Libby Live: Mystery Witness

NOTES: (1) This is not a transcript — It's the blogger's approximation, and no one really knows what that is yet! But I do know you shouldn't quote anything not in quotation marks. (2) I'll timestamp the updates and will update about every 15 minutes, servers willing. The hamsters that run the servers will appreciate it if you don't refresh excessively in the meantime. (3) If you're not having enough fun just reading along the liveblog, consider buying my book on this case.

--------------------------------------------------------------------------------

Good morning Firedoglake. I've had a bracing week away from the liveblog, shivering through Michigan's 25 below windchills all last week. Thanks to Swopa for doing such a great job with the liveblogging so I could go home and freeze. I'm using this leftover question mark from Fitzgerald's unused mystery witness because … well, we have no idea what Libby is going to throw at us this morning. I've heard verying reports as to the first witness, including Cheney, Novak, Woodward, Sanger, Mitchell, Even Thomas, or Pincus (so I spent about 2 hours loading slugs up to ancitipate any possible witness; if I had to guess, it'll be some of the journalists). My best guess? We're going to spend the morning arguing motions and I'll have plenty of notice as to who is up first.

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.

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.

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

Walton: Assuming you can ask that, then what are you planning on doing with that, just argue it for that purpose? You're not going to seek to do the other, which is to suggest that she would have had conversations with Russert about it?

Wells: I could not do that if your honor limits it. I've made it clear that I have a more extreme argument that you treat it as residual evidence.

Wells: I have every right to use it for impeachment. I want to start at that beginning, which makes it very unique from Johnson.

Walton: I don't buy the argument that it can be used for substantive purposes. But I'd like to hear what govt says about impeachment.

Bonamici: The question to be asked is what purpose would be served by impeaching their witness? Defense intends to ask about an unrelated subject–what Libby said to Mitchell, we presume that Defense would want her to be credible. This is a ruse to present the non-admissible testimony. They've got no reason to impeach, they're setting up a straw man so they can impeach.

Bonamici: The Buffalo case is an outlier. There's not much case law that says the defendant should be in a different position than govt. It's a completely different situation. As your honor pointed out earlier, the statement was corroborated by other evidence, it's hard to imagine a statement more untrustworthy than this one? [not sure which statement she's referring to] A statement that even if it were offered for the truth, it would only serve as source of speculation to the jury. They're just trying to pile speculation on top of speculation. We would say that even if this had not been denied by Mitchell, it would be inadmissable under 403.

Walton: 403 doesn't require evidence is substantive. If they only wanted it for impeachment purposes.

Bonamici: Even if this didn't pose the problem of Johnson, there's no reason to put this hearsay before the jury.

[unknown–maybe it's Mitchell's lawyer?] The Buffalo case is not the rule of this Circuit, even if you go to Buffalo,

Wells: Let's assume that if Russert and Mitchell worked at NBC but they were entertainment reporters. [Yeah, let's just say that, huh Wells?] If they said I didn't know about it bc I was covering the grammys, that would be plausible. NBC was one of the lead networks covering this story. They started with Mr. Wilson. The jury could conclude based on intensity of this story, that there was such a possibility.

Wells: the point I want to make is this. If she had never made the impeachment statement of 10/3, I could still call her.

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: 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.

Bonamici: That is a quote from the 302, but you recall that when he was questioned, immediately after that, he pointed to the passage that he believed this was after the Novak was published. He was standing there looking at the 302, "Well, Counsel, it also says right here" that it was after the Novak column. This is contradicted by every bit of evidence.

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: 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.

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.

Walton: We have one other issue, then I'll come back and rule. Have you reached an agreement regarding GX###,

Walton: proposed instruction regarding dismissed instruction of obstruction count, it seems to be consistent with red book. We're talking about dismissal of a count,

Fitz That's what I think the appropriate distinction is that by separating out language from the indictment. There were 33 paragraphs or more form part one, the Judy Miller conversations are still an important part of the evidence in this case. It says that Libby misled and deceived the GJ as to the manner by which he acquired and disclosed, so the essential tenor of charge is about when he got it and gave it out. A juror hearing this that Miller was dismissed from the case would be highly inappropriate.

