Tim Russert at Libby Trial: Public Memory Lapse and a False Affidavit?

The courtroom was packed, the overflow room was packed, the street in front of the Prettyman building looked like it did back when the Lewinsky scandal was in full flower. All the attention was for the media's star witness against President Bush: Tim Russert. Actually, Russert was prosecutor Patrick Fitzgerald's star witness against I. Lewis Libby.

I arrived in the afternoon, a few minutes into the cross examination of Russert by Libby's attorney, Theodore Wells.

Russert started off strong, a little too strong in his demeanor on the witness stand. He didn't want to get boxed in by Wells' questions so he kept elaborating beyond what was asked. The point of exasperation was when Russert asked Wells a question.

From other reports, Fitzgerald only questioned Russert for ten minutes to get his testimony on the record that he didn't tell Libby about Valerie Plame in their July 10, 2003 phone conversation.

Wells kept Russert on the stand for longer than that. A lot longer, with plans to keep Russert on the stand for two more hours when court resumes tomorrow morning.

Wells was able to once again call into question the veracity of the infamous FBI 302 summaries of witness interviews with Russert's testimony that his recollection of his FBI interview differed in some respects with the agent's notes.

The more interesting testimony, though, came when Wells brought up a public example of Russert's flawed memory for important phone calls. The questioning was based on this episode as recounted by The Washington Post's Howard Kurtz in June 2004:

Tim Russert has told the Buffalo News he regrets an error he made in a recent Washington Post Magazine interview.

Russert had said he never called News reporter Mark Sommer to complain about a negative review of his performance in moderating a Hillary Clinton-Rick Lazio Senate debate in 2000. But Sommer says in an interview that Russert called him twice about the piece and "was furious. . . . I was struck how a guy who basks in the reputation of being a tough reporter can't handle criticism when it applies to himself."

Russert testified that he later remembered the phone call to Sommer when he reviewed a letter he had written to Sommer at the same time as the call that had a notation that he had indeed called Sommer.

Wells made a point of repeating many times the title of a Buffalo News article about the incident. I wasn't taking notes, but the headline was something like: Russert's Public Memory Lapse.

He got Russert to agree that he didn't deliberately lie about the phone call and that he was confident he was being truthful when he told Kurtz he hadn't called Sommer.

Wells noted that Russert's memory lapse occured a few months before his grand jury testimony in the Plame case.

Russert testified he has no notes from his conversation with Libby on July 10, 2003. His recollection is based solely on his memory--which his testimony showed needs prompting.

If Russert and Fitzgerald were feeling a bit crestfallen by the exposure of Russert's faulty memory, their moods went south quickly when Wells introduced into evidence the sworn affidavit that Russert submitted in an attempt by him and NBC News to squash the grand jury subpoena for Russert in 2004.

The affidavit began with Russert explaining what a big wheel he is in the media, lists his awards, and then explains how he has sources all throughout the government that he protects with promises of confidentiality. The affidavit then says that because of Russert's promises of confidentiality, he cannot even confirm to the government whether the conversation with Libby took place, let alone tell what was said.

Wells revisited the interview with the FBI agent, named Eckenrode(sp?), which took place in November 2003--many months before the affidavit.

Wells pointed out that Russert spoke about the conversation with Libby with the FBI agent without even verifying that the man on the phone was indeed an FBI agent or whether Libby had indeed waived confidentiality on the conversation.

Russert tried to weasel out of it by saying he considered Libby's phone call a "viewer complaint" about Hardball's coverage of the Joe Wilson story and that he had only told the agent his side of the conversation because the agent told him Libby was saying Russert told him about Plame.

Wells hammered home that Russert had not included this conversation with a government agent in his affidavit--raising the possibility that Russert filed a false affidavit with the court.

By this point Fitzgerald was slouched in his chair, intently staring at the jury to gauge their reaction to his star witness getting methodically taken apart.

Judge Walton recessed for the day a little before 5 p.m. He asked Wells how long he intended to question Russert when court resumed in the morning. Wells answered, with Russert watching from next to the witness box where he was leaning on his crutch, that he would question Russert for a long while. He repeated that answer when Walton asked him again. The third time Walton asked him Wells said about two hours.

Russert left out a side door while Fitzgerald and Wells spoke with Walton about the schedule for the trial.

http://www.firedoglake.com/2007/02/07/libby-live-tim-russert-two/
More cross-examination by Wells of Tim Russert …

NOTES: (1) This is not an official transcript — just a very loose paraphrase, at best — so don't treat it as one. Even exchanges that look like verbatim dialogue are just the gist of each question and each answer, with any key phrases or pauses included as best I can. (2) My own notes will be in parentheses and/or italics. (3) I'll tell you the time at the end of each update; expect about 15-20 minutes before the next one. The hamsters that run the servers will appreciate it if you don't refresh excessively in the meantime. (4) I didn't write the book on the Valerie Plame outing — but you should buy it, if you haven't already. If you're wondering who this "Swopa" character is, my previous writings on Plamemania can be found here.

