Libby Live: Tuesday, February 13, 2007

Just a reminder of some of the background here. When Fitz subpoenaed Judy and Cooper, he also subpoenaed their employers. Time eventually handed over Cooper's emails. But NYT said they had nothing. So whatever Abramson says today, she is going to say there was no documentation from this purported Judy Miller meeting. Who knows, though, whether we'll finally get a description of what status Judy was in July 2003, when she couldn't serve as a cut-out for Libby's leak of Plame's identity. Remember, they had a big knock down discussion to get to Judy's severance agreement, so Abramson may not be able to explain that in detail. Here goes. I'm not entirely sure that Abramson is first (the NYT folks don't know either).

Fitz: Sorry for your apparent cold. I apologize for failing to bring this to your attention yesterday. First, your honor had ruled that way at the prior CIPA proceeding. Your honor had clearly indicated

Fitz Yes. February 5 at page 21. The court said, if the govt is going into rebuttal. It's only fair for the govt to bring that out. Then your honor said is the govt prepared to stipulate that she was not in WINPAC to introduce this.

Fitz The only discussion is in the record here. She understood this. I would point out additionally, we understood, throughout the case, that unless the Defense did something, we couldn't introduce her status. But if they did, we would have put up a witness to explain that she was CPD, both for Judy and for Fleischer. If it's off the table that we can talk about her status, I think it's perfectly appropriate to say she doesn't work at WINPAC but at CPD. The protection that we not discuss Plame's employment was a shield, and now it's being used as a sword.

Walton Maybe you're right in the broader context. If he did tell other people that she worked at CPD, Mr Libby did provide info on where she worked. From a broader perspective I might agree with you.

12:06

Walton I had indicated we would break at 3:30, so I can't do it at 3:30, I'll move it up until 1:30, then we'll sit until 4.

Walton What's the issue.

Fitz: The next witnesses are the 3 CIA briefers. at this point, the CIA briefers should not be called, testimony should not come in, wrt your prior rulings. They should not describe threats, when in fact there is no testimony that Libby was obsessed with those threats. We feel strongly that getting into particularly terrorist threat if there's no evidnece Libby was consumed with it, it should not be entered. We saw that issue coming in questions from jurors in their notes. To introduce these, without context of how many terrorist threats were normal. You'll recall that your hands were tied if Libby were to testify.

Walton Counsel will be unable to qualify the extent to which info would have impacted Libby. Only Libby would have capacity to say so. The fact he was briefed on something, The issue becomes whether jury could infer whether this was some level of importance. They would be able to assess that bc of nature of info it would have had some level of importance.

Fitz when we went through two months of hearings, it was clear to me, that the 403 line was drawn differently when it was represented that Libby would testify. It was this fact that made him worry, your honor took a much broader view of relevance and unfair prejudice when that representation was done. With a switch done, that now Libby is not going to testify. In effect CIPA has said defendants are better off when they deal with classified evidence. BC they can say they were consumed by this

Walton COunsel will lose ability to calibrate the impact of this. Not so sure that they can't say this was infor provided to him. Jury is intelligent enough to draw own conclusions, that would have had some level of import

Fitz I'm focused less on defense argument, your honor let in additional materials.

Walton, there may be specific things I ruled on contingent on Libby testify, these were predicated on my understanding that Libby would testify. To extent that those rulings are flawed bc he's not.

F We should not be in position where bar got lowered bc he's not testifying. We're doubly worse off, this is getting in without him testifying.

Walton If the briefers testimony that I briefed him on XY and Z, I've got to consider each item.

F The MIB's that we talked about were predicated on his testimony, with taht predication, if that's gone, they shouldn't be coming in at all.

Walton Documents themselves, you may be right. I never indicated documents would come in.

F We'll pull the cite, I don't want to misstate, it's been a long trial. But I believe you said evidence regarding MIB would not be admissible.

Walton I can't be bound by rulings I made earlier when landscape has changed. You may be right, but I have to reevaluate to what extent evidence might come in.

F Whole point of CIPA was for govt to know what was going to happen before trial. Then when defense says, never mind, we're not going to testify, now Defense is saying that comes in anyway.