[As I suspected, Libby's team is trying to go after the July 12 conversation, and with it dismiss the importance of Judy as a witness that on July 8 that Libby knew Plame's ID]

Walton: Does anything that has happened at this point impact that statement (About Libby's lie). My only concern is if I said anything in my preliminary instruction if that's been left out.

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.

[Yup–Wells is trying to hide the what was obstructed–that Libby was trying to hide his conversation to Judy. Clever move, utterly dishonest, but clever. I think they emphasized the third false statement charge (which there was none) so by dismissing it, they could dismiss the obstruction charge.]

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.

Fitz is in his seersuckery grey suit again–probably wants to wear it before it starts to snow heavily here this week. Jane's upstairs with Sidney Blumenthal and Pachachutec. And Jeralyn is here blogging for Arianna.

To explain a little more a little more about what I think happened. Originally, there were two alleged lies: the lie about Russert, and the lie about Cooper. Somehow, Judy got put in there in a way she wasn't from the start. I think she testified differently than what the charge said. So Wells got that charge thrown out (not that there was a charge on it). But now he wants to say, effectively, the Judy charge has been thrown out, even though, as um, questionable a witness as she is, she is a central witness of Libby's obstruction. That is, Wells has manufactured a very clever way to suggest everything about Judy is irrelevant, even though he only got the July 12 conversation as a lie thrown out. Now if that doesn't make sense–better ask Christy if you've got questions.

Walton: [about Wells' ploy to call Mitchell] I've thought about the issue and went back and looked at Johnson It seems to be wrt how you want to dress it up, you only want to bring that out has no relevance. It doesn't help the defense case whatsoever, the only reason you want to bring it out, you're going to do exactly what Johnson says you cannot do. I think there's a lot of mischief that comes with that. If you were to do that, it doesn't add to your case, it seems to me once you do that and you throw that before the jury, the jury may draw the inference that she knew about it, Russert knew about it, I just don't think Johnson permits that. I can hear from her, so we have a record, you can ask the questions of her, I'll do that outside of the presence of the jury, I am prepared to live with the ruling. Maybe the circuit will find a distinction between this and Johnson. You can dress it up as much as you want, but all the rest of this is purely done to get that prior inconsistent statement in.

Wells: Tomorrow afternoon can we have a hearing, just so the record's clear, it is our position that the questions I would ask her about her involvement in the story would be relevant.

Walton: What relevance would that have unless you trying to impute something to Russert?

Walton: I appreciate your candor. The only way you can have that imputed is if there's truth given to her statement. If she's just impeached on it, you can't use it.

Wells: The issue is, bc of the intensity, could the jury decide, doggonit, they're working on it so hard, maybe it's not sure.

Walton: You have a chance, with the FBI agent, you have a chance arguing it from the FBI witness.

Wells: Where we do differ is on relevancy. If Russert had said, that particular week I was in Russia on vacation.

Wells: The intensity with which she's working on the story, is independent evidentiary that she may have learned.

Fitz: Three small things. I assume Pincus is the next witness. Pincus co-author on article about Mitchell possibly knowing, I assume there won't be any question about Pincus.

Jeffress: that article was put in evidence by the government over my objections and certainly there will be questions on it.

Fitz: Is he going to ask Pincus about it. WRT Woodward, we have an issue to discuss, but I don't want to hold the jury any long. And we need to flip the flip chart.

Some color commentary from JustOneMinute:

What we are watching today is the defense knocking the starch out of "Elliott Ness with a law degree" by highlighting a series of blunders the prosecution made. (I'm sure some want to know if Fitz is sweating as he was at the presser. Can't tell from the feed, but he does seem to be wearing that washable seersucker suit again.)

.Two of the biggest blunders to date were failing to put anything on to support the July 12 count on Miller.With that out, obstruction is only available on the Cooper count(are you kidding?) and the Russert count.Fitz seemed shook as he made what I thought was a very week argument that the jury could infer the July 12 stuff from the other conversations. .(I will detail this further tonight when I get home but he never charged Libby with perjury re Miller, only with obstruction and if that's out, it would only seem logical to tell the jury to disregard all that.)

