No Mitchell No Peace

Jeralyn Merritt has copies of Fitzgerald's filing opposing the defense's effort to call Andrea Mitchell as a witness.

Shorter Fitzgerald: Since I never got around to asking Ms. Mitchell for her testimony under oath, it is not fair if the defense does.

Slightly Longer Fitzgerald: We don't need Ms. Mitchell's sworn testimony, since we can rely on her many public statements denying any involvement.

That is a pretty bold notion of jurisprudence, but it may represent a huge time-saver for police and prosecutors - just read the papers and if a person denies any involvement, well, case closed.  Maybe in the day of Web 2.0, prosecutors can survey Facebook and YouTube to see if folks have posted denials there as well.  "CSI-Miami" can become "CNN-Miami".  Cool.

That should save all the tedium of swearing people in - gosh, it must be tiresome for poor Patrick Fitzgerald, who has no doubt had to sit through thousands of people raising their right hands.

And it would save on downtown parking, since folks won't have to come to court.  It's all good!

Of course, there is the little matter of Libby's right to confront the witnesses against him.  And Ms. Mitchell does work for Tim Russert, and Tim Russert has said it's "Impossible" that he knew about Ms. Plame, but Mitchell at one time said she did know about Ms. Plame, and the jury may want to assess Ms. Mitchell's denials for themselves - she was so timorous and evasive on Imus that folks listening nearly hurt themselves laughing, but perhaps this jury is made of sterner stuff. 

And since we have heard from plenty of reporters who have tried to minimize their involvement in this case - Bob Woodward, for example, explained that he kept quiet about his leak in order to avoid a subpoena - it is even possible that Ms. Mitchell's public statements were meant to, uhh, deflect the prosecutor.  Mission Accomplished!

Fitzgerald will lose this round as soon as the judge can get over the giggles.

Or, if Mitchell does not appear, I can offer a prediction - righties (yes, starting with me!) will never accept a guilty verdict and will be begging The Decider for a pardon.

MORE:  The defense also responds to a prosecution attempt to keep NY Times editor Jill Abrahmson out of the trial.  Again, this looks likes a loser for Fitzgerald - per the filing, Ms. Miller testified that shortly after getting the July 8 leak from Libby, she discussed the idea of a Wilson story with Ms. Abrahmson; in her public statement, Ms. Abrahmson has denied this.  The defense notes that this ties directly to Ms. Miller's credibility, and believes that the jury might be interested to hear Ms. Miller flatly contradicted by her editor.  I bet the judge will agree.

Comments

[lauraw]

Would the judge have himself seen the Mitchell/Imus gigglefest?

[centralcal]

This is an excellent post and needs to be read far and wide. I hope Instapundit links you tonight.

[lurker]

What if Wells files for Rule 29 and Walton agrees that there is insufficient evidence to allow the jury to reach a verdict?

[Sue]

righties (yes, starting with me!) will never accept a guilty verdict and will be begging The Decider for a pardon.

Right behind you dear leader. Only I will begging for a pardon whether Mitchell testifies or not.

[David Walser]

TM,

That's Swift quality sarcasm and wit. It's an instant classic!

[lurker]

If our predictions come true, this might be a sign of desperation upon Fitz's filing of these motions.

[Other Tom]

"--Anna Nicole Smith has died.--"

How can they tell?

[Martin]

Mitchell is not one of Libby's accusers.

Your restatements of Fitz's position completely miss the point regarding hearsay.

If all the defense wants is to get in evidence that Plame was widely known among the power elite, just call your National Review boy Cliff May, who wrote the same thing write on that little rightie gabfest The Corner.

Or did he make a cowardly retraction I missed?

[kazinski]

I think Fitz's next motion will argue that Libby's defense is bound by his agreements with Russert, Miller, and Cooper not to ask any questions about other sources. As in Wells can't ask if Mitchell or Gregory told Russert about "Wilson's wife" because Fitz couldn't ask it during the deposition.

[Patrick R. Sullivan]

I'm beginning to smell a new rat. Fitz had Rove before the GJ enough times to have quizzed him about his recollections of his conversation with Libby on July 11th. So, Fitz knows whether or not Rove can corroborate Libby's having told about Russert knowing.