12:19

Walton Not going to be any evidence regarding whether this overwhelmed him wrt Wilson and his wife.

Cline has a "what you talking about look" on his face.

Bonamici yesterday you made a very good point, there's a difference between quantity and quality. The govt heeded the distinction you made, the kind of evidence that would come in when defendant did not testify. It was based on that distinction that govt did not object to TYOI's testimony.

Walton Morning briefing info is just a list

B It shows nothing about quantity at all.

Walton I ruled the others stuff that he'd be able to introduce those details.

B You specifically ruled on page 19 that MIBs represented what govt considered important, rather than what Libby thought was important. Just titles of items, You're inviting jury to speculate, no opportunity to develop context, no way to cross examine Libby on relative importance. What you have now, he attends these on almost daily basis, sometimes he inquires about the info, sometimes he does not. We do recognize distinction on matters that he inquired and did not. We're objecting to those matters that he did not make inquiries about. other than supposition that we can all make that something of that nature was bad. That's not appropriate type of testimony that would support introduction of evidence. We understand that Libby entitled to change his mind and not testify. But unfair to lower bar to ZERO which is what the bar would be now, and relevance is purely speculative. Courts routinely exclusde evidence where relevance is speculative.

Cline Talking about general introduction of this. Your honor permitted articles, because he read them, he was focused on 16 words, these are inferences govt wanted to draw. We want to counter it. We ought to be able to show, overload, inundation

Walton Relative importance is not going to be an issue, and I would hope that no one would defy my on that.

Fitz We heard with TYOI

Walton There was no objection. If there was an objection I would have ruled against it.

Fitz it's put in for the purpose that Libby was overloaded or consumed. There's a difference between jury being overloaded, and experienced National Security Advisor, Jury does not have same baseline. when Libby hears multiple terror plots every day. It'd be hard to cross-examine Libby, I can't say to them "you don't know what LIbby was thinking."

Walton They can't say he was consumed by it. They can ask rhetorically.

Fitz They're getting all the benefit of having said it, there's no witness with state of mind Libby has, they're getting all the upside. It's a bait and switch. Here's how we get past 403, bc he's testifying, but now he's not testifying.

Walton: We've got to take a break. Will be back at 2:30. See you then.

We're proud to bring together leading bloggers from all over the blogosphere to stay at "Plame House" and cover the Scooter Libby trial, and we thank our readers whose contributions are making this possible. If you would like to contribute to support this citizen journalism in action, please click the links below or send your contribution to our snail mail address. Pay Pal, Visa, Mastercard Snail Mail

The Fire Dog Lake Company
8033 Sunset Blvd. #966
Los Angeles, CA 90046

Share and Enjoy:These icons link to social bookmarking sites where readers can share and discover new web pages.

This entry is filed under Uncategorized, CIA Leak Case, Libby Trial Live Blog. You can follow any responses to this entry through the RSS

From Just One Moment:

Imus On Russert And Plame: "I Think He Knew"
At approximately 7:45 Am (Eastern) Don Imus talked to Frank Rich on his MSNBC Show today and picked up on the Libby trial where he left off yesterday, saying that thinks Tim Russert knew about Valerie Plame (or Wilson's wife) prior to the publication of the Novak column.

Imus's launching pad was that Andrea Mitchell's answers were comically evasive and unconvincing in November 2005 when she recanted her October 2003 statement that it was "widely known" amongst reporters following the Wilson/Niger story that Wilson wife was with the CIA. (More on Mitchell here.) [And more - did you know that Colin Powell was a guest at Andrea's wedding to Alan Greenspan? Dum de dum, why might she want to protect Powell or his good buddy Armitage, help me here... Hey, if she gives up Powell we can call Andrea "The Wedding Singer"].

He added that when he talks to David Gregory about the Plame situation Gregory seems very tense.

Imus could not imagine a motive for Russert to lie, however, and went on to say that in a credibility contest between Russert and Libby, he would choose Russert.

