[UPDATE: Starting on p. 22, Fitzgerald makes some deliberately vague comments suggesting that someone has a cooperation agreement, or a criminal problem of some sort. Excerpt at the bottom].
My particular focus - how accurate were David Shuster and Keith Olbermann of MSNBC when Olbermann told us that Libby had been "warned about the implication of outing Valerie Plame's name"? The more plausible alternative version put out by the AP was that Libby had been advised to stop with the NIE leaks.
I'll be back...
MORE: Yike - a HUGE Shuster rally on p. 20:
FITZGERALD: ...So the issue of potential damage from discussing it may come up. In a different conversation that Mr. Libby was present for, a witness did describe to Mr. Libby and another person the damage that can be caused specifically by the outing of Ms. Wilson. It was before the grand jury. It was back in July of 2003.
Puzzling - the speaker is Fitzgerald, even though Olbermann says the revelation came from the defense. Since part of my objection was based on the oddity of the defense throwing their own guy under the train, I am feeling partly vindicated. Partly.
And this, from p. 35 where the authorization of the disclosure of parts of the NIE is under discussion, may have been conflated with the earlier bit:
MR. WELLS: Just so the record is clear what the grand jury testimony is. He said that the disclosure of the material was a go, then it was a stop and then it was a go. Then he is asked at some point was it possible that you went too fast. He says I could have made a mistake but I know I was supposed to go, then I was told to stop, and then I was told to go.
Since Shuster has pretty deliberately muddled the NIE leak with the Plame leak before, maybe he was (by over-excitement or design) doing it again.
Let's rely on the transcript and hand out awards: it appears that the AP was right - Libby got a stop-go-stop on the NIE leak; I was right, partly - Libby's lawyers did not throw him under the bus on the Plame leak; and Shuster was right, a bit - Fitzgerald, not the defense, said that Libby had been warned about the consequences of a Plame leak. Of course, "the consequences" may have been political embarrassment for picking on the little lady, rather than the outing of a classified CIA agent - lacking context, who knows?
However, per a defense filing we know that Libby has testified that he did not know Plame was classifed, and we don't see a perjury indictment on that seemingly significant point, so presumably Fitzgerald can't prove that to be a lie.
STILL PICKING THROUGH:
THE INR REPORT: Libby never saw the INR report? Check this from page 6 of the .pdf:
FITZGERALD: ...We are not going to dispute the substance. We will dispute that he did talk to people about Wilson's wife and the relevance will be the conversations, for example, the best one is Mr. Grossman when Mr. Libby asks him what he knows about the trip. Mr. Grossman didn't know about the trip either. He found out and came back and said, my understanding is that his wife works at the CIA and people are saying she was involved in sending him on the trip which is what he tells Mr. Libby which goes directly to the relevance of whether or not Mr. Libby's testimony is true.
Mr. Grossman separately has a report prepared all about the trip and the substance of it the so-called INR report which Mr. Libby never sees. We don't intend to offer the INR report. We produce it in discovery. But we are not going down the road of trying the case of whether or not Mr. Wilson is right or Mr. Libby is right or whose view of this.
Hmm. Grossman in the tank for Wilson?:
MR. WELLS: Now let's return to Mr. Grossman. Mr. Grossman is going to take the stand and he's going to say this is what I did. I asked for a report to be prepared. I met with Mr. Libby and I told him certain things.
Now let's assume I want to show this jury that Mr. Grossman is not being totally truthful, that I want to show, for example, that Mr. Grossman went to college with Mr. Wilson and they were classmates and throughout their careers they traveled together through the State Department and the diplomatic arena from college right on through.
I want to give you a sample of just two emails that are classified so you will see the importance of these documents for purposes of discovery and how they may permit me to materially advance my examination of Mr. Grossman and to try to show that he is not being totally candid and that there are
19 relationships that should cause the jurors to doubt what he said to Mr. Libby, when he said it.
OK, I'll bite - *IF* Grossman and Wilson were buddies, why didn't Grossman know about Valerie's status, and why did he blab about it to Libby (Jason Leopold says it was in a meeting with "at least half a dozen" other witnesses)
Libby's answer - Wilson and Grossman *are* buddies, and Grossman did not mention Plame at all in the meeting.
P. 13 has some hints about the Libby-Fleischer talk:
Fitzgerald: ...But it is precisely what that article is that causes the events of June 14 [sic - should be JULY 14]. On July 6 the article is printed. On July 7 in response to that, the office of vice president sends some talking points to Mr. Fleischer about the vice president didn't know about this trip before. In response to that, Mr. Libby and Mr. Fleischer have lunch and that's when we allege the discussion about Wilson's wife was. It is responding to the criticism that resulted from the Wilson article that led to the events of July 6 to July 14 when most of the relevant events in this indictment took place.
In fact, we will offer an article that was sort of annotated by people who read it. And so my point being but it is not offered to prove the truth of the matter asserted. We can talk about redactions or instructions but that's what Mr. Libby discusses. He says his article implies that we would have known about it but he didn't. And we're not going to dispute the fact in 2002 neither Mr. Libby nor the vice president knew about it. That's my point. That's why we plead in the indictment that the trip was done at the CIA's behest and they reported to the CIA. So when Mr. Wilson's says, I assume the vice president heard about it back then, we disagree. We agree with Mr. Wells he didn't.
So, the OVP was not aware of the Wilson report? That might spark a long afternoon for Jeff. And what article was annoted? The Pincus June 12 piece is an obvious guess, but Pincus had a follow-up to that as well.