What's Fitz up to? Trying to force Libby to get Rove on the stand, in public, so Fitz can have another shot at him?

Force Cheney to testify he remembers Libby telling him about Russert, and get him on cross?

[centralcal]

Remember the recent interview Cheney did with Wolfie Blitzer? The silence and the glares? I don't think he would be very intimidated by Fitz, should he decide to testify.

[Martin]

What do you mean "force" Sullivan.

If Rove can corroborate that he told Rove about Russert, Libby should be jumping at the chance to call him.

And if Rove disagrees with Libby, that could have been the basis for another false statement charge. So either Rove said he has no recollection or Fitz thinks he's otherwise too impeachable to use as a witness.

[MikeH]

Martin: "If all the defense wants is to get in evidence that Plame was widely known among the power elite, just call your National Review boy Cliff May..."

Cliff May worked with and for Russert?

"If Rove can corroborate that he told Rove about Russert, Libby should be jumping at the chance to call him."

Don't get ahead of yourself in your Rovian excitement.

[Martin]

What does "work with him" have to do with it?

As Fitz says, and apparently goes right over TM's head, the defense wants to call Mitchell solely so they can impeach with a prior inconsistent statement that Plame's identity was widely known. Impeach Mitchell, not Russert.

Are you saying they should be able to ask her if she told Russert?

Fine. Call her. If she says yes, Russert's impeached. But if she says no, they have leave it at that and the defense looks worse. But that's not what they want.

The defense just wants to get her say that Plame was not known, to impeach her with a statement previously ruled hearsay. It's an endrun-the basis of Fitz's motion that TM fails to grasp.

I remember the days when everyone on this blog was shouting how everybody knew about Plame way before Novak. Cliff may even wrote it.

Now when push comes to shove they can't dig up one person to so testify. How odd.

[Sue]

FNC reporter, Katherine Herridge? just said that what was important was Russert continued to say that on July 10, 2003, he never raised CIA operative Valerie Plame's name. Hmmm...that isn't the issue. I don't think Libby claimed he did.

[Jane]

Maid Marion,

Tell us more.

What were your impressions today?

[Sue]

Martin,

How do you know they can't? The defense hasn't put on its case yet. Fitzgerald certainly wouldn't call someone that would testify to that.

[Andrea Mitchell]

Martin- it would be ridiculous for the Defense to call Cliff May, because he only had second hand knowledge. The defense will have spoken with May, and will have interviewed the people he named as having that knowledge from Wilson. They may call those people. I suspect some of those people are on the possible witness list.

[anonymous]

Oh. That may not have been Andrea Mitchell. She would never make such a cogent, important, insightful point.

[Pofarmer]

The defense just wants to get her say that Plame was not known, to impeach her with a statement previously ruled hearsay. It's an endrun-the basis of Fitz's motion that TM fails to grasp.

Doubtfull. The Defense wants to flesh out the "Everbody knew" statement, and flush this whole thing down the toilet.

[Jane]

So Fitzy, who recent introduced newspaper articles to bloster his case now rebels against bad information in the WP and says even Tom Brokow agrees with him so Andrea Mitchell shouldn't have to testify? Plus she was "off the record" and if you are off the record it apparently doesn't matter what you know or say?

And all this without ever talking to her.

He's amazing!

[Patrick R. Sullivan]

'What does "work with him" have to do with it?'

Oh yeah, you're the one Fitz ought to be indicting, what with your short term memory difficulties.

Russert testified that after he read Novak's column and slapped himself upside the head, he went to the newsroom and asked everyone if they knew about the wife. Everyone told him no, they didn't.

Andrea's admission on Capitol Report that she did, impeaches Russert (AN ACCUSER, he has the right to confront).

Her risible attempt to retract that on Imus demonstrates she has a reason not to tell the truth. It's an admission against interest that should be allowed.

[Dan S]

TM,

You missed the point of his filing. He's hoping for a precedent so he can go after a Vice President! Just look at all the "evidence" out there in the media that Cheney is evil and behind outing a covert CIA agent and ruining her career, making her noble ex-ambassador's life hell, forcing her to star in a Vanity Fair (the irony!) article, and making her look like a domineering wife who sends her husband on junkets to Africa just to let her get our of his huge hair!