Well - as to Russert's motive, this post has more detail, but the summary is this - Russert started with a little white lie to the FBI in November 2003, with the objective of concealing the fact that he (or Andrea Mitchell) had a source for the Plame leak. Russert did not "lie" to the investigators; he misled them with carefully phrased testimony so as to avoid subpoenas, jail time, and the disclosure of NBC News sources.

And it seemed like a little white lie at the time - Russert knew that Libby had not leaked to him, so he reasoned that his chat with Libby was not the sort of primary leak (government official *to* reporter) that investigators were seeking.

Russert maintained this charade with his deposition to the grand jury in June 2004, then blanched when he finally saw the indictment in October 2005 - the investigation had morphed from a search for leakers into a search for perjury and Russert had become a star witness.

The most trusted man in news did not think he could keep his job if he came forward and admitted that he had misled the Fitzgerald investigation for nearly two years, so he kept quiet and awaited developments.

And one of the developments was that subsequent court filings made it clear that no emails or notes existed at either the White House or at NBC to contradict his story.

So at the trial last week, when faced between (a) admitting that he had misled investigators for three years, probably losing his job and certainly foreclosing any future stories about Big Russ and the Catholic nuns who taught him in school, or (b) continuing the cover-up, Russert took the final plunge and lied.

That, at least, is my guess as to one hypothesis the defense will put forward in order to introduce reasonable doubt as to Russert's veracity. Folks who think Libby lied to keep his low-paying government job and avoid embarrassment will surely be sympathetic to this alternative scenario where Russert had five million reasons a year to lie (Or more! Or less - objection!).

As to whether it is true, how could I possibly know? But the fact that Don Imus thinks something is fishy at NBC News is quite revealing - he does talk to these reporters frequently and prides himself on having a functional BS detector.

MORE: We project dark matter impaction on whirling blades if the NBC lawyers try to muzzle Imus.

BLEG: I wager we will see a transcript of that segment eventually, but sooner is better. Maybe the MSNBC website has an audio (Let me check...). I am not seeing it at the WFAN website in NY, not yet anyway (9:52 Eastern). And the ImusBlog may deliver for us. Here we go:

New York Times columnist Frank Rich called in this morning. He gave us his take on the Libby trial. Starting with agreeing with almost everyone that Russert is telling the truth about his conversation with Scooter Libby.

Mr. Imus thinks Russert is telling the truth about the conversation but is lying about knowing Valerie Plame worked for the CIA. Two minutes later Imus changed his mind and said Russert was not lying. Imus implied throughout the conversation with Rich that Andrea Mitchell and David Gregory were lying.

OK. I would have said that "changed his mind" referred to believing Russert over Libby on their specific conversation, but that is part of the joy of radio - where is a darn transcript?

WHO CARES, BUT: Frank Rich knows little about this trial bit he is a useful barometer for the conventional wisdom of the Bush-bashing left. And he opined that the Plame outing was an accident and an over-reaction, not any sort of a plan to specifically expose her. The Admin wanted to smear Wilson as a house-husband who needed his wife to get him a gig; in Rich's words, "they used a hammer to hit a flea".

Posted by Tom Maguire on February 13, 2007 | Permalink | Comments (181) | TrackBack (0)
I Love Coincidences
Neil Lewis of the Times has taken to burying the most interesting tidbits of the Libby trial in his last paragraph. Here we go, from the first day of the defense when we heard from many reporters including Bob Woodward and Bob Novak:

Mr. Novak suggested how a columnist’s politics could affect access. He said he spoke with Mr. Rove two or three times a week. But it took him two years to get an interview with Mr. Armitage, who was seen as not in tune with Mr. Novak’s generally conservative views.

And in that interview Mr. Novak was working on a story about Joe Wilson, among other things. Deputy Secretary of State Armitage, although not a confidant of Novak's, passed along the news that Ms. Wilson was behind Joe Wilson's trip to Niger.

Check this tape or transcript of the Woodward-Armitage discussion of Ms. Plame - since Armitage mentions three times that she is a WMD analyst at the CIA, one might almost think he wanted to emphasize that point to Woodward.