Wells walks Russert through the NBC statement on his deposition for the grand jury. I denies that Russert (1) received a leak about Valerie Wilson, (2) knew her name or that she was a CIA operative, and (3) that he gave the information in (2) to Libby.

[Before Fitzgerald's indictment, the statement was much discussed in the blogosphere as a non-denial denial (see last third of linked post). It left room that Russert knew "Joe Wilson's wife" worked for the CIA, and that he told this Libby.]

(Wells tries to get Russert to admit that he didn't deny knowing Joe Wilson's wife worked for the CIA. Russert insists that denial of name and CIA operative status DID deny this. Several go-rounds on this with same result, followed by a break.)

W: You wrote a letter to Buffalo News in June 2004 expressing regret for not recalling a telephone call to a reporter

T: I'd like to see the letter, because it involved a larger

W: Are you telling the jury you don't recall the letter?

T: That was a piece of it, but I don't remember the whole exchange

W: (refusing to let Russert see letter yet) Do you recall the letter?

T: Do you recall the letter but not the specifics

W: Do you write letters to newspapers apologizing for a faulty memory often?

T: No.

W: But you did write such a letter to the Buffalo News?

T: That was part of the letter.

W: But it was in the letter?

T: Could I see the letter?

W: I'm not going to let you see the letter yet. Do you remember the letter (describes it again, emphasizing faulty recollection)?

T: I do, but not the specifics.

(More back-and-forth like this.)

It's 3:45.

(Wells displays the letter Russert wrote, acknowledging a forgotten phone call.)

W: In a later interview with Howard Kurtz, you said you had just plain forgotten this phone call.

T: Yes.

W: I want to go through some of the background facts. Kurtz had asked about the newspaper's negative review of your conduct as moderator of a debate, right? And he asked if you had placed a call to the author to complain about the review, and you denied the phone call. (gets Russert to say yes at various steps along the way) The newspaper later challenged this denial in an article titled, "Tim, Don't You Remember?"

T: Yes.

W: When you denied making the phone call, do you feel you were giving your opinion in good faith?

T: Yes.

W: You weren't trying to lie, you were

T: Right.

W: You were confident in your recollection?

T: I'd like to know what I said. I did recall sending a letter to Mr. Sommers, and you saw the result of it.

W: You checked documentation to correct your recollection of the phone call… you do not have any documention of your conversation with Mr. Libby, do you?

T: No.

W: Libby's call was about not your conduct, but someone else's, right?

T: Yes.

W: The call you forgot was about your conduct, a direct criticism of you.

T: But it was four years ago.

W: (starts citing newspaper article) Do you recall those words?

T: No.

W: You don't recall such a personal attack?

T: It was a very difficult debate, and people chose up sides. I get criticisim

W: But the Buffalo News is your hometown paper.

T: Yes.

W: You're a Buffalo icon?

T: Yes.

W: And this paper criticized you?

T: But they've written so much positive about my family, I take it as it comes.

It's 4:00.

(Wells asks questions about newspaper's criticism of Russert — how did he feel about writer, etc. Russert tries to emphasize that he was just disagreeing over facts.)

W: But in talking to Howard Kurtz, you just completely misrecollected the events, didn't you?

T: The main thing was a disagreement over facts, which I recalled accurately.

W: It's fair to say the faulty recollection was well-publicized… anyone could find out about it in 2007 in an Internet search?

T: I suppose. I don't know the state of Lexis-Nexis, etc.

A conference at Chez Walton. Wells enters the "Tim, Don't You Remember" article into evidence, and a separate Buffalo News article on the controversy.

W: I'm going to move to a different area. I want to ask you about your FBI interview in Nov 2003 You were at home? Person who called you was Jack Eckenrode?

T: Yes.

W: He said it was a national security investigation, and he wanted your help?

T: Don't recall those words.

W: Did he say it was a criminal

T: Don't recall those exact words.

W: You said Plame leak was "a big deal", do you recall that?

T: Yes.

W: So when FBI agent said he was investigating that, you don't that?

T: He said that later.

W: Tell me what he said.

T: He introduced himself, said we at met on Meet the Press (describes him bringing his family, etc.), then said he was calling

W: Do you recall

W: Do you recall saying timeframe was July 6 to July 12, when you were on vacation in Nantucket?