A potentially bigger issue is the offhand remarks the judge made earlier that Libby couldn't put in the memory defense if he didn't testify..Most particualry the CIPA stuff. There was heated argument on it and at 4:30 it will continue. Basically, in stipulating to relevant facts (including that Libby was focused on all that stuff in the CIPA materials) the govt never reserved that the stipulation applied only if Libby testified.

The defense is arguing an agreement was made, not based on Libby's testimony, and they have based their opening statement and case on that agreement.

We will hear more about this.

I thought the rest of the commentary at JOM was as interesting as that first bit, so here it is:

"I predict that while the stipulation might be whittled down a bit--the judge thinking the govt might have misunderstood (ie. been taken to the cleaners by shrewder counsel), most of this stuff will find it's way into the record even if Libby does not testify.
WHAT IS CRITICAL AT THIS POINT IS THAT THE JUDGE HAS BACKED WAY OFF of earlier comments suggesting Libby can't use CIPA stuff etc if he doesn't testify. He can, if he lays the proper foundation.

The more subtle point is the defense counsel has outmaneuvered the prosecution at several key points and the prosecution knows it and is off its edge in my opinion.

(I lent Jim Engle last night's pleading and we discussed this. We seem to be in agreement on this point-- The defense is both fighting for its points on the evidence AND Smacking the SP around a little.)

I thought Woodward was an impressive witness, helpful to Libby and that the jury is paying attention--asking him if anyone else knew--to which he said he'd told Pincus."

A potentially bigger issue is the offhand remarks the judge made earlier that Libby couldn't put in the memory defense if he didn't testify..

Very difficult for a foreigner to understand. Why can't the defendant make just any defence. "Wasn't me M'lord, I hadn't returned from Mars". Well, if the jury believes that, so be it. If they don't then it was probably not good for the defence to put forward a frivolous argument. But why would they be barred from doing so?

Sorry, but reading these threads I can't help but thinking of Dickens very often:

"If the law supposes that,” said Mr. Bumble,… “the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.”

THE TESTIMONY CONTINUES (for some reason, I was having trouble getting it to update for awhile):

1:41

W: Focuses on the key paragraph of the column. Two SAOs told me. WRT statement about 2 SAOs, who were the two?

RN: Both of those officials have signed waivers I'm free to give their names, then Dpty SOS Armitage, and Senior WH Aide, Karl Rove.

W: Start with how you came to speak with Armitage.

RN: I had been trying to get appointment with Armitage since 2001, he had declined to see me, had indicated he just didn't want to see me. After 9/11 I tried again, got rebuffed. At the end of June, last week of June, his office contacted me, said he'd see me. Made appointment for July 8, afternoon, his office, State.

W: What you recall about conversation.

RN: The only people in room were Armi and me, no aides, no tape recorders, I did not take notes, it was by tacit agreement rather than by stipulation, a background, I assumed I could write what he said, but I wouldn't be able to identify him, I also got to the point, I had decided by then I was going to write a column about Wilson's mission to Niger.

W What he told you WRT Wilson's wife.

RN: After we talked about mission, I asked why in the world they named WIlson when he had been staffer in Clinton NSC, he was believed to be critical of Bush, no experience in policy, had not been in Niger since 1970s [wrong again, Novak], so Armi said he was suggested by wife Valerie who was employee in CPD at CIA.

W You specifically recall that Armi referred to Wilson's wife by name,

RN Yes, as Valerie

W How did you come to learn her last name

RN Wilson's entry in Who's Who. It was listed as Valerie Plame.

W Armitage did not give you the last name.

W You used the term Agency operative. Did that come from Armitage

RN I've referred to people probably too much as operatives politicians as political operatives. Didn't indicate I had knowledge of her being intell operative but as employee of CIA.

W Did you have knowledge she was covert.

RN No.

W Fair to say Armi primary source. Did you have confirming source.

RN That was Karl Rove. In 2003 he was senior advisor to Pres on a wide variety of subjects. He had a lot to do with political strategy.

W To make sure they stayed in office.

RN MOre than that, that they were successful.

W That they were re-elected.

RN He was trying to do a good job for country.

W Personal Friend?

RN I wouldn't call him friend, I'd say very good source.

