Libby Live: Mystery Witness

firedoglake.com ^ | 2/12/07 | firedoglake.com

[Howlin]

???

[Bahbah]

Double ?????

[Howlin]

Do you need a ping to this? (Sorry, I was out.)

[Bahbah]

Not anymore, thanks. STARWISE emailed it to me.

MORE TESTIMONY:

Fitz back. Is it fair to say that the discussion about the Powell presentation did not involve allegations by Joseph Wilson.

DS Fair to say

Fitz Interview occurred in OEOB, you walked into building, during total interview, Cathie Martin was present, During an interview in the present of Cathie Martin, Wilson's wife not mentioned?

DS Correct

Sidebar

Walton: Did there come a time when you learned of Wilson's wife.

DS With the publication of Novak's column.

Walton: that was how you found out.

DS Yes.

Sidebar

Walton: Memory defense, what the defense can say if Libby didn't testify. I misspoke when I said Defense couldn't put on anything. There's a misperception by defense that I was definitively saying that anything admissable would be admitted into evidence. Obviously I was making my rulings predicated on the basis for info going before jury. There has to be an appropriate foundation on the info I ruled on to be presented. Out of thin air, just because I ruled on it doesn't mean it can come in. There are going to be restrictions. For example, it seems to me, unless he testifies, it will be impossible to argue that these matters were of greater importance than this info regarding Wilson and that he would not remember the event that's the subject of this trial. I just don't see how that argument can be made. He would be the foundation for presenting this to the jury. Whether there are other things that won't be admissible unless he testifies.

Bonamici. One preliminary issue is whether these issues can be discussed in open court. If we're going to get into classified info, we shouldn't do in open court.

Walton. We're only talking about stuff that is presumptively admissible.

B We filed under seal because we referenced to intell. We don't think there's anything that's classified. We think there's plenty of unclassified info and general info that can reasonably go in through different sources. The real question is what matters can be talked about WRT particular issues he was engaged in. WRT those matters, there has not yet been a sufficient link between particulars and things that mattered to defendant.

Walton: Specifics?

B The parties have broken out types of info into categories. One is the testimony of former colleagues. One is admitting relevant facts. Your honor very expressly ruled that matters in Morning Intell Briefings–except for stuff that Libby asked for f-up–could not be introduced.

Walton: If he was briefed on something–why wouldn't that be relevant. There will be restrictions on what is said about it.

B To read from 6A ruling, your honor said Morning briefings are not relevant, they merely represent what Intell Community thought was important.

12:15

[Txsleuth]

STARWISE couldn't post the notes from firedoglake this week...and asked me to help her out.

I couldn't figure it out (Dumb me)...and so Bahbah is stepping in to help out.

I pinged you, because I noticed on last week's threads that you had a ping list that you used.

[Steve_Seattle]

Over at firedoglake, I posed the question of whether those folks had followed the trial of Sandy Berger with such avid interest.

[Bahbah]

MORNING BUSINESS CONCLUDES WITH A LITTLE ARGUMENT BETWEEN ATTORNEY'S AND JUDGE:

B According to your ruling, they'd be inadmissable.

Walton: It was my understanding that these were so significant they would have dwarfed the Wilson matter. If he's not going to testify, there's a different theory, that he had overload, and so didn't remember this event.

B That's fine, but that would not make the individual items including the details included in MIB relevant. What that theory would make relevant is that he received MIBs, that it lasted half an hour, that he received a book of materials that he often kept overnight.

Walton: They would be able to infer that if was briefed on Iraq war, they wouldn't be able to suggest it has greater significance than this matter.

B If the evidence that we're talking about is that he was assigned that he was supposed to be in charge of the Iraq war. We went through 2.5 months of CIPA hearings and the details went FAR beyond that level of detail. The indiv details were expressly admitted on the condition that there would be a link made between focus of defendant and the matter itself. Time and time again, your honor ruled that if he is going to testify that these things consumed him, you said it was only relevant if he testified.

