The Lisa Myers Subpoena
I read Wilkes’ motion to subpoena journalists and others with great interest. I’ll return to three details later:
- The naming of Seth Hettena as the journalist who allegedly showed Mark Geragos a copies of two indictments; Geragos had earlier refused to give prosecutors Hettena’s name.
- The lack of a subpoena for Dan Dzwilewski, the Special Agent in Charge who retired suddenly in the midst of this whole scandal and, presumably, one leading candidate to have leaked details of the potential indictments.
- The lack of a subpoena for anyone at Main DOJ, even though one of the leaks Geragos complained about came from there.
Lisa Myers Received a Leak from Main DOJ
But for the moment, I’d like to focus on the other revelation in Wilkes’ motion to subpoena these people. Lisa Myers, a producer at NBC, is the person who claimed to have been told that Main DOJ could no longer exercise oversight over the San Diego investigation because of the earlier leaks. Here’s how the request for subpoena describes Myers:
Lisa Myers is a senior investigative correspondent for NBC Nightly News. She can testify that she spoke to a person within the Department of Justice who told her that they had the seen the indictment(s) and gave her other detailed information.
And here’s how Geragos described her–anonymously–when he was first making a stink about the pre-indictment leaks (this is the only TV reporter Geragos describes; note that Geragos never alleged that Myers had reported this publicly, which pretty much undercuts his argument that the leaks prevented Wilkes from getting a fair trial).
Around the same time the print reporters were disclosing to me detailedknowledge of the draft indictments, and stating that governmentofficials were showing them copies of draft indictments, a televisionreporter told me that an attorney at the Justice Department mainoffices in Washington D.C. (“Main Justiceâ€) had disclosed that MainJustice believed that it could no longer exercise its normalsupervisory role because the leaks of the indictment “would now makeany action taken by Main Justice appear to be politicalâ€.
This purported leak was central to Geragos’ theory that Wilkes wouldn’t have been indicted if it weren’t for the tumult surrounding the Carol Lam firing.
The DOJ Leak as Spin and Damage Control
The leak is particularly significant for two reasons. First, because it’s one of only two leaks tying Lam’s firing to the Wilkes indictment. And second, because this leak was almost certainly deliberate spin to push back against Lam. As I point out in this post on the leak (click through for a timeline), Main DOJ had already taken active steps to prevent Lam from finishing her ongoing cases, and the Gonzales crowd at DOJ had already been panicking about Lam long before any leaks appeared.
In other words, before the time when DOJ leaks its purported concern that:
Main Justice believed that it could no longer exercise its normalsupervisory role because the leaks of the indictment “would now makeany action taken by Main Justice appear to be politicalâ€
…they had already put a plan in place to ensure Lam left quickly–and had no opportunity to transition her cases to her successor:
I received a call from Michael Elston informing me that myrequest for more time based on case-related considerations was "notbeing received positively," and that I should "stop thinking in terms of the cases in the office." Heinsisted that I had to depart in a matter of weeks, not months, andthat these instructions were "coming from the highest levels of thegovernment." In this and subsequent calls, Mike Elston told methat (1) he "suspected" and "had a feeling" that the interim U.S.Attorney who would succeed me would not be someone from within myoffice, but rather would be someone who was a DOJ employee notcurrently working in my office, (2) there would be "no overlap" between my departure and the start date of the interim U.S. Attorney, and (3) the person picked to serve as interim U.S. Attorney would not have to be vetted by the committee process used in California for the selection of U.S. Attorneys.[my emphasis]
DiFiand Conyers had repeatedly suggested that Lam had been ousted todisrupt the Wilkes investigation. Lam had already been contacted toserve as a witness in this Congressional investigation. And severalmembers of Congress had requested that Lam remain on the case evenafter she left DOJ.
In other words, by early February, DOJ was already deeply involvedin an investigation of whether they had fired Lam to disrupt theinvestigation into Wilkes.
Yet Main Justice propagated a leak–which never got published, itjust got shared with Wilkes’ defense attorney–that they couldn’texercise their normal supervisory role with respect to the Wilkesindictment because of the leaks related to the case.
