Judge: Defense Misled Court About Libby

WASHINGTON (AP) -- Defense attorneys misled the court into thinking that former White House aide I. Lewis "Scooter" Libby would testify in his CIA leak trial, a federal judge said Wednesday, as he blocked Libby from using some classified evidence in the case. Libby is accused of lying and obstructing an investigation into the 2003 leak of a CIA operative's identity. His attorneys have said for months in court papers that Libby would testify that he had important national security issues on his mind and that he simply forgot details about his conversations regarding the CIA employee, Valerie Plame.

Special Prosecutor Patrick Fitzgerald agreed to tell jurors about the terrorist threats, war planning and other secret issues that Libby faced at the time. The prosecutor said that he agreed to do this on the condition that he could cross-examine Libby at some point on just how seriously he considered these threats.

When defense attorneys abruptly announced Wednesday that Libby no longer planned to testify, however, Fitzgerald said that jurors hearing the case therefore should not be given a prewritten statement about Libby's briefings.

Walton agreed, and reversed an earlier ruling that the evidence could be admitted.

"My absolute understanding was that Mr. Libby was going to testify," the judge said. "My ruling was based on the fact that he was going to testify."

Walton appeared upset and seemed to stake his reputation on the decision. Libby's attorneys indicated they would appeal the decision if Libby is convicted.

"If that's what the Supreme Court is going to say (in any ruling on an appeal), they might as well say the government's not entitled to a fair trial and the defendant is," Walton said. "I think both sides are entitled to a fair trial. If I get reversed on that, maybe I need to hang up my spurs."

Walton said he would consider allowing three CIA briefers to testify about what they told Libby during the mid-2003 intelligence briefings. Fitzgerald said that, too, should be excluded now that Libby isn't going to testify.

Walton said he would rule on that issue later Wednesday. He also was weighing whether to put NBC newsman Tim Russert back on the witness stand so Libby's attorneys could continue attacking his credibility.

Russert, who testified last week, is a key witness in case. Libby's attorneys want to show jurors three video clips that seem to contradict some of Russert's testimony.

Russert testified last week that he never discussed CIA operative Valerie Plame with Libby. Libby told investigators that Russert asked about Plame and said "all the reporters" knew she worked at the CIA. That dispute is at the heart of the case. Libby is accused of making up the Russert call to cover up other conversations he had with reporters and of obstructing the investigation into the leak of Plame's name.

The most recent effort to discredit Russert does not directly undercut his story. Rather it involves testimony over the arrangements prosecutors made in exchange for Russert's cooperation.

Russert was not put before a grand jury. Rather, he was allowed to testify in an interview alongside his lawyer. As Libby's attorneys tried last week to cast that as favorable treatment, Russert _ a law school graduate and former Senate counsel _ said he was unaware that grand jury witnesses are not allowed to have attorneys present.

Libby's attorneys found three old television clips that suggest Russert did know. In those clips, Russert describes the grand jury that was investigating members of the Clinton administration. In them, he notes that witnesses are not allowed to have attorneys in the room when they testify.

"His credibility, it seems to me, is crucial to this case," Walton said. "He's probably, if not the most important, one of the most important witnesses."

Fitzgerald said Libby's attorneys had their chance to cross-examine Russert and wanted a "do over." Russert was cross-examined for five hours after offering 12 minutes of direct testimony. Fitzgerald said it doesn't matter what Russert knew about grand jury procedure.

Defense attorney Theodore Wells said Russert got special treatment and he wants to use the tapes to show Russert was trying to conceal that.

Russert and Libby tell different stories about a July 2003 phone conversation. Libby says at the end of the call, Russert told him that Plame, the wife of prominent war critic Joseph Wilson, worked for the CIA. Russert said that part of the conversation never occurred.

Libby subsequently repeated the information about Plame to other journalists, always with the caveat that he had heard it from reporters, he has said. Prosecutors say Libby concocted the Russert conversation to shield him from prosecution for revealing classified information from government sources.

Libby Live: Craig Schmall, for the Defense
By emptywheel @ 11:22 am

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.

I'm going to make a wildarsed guess that we'll actually get to the CIA briefers this afternoon, or at least Criag Schmall. Craig Schmall, you might be asking. We already saw him!!!
Yes, we did (and I made a not-nice description of him in my notes, for which I would like to apologize to Schmall). Schmall testified that Libby mentioned the Wilsons on June 14, 2003. And that Libby and Cheney mentioned something to him about Novak's article on July 14, 2003. But Libby's lawyers want him back so they can list every single detail from that day's briefing to show how unimportant the Wilsons are by comparison. I'm predicting a very smart cross on this ploy–we shall see.