Walton I didn't argue that those decisions were exclusive of any other theory. I was made to understand that Libby would testify. I did not mean to suggest that my rulings were the exclusive predicate for how this was presented and established.

B What we would say, having sat through the proceedings for 2.5 months, that that was brought to bear. That's where the line was drawn. There wasn't a whole lot of discussion that defendant would be able to put before jury.

Walton: I don't want to talk about hypothetical. But if he's not going to testify we have to revisit what he can present. I don't think my prior rulings can be use to say they required him to testify. That's something we'll have to revisit.

B That' was the foundation on which we all relyed. If we need to revist, we need to revisit. One thing that should not happen is that the defense can enter all this information based on the specific theory that was advanced to you.

Cline: Let me address the three ways we want to put this in. We have made no decision whether he will testify. Statement admitting relevant facts. To some degree it serves as substitute, we relied on it as unconditional admission. This would be the first step that we would take.

Walton: I don't agree that if the govt admitted this based on expectation he wouldn't testify.

Cline: This was never conditioned on his testimony.

Walton: That was not my understanding.

Cline: there was never any condition on this whatsoever. Three principle issues on which govt objects. Each of those three paragraphs admits that Libby was concerned or very concerned with those issues. We have a predicate that govt admits it. This admission right here. If you look at final three paragraphs, the first paragraph discussing AQ and Ansar el Islam.

Walton: How are you going to establish predicate for that. Was the govt agreeing to this based on understanding that Libby would testify.

Fitz I remember losing a number of arguments on level of detail,

Walton: I'm not going to hold govt to this statement. The only way jury would know is if he testified. There has to be a factual basis, otherwise, you're telling the govt they've got to agree to something that only could be established through some predicate. I'm not going to do it, counselor, I'm just not going to do it.

Cline: For the record, from the very beginning there was this possiblity that Libby would testify. We raised it on Jan 10 at CIPA hearing. Put it on the record. Nothing was said about it conditional on Libby testifying. During voir dire, your honor,

Walton: I do that as a formality. I anticipated, none of my rulings were predicated on open-ended situation. I assume you're saying that if you decided to present no evidence you would be able to come in and read it. If the C of Appeals wants to tell me that's the law, that's their job. That's fundamentally unfair to govt for you to be able to establish facts that you haven't proven.

Cline: That's where we disagree. This admission by the govt establishes Libby's concern.

Walton: I think you should have made it perfectly clear to me and the govt that these were based on Libby not testifying, that would have made an impact on how I would have ruled on this. Did the govt have the impression that you were entering into this unconditionally.

Fitz: No. Your rulings were predicated on it.

Cline: First of all, 9.27, page 7 of CIPA transcript, we plan to present primarily through Libby's direct testimony.

Walton: I don't dispute that you said that, my mindset was that Libby was going to testify. I'm not going to hold the govt to this, if C of Appeals wants to reverse me, and allow defense to present a defense without any evidence to support based upon agreement that govt entered into, then I guess they'll tell me that's the case. Unless there's express indication by govt, that regardless of whether he testifies or not, we're agreeing that these are facts.

Cline: We have relied upon.

Walton: Should have gotten clarification counsel. I don't think we can deal in a nebulous way on this. I'm perfectly sure that if you felt the govt was doing this without them proving it, you would say that this agreement is unfair. And I think it is unfair. If it was going to be this issue, I should have been and the govt should have been put on notice. I don't think your statement was sufficiently succinct and clear. I'm just not going to buy that.

Cline: The other evidence will provide foundation for govt.