W When did you speak with Rove.

RN I called as soon as I returned, I can never remember getting him back right away, I think it was that day he returned the call.

W Conversaion the next on July 9

RN When we had that conversation–it could have been July 8, I haven't been able to pin it down. Mainly I was interested in Rove, I'm sorry, mostly Wilson mission to Niger, Asked him about that and policy. Near the end, I asked about Wilson's wife, I asked if he knew, I commented, I had been told that she was an employee of CPD of CIA and had suggested mission. He said, "oh you know that too."

W Did you take that as confirmation

RN I took it as confirmation

STILL MORE:

1:51

W To what extent was your long-standing relationship with him factor into the fact that you took that as confirmation.

RN I knew when he was confirming something. When he said "oh you know that too" I took that as confirmation.

W I want to go to your conversations with Libby. Did you also speak with Libby.

RN Yessir.

W Relationship with Libby.

RN I had never had contact until election of VP Cheney in 2000 [interesting way to describe that!]. I asked him out to lunch, a couple of social events, I went to his book party, I called him a couple of three times during that year, that was about the extent of it.

W Introduces his phone bill.

RN What was the question?

W Describe to jurors

RN Phone record of phoned in call from my number in Washington at 4:46 PM on July 8 to Mr. Libby's office at WH.

W Going through phone number. It says Inside.

RN That's the name of my column.

W How do you know that shows you call.

RN It's like an eye test.

W magnifies it. Walton points out that it's in front of him on a screen.

RN That says one minute, I didn't talk to him for one minute. I asked for him, and he was unavailable.–they took a message.

RN I believe he returned call on July 9.

W Describe your recollection of your conversation.

RN I was trying to find out more information about Wilson's mission to Niger and VP's connection. Most memorable about call, I asked Libby if he might be helpful to me in establishing timeline in 16 words. When they came in, who proposed it, sort of a consecutive account that I could put in column. I interpreted him as saying he could be helpful.

W In context of talking to Libby did Wilson's wife come up.

RN I don't remember exactly, I might have raised that question, I got no help, and no confirmation on that issue. The reason I'm fuzzy is that I talk to a lot of people in govt an politics everyday and a lot of them are not very helpful and I discard unhelpful conversations in my memory bank.

W You have a clear recollection he gave you no info about it.

RN I'm sure he gave be no info about it.

W You might have asked if he knew that "the wife" worked at the CIA.

W Timeline, on July 8 you talked to Armi, then July 9, you talked to Rove, and also on July 9 you talked to Libby.

RN I'm not positive about the Rove conversation, I'm not positive about whether it was 8th or 9th.

W Back to Novak's column

THIS NEXT BIT MIGHT BE INTERESTING (haven't read it all yet) AS THERE ARE SOME OBJECTIONS AND SOME OVERRULLINGS GOING ON:

1:59

W Paragraph says CIA said counterproliferation sent him. Is it fair to say CIA said that.

Fitz Objection

Sidebar.

Novak with hand on chin, looking at screen.

Now sitting back, making his big grumpy frowning face. Puts on his glasses to get started again.

W: I want to see the front of the article. The date. Apparently there is no date.

W The article says Chicago Sun Times, July 14, 2003.

W When did you write your July 14 column

RN [voice slips] The morning of Friday July 11.

W After you wrote it, what did you do?

RN Immediately after finishing it, it was emailed to syndicate.

W What is it

RN Syndicate, sells these to indiv newspapers. An editor goes over it, after a while, calls me back, we discuss further changes I might want to make, changes the editor wants to make. Then in final version, is given to AP for distribution to clients who buy my column. Over 100 newspapers buy it.

W Based on your understanding, when 100 newspapers given column.

Fitz Objection sustained.

W Understanding of how it is distributed.

F Objection, incompetence.

Walton: how do you know?

RN I've been a columnist for 40-some years.

Walton: Overruled

RN Given to AP, it distributes to newspapers that buy it.

W When column given to over 100 newspapers

Fitz: objection

Walton: You don't know specifically what happened.

W With respect to usual pattern,

RN as soon as column is cleared, it is immediately given to AP it's on the wires within an hour.