If he can keep Mitchell out because we know where she stand based on her media "testimony," how big a leap can it be?

[Carol Herman]

FM: CAROL HERMAN
TO: KAZINSKI

I know you're not Alex, but your comments are good.

I'm thrilled Walton's let Wells bring in witnesses that Fitz didn't bother with.

Sure. It's the COMEY RULE. Which is "oversight of fitz involves reading the morning papers." Must make the WaPo proud.

[boris]

It's an admission against interest that should be allowed.

Pretty much the exact situation the term "admission against interest" was created for.

[Pofarmer]

Speaking of Comey. He comes on the scene, appoints this monstrosity, "With the powers of the AG regarding this case" then retires and leaves? Some oversight. Who's watchin the store now?

[ghostcat]

Gee, wonder why Fitz is fighting so desperately to keep Andrea out of the witness box? (Hint: she, and perhaps only she, knows chapter and verse of the back story.)

[ghostcat]

But the Raporter may also know.

[Carol Herman]

FM: CAROL HERMAN
TO: TOM McQUIRE

I loved it when you wrote about all those people Fitz faces "who raise their hands." And, to paraphrase, "why not cut to the chase."

But since you've drifted in the direction "of raised hands?"

How many "raised hands" would there be of people who got polled about Russert's comments that he could testify against Libby BECAUSE LIBBY'S CALL FROM THE VEEP'S SVP was about a customer complaint? Not a confidential call. RIIGHT? You think this isn't risible?

Again, I think if LIBBY TESTIFIES? He'd let the jurors see the differences between FINALLY BEING ABLE TO COMPLETE WHAT CHENEY WANTED ... which was to PROVE THE VEEP DIDN'T ASK FOR WILSON TO GO TO NIGER!

Boy, would that get people's heads focussed.

Even the juror who keeps asking about PLAME!

She's "unimportant," now to Fitz' investigation. But he was charged with finding the leaker, wasn't he? HOW COME HE CAN KEEP THAT FACT HIDDEN UNDER HIS HAT?

By the way, "admission against interest" ... if WORDS MEAN WHAT THEY MEAN ... don't get applied to Libby! HE GAVE YOU HIS MEMORY OF THIS! He told Fitz he REMEMBERED what he heard from Russert.

Russert's got a big sign flashing that says?

[MaidMarion]

Does Wells appreciate the difference between "Wilson's wife" and "Valerie Plame"?

Andreas Mitchell has already broadcast to the world that she was aware that "Valerie Plame worked at the CIA."

No one has proven that Andrea Mitchell new that "Valerie Plame" was the "wife of Amb. Wilson".

[Javani]

According to Mitchell in the Fitz papers, she was not "a recipient of the leak." But that is used to imply a govt. official told her, not that she heard otherwise.

Mitchell said,

"It was widely known among those of us who cover the intelligence community and who were actively engaged in trying to track down who among the foreign service community was the envoy to Niger."

Which is not a statement Wilson's wife was widely known. But it sounds like what Libby says her superior told him, and she adds another sentence,

"So a number of us began to pick up on that."

Referring to the wife. So not widely known, but "a number" might have. That could very well include her co worker Gregory. And she works under Russert, showing Russert could have had access to such knowledge.

Mitchell's coming in, she's relevant and material.

I don't know if Novak and Wilson would meet a materiality test.

[Other Tom]

"So either Rove said he has no recollection or Fitz thinks he's otherwise too impeachable to use as a witness."

Jeez, Martin, aren't you forgetting about the best evidence rule?

[Jane]

Does Wells appreciate the difference between "Wilson's wife" and "Valerie Plame"?

Maid Marion,

There is a line in the most recent pleading that says something to the effect: "Mitchell states she did not know who Valerie Plame was". I thought of your last post when I read it.

[Seixon]

If Fitzgerald's case was as ironclad as the Jason Leopolds of the world have always claimed, why all the fuss to keep people from taking the stand? This is starting to get very interesting.

[clarice]

Meanwhile--here's msnbc's account of the case today. Guess who's missing from the story?
http://www.msnbc.msn.com/id/17029067/
(right hand side of p.)If you guessed Andrea Mitchell, David Gregory you won.Bonus prize if you also noticed no mention is made of the FBI interview.

