, you know, it was not convincing.

"But it was it weighed about six ounces. And when you looked at that line and you looked at what could it be, the fact that Cooper didn't know what it was, you know, it's just it was reasonable doubt."

Translation: "Acquitting Mr. Libby on one count, based on reasonable doubt, makes convicting him on the four other charges look fair!"

"QUESTION: What about Tim Russert? How credible a witness was he?

"COLLINS : Well, I thought he was very credible. I think most people thought he was very credible.

"But it's a funny thing when you know, there were a few people who thought, 'No, he probably had that conversation.' So, for purposes of arguing that point, we spent I don't know a day and a half, assuming it was true.

"At one point, I raised an objection or something about, you know, 'No, I can't go with that because of X.' And somebody in the jury said, 'Wait a minute; you said you don't believe they had the conversation.'

"So you know, you do get, kind of, caught up in making arguments for or against something just to help the process along."

Translation: "I defended Tim Russert!"

"(CROSSTALK)

"QUESTION: Can you just tell us what it meant that you did not hear from Libby or Vice President Cheney?

"COLLINS : You know, we had eight hours of grand jury testimony from Libby. So I felt like we that was good.

"Hearing from Cheney I think it would have been interesting. I'm not sure what it would have done. I don't have any idea what he would have said.

"But it was, sort of, like you know, we never I don't remember ever discussing that, like, 'Wow, are we going to get to see' I thought, when Wells made his opening and he said suddenly hit us with that, you know, 'It's the White House and people in the White House who are setting him up,' I was thinking, 'Wow, maybe we'll get to see President Bush here.'

"(LAUGHTER)

"But so, you know, we would have liked to have seen him, but I don't..."

Translation: "I wish it was a more important case!"

"QUESTION: Did it matter that he never came back [to] that statement about the White House conspiracy?

"COLLINS : You know, again, this jury was so focused on facts and I mean, again, it was just incredible to me how good they were at that. They did not get into that kind of conversation."

Translation: "We were an incredible jury, but believe us anyway."

"QUESTION: Did they have trouble reaching the decisions that you made?

'I know I understand why it took a long time, because you were methodical. But on all the five counts, once you went through the process, was there, by and large, agreement, or did you have to really work through some important disagreements to get a unanimous verdict?

"COLLINS : There were the Cooper one was the most had the most time to work out. And then, only, I think gee, I can't remember now which ones.

"COLLINS : We had one unanimous decision right away, then...

"QUESTION: Which one?

"COLLINS : I think it was I've got it written down somewhere, but I don't have it with me. Five, one, two, four two, three, four I'm just trying to think what order we did them in. I'm sorry, I should have that on the tip of my tongue, but..."

Translation: "I got notes for my upcoming book."

"QUESTION: When you say, 'right away,' how quickly is right away (inaudible)?

"COLLINS : We had talked about it on a Wednesday. We had some people saying, 'I don't know if I can go along with that.'

"QUESTION: (inaudible)

"COLLINS : Yes, yes, yes.

"QUESTION: (OFFMIKE) after deliberation.

"COLLINS : Yes.

"And some questions were raised. People, kind of, provided some answers. And the next day we voted, and it went 11 0."

Translation: "We made it unanimous, but don't suspect any of us of animus."

"QUESTION: Mr. Collins, on the Cooper statement, you said there was reasonable doubt with respect to the statements that Libby gave to the FBI, but not reasonable doubt when he discussed it in front of the grand jury. (inaudible) on that. Can you distinguish...

"COLLINS : Well, because the I forget now I'd have to read the exact thing. But we were not you know, the way the sentence, that thing in the Cooper in the FBI was not whether he was telling the truth to Cooper. We didn't care whether he lied to a reporter. That's, you know...

"(LAUGHTER)

"(CROSSTALK)

"COLLINS : Yes, happens all the time.

"But it's whether or not he actually said what he said to Cooper.

"So that's different than telling the grand jury that, 'I didn't know. Gee, I'd never known that before.'

"And, again, that's what one of the jurors had a problem with are we making a decision based on the truth of the statement? Well, no. It's just whether he actually said it."

Translation: "Please don't think our verdict might include some inconsistency."

"QUESTION: What about the Judy Miller testimony? Did you find that to be credible? Did you find it to be important at all?

"COLLINS: The Judy Miller testimony was important I mean, again, we had so many conversations that we would somebody would say, 'I don't know. Her memory was terrible.' And then somebody would say, 'Yes, whose wasn't?'"

Translation: "Every witness's memory was terrible, but we decided Mr. Libby was guilty beyond a reasonable doubt on four counts anyway." 

Accuracy in Media ("AIM") describes itself as "a non-profit, grassroots citizens watchdog of the news media that critiques botched and bungled news stories and sets the record straight on important issues that have received slanted coverage."

On November 2, 2005, Cliff Kincaid, Editor of the AIM Report, wrote an incisive and illuminating article bearing the title "Russert Leads Media Lynch Mob." 

"Russert" is NBC's Tim Russert, key witness in the Libby trial according to Mr. Collins.

