I love the smell of dropped felony charges in the morning. It smells like victory... of a sort.
Neil Lewis of the Times reports, sort of, on the latest in the Libby trial:
The Libby defense won a victory of sorts when Judge Reggie B. Walton agreed to exclude part of one of the five felony counts against Mr. Libby. But it remained unclear whether the change, which was not contested by the prosecutors, would matter in jury deliberations.
33. It was further part of the corrupt endeavor that at the time defendant LIBBY made each of the above-described materially false and intentionally misleading statements and representations to the grand jury, LIBBY was aware that they were false, in that:
c. LIBBY did not advise Judith Miller, on or about July 12, 2003, that LIBBY had heard other reporters were saying that Wilson's wife worked for the CIA, nor did LIBBY advise her that LIBBY did not know whether this assertion was true;
Apparently Fitzgerald failed (forgot?!?) to elicit relevant testimony on this point. Can someone give me a "Fitz!"?
NOTE: I have changed "count" to "charge" a couple of times since there are still five counts. I am not sure "charge" is right either, but it is clear that something was dropped.
FWIW, Neil Lewis is tough on Russert:
[The jurors] seemed to pay close attention as Mr. Wells, known for his cross-examination skills, and Mr. Russert, a successful public communicator, went at each other for a second consecutive day.
Mr. Wells focused on Mr. Russert’s behavior when he was first called by an F.B.I. agent and asked about a telephone conversation he had had with Mr. Libby on July 10 or 11, 2003.
In that call, the agent told Mr. Russert that Mr. Libby had said in an interview that he first learned of the identity of the C.I.A. operative, Valerie Wilson, from Mr. Russert in the July 2003 conversation.
Mr. Russert told the agent that Mr. Libby’s assertion was untrue, that the issue of Ms. Wilson never came up in that conversation.
Mr. Wells, using the technique that Mr. Russert is known for as moderator of “Meet the Press,” then put up on video screens throughout the courtroom Mr. Russert’s words in an affidavit he filed later. In an effort to avoid complying with a subpoena to testify about the same subject before a grand jury, Mr. Russert swore that he could not discuss the conversation because to do so would violate his deeply held journalistic principles.
“Did you disclose in the affidavit to the court that you had already disclosed the contents of your conversation with Mr. Libby” to the Federal Bureau of Investigation, Mr. Wells asked.
“As I’ve said, sir ... ,” Mr. Russert began.
“It’s a yes or no question,” Mr. Wells interrupted.
“I’d like to answer it to the best of my ability,” Mr. Russert replied.
“This is a very simple question. Either it’s in the affidavit or it’s not,” Mr. Wells said. “Did you disclose to the court that you had already communicated to the F.B.I. the fact that you had communicated with Mr. Libby?”
“No,” Mr. Russert said.
Good courtroom drama.
MORE: I am actually OK with "a victory of sorts". Here is the lead we expected:
In a stunning setback for the Libby defense, the judge upheld all but one of the counts in the indictment against him this evening...
AND the lead we wanted:
Glaring balefully at Special Counsel Fitzgerald, Libby Trial Judge Walton picked up a pair of scissors from his desk and carefully snipped out one paragraph from the original indictment. "There", sneered the judge to the clearly abashed Fitzgerald, "Maybe you will have better luck proving some of these other ones."
Dreams die hard.