Continue reading "I Love Coincidences" »

Posted by Tom Maguire on February 13, 2007 | Permalink | Comments (21) | TrackBack (0)

There's a rumored snowstorm hitting DC, so much of the Federal government is shutting down. Apparently, they're going to let the jury go home. But we're going to stay here and let Wells and Fitz wrestle out the CIA breifer testimony.
Walton: I wanted to get the jury out of here, the Federal government has shut down. Then we can go over any legal issues so we don't have any delays tomorrow. I assume that we're not going to need the jury on Thursday.

Wells: Prior to lunch I indicated to the court that I would be making recommendations to Libby wrt the progress of his case. Over the lunch hour Mr Jeffress and I advised Cheney's lawyer. If we had called he would have been available on Thursday. We have released the VP as a witness. Jeffress and I recommended to Libby that subject to putting on the briefers and some documentary evidence, he should rest following that. After consulting with us and his wife, he indicated he would follow this advice.

Walton: asks how long it will take–wants to bring the jury in late.

Cline: Briefers no more than 15-20 minutes each, possibly less.

Wells; Certain readings, stipulations, newspaper articles, I wish to play a certain tapes to the jury to show that Russert gave in accurate testimony to the jury when he testified. If we get the legal arguments out of the way, in terms of what we have to do, it can be done in less than a half an hour–assume an hour and a half.

Walton, my inclination is to bring them in at 1:30.

2:43

Walton Closing arguments on Tuesday.

Walton I believe I do have an obligation to inquire of Mr Libby about not testifying. [Libby stands] I'm sure you understand that you the absolute to testify in your defense. Is it your decision not to testify in this trial.

Libby Yessir.

Fitz I think your honor said we'd submit something.

Walton If there are any modifications get them to me by tomorrow morning. We may be able to finish those discussions tomorrow. In any event, we won't do those arguments until Tuesday.

Fitz In terms of scheduling? Um. I'll tell you later.

Jury coming in.

A decision was made by Federal govt to shut down, so I don't want any of you to slip and fall and blame me for it. I want to make sure each of you gets home safely. We'll have to recess at this time. We'll stay around for a little while. They're saying that it will be icy in the morning, what I'll do is have you come in at 1:30 tomorrow. You'll need to talk to the Marshalls, I would expect that we'll be able to complete the evidence tomorrow afternoong. We'll come here on Tuesday and we'll have the closing arguments and instructions. Please continue to not have any contact with media coverage. See you at 1:30.

2:48

Walton We still have the issue on what could be brougt out from briefers. Did you have something else you wanted to add.

Fitz The argument that this was just like the newspaper articles. They showed state of mind right before he testified. In this case, we've had extensive evidence from TYOI, one thing it's important to understand, in my view. THe difference between saying Libby was consumed by X and saying this issue was so much less important. If the elephant in the room is before the jury without being discussed. If the jury does believe our case, on appeal they'll say they just couldn't phrase it. What is the relevance of the evidence. If the evidence is relevant, then letting it in, but not letting them say he was being consumed. It gets to no relevant point. If your honor doesn't think it's fair to say he was consumed with it. CIPA and Rule 403 are designed not to vet arguments but to vet evidence, the relevant evidence is already before them (from Hannah). TO put it before the jury, whether or not the words consumed are used. If it's not there, it should not be let in. I do think it will inject extremely unfair to the govt. I would simply say that we all did the level best in the fall, when the intell and briefing materials came up, they would get in, and they could argue what they wanted. Should put us in the same position otherwise.

Walton I guess I have two questions. One, are we talking about anything different as it relates to the pertinent dates, as opposed to those interim times? Is the govt correct that since Libby is not going to testify about how these things would affect him, what if anything can the jury do with that information beyond speculating that because he was briefed that that means he would have been focusing on these matters. Once you go into what he was briefed on, doesn't that engender speculation, the jury speculates that that was the case, bc Libby is not testifying to tell us.