This leak, then appears to be one giant attempt at spin, coming right in the middle of the burgeoning USA scandal, to either undercut the Wilkes indictment or to undercut allegations that Lam was fired because of the Wilkes/Foggo indictments.
Why Lisa Myers
I’ve long been interested in the recipient of this leak, because it sure seemed like an attempted leak to a friendly journalist (see also, Judy Miller). Which is why Lisa Myers’ history of shilling for Republicans makes her identity as the recipient worth of further mention. Here’s a short history of some of Myers’ work:
2007: Misrepresented the issues surrounding the Clinton archives to make it appear as if Hillary is hiding files pertinent to her election.
2005: Spins some Kathleen Blanco statements to suggest she screwed up, while ignoring the Bush Administration’s stalling on responding to her.
2004: Propagates the Kerry Iraq funding flip-flop meme and quotes Kerry out of context to distort his position on Iran.
2004: Misrepresented something Richard Clarke had said about Condi, suggesting it discredited his book, Against All Enemies.
1998: Quoted Hubbell tapes out of context to make it appear as if the Hubbells were accusing Hillary of over-billing.
In other words, Myers has a long history of telling precisely the story conservatives want to be told–replicating the main spin of the mighty wurlitzer.
Which is why I find it so interesting that Myers was the recipient of that leak, of all people. I had guessed that it was a deliberate attempt to undercut the Wilkes investigation. And with the revelation of Myers’ involvement, that seems much more likely.
Prior Leak Posts
Just to collect all my Wilkes-Lam leaks in one place.
- The response to Dan Dzwilewski’s comments about Lam’s firing
- An assessment of Mark Geragos’ original claims about the leaks and Lam’s response
- A first post on this Main DOJ leak
- A reconsideration of the leaks after the Tommy K plea deal was unsealed
- Mike Elston accuses Lam of leaking something she couldn’t have leaked
Why would Dick want to miss the Annapolis meeting tomorrow- seeing that he is in the hospital today, from a cough and cold that turned up another heart problem, because I just don’t get why this had to happen TODAY. It just seems to me he wanted an excuse NOT to attend.
I would only be surprised by the â€lack of a subpoena for Dan Dzwilewski†if he is not on the witness list for the Government. My guess is he is on the list.
The DOJ has to be the leak because Plame violated IIPA of non CIA, excluded, federal employees. Files from DoJ aren’t just delivered to CIA operations officers by DoJ. The files have exclusions from CIA on them and they have to be requested. The mistake would be for the CIA operations officer to ask for the file. Counter intelligence laws are designed to work this way. Who accessed the file and who got the file? Prouty was an example of it’s okay, especially when it’s someone not in intelligence getting cleared overseas by a Dipo’s hubby(CIA), like Plame in Iraq or Prouty in wherever. The exculsion to CIA would be on the DoJ clearance(overseas Prouty cleared)/file and, if a CIA operations officer wanted the file; the question would be why? Plame followed up here on Ames. Who is following up on Prouty? Ames was a setup from years back. Prouty’s clearances are out there, blowing in the wind, ready to be used by CIA or other intelligence and sold off when their done. Prouty really isn’t in trouble. Plame really wasn’t in trouble. Ames really did nothing wrong.
bmaz
I’m confused.
Geragos is requesting the subpoenas in the Wilkes case on the Michael/Wade side–not the Foggo side, so it’s for the appeal, not the actual trial that is forthcoming with Foggo.
Thanks for the update, Marcy. I couldn’t find any new info in SDUT. The NCT has a small article.
http://www.nctimes.com/article….._21_07.txt
Strange how they have these leaks and then the case barely got any national coverage.
Where were you Lisa Myers?
What surprised me most about the leaks is that they really didn’t involve local reporters. (Although Seth is from San Diego.)
The whole Randy Duke Cunningham case first started when Marcus Stern broke the story in the SDUT about Cunningham’s shady real estate deals. It hit a nerve right from the start- San Diegans were very interested. NCT and SDUT were both trying to be the first to add any new bits to the story. Reporters from the local papers and even the San Diego USAs discussed the case on the local KPBS nightly new roundtable from time to time.