Also, we should learn Walton's rulings on some of the things we were arguing about before lunch: whether Russert is going to be hauled back here tomorrow so Wells can get another shot at him, wheter or not a tidbit that Fitzgerald mentioned as a favor to Russert's lawyer, Levine, can be used to impeach Russert, whether the two other CIA briefers who had shot a day and a half at this point waiting to testify will actually have to testify. Did I miss anything?

Walton: [to Levine, Russert's lawyer] Did you ever impart to Russert that the government would waive the FBI thing.

Levine: At the time this happened, we and Fitz were adversaries, we were filing a motion to quash. I called him to say, are you going to raise the argument that any communication Russert had with FBI constituted a waiver. He said no, and I said, okay, I'm not going to brief on it. That has nothing to do with the negotiations we had later.

Walton: Thank you. Based upon those representations, it would be unfair to suggest that Russert was receiving a benefit that influenced his testimony based upon govt's decision that it did not need to raise waiver issues to argue its case against quashing subpoena. I don't think it would be appropriate to say that had an impact on Russert's testimony. It'd be unfair to him.

Wells. If you want to predicate your ruling on something other than counsel's representation, to the extent counsel's representation is like filing an affadavit, I don't accept his representation.

Walton: He said he didn't think it was something he had to talk about with Russert.

Walton: I don't see how this can be construed against Russert.

Wells; The fact that they were not asserting waiver, the govt has taken a posture, that permitted him to be champion of First Amendment, that could influence his testimony, jury should hear it. If you're going to predicate a ruling on testimony of counsel. If this were a piece of civil litigation. People file affadvits all the time, affadvits get tested. Your honor relies on a representation.

Walton All he's done is cooperate with Fitz' representation. In the same way that I respect you make accurate representations to me, I trust them. We've got a rule, I understand the arguments, I don't think it's fair to permit Russert's integrity to be challenged based on govt representation. In reference to tapes, the law is clear wrt impeachment on proir inconsistent statement. Under circumstances, when it's collateral, extrinsic evidence can't be used for impeaching. The fact that Russert made the statement doesn't go to what he said about Libby.

2:22

Walton: the letter's in the record. That's fair game. I don't fault counsel for not finding that out earlier. The timing for Russert to be called in vacuum and be asked on collateral matter. It has minimum probative value.

Walton: In reference to briefers. The rulings I made during CIPA were clearly predicated on my understanding that Libby was going to testify. The level of detail was based on him testifying. That was why I let the level of detail and why I pushed as hard as I did to make govt to make concessions to provide the level of detail that I felt he needed to mount his defense. I don't think it appropriate for info to come to the jury that would put Libby's perception of the importance of the nat security information. The only way you can do that and to have the jury in a position where they can calibrate the difference in importance. Without Libby testifying, that cannot be before the jury. I do think the amount of work is important. If the jury is aprised of the fact that he's got a lot on his plate. Whether it's nat security info or something else, the jury has a right to know. The level of detail that I ultimately bought in on was based upon that being a substitution for his testimony. He's not testifying now. It can come before jury to give generic perspective of how busy he was. I hope we can have time to do that. There's so many documents I looked at. What he has to be able to do is to indicate through the briefers that he was briefered on matters related to terrorists, port security. I think I have to give him the ability to give those generic titles so the jury will have an appreciation of things that were on his plate. I think such a limitation, the govt's concern, which I think is justified. Without Libby's testimony he can't do that. I have to in effect make a, it's not a CIPA determination, I think the general title of the subject he was briefed on.

Fitz: Most of the info was provisionally declassified. I wonder if it would make sense if CLine and I would speak. Recognizing where we're at to see if we can come to an agreement.

Cline: We can bring in June 14, right? Can I consult with

Fitz: We did go through it with June 14.

10 minute break

2:30

Looks like Cline is just about ready. I guess that was more than a 10 minute break, huh? And all this time I've been promising you Craig Schmall.

Hey, here we go!! THe longest 10 minutes in creation. We're waiting for the jury.

Cline: We're going to handle the briefers through a stipulation.

ARGH!! We waited for that? We waited for an hour for this!?!?!? We don't even get Schmall???

Wow. I hope the jurors had a safe drive to get to their undisclosed location to get to the courthouse to be read something rather than seeing the briefers. Because it looks like they drove through the icy roads for not much of anything.

