What Is Russert's Game (And Is Fitzgerald Helping Him Play It?)

Tim Russert's testimony, as elicited by the defense, painted a picture of a pundit with a puzzling problem.  Arianna Huffington has a great collection of links and a quick summary of Russert's baffling testimony and Jane Hamsher offered some helpful hints as well [and let's include Swopa's liveblogging 1, 2, 3, 4, 5, 6]. 

Let me point out a few dots that the defense has introduced and make some predictions about how they will attempt to connect them.  In one sentence, the defense insinuation will be that Russert cooperated with the FBI investigation and committed a firing offense by keeping that from his NBC overlords; he also misled the FBI and the grand jury about his talk with Libby in order to minimize his own role in this case.

Please keep in mind - I am attempting to predict defense strategy, not ascertain "the truth".

Here we go:

1.  Russert testified that he cooperated with the FBI investigation in November 2003.

2.  Russert then testified that he couldn't remember whether he mentioned this cooperation to his boss and friend, Neal Shapiro of NBC News.

3.  In 2004 NBC News filed a brief resisting Special Counsel Fitzgerald's attempt to subpoena Russert's testimony; Fitzgerald also submitted a filing, both of which are available here (and we thank Mss. Huffington and Hamsher).  The NBC brief did not mention Russert's earlier cooperation, which seems to be a bit duplicitous; one might even use phrases like "false" and "misleading the court".

So where is the defense headed?  Well, let's imagine that, despite Russert's non-memory, he did in fact tell Neal Shapiro that he had been approached by the FBI in the Plame investigation.  Is Mr. Shapiro really going to take the stand and tell the court that yes, after learning that Tim "The Franchise" Russert, his Washington Bureau chief, was embroiled in the biggest political scandal of the year, he simply blinked and moved on the next topic?  Is he going to say that he barely remembers it himself and is not surprised that Tim has forgotten?

Please.  There were obvious First Amendment press freedom issues to be discussed, as well as the practical question of whether it would be appropriate for Tim to continue covering a story of which he was a part.  So Mr. Shapiro will tell the court that, after Russert told him about the FBI investigation and EMT technicians had re-started his heart, he and Tim got into the issues.  How could Tim forget this conversation?  Hard to imagine.

Unless, of course, when Russert says he can't remember, he means that he did not tell Shapiro at all.  Is it even remotely plausible that a reporter would cooperate with the Feds and not tell management?

Well, yes.  Viveca Novak, former reporter for TIME, did exactly that on this very Plame case:

...the next week he told me Fitzgerald did indeed want to talk to me, but informally, not under oath. I hired a lawyer, Hank Schuelke, but I didn't tell anyone at TIME.

Did I mention that she is a "former" TIME reporter?  She eventually told her bosses about Fitzgerald's interest, went on a leave, and never made it back.

So let's see - it's impossible to believe that Shapiro will testify that Russert told him but that the conversation was brief and forgettable.  That makes it easier to believe that Russert pulled a Viveca and tried to keep his cooperation quiet.  That means he also kept quiet when NBC filed the misleading affidavit opposing his subpoena.

Might those be firing offenses?  Might that give him five million reasons a year to want to avoid any further trouble on this story?  I bet the defense will raise that question.

And what about Special Counsel Fitzgerald?  His role is a bit of a mystery here as well.  Look through his 48 page argument explaining why Russert should be compelled to testify and riddle me this - why is there no mention anywhere of the fact that Russert has already cooperated with the FBI?  As noted by Ms. Hamsher, Fitzgerald was delighted to point out that Russert had disclosed Richard Clarke as a source; surely the I. Lewis Libby example was even more on point.

Well, if the defense can raise questions, they can also insinuate answers - Fitzgerald was well aware of Russert's little problem and threw him a rope, at least in the public filing (there is also an Affidavit of Special Counsel which may cite the FBI cooperation.)  So, Fitzgerald kept quiet about Russert's problem, and now Russert is delivering payback with his still-helpful testimony.  True?  Who knows?  Reasonable doubt?  Make the call!

Let's connect a few more dots.  Let's imagine, HYPOTHETICALLY, that Russert did in fact mention Wilson's wife to Libby - why would he lie to the FBI about that?

Simple - his source was Andrea Mitchell; if Russert admitted he had a source, he would not be able to invoke reporter-source privilege (and lose that fight in court).  Instead, he would have to give up Ms. Mitchell and let her fight to protect her source (a fight she would have lost, if Judy Miller and Matt Cooper are useful examples).