W Usual practice, when would have it been on the wire.

Fitz Objection

Walton Sustained.

W WRT usual process, after you wrote article, what time on wire?

RN It depends on when I got it to the syndicate. My recollection is since I had busy afternoon, I wanted to finish it before noon, editing before 1, following usual practice it would have gone on immediately thereafter.

W Once it's on the wire, can they print it.

RN It is what is called an embargo, it is not to be printed until Monday morning's newspapers.

W Are people in newsroom permitted to review it.

RN All they have to do is look at it.

W No further questions

OOPS, THERE ARE FURTHER QUESTIONS:

:16

Oh wait, yes he does!!

W WRT the conversations you had with Libby, Armi, and Rove, when did you first testify about those conversations to Fitz.

RN [looks stumped, lets out breath] I first testified to Fitz, as differentiated from FBI

W Let's start with FBI

RN I haven't reviewed those dates, and I don't have a good memory for dates, a couple of months after investigation started, investigation started October 1, 2003. I talked to him subsequent to that, did not mention names of sources. I talked later, I can't give you exact date, at that time, attorneys informed that they would have waivers only for Armi and Rove. In other words, they knew my sources, there was no point in dissembling. That's when I first discussed with authorities.

W I'll show you a copy of GJ testimony, February 25.

F We'll stipulate to the date,

W Is that the first time you testified concerning Armi and Rove. And you said Armi was primary and Rove secondary. Did there come a time when you received a waiver from Libby. Do recall when that was. When did you testify to GJ about Libby?

F Objection.

Sidebar.

2:19

THERE MAY BE A PIECE OF THIS WHICH I CANNOT FIND, BUT HERE'S MORE TESTIMONY:

F Just to be clear, your story is not generally available for non-subscribers. AP distributes it to subscribers, who are embargoed, they print it on the date

F First meeting with Wilson

RN On MTP. The day of his op-ed.

F You did not become fast friends.

RN We did not exchange words. Most people in the green room quietly read. He was giving his opinion at some length about how things were done in the Clinton NSC, in a very loud voice, I thought that was an obnoxious performance.

F Did you share that experience with Rove that week.

RN I might have.

F Did you discuss 1999 trade delegation with Rove

RN Yes, that was related to Niger and uranium

F No specific recollection of talking about Wilson's wife.

RN I'm sorry.

F You have no specific recollection of talking about Joe Wilson's wife.

RN No

F But you did talk to him that week.

Redirect.

W: Fitz asked questions about column being sent on AP wire and being embargoed. To your understanding, reporters would be able to read the article.

RN I presume so.

W Some of your customers some of the largest newspapers. He starts listing them, Says Boston Globe

RN [corrects him] Boston Herald.

NO further questions.

Sidebar.

We're going to jurors questions.

Novak looks like he's comfortable that he's gotten through this. His is now doing his nose up in the air arrogant look. and rocking gently back and forth in the chair.

Still in sidebar

2:30

IT CONTINUES:

Now Novak sitting with his hand in front of his face looking at the screen, presumably the column.

Now Novak leafing therough the paper copy of his op-ed.

Libby's been storing his water bottle on the floor. Now he's drinking it.

Walton: Without relating what someone would have said in response to what you said. Did you, once you learned about Wilson's wife and the fact that she worked at the CIA, did you discuss it with anyone prior to your article.

Novak: yes, I spoke to Bill Harlow.

Fitz–just the names.

Walton: Harlow

RN Spokesman for CIA. I testified that I might have asked Libby about, but I don't have a clear recollection bc I don't have a clear response.

W Rick Holt. Who is Rick Holt.

RN A lobbyist and a close friend. I talk to him every day.

W did you have conversations with him about it. Did you give him a draft of the article.

RN Yes.

W Mr. Holt had the article in his hand by 4:00 that day. And Holt is a lobbyist about town. Would you describe him as a gossip.

RN He talks to a lot of people, even me, he's a good news source.

W He talks to a lot of media people.

F Did you have an understanding about what he could do with the copy of the article

RN No sir. I didn't have an understanding with him. I had assumed he would not share it, there was not an agreement made between us.

Fitz, one moment.

2:38

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.