3:26

Good morning. It's a ugly day out there in DC [egregious–apologies for not calling you back–I got on a phone call and forgot], but we made it into the court house. We're going to argue over whether they bring Russert back to beat him up some more (why not–it was their best moment). We're also going to argue about how much the CIA briefers will get to say (we're getting Craig Schmall back, as well as Libby's two other briefers, later this afternoon).
Walton: On issue of whether govt can say that Plame was CPD. Evidence already in record indicating that Plame was CPD.

Fitz: Defense is challenging that, bc Grenier first didn't remember learning that. If they want to stipulate that Grenier's testimony is accurate [yeah, really], but since they're going to argue that the conversation never happened.

Jeffress: We're challenging Grenier generally, I don't want to say we're not. Govt had opportunity to introduce evidence about where she worked. It would be improper to now corroborate a witness that they didn't put in their case.

[bs–they couldn't do it because you told them they couldn't]

Fitz: We thought that was off the table when we had the govt case.

Walton: They've only done that for the purpose of impeaching Ms Miller.

F: When your honor ruled, I understand you may have thought different, but we thought if WINPAC came in, we could put CPD in. They want us to point to a piece of transcript that they're going to challenge. Why can defense take CIA status off for their case, but not let us to present it. It's unfair for the defense to use CIA status as a shield and a sword. It's unfair.

J: Please, I don't think the rule of a rebuttal case only going to evidence raised in defense has been changed. We did not say anything about her status. There is no testimony in defense case as to where she worked. It would be improper under rules of evidence.

12:01

F We had a hearing in there, we had a ruling, we ought to have been able to rely on the ruling. Your honor said, if they bring out WINPAC, you can bring out CPD, and now we're told that we've waived our right.

J I'm asking that the rules of evidence be applied. Nothing unfair was done here. We put on no evidence as to where she worked.

F If we rely upon a court ruling, I don't think we're precluded from offering evidence. We understood the ruling to say that if one came in, the other would come in, we frankly thought they'd come in at the same time.

Walton: admittedly the statement I made was made in different context, I did not anticipate how this would come out, it has come out for the purpose of impeaching Ms Miller. The difficulty that I'm having is that I don't want to be unfair to the govt. I think it was appropriate to bring it out for purpose of impeaching Ms Miller. If Libby indicated that Plame worked at WINPAC. The problem I'm having is if I had known that was going to happen, them I'm sure I would have permitted govt to ask witnesses about where she worked. It would only have been fair for govt to establish that he was on the mark as far as where she worked, or in the ballpark. It's unfair for the defense to use WINPAC against Miller but then for the govt not be able to show where she worked, to support credibility of other witnesses. That's the problem I have. I may not fit neatly in what is appropriate rebuttal. Having indicated what I said at prior hearing. It would be unfair to stop govt from doing what they would have done. Over objection, I will allow this information to come in.

Walton: Regarding Russert, I understand his lawyer's here. It's a tough issue. The impeachment doesn't go directly to testimony he provided. It does go to his credibility. His credibility is so crucial to this state, he's probably, if not the, one of the most important witnesses. If this had occurred, I assume I would have let it in. The timing is problematic. I don't know if the timing should override the ability to bring this in.

Fitz: As I walked in the court I was handed a case, which I think is on point. DC Circuit 2004, Judge Solomon overseeing case. Cooperating witness, cross-examined on whether he received money. He was shown a check, had ID info on check, denied recollection of receiving check. After cross, defense sought to offer in a copy of the back of the check, which proved he received the funds. DC Circuit decided, The Court also refused to admit check into evidence, whether Sweeny received check was collatoral, while check allowed cross, properly excluded the check. When someone denies receiving a check, that goes right to credibility. They confront him with decade-old video having to do with Ms Lewinsky. I will also point out that Defense already has in evidence, he'll accept that lawyers aren't in GJ, they have his agreement, they did have oppty to cross, it says "deposition will be conducted as if GJ, with exception that lawyer will be in the room." The fact that lawyers not in GJ already before jury. When you have a 12 minute direct and a 5 hour cross, you don't get to ask for a do-over. It is entirely collatoral. It seems the Hayes case controls.

12:12

Wells: Hayes lawyer had had opportunity to cross on check, witness had already admitted he was engaged in fraud in the first place, and there had been oppty to cross about part of the check. Russert is over 50% of the indictment. I believe he is the most important witness on this case. It goes to bias, these areas can never be collatoral. Russert may be called back if govt wants in rebuttal case. Advisory case notes that so long as other side has opportunity to call back. I called counsel for Russert last night. If you want me to put him on the stand, counsel is here, I understand that Russert is in Boston, if govt wanted to put him on, given advisory committee note, impeachment materials should be admitted in front of the jury. Or if you want me to do it as one ball of wax. The Hayes case is not on point at all.