Cline: We're talking about June 9, 10, 11, 12, 13, 14 and maybe June 23. And July 7, 8, 9, 10, 11, and 12. We're looking at the nine things Hannah has said was a focus for Libby. Govt has introduced circumstantial evidence, all of that requires jury to speculate, 412 and 413, a series of newspaper articles that dealt with 16 words. Govts theory is that bc they were found in Libby's files, one can infer he read them, from that one can infer he was concerned about Wilson's wife and focused on it. We want to introduce evidence that involves a shorter chain of evidence. He was actually briefed on them, we know he read it. We also know this was significant national security intell that he was reading. We know from Hannah, they were areas of particular concern for Mr Libby. We want to be able to argue the legitimate inferences from this. Libby had an enormous flow. We want to show some particulars. To give them a sense of what he was dealing with. This was a man with an extraordinarily plate of pressing significant issues. Fitz can argue maybe he didn't pay attention [you think?]. We need the evidence in the record from which we can draw our inferences. 3 briefers, 15-20 minutes apiece. It's important to put that to complement the evidence from Hannah. The briefers are significant to show particulars.

Fitz I can respond wrt Cline's points. The fact there are limited dates distorts it, that doesn't allow us to show there's a continuum, it's just left as an inference. We can't ask him what he did the rest of the day. There's a huge gap of the analysis. We put in one nondisclosure, not six. Hannah has testified about all the things going on, the hours, the volume, the flow. The distinction between the articles and this are different–these are articles that Libby marked up. We agree that if he asked a briefer about it.

Walton The October 4 article wasn't introduced.

Fitz And they're putting 3 articles in in response. They spent a few minutes on the terrorist threat and more time on the other elements. The fact that Libby is receiving a briefing, the only reason to have the jury draw the inference that Libby was consumed by it. That's precisely the logical foundation your honor required it have. Basically the bar was lowered.

Walton I will think about it over night. I'll have counsel come back at 11:30. I understand the govt's concerns, but I also appreciate the defense perspective. The question is whether a reasonable inference could be formed, if they know he was briefed on these matters. There are going to be restrictions on what they say. If defense suggests, govt would have a reasonable ability to respond. It's sometime a fine line between what is fair inference. It seems to me if you're NSA for VP, and you're getting NS info on briefings, that you'll give some level of thought to it. I don't know if I can totally cut it off.

Cline One other element–statement admitting relevant facts. The govt wants to redact it in a certain fashion.

3:06

Walton, I have less problems with this. The last three says he was very concerned, I don't know how the jury could conclude he was very concerned, just based on the stipulation. I think it's quite another than a statement of fact to tell the jury that he was very concerned without there being something in the record to prove it. As far as those last three paragraphs it's inappropriate to put before the jury regarding his state of mind without him testifying to it. Regarding the second paragraph, I don't see anything there that talks about state of mind. I would conclude second paragraph in its entirety can be submitted.

Fitz Two comments. Now that we've had testimony, I don't understand why they can buttress that testimony. He had a person testify as a surrogate, on top of that he gets briefing materials. Now we're saying go through CIPA, say you're going to testify, then not testify. This becomes defendant gets to say, assume I'm going to testify. And the govt is stuck with everything that happens as a result.

Walton It's the same thing. To the effect that it's cumulative, I'll give further consideration.

Fitz If this is coming in, that's an argument why there should be no briefers in addition. Thank you.

Fitz I believe there's a matter that Bonamici will address with Wells about extrinsic proof regarding Russert.

Wells, Three pieces of impeachment evidence, WRT Russert. First, admission by govt date 2/3/2007 concerning concessions regarding Russert. THere was a letter, the govt then produced this letter, which added additional accommodations wrt how they would treat statements Russert made to FBI in November 2004. Govt took the position that that would not consider that a waiver. We want to put this in so jury knows everything Russert received.

3:13

We're proud to bring together leading bloggers from all over the blogosphere to stay at "Plame House" and cover the Scooter Libby trial, and we thank our readers whose contributions are making this possible. If you would like to contribute to support this citizen journalism in action, please click the links below or send your contribution to our snail mail address. Pay Pal, Visa, Mastercard Snail Mail

The Fire Dog Lake Company
8033 Sunset Blvd. #966
Los Angeles, CA 90046

Share and Enjoy:These icons link to social bookmarking sites where readers can share and discover new web pages.

This entry is filed under Uncategorized, CIA Leak Case, Libby Trial Live Blog. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site. Spotlight

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.