And the impact on Tim?  Well, NBC reporters might be a bit less forthcoming with Tim if talking to Tim led to being subpoenaed.  And it would be harder to be Washington Bureau Chief if the other reporters stop talking to you, yes?  Maybe he could think of five million reasons a year to minimize his own involvement in the investigation - protect sources, protect Andrea, protect his paycheck. 

And why would Tim worry that his little white lie would come back to bite him?  It may never have occurred to him that Libby would be indicted, not for leaking, but for perjury.  Russert may have figured, back in 2004, that since he he given info to Libby, Libby did not have a problem.  Oops.

And a last thought - the initial, carefully worded NBC "denial" that Russert provided information about Ms. Plame to Libby was an attempt to keep Tim's options open - he had a good idea of "the truth", but was not clear just where he was going to jump when push came to shove.  Just a guess.  Now he has testified and has jumped in the direction of "I had a story and I'm sticking to it".

As to the "truth" of the above scenario, who can say?  But I do predict that the defense will insinuate something like this as a motive for Russert to stick with his story.

PILING ON: NBC has been fighting like fury to quash subpoenas to other NBC reporters (have fun storming the castle, boys!); Fitzgerald wants to keep quiet his negotiations with Russert.  No, I don't smell a rat... more like fish, actually.  But whatever it is, the defense will feast.

PAGING CAPTAIN QUEEG:  Russert's testimony about his chat with Libby is that he does not remember not discussing Wilson's wife, but since he had only learned about her later, it is  impossible:

W: Do you have a present recollection of not discussing Wilson's wife, are you just reasoning backwards from the fact that you did not know about her until Novak's column.

T: I have no recollection, but it would have been impossible.

Well.  Captain Queeg proved mathematically that there was a key to the refrigerator which had contained the strawberries, but his proof was undermined by false testimony.

If the defense can undermine the notion that it was "impossible" for Russert to have known, then his non-recollection becomes a real problem with his testimony.  And Andrea Mitchell is up today.

WHERE ARE THE PROSECUTION WITNESSES?  From Russert, via a liveblog:

W: But Fitz agreed to limit questioning.

(Tim begs to differ.  He pours some water as Wells puts a letter on the screen.)

W: (quotes the letter in which Fitz promises to limit questioning)  He was limiting the questioning, right?

T: I was not familiar with exact letter, but as I read it now, I understand it.

This could become a journalistic snuff film.

ERRATA:  I know Mickey Kaus discussed Russert's conflict of interest challenge (reporting on a story in which he was involved) way back when.  What I don't know is how to breeze through the Slate archives, but let me give credit where due.

And here is an example, anyway:

It's not that NBC's "reporters" aren't telling the whole story [that Libby called to complain about coverage of the Niger story rather than, for example, coverage of Cheney's energy task force]. They aren't even telling the minimal, basic gist of the story that others are telling. It's getting cult-like and creepy!**

Why would NBC keep its viewers in the dark--letting them think that maybe Libby was calling to complain about a report on global warming?  Possible answers: a) They're worried they might encourage early challenges to Russert's credibility; b) They're hiding something; Or c) If press accounts make Russert seem even more embroiled in the Wilson/Libby case than he is now, he will inevitably have to give up his perch as "neutral" moderator of Meet the Press, at least temporarily? ( I don't think he should have to give it up--it makes for better TV if he's a player! But there would be pressure for him to do so.) ... kf thinks: (b)!

Can he still keep his seat?  I bet yes - the media clamp-down on this story has been nearly total.

JUST TO HELP:  At the end of Swopa 3:

W: Right after Libby was indicted, do you remember having a roundtable discussion on TV?

Objection.  Sidebar.

W: Do you remember roundtable disussion on Libby indictment?

T: Probably two of those — on MTP, and on CNBC

W: And on CNBC, roundtable was you, Gregory, Mitchell, and Pete Williams. Correct?

T: Yes.

A redacted transcript is available at this old post.

And Andrea is on the way - lots of her material here.

Comments

[Daniel]

In a way Russert is right. He says it was impossible that he asked Libby about Plame.
That is a ridiculous absolute comment. But as far as Russert is concerned it is true that it was and is impossible for him to admit that he asked Libby about Plame.

For, if he were to do so, it would open up a Pandora's box of woe for him. He would have to answer such questions as: from whom did you hear about Plame, and he would land on the same hotseat as Judith Miller.