Walton: I'll have to look at Hayes.

Fitz: If I can hand up a copy of defense exhibit, right on the letter it says presence of lawyer is different for grand jury rules. Hayes doesn't get to whether witness is available or not.

Walton: He could have been questioned in reference to that letter. That letter could have been used to show that lawyers before GJ was different.

Wells; He testified he had not seen the letter. This court has discretion in this matter. I was incredulous when he said what he said. It goes to the heart of how this jury will judge hi scredibility.

Walton: I'll look at the case. I would require that he be on the stand, to explain it. He'd have to be called back. I'll give you a ruling. When would Russert be available. Probably tomorrow morning, I'd like to get jury in and out, if we're going to do that.

Fitz: May I make one point on important of Russert.

Walton got a call.

Fitz: If you look at Hayes case, witness was one of two cooperating witnesses. This case is not about Russert, it's about things Libby said. The testimony of Grossman, Grenier, Miller, Cooper, Russert, perhaps the most important witness is Libby's GJ testimony for 8 hours. Russert doesn't dwarf import of cooperating witness in Hayes.

12:20

Walton: regarding the letter, the question is whether he would know.

Fitz: In defense filing, they said this accommodation was part of the final effort to get his testimony. First, NBC tries to avoid subpoena. Then Hogan denying effort to quash. Then discussion about how he would testify. The discussion occurred in the motion to quash. We never thought we'd walk into court that we'd make a technical argument that conversation between FBI and Russert constituted a waiver. We had oral discussions outlining scope of testimony. We sent letter so he had something to shoot at for motion to quash. We had an oral understanding that that wasn't going to be an issue in our brief. When it came time to file ex parte record, we didn't want him to think that we wanted to hide that, I made sure I was on good paper with Mr Levine. That was the circumstance of how it came up. Russert then, then we put the terms in that letter. It did not merit putting in writing except that I wanted to make sure Hogan didn't think Levine was misled. Russert wasn't a lawyer, he was a client. In abundance of caution, though we don't think it's discoverable, we included it. To lead a brief saying this is the deal that Russert struck to testify is a complete fiction. To throw this before jury, this is way beyond collatoral, in addition to fact that govt's letter is hearsay.

Walton Does he avoid the info coming merely because he says he wasn't aware of it.

Fitz is it relevant if there's no belief that he knows it. Our letter doesn't say it. We shouldn't be taking evidence and say, unless we can prove that a witness didn't know something, it is relevant.

Walton: you introduced articles, asking jury to infer that he read it. But this letter, they should believe he knew about it.

Fitz: How does a jury know without asking attorney that he saw it. Those articles were in his personal file. They were great importance compared to this letter. If Mr Levine are dealing with how to argue a brief, that wasn't important enough to write in letter back and forth. The notion that he would be calling up to say we're going to make this page two. There's a world of difference.

Wells: I could not agree more.

Walton: Agree or disagree.

Wells Disagree. It's been a long trial. First. This is an accommodation. I've got a right to before

Walton: I'm not arguing this. I'm struggling with whether jury can infer that this impacted on his testimony.

Wells; If there's ever a situation where judgment call has to go for the defendant. If rule becomes that witness has received an accomodation.

Walton: If he doesn't know about it, how can it have affected his testimony.

Wells: If the defendant can get off by saying that was between the lawyers [hey, I thought Libby was the defendant, not Russert.] Ruling by 4th Circuit, a witness knows there's an arrangement, but doesn't know all the details, that can't be used to keep the details of it. Tentative promise of leniancy, would make it even more incentive for witness to make testimony pleasing to prosecution. [Jeebus, Wells is treating Russert as a defendant!!] What happens in this case is that the waiver was of great value to Russert. It was not in any of the papers, Russert was able to go around, saying he was a great protector of the first amendment, when in fact he had talked to the FBI. Perhaps this waiver, I believe had more value than any other part of this agreement. That permitted Russert to go on TV to talk about how he protected the First Amendment. I'd rank this Number One, the fact that they would say this wasn't a waiver, they kept it out of the public record.