Mr. Kincaid:

"The Washington Post has published a story by Dana Priest about a debate within the CIA over holding Muslim terrorists at secret facilities. The story reflects the view of a faction in the agency that opposes this policy and wants to use the Post to convey its view publicly. Once again, the secret war against the Bush Administration is on display for all to see. Will there be an investigation of who in the agency leaked this information to the Post? Or are leaks supposed to be criminal only when Bush Administration officials are behind them?

"The indictment of Lewis Libby, former chief of staff to Vice President Dick Cheney, is another dramatic example of the secret war. The indictment includes some tantalizing information about what was happening behind the scenes:

  • 'On or about June 14, 2003, Libby met with a CIA briefer and expressed displeasure that CIA officials were making comments to reporters critical of the Vice President's office, and discussed with the briefer, among other things, "Joe Wilson" and his wife "Valerie Wilson," in the context of Wilson's trip to Niger.'
     
  • 'On or about June 23, 2003, Libby met with Judith Miller of The New York Times. Libby was critical of the CIA and disparaged what he termed "selective leaking" by the CIA concerning intelligence matters. In discussing the CIA's handling of Wilson's trip to Niger, Libby informed Miller that Wilson's wife might work at a bureau of the CIA.'

"It is apparent that Libby realized that the Wilson mission was, as former prosecutor Joseph diGenova has put it, a CIA 'covert operation' against the Bush Administration. He saw the Wilson mission as just another effort by a faction in the agency to undermine the administration's Iraq War policy. And Libby was right! That became apparent when Wilson began telling sympathetic press people, such as Nicholas Kristof of the New York Times, that his trip had uncovered information damaging to the administration. And when Wilson then went public with his own article in the Times, casting doubt on the Iraq-uranium link, the Wilson agenda was on display for the public to see.

"If the CIA had sent Wilson on the trip purely for fact-finding purposes, as diGenova noted, it would have insisted that he sign a confidentiality agreement and not go public with his findings. After all, the CIA is supposed to be a secret agency. Instead, it permitted him to eventually go public with a Times op-ed column, not only making himself but his wife into targets for curiosity and concern. Wilson and the CIA had to know what would inevitably follow. Did they really believe that officials of the Bush Administration would stay mute or go into hiding as Wilson mounted his high horse?

"As this was unfolding, it was understandable that Libby would be complaining to the CIA and the press about the Wilson mission, saying that he understood that Wilson's CIA wife was behind the Africa trip. It was clearly Libby's intention not so much to disclose the 'secret identity' of a CIA employee but to expose the secret war that the CIA had been waging against the administration. Wilson's wife was right in the middle of it and Libby brought this to the attention of the press. What's more, he had every right to do so. It's a tragedy that Judith Miller of the Times did not write up the story. She had a potential Pulitzer Prize-winner that would have put the Wilson trip in a different light.

"Libby, the chief of staff to the elected Vice President of the United States, was extremely concerned by the actions of a CIA bureaucracy that seemed to be operating independently of the Bush Administration. This is the blockbuster story that has been lost in the media feeding frenzy over the Libby indictment.

"Showing deference to their sources in the CIA, as reflected in the Dana Priest article, many journalists have decided to ignore the CIA's scandalous conduct in the Wilson affair and have decided to concentrate on the Libby indictment. Some commentators have already found Libby guilty of the charges of perjury, lying and obstruction, and have moved on to the subject of why, in their opinion, he lied. The new party line is that he lied to cover up the scandal before the 2004 presidential election. The other new story line is what the Senate Democrats pounced on Tuesday¯the issue of the Bush Administration allegedly manipulating intelligence from the CIA, not whether the CIA's intelligence was flawed from the beginning and whether the agency undermined the administration once the decision to go to war was made.

"Viewed in this light, the charges against Libby are almost beside the point. On the surface, they seem serious. But one has to consider that his main accusers, as the indictment makes clear, are members of the Washington press corps. Our journalists have some serious credibility problems of their own. The heart of the case is that Libby has recollections of conversations that differ from those of NBC's Tim Russert and other journalists.

"Sensing that their own credibility is on the line, the media have ganged up on Libby and portrayed him as guilty. It should be obvious that Russert has a vested interest in the outcome, having testified against Libby in front of the grand jury. He is also reported to be a likely prosecution witness. Nevertheless, Russert, a prominent media figure with a background in Democratic Party politics, has been shamelessly influencing the pre-trial coverage on his Meet the Press and CNBC programs in order to guarantee a guilty verdict. Accuracy in Media has been virtually alone in raising the alarm about this unprofessional and unethical conduct.

"Libby, currently suffering in silence because of the indictment, hasn't yet had his say. In his only public statement, he says that he will fight the charges and be exonerated. But prejudicial pre-trial publicity may be too much to overcome. The media onslaught is such that he may feel he has no alternative but to plead guilty to something, in order to get the media off his back. If this happens, it will be a victory for the media lynch mob, led by Tim Russert. It's another sad chapter in media arrogance and abuse of power."

That is EXACTLY what it is.

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.


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