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
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