Fitz Filings were under seal. A brief that it was argued under seal. To construct this notion that something Russert never heard about is just fiction. The fact is that he wants to use Russert's attorney client privilege a shield. When something that didn't merit a letter. The caselaw Wells cites has to do with plea agreements. If we had caught Russert with a kilo of cocaine, I wouldn't be here making this argument.

Walton: It may be just important to Russert as a plea agreement would be to someone.

Fitz to make this logical leap that this is what was keeping Russert up at night. What the understandings were, not just the agreement, that's in the record. This is a stretch to grab something from the moon and argue that it's pivotal,

Walton How would the defense ever be in a situation to establish that witness was aware of agreement. I would guess that something of this nature would be important to Russert.

Fitz Take this in proportion. If people strike agreements, those are putting in writing. Those were given over to the defense. This was something that didn't merit being put into writing.

12:37

Wells: that has great value because that kept out of the record the fact that Russert talked to the FBI. I'm going to end my case with the stipulation of the Eckenrode conversation, that Russert could not rule out talking about this with Libby.

Walton: I think it does go to potential bias.

F It wasn't an agreement. It was never in writing to counsel. It was a footnote in ex parte affadavit to Hogan. We didn't put it in writing with defense counsel. It was an oral conversation about whether we were going to argue waiver. We thought we had a stronger argument in Branzburg. They wanted to know what we going to argue. They asked us if we were making a waiver argument, we said no. This didn't take very long and it wasn't very significant.

Walton: It is a concession that a reporter might want to have.

F How, this is so far removed from the reality of what happeend. It's styling a brief. After the brief was filed, we reached an accommodation which was given to the jury. It's no different than if you're sitting here working on a brief and we're saying "no, we're not going to argue that, you don't have to deal with in the brief."

Wells Mr Russert testified that he had been going on TV telling everybody about how he fought the subpoena. The truth of the matter is that because the govt decided not to say what happened.

Walton The issue we're talking about is whether he waived when he talked to FBI.

Wells if you look at public filings, no one would have any idea that Russert talked to FBI. Whenever we got the Jencks material is the first time we learned he talked to the FBI, We were shocked. He went around the whole country talking about how he was a great protector of the First Amendment.

Walton: I didn't understand the full scope of what we're talking about. I think that's significant. I'll make a ruling right after lunch.

Wells, It's our position it was of great value.

Fitz Russert has already testified that he told no one about fact that he had talked to FBI, the fact he talked to FBI was disclosed.

Walton I assume a reporter would not want their discussions they had with law enforcement construed as waiver. I can see how that would be a significant issue. They can't call the lawyer. They're only stuck with Russert's denial. Is it reasonable to infer that something of this significance would not be told to journalist.

Fitz One moment. I would ask to inquire of Mr Levine what he discussed with Russert. This is being made into something so different than what happened.

Walton If Levine is prepared to provide testimony on that point. If somebody doesn't know anything about it, then it seems to me this would be a fiction that this had anything to do with it.

Wells Russert testified that FBI asked him to keep this secret. That is not the fact.

Walton it would be unfair to lie to jury and ask them to believe it.

Wells The fact that people say things, they don't have to believe it. Let me cross him. They can't short-circuit the process. The jury is the fact-finder here. It is relevant, if the jury decides that Levine's testimony is relevant. I'm going to say it shouldn't be believed. He's got to give me the file, first. He's got to show me his notes of every discussion.

Walton If he's gonna testify, defense should have access to whatever info he has. I don't know about in front of the jury.

Fitz We're now in Alice in Wonderland. We're going to call a lawyer to impeach him. If an officer of the court says he didn't tell him, now we're going to have witnesses testify under cross. We've made up a tale of great significance. We've had Wells speak about an event that happened when he wasn't around.

12:50

Walton I'll think about it over lunch. Statement admitting facts, the problem I have with it in its entirety. What that entire statement tries to do is get his testimony in through the back door, otherwise now, he gets this evidence before the jury. It's cumulative, because we've also heard from the witness who testified yesterday.

Cline You're correct that it's a substitute

Walton I just don't buy that counselor. If you want an admission from the govt, you should have said, we want you to enter into this whether or not he testifies. You can't suggest he's going to testify, then hear Libby's testimony without hearing from him [voice raising]

Cline We believe govt was on notice. We relied on being able to use this. Wells read it in opening.

Walton DUring the entire course of hearings, it was my absolute understanding that Liby was going to testify. The basis for my rulings was predicated on him testifying.

Cline The question is, where are we,

Walton To the extent that that statement puts before Libby's testimony, that was a substitute for Libby's testimony because of classified info. How can you susbtitute anything.