Walton I think we're scheduled to have further discussions at 4:30–see you at 1:30

12:31

[STARWISE]

Reading this on a quick break, I have little faith in Judge Walton's sense or judicial discretion. He's out of his mind to fantasize that the Russert/Mitchell wasn't one of organizational networking AND with Russert in a managerial/oversight role. God bless Scooter.

~~~~~~~~~~~~~

Wells: I'm going to call the Agent [Eckenrode] tomorrow. This is the one instance bc the notes cannot be found–there was a diligent search for the notes.

Walton: but you're still trying to ask the jury to speculate.

Wells: I am allowed to present this with an instruction.

Walton: I agree, if there is a reason to show this in the first place. You want the inference to be drawn that because of the intensity that she was working the story, she would have heard of this.

Wells: Analytically we have a different perspective. It's a team. Russert and Mitchell and Gregory are a team.

Walton: I've heard all that, counselor, and I just don't buy it.

[CutePuppy]

Ping.

Yup, Mitchell - Gregory - Russert, and Mitchell - Harlow - Novak dots are asked by defense to be connected to impeach the witness testimony ;-) wants Eckenrode on the stand...

---

Walton up (jury not here) to deal with motions. We're going to start with the motion to quash Andrea Mitchell's subpoena.

Wells: We wish to call Ms. Mitchell, and elicit testimony at a minimum that would show how intensely she was working on the Wilson story. When this story started, Russert was on vacation. Gregory is on the record as knowing Plame's identity. We have the right to show how intensely NBC was covering this story from which one can infer that she learned Plame's identity. "We think this case presents a different factual model" than any of the cases the government has cited.

Walton: But you want this to go to the truth.

Wells: No, what I want, to the extent that I have a wish list, my extreme wish is that your honor would treat it as residual evidence. But I have also said that if it is not treated as substantive evidence, it still should come in as impeachment evidence with a limiting instruction.

Walton: Impeaching her on what?

Wells: Impeaching her on her testimony that she can rule out that Plame worked at the CIA.

---

---

Walton: But you couldn't argue from that she would have heard it.

Walton: To say that you're working on a subject and then to ask the jury to presume that you had heard about Mrs. Wilson,

Wells: If she's working on the story, covering the State Department, where Armitage worked [but of course he wasn't returning her calls].

Walton: I don't think it's logical to assume that Harlow told her.

Wells: Harlow told Novak, he confirms it. [he says he'll call Harlow]

Walton: In a roundabout way, you want to get before the jury this statement that maybe she knew using a roundabout basis.

Wells; She was the lead investigative reporter, she was out working on the case.

Walton: You want the jury to infer that because she was working on it, she would have heard about Mrs. Wilson. The only basis for assuming that is the inconsistent statement. You'd be asking the jury to speculate that just because she was working on this, he would have heard it.

Wells: Russert says there was a buzz. We've already got on the record. The 302 states, I cannot rule it out as a possibility.

---

---

Wells: I'm going to call the Agent [Eckenrode] tomorrow. This is the one instance bc the notes cannot be found–there was a diligent search for the notes.

Walton: but you're still trying to ask the jury to speculate.

Wells: I am allowed to present this with an instruction.

Walton: I agree, if there is a reason to show this in the first place. You want the inference to be drawn that because of the intensity that she was working the story, she would have heard of this.

Wells: Analytically we have a different perspective. It's a team. Russert and Mitchell and Gregory are a team.

Walton: I've heard all that, counselor, and I just don't buy it.

Well: For the govt to put Russert on, they created a situation for the jury that he's out by himself, and Ms. Mitchell is the reporter working on the ground.

---

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Wells: I strongly disagree with Fitz' characterization of what took place. The obstruction count was based on three false statements. We wanted it clear that on terms of the obstruction that there was nothing wih Grossman and Miller, What the obstruction count was predicated on was that obstruction was based on three-prong statement. I opened on it. The Jury can consider June 23 and July 8 in terms of what Libby knew.