T: I came back July 8, would have to be after that

W Recall saying that call was about biased reporting on Hardball

T: Don't recall use of word bias, but remember upset about show

W: I'm asking if you recall your words in the interview

T: I recall saying it was a complaint

W: Do you recall saying there was not much you could do

T: Recall saying it was not my mgmt responsibility, and told him various people (lists names) of who to call

W: You did not refuse to answer questions of FBI agent about conv with Libby

T: I did talk to him, yes

W: You did not state that there was an understanding that the call would be in confidence

T: Right, because he was relaying things to me that Libby had said about the call

W: You talked about both sides of conversation

T: Repeated what he had said to give context to what I said

W: Similar to your GJ testimony in 2004, right?

T: Yes

W: And you did not claim any privilege of confidentiality?

T: I had treated the conversation in confidence, I did not report on the call. (He's not understanding Wells' point)

W: Did you know that Eckinrode was portraying Libby's side of the conversation accurately?

T: I didn't doubt him.

(Wells points out that Russert later did claim the confidentiality of Libby's call as a reason not to testify. Now there's a brief chat at the bench.)

It's 4:24.

Wells displays letters from Fitzgerard to NBC attorneys explaining why they want Russert's testimony, and possible limits to protect journalistic privileges.

W: Do you remember NBC claiming they were fighting the subpoena due to chilling effect on their news gathering?

T: Yes, generally speaking

Wells displays NBC statement.

W: This statement does not discuss your Nov 2003 FBI interview, when you discussed the Libby conversation freely?

T: Right

W: Was NBC president Neal Shapiro know this?

T: Don't know

W: Did there come a time when Shapiro?

T: Don't know, can't speak for him

W: Did you ever have a conversation with him?

T: Can't recall.

W: (like he's addressing a child) Do you think it might have happened? Based on your pattern and practice?

T: I don't know if I talked to him directly, I talked to counsel in NY, they may have talked to him

W: You're good friends with Shapiro?

T: Yes

W: This was a matter of great importance, right?

T: Any time a reporter is subpoenaed, yes.

W: Did you discuss this important matter with the president of NBC and your good friend, Mr. Shapiro?

T: Just remember talking to attorney

W: Do you recall telling Andrea Mitchell?

T: No.

W: David Gregory?

T: No.

It's 4:40.

Wells submits as evidence, and displays, a declaration by Russert filed with court. Paragraph 5 emphasizes that an essential part of his job is keeping conversations with government officials confidential, that he will not discuss identities or information publicly.

W: You are swearing that you will not release confidential information freely, right?

T: It depends on the nature of the conversation

Wells continues reading from the document. Quotes Paragraph 6, which specifically says Russert cannot testify about Libby conversation without violating confidentiality.

W: That's what you're saying to Judge Hogan under oath?

T: That it would have a chilling effect, yes.

W: You're saying under oath that you can't even confirm that

T: As a journalist, I didn't want to do it, correct.

W: Not just didn't want to, you can't do it, correct?

T: Correct.

W: You don't say that you had already talked to this to Agent Eckenrode in Nov 2003.

T: There is no mention of it.

W: You had already disclosed the substance of the conversation

T: There's a difference

W: But this does not say you had confirmed the existence of the conversation, and the content of it as well.

T: Correct.

W: In June 2004, your position that you could not do this.

T: Correct.

W: In Nov 2003, you violated this, didn't you?

T: No, because they asked about my side of the conversation, and conversation was a viewer complaint.

W: Are statements to Judge Hogan true or false?

T: So you violated these statements when you talked to Eckenrode.

T The focus was on my words at that time, and Libby's viewer complaint was not in any way confidential. As is my policy, I did not report on them.

W: So why say you can't talk about the same conversation?

T: We did not want to get involved in an open-ended fishing expedition.

W: (Accuses Russert of making a false statement to federal judge)

T: I just talked to Eckenrode about my side of the conversation

W: You talked to him about both sides of the conversation

T: I listened to him describe Libby's side.

Walton calls a truce recess for the evening. He also makes a statement that the prosecution does NOT contend that Libby did anything wrong in talking about the National Intelligence Estimate on July 8, 2003 or thereafter, "after it had been declassified by the president." So now you know.

Prosecution is expected to end its case tomorrow morning… and defense wants to start with Jill Abramson, but Fitzgerald has an objection to that. So that objection will be addressed first. The defense says they'll be happy to start Monday, given various motions they have to submit first, and they don't want to waste jury's time. Fitz says they can start with other witnesses — "Pincus, [Evan] Thomas, Kessler, Sanger…" I don't think this will be resolved until tomorrow morning.

And with that, school is out. Goodnight!

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