So either the local reporters didn’t know about the grand jury leaks or they withheld publishing any info until after WSJ printed a story on the imminent indictments. Definitely seems like Main DOJ had a hand in this for some reason other than getting info to the public.
There is another thing I remember- although I am a little fuzzy on the details. I think Kontogiannis had a copy of a plea agreement and he was â€discussing†it with the lawyer for his nephew John T Michael. Judge Burns expressed some concern about that since the indictment was still sealed. I think one of the San Diego USAs told the judge not to worry about it because they had something that would keep Michael from not being co-operative. Well, that didn’t work out as planned. Its just possible that someone from the Michael household may have blabbed to the press but they are not on the witness list either.
IANAL, but Wilkes and Geragos just seem to be fishing around for a culprit. There is an admitted leak, but can he keep compelling testimony until he finds someone to blame? Doesn’t he need some specific evidence against someone?
chrisc
I think it’s the new graymail. Everyone he subpoenaed has some kind of privilege to protect them. So if the judge permits, it’ll go into litigation long enough for Wilkes to retire comfortably, kind of. If he really wanted the information, he’d start with the investigation and he’d include people like Dzwilewski and he’d subpoena the DOJ, since he knows there was a leak from there. But he didn’t.
Oh, I wasn’t paying attention then. Well, there is nothing against the rules for it, but wtf is he subpoenaing for after the trial? Not technically for any appeal, because appeals are on the record from the trial court, you don’t introduce newly acquired evidence in the appeal. You could subpoena for sentencing purposes, or for certain purposes of post trial relief motions, but normally only upon acquiescence of the court.
Does this help?
Maybe I am missing something in translation; but no, that doesn’t explain much. Is there a document reference or something (link)? That is normally the type of inquiry and discovery made pre-trial. If that language is part of a motion to the trial court to permit the inquiry for pre-trial motion practice, then I see it; otherwise, still strikes me as goofy. There must be something that I am densely not seeing….
Nope, this is post-trial:
11/21/2007160MOTION For Application for Issuance of Subpoena Pursuant to Federal Rule of Criminal Prcedure 17 (b) and (c) by Brent Roger Wilkes (Attachments: # 1 Proof of Service)(Geragos, Mark) Modified on 11/26/2007. Contacted atty via email re: filing Motions and Proposed Orders (vrp). (Entered: 11/21/2007)
11/21/2007161Proposed Order re160 Motion for Subpoena by Brent Roger Wilkes. (Attachments: # 1 Proof of Service)(Geragos, Mark) Modified description of document on 11/26/2007 (vrp). (Entered: 11/21/2007)
There’s a hearing on December 11 for this stuff. I think Burns punted on the issue earlier, is now reviewing to see if it would affect the case (though honestly, Geragos doesn’t seem to know if he’s arguing publicity ruined Wilkes’ chances, or just that there was an evil conspiracy).
Damn, what a muddy, mucky mess, everything so obscured by detritus. It’s as if they are resigned to somebody getting time, but they’re trying to both limit the time and prevent anybody from looking too deeply at the same time. Icky.
Well, there you go, that makes sense. All I saw before was subpoena, when in fact you said â€motion for subpoena†right in your post. The economy sucks so bad I apparently can’t even pay attention… At least I didn’t inform on bad law, what I said is exactly what is occurring, I just didn’t realize it. Still, as seems to be a recurring theme, you just have to chuckle and scratch your head at Geragos’ um, ahem, curious motion practice.
bmaz
It gets more curious. Geragos has written his proposed order to Myers in such a way that guarantees he won’t get what he claims he wants. That, in an order which for everyone else is laughably broad.
Did Geragos just leak the leak? That’s bizarre behavior…I never heard that part of the story, ’that Main DOJ could no longer exercise oversight over the San Diego investigation because of the earlier leaks.’
Prouty worked for CIA and FBI. ’DOJ can no longer practice oversight.’ Plame.