INDICTMENT DO-OVER: This is pretty funny - after listening to several defense objections about assertions made in the indictment that Firzgerald is not inclined to support, the judge offers this reassurance to the defense:
THE COURT: Let me just make one thing clear. The indictment is not going to go to the jury. They are not going to have it.
Oh, well then. Maybe the prosecutor could deliver a new indictment so we could figure out what we are talking about, then.
And finally Fitzgerald throws the same cold water we do on a lefty talking point. The subject is paragraph 13 of the indictment:
13. Shortly after publication of the article in The New Republic, LIBBY spoke by telephone with his then Principal Deputy and discussed the article. That official asked LIBBY whether information about Wilson's trip could be shared with the press to rebut the allegations that the Vice President had sent Wilson. LIBBY responded that there would be complications at the CIA in disclosing that information publicly, and that he could not discuss the matter on a non-secure telephone line.
From the transcript, Fitzgerald delivers the righty rebuttal:
FITZGERALD: ...I agree with Mr. Wells the New Republic article does not discuss the wife. There is an ambiguity about what Mr. Libby and this person are discussing on the phone afterward as to what the complication is.
A RAP SHEET? This will set hearts fluttering (starting on p. 22):
MR. WELLS: Your Honor, could you ask Mr. Fitzgerald if he is saying with respect to a particular individual who is the subject of a sealed affidavit by me, is he saying he's given us everything concerning that individual's conversations with the press?
THE COURT: I don't know what individual you are talking about and I'm not asking counsel to reveal that since it is under seal but --
MR. FITZGERALD: I'm not revealing Jencks Act material or Giglio material so let me take a case removed from this case so I could just be vaguer. If there were a person with a cooperation agreement or impeachment material and had a long rap sheet with six arrests and they gave a 302 for an FBI interview and they went in the grand jury, I wouldn't turn that material over now.
But if that same person was someone who had spoken to Mr. Libby, spoken to the press and was being a witness and at the time they wrote down an email that said, just had a meeting with Mr. Libby, sent it off to someone and we looked for the email and we found it and we had it or they wrote a memo to file at a time which was not an FBI interview after the investigation started but a memo to file at the time or handwritten notes and we have that, we've given that over.
We are not sitting on documents or emails or other things calling it Jencks because it was created at the time of the events. We would only sit on Jencks/Giglio.
THE COURT: Mr. Wells, is that --
MR. WELLS: He qualified it by emails that specifically mention Mr. Libby. But we would take the position, Your Honor, that if that particular individual has emails concerning Mrs. Wilson, whether they are sent to Mr. Libby, and if that individual also had discussions with the press as part of how you described the situation, we are to get all of the emails or memos or notes or whatever that that individual has concerning Mrs. Wilson regardless of whether they went to Mr. Libby because it is highly relevant.
THE COURT: You are saying that that would be Giglio, right?
MR. WELLS: No, not necessarily, Your Honor.
THE COURT: It seems to me that would go to the issue of whether they would have some motive to curry favor with the government because they also had revealed information that conceivably they could be charged with.
MR. WELLS: It also could lead to discoverable evidence and for purposes of cross-examination. It wouldn't necessarily mean just Giglio. That's all I'm saying. Perhaps
Mr. Fitzgerald didn't mean to carve out that piece.
MR. FITZGERALD: It is moot. I agree with Your Honor it would be Giglio. But if we don't have it, where we had it we've given it over. We haven't held back if it's not testimony or not impeachment by a rap sheet or something else.
It's not like we took the emails and said the ones that discussed topics X and Y from July 2003 he gets. The other ones we sit on until later. So it is moot.
THE COURT: Okay. If there are individuals, and again I don't know if anybody fits in this category, who also had discussions with Mr. Libby and had discussions to the press
but who will not testify, where do those individuals fall? I assume the discovery request would encompass individuals who would fit within that category also. Again I don't know if anybody fits in that category. But if so, what is the government's position about documentation regarding those individuals?
MR. FITZGERALD: Your Honor, let me be general here and I will rethink the remarks. If I need to clarify it, I'll clarify it to you with a copy to counsel. My understanding is in those situations, not saying whether they are singular or plural. I don't want too much read into my words. But we would give over documents reflecting the conversations with Mr. Libby.
We would not be turning over materials if the person is an innocent accused or a subject of an ongoing investigation. We would not be turning over a conversation if there was a document about a conversation with a reporter necessarily as to what they said to the report. But if there is a document that would be relevant to the conversation with Mr. Libby such as an email saying I just spoke to Libby or even a calendar entry saying that they meet with Libby, that sort of thing was turned over.
My "Blink" reaction - We are talking abut Ari Fleischer, who was mentioned as a possible "curry favor" candidate in an earlier defense filing, I think. Well, I expect plenty of theories will be aired, and I am by no means wedded to this one. [Hey, the Blink may have worked - Fleischer was the subject of a sealed affidavit.]
FINAL GROAN: Among his closing thoughts, the judge worries that the trial will take a month, so some sort of a screening technique must be uesed to find jurors who can be available for that time period. And here is the groan:
I guess one of the concerns I have about written questionnaires is that I think it disadvantages those people who do not read and do that write well, and as a result of that, many times I think those individuals end up being screened out of the process and don't have an opportunity to sit as jurors because they aren't articulate.
Ahh, this may be a complicated case and, as discussed in the hearing, newspaper article may be introduced as evidence - it might be nice to have jurors who can follow along.
Or maybe not.
UPDATE: Fitzgerald responds to some of this:
I have been advised that I come up aces on my guess that the Libby warning to which Fitzgerald referred came *after* the publication of the Novak column. There is a lesson there - never underestimate the power of wishful thinking.