Cline you don't get to question an admission.

Walton if the Appeals court wants to tell me, I think we turn this whole process into a game, This is supposed to be about finding the truth. When we play games with the process–there are already too many games as there are.

Fitz We proceeded based on Libby testifying. We were offering that as a substitution that Libby wanted to offer through his testimony. It was not my understanding that it would happen without his testimony. We've already had Hannah's testimony as a surrogate.

Cline As recently as this weekend, the govt was willing to have the first two paragraphs admitted. I'd like to be able to read at least those two.

Walton I don't think I can hold the govt to something they decided to when they thought Libby was going to testify. It's just not fair. I won't permit it.

Walton Regarding briefers: What is intended to be argued in reference to the briefers? What does the defense intend to ask jury

Cline On statement, we'll proffer it for the record. I want to make sure on terms of constitution. Impermissible burden on 5th Amendment. We believe it violates 5 and 6th rights, in middle of trial to wihdraw it.

Walton I believed all along throughout these statements that iw as understaood that Libby was going to be testifying. All of these processes would only come in as substitute for his ability not to be able to testify. That was always understood. Now, to suggest that an agreement entered into in that environment. If that's what SCOTUS is going to require, we're going to say govt isn't entitled to fair trial,but defense is. If I get reversed on that one, maybe I need to hang up my spurs. I think you should have been clear that Libby wanted this even if he didn't testify.

12:58

BTW, Walton's cold seems much better than yesterday. Perhaps that's why he's getting riled up.

Walton: Libby doesn't get to introduce state of mind. It's one thing to try to get state of mind through briefers. It's another thing to say what was occpying at time of being briefed.

Cline Let me draw one line, June 14, a particular briefing that Schmall testified about.

Walton When Plame's name was revealed. On that day it'd be totally appropriate to suggest that the info being provided would take precedence.

Cline Let's put that aside then. What we want to show is that on those days, at that point o fthe day, these were matters that were on his mind. This was part of the flow of information he was getting. All of this falls within topics that Hannah testified about. Hannah testified about them generally. Each of the items fall within one of those nine areas that Hannah testified about. There's plenty of evidence in record that jury can infer that those were key pieces of information.

Walton You're not asking jury to infer he would have given more attention to these items

Cline I'm going going to be doing the closing arguments.

Wells gets up, standing away from the mike. This is the stuff that was coming in. I intend to make the full plate argument.

Walton Why isnt' that fair?

Fitz THis is going to be semantics. I have zero hope that we're going to be able to police how it's said to the jury. The jury has to understand, how would I react if I heard about a plot to blow up an airport. They're not going to give them the context to how Libby would understand it. They're just hoping jury will come to conclusion that this was more important. Whether they say he had a full plate, or bad memory, the rules of evidence, CIPA, goes to letting in. If the specifics can go in, CIPA was based on him talking about what was on his mind. We pointed out that is has prejudicial value. How it hits a juror is different than how it hits Libby. To say that this specific thought was on his mind.

Walton He can't be put in significantly different posture because we're talking about classified info. It was non-classified info, he would be able to throw it at the jury. Just because it's classified it's going to have this impact, and as a result of it.

Fitz Its a 403 article. If he were an accountant, you would draw a line on the complex accountant stuff in. The foundation for what made the probative value, you struck the balance assuming there would be testimony tying these to his thought processes. The defense wants to set the bar, and we'll leave it in anyway. The remedy is not to say let it in to the same extent. And make your argument indirectly. The remedy for evidence is we keep it out if it doesn't have significant probative value. The only probative value is to talk about what was on Libby's mind. Why should they get the benefit of what as on tehir mind.

Walton I'm going to go to lunch and

Cline we let in newspaper articles, but your honor acccepted that it may have had bearing.

Walton That was motive evidence, whether he had motive to lie, because he thought he may have committed a crime.

Cline some articles from July, Fitz' article was if he read them, he was focused on Amb Wilson. We want to put evidence that requires a lot fewer pieces of evidence.

Fitz Those were notes he wrote that he references, the difference is we showed that Libby did something with it. We laid the logical predicate and they did not.

Walton Come back at 2:15 and I'll make the decision.

1:11

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90 Responses to “Libby Live: Tedious Legal Arguments”
1 Cozumel says:

February 14th, 2007 at 9:03 am

Fitz-o-rama!

And zero! ; )

Quote This Comment
2 ccmask says:

February 14th, 2007 at 9:03 am

This is from earlier today..than the one I just posted...I missed it, sorry.

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