Fitz: I'll briefly respond, The vice in taking language out, as opposed to a count is that you're asking them to rule beforehand. I think the jury could find that the description of July 12 was a lie, but not using the language in the count, the jury can use that evidence against Mr. Libby, they can also use that evidence that when he said the first time he told her on July 12, that that was a lie. This proposed instruction would focus on July 12–and the language in the indictment, even though they were never going to see the indictment–would lead them to focus inappropriately on July 12.

Wells; We're not going to address that conversation. It has been dismissed. The jurors should know that it has been dismissed.

Walton: I'm going to have to … I'll have to go back and re-evaluate the evidence to see whether… I don't want something before the jury that could be prejudicial. I need to go back and review the indictment.

---

[Txsleuth]

Somehow I doubt it...and I am sure if this was Wilson on trial...the notes would be JUST a little different.

[Txsleuth]

I was struck by that part of the testimony myself...and Walton being purposely DENSE.

[bjc]

Unless something happens soon, a lot will depend on the impressions created in the closing arguments. I feel very bewildered and the whole issue is decidedly foggy. Good luk to any jury member trying to unravel it.

[Bahbah]

I have little faith in Judge Walton's sense or judicial discretion

I am inclined to agree with that.

[Steve_Seattle]

Maybe a lawyer will have to explain to me why Walton is prohibiting testimony which might lead the jurors to draw "inferences." Isn't that what the prosecution has been doing all along? In particular, he won't allow the defense to introduce evidence that Russert, Mitchell, and Gregory work as a team and share information, which they almost certainly do. It would be bizarre if they didn't. Walton wants to shield the jury from Mitchell's "everybody knew" statement.

[roses of sharon]

Political prosecutions are very hard to understand because those involved namely Fitz and the judge sound illogical.

No room here for unemotional discretion, they must stretch credulity to the max, lol.

[Carolinamom]

God forbid that the jury should hear anything prejudicial to Fitz's case. /s

[Freee-dame]

DS I believe I probably did not know it at the time. Almost quite certain of that.

and based on comments like this we the taxpayers are spending millions prosecuting one man. Four weasel words in one statement.....believe....probably...almost...quite....yikes!

[Bahbah]

THEY'RE BACK AND IT'S NOVAK TIME:

Well,I guess Libby's team thought we'd be tired after lunch. Or perhaps they want us to lose our lunch. Becuase we're getting Novak.

Novak sitting there looking shiftily from right to left, kind of sitting back in the seat. He's got a three piece suit (like the one in the picture, but a yellow tie or some such thing. And he's wearing glasses. Maybe he noticed earlier that losing one's glasses is a good way to stall for time?!?!

Fitzgerald and Wells chatting about something–bench conference on something relating to Novak.

Libby is very animated right now, laughing with Jeffress. Whatever he said, they're both cracking up.

Novak has one cup of water to the side and one in front of him. He looks more comfortable than Judy, but not all that much more. But maybe that's because he looks shifty by his very nature? That took abotu 5 minutes or so. Jury now coming in.

I think Walton is getting tired–he's not as chatty as he was with the jury week before last.

[Wells up, I'll use W and RN]

RN: I'm a journalist, staffer for Sun Times, syndicated columnist, also a (clears throat) contributor for Fox, Bloomberg, editor in chief for Evans-Novak.

W: In 2003 who did you work for?

RN Sun Times, CNN. Exec producer for Capital game [His voice sounds A LOT more nasaly than normal], been political commentator since 1963.

Wells: Work history.

RN: goes through military service, AP, Evans, since Evans retirement.

Now Novak is sitting up on edge of seat.

W: Week of July 7 2003.

RN: Change of coutnerterrorism aide, Ms. Townsend, and several small stories ran in item, working on Amb Joe Wilson's mission to Niger which he had written about.

W How did you come to be working on Wilson column

RN: Previous Sunday, alleged attempt by Iraq to buy yellowcake from Niger, he had written op-ed, he was on MTP, I happened to be on roundtable and came in contact with him, had been interested in story, became more interested in it, and whether Pres had ignored report in opting for invasion of Iraq.

Wells, itnroduces the column.

1:41

[Txsleuth]

You can sure tell the blogger is a lib...by the remarks..like the "clears throat" before naming Fox News...LOL

[Bahbah]

And the reference to Novak looking "shifty."