[Javani]

Clarice:

Here or another thread you relate your husband found Russert good for Libby because Russert says Libby didn't mention W's wife.

After the juror questions Wells asked one question (via FDL)

Wells: Mr. Russert, you have no recollection of Mr. Libby telling you any information about Ms. Wilson?

T: No.

Wells: Thank you.

---looks like Wells and hubby think alike!

[lurker]

And Jane, wouldn't that be the same for Libby, Matalin, Cheney, et al, to figure out eventually that Valerie Plame is the same as Valerie Wilson, wife of former Ambassador Joe Wilson?

[Carol Herman]

FROM CAROL HERMAN

Bennett NEGOTIATED with the NY TIMES that Judith Miller could write ONE ARTICLE they had to publish AND COULD NOT CENSOR!

And, you bet, in that article Miller discussed how she got treated by the editorial staff at the NY TIMES. She made the place seem ugly. And, vindictive. And, pinch? He only lived "upstairs." He 'mostly' never came down to the floor.

There was a picture, I think, of pinch hugging Judy. And, she did refer to Jill Ambramson as being a bitch for not allowing her to write "the story." (My guess is this is where David Sanger comes in to play.)

It won't matter if Jill Abramson admits to not liking Miller. (She won't be able to work a smooth angle out, considering how unhappy Judith Miller was "with her pen." After spending 85 days IN THE PEN.)

The only good part? Bennett worked it out that the NY TIMES covers all of Miller's bills with his office. She's free to call him anytime. FREE. The charges, however, go to pinch's empire.

We're gonna read more about Well's technique in questioning witnesses. ANd, on Monday? Clarice is there! WOWZA.

[Barney Frank]

--why all the fuss to keep people from taking the stand?--

That's what lawyers do; try and keep the opposition's witnesses off the stand and limit their testimony as much as possible.

[Jim E.]

TM writes: "if Mitchell does not appear, I can offer a prediction - righties (yes, starting with me!) will never accept a guilty verdict and will be begging The Decider for a pardon."

This is so lame. Of the regulars who comment here, there's hardly anyone who would have accepted a guilty verdict. You folks have your minds made up, and they were made up a long time ago. That's fine, but don't pretend today's discussions about Mitchell had anything to do with it.

And it's disingenuous for TM to start acting like this Mitchell thing has finally got him excited about a pardon. As if. On Jan 30, in reference to Judy Miller's appearance, TM was writing, "I also think The Decider (aka, the 13th Juror, aka, George Bush) has seen enough, and Libby's pardon is now gift-wrapped." Funny how a pardon has always been the right thing to do, and as if for the first time.

[Barney Frank]

Javani,

--Wells: Mr. Russert, you have no recollection of Mr. Libby telling you any information about Ms. Wilson?

T: No.

Wells: Thank you.--

Yes that was an interesting question. Wells knew what the answer would be. I can't see him ending with Russert on that unless he knows he has something good to impeach it.

[birdseye]

If Walton rules against the defense re Mitchell, can she be called as a witness by the defense when the ball is on their court?

[Barney Frank]

You folks have your minds made up, and they were made up a long time ago.

Suggest you post under the pseudonym "Kreskin" from now on Jim.

[clarice]

The ball is NOW in THEIR court and it IS the defense trying to call her as a witness.

[Jane]

The ball is in their court birdseye. The prosecution rested today.

[clarice]

Yes, Javani--I told him. (Doesn't it kill you when you've worked yourself to death arguing something and someone just waltzes in with a damned good point like that?) URGH

[boris]

there's hardly anyone who would have accepted a guilty verdict. You folks have your minds made up

Speak for yourself.

[JM Hanes]

Jim E:

Thank heavens we have you here to tell us what we think!

[Jane]

lurker,

Maid Marion was thinking that maybe Mitchell would weasel out of a question of whether she knew Mrs. Wilson because she actually knew her as Valerie Plame (or vice versa, I forget). But the pleading that Fitzy filed, referred to the fact that Mitchell said she didn't know Plame.

[lurker]

The prosecution team hasn't done a good job proving those charges against Libby beyond reasonable doubt. Just my opinion.