The utter impossibility of his making this admission seems to have transmogrified itself in his mind to an impossibility that he could have made the etatement itself.

And why did he try to avoid testimony to the grand jury? Obviously it was to avoid answering truthful questions about his sources other than Libby with whom he must have spoken as the information was common knowledge.

So it was lie about his conversation with Libby, or go to jail, or disgrace himself in the journalistic community.

Fitzgerald played into his hand by asking for testimony only about Libby, as he did ultimately with Miller.

So Fitzgerald set up a situation in which witnesses had to either contradict Libby about conversations or face either jail or disgrace, and he then took their word against Libby's.

Though the contradictions in conversation were of little or no consequence to anyone, he then indicted Libby for contradicting these witnesses!

Is there any other reasonable interpretation of this mess?

Has anyone suggested the slightest reason why Libby should lie about these conversations? Misremember perhaps. Lie? After talking frankly to the grand jury for hours and hours?

On the other hand it is almost impossible to imagine Russert or Miller not lying about these things, as Russert says

[Other Tom]

Following Thread Herder's excellent suggestion, I'll repost the comment/question I just posted on the prior thread:

"It's my understanding that materiality is NOT an element of the crime of obstruction of justice under federal law. See, e.g. the Martha Stewart and Arthur Andersen prosecutions. There has been some scholarly debate suggesting that it should be an element, but I think it is not as of today. If anyone has contrary info, please let me know--I can claim no expertise on this question."

[Sue]

I don't think I'm going to get my Perry Mason moment when Wells throws a phone bill at Russert and says there are two calls. Oh...well...

[Bill in AZ]

I don't get the Clarke reference at all. The MTP transcript is part of the filing and Clarke is on camera with Russert actively working to get his spin... er... story out to the world. Unless in Fitz's twisted worldview he expected Libby to do something similar, I can't see why that reference was even in the filing.

[Martin]

So it was Russert who lied to the FBI and is the one committing perjury in open court as we speak. IOW the Department of Justice has indicted the wrong man!

Is it really comforting for you to believe that the FBI/DOJ could get it so wrong that they'd indict the innocent and use the guilty as their star witness?

You know federal prisoners are at an all time record high in numbers...

[rogera]

I'm here threadherder--where is everyone else? other than Daniel, OT, and Sue

[clarice]

I think the SCOTUS in Anderson said it had to be implied that the obstruction was with the intent to do so, and though the Statute doesn't say so, if you do not the law is an ass.

TM, you are quick and more brilliant than ever today. That is exactly where this is heading.

(for the record here is Apuzzo's latest filing and as I predicted, he does a decent job of informing readers about the cross which occurred after he prepared his initial filing yesterday. I respect him. He reminds me of the old time court reporters I used to deal with, not the ill-educated, partisan flakes with fancy haircuts you see on tv .Apuzzo

[Bill in AZ]

Martin, Fitzgerald has a unique strategy for ridding the world of crime and corruption. He has made a highly successful practice for years of going after crime and scam victims. His theory is that if we put away all victims, criminals and scam artists will have no one to ply their trade on and will turn to honest work.

[Jane]

I'm here. I did a google search on OT's question and all I came up with is a paper saying Materiality should be an element of Obstruction of Justice.

It's more Clarice's balliwick than mine.

[Ranger]

It looks like Wells is putting David Gregory in a no win position. Russert has now said 1) he never learned of Plame's relationship to Wilson or that she worked at the CIA until he read it in Novak's column and 2) if Mitchell or Gregory had known, they would have told him. This means Gregory's testimony will either kill Ari's or Russert's creds. If he says that Ari didn't say anything about Plame and that she sent Joe, hard to believe he is remembering the Libby lunch accuratly too. If he backs up Ari, then Russert's claims are toast. Gregory must have told him that weekend at some time before the Novak article ran.

[azaghal]

The "creative solution" we discussed last night--to Russert's and Fitz's mutual in-a-box conundrum--seems to be taking on flesh and plausibility. To see this unholy SC/FBI/MSM alliance makes me ill.

clarice, in re FBI agents acting as accomplices rather than independent truth seeking investigators, a little known historical fact is that, when Earl Warren--then AG (or whatever) of California--ordered that ethnic Japanese citizens be rounded up and their property confiscated on national security grounds, J. Edgar Hoover forbade FBI agents to assist. Too bad Mueller doesn't have the intestinal fortitude to do something similar. This business about Eckenrode's notes, giving Russert a mulligan, etc. is outrageous.

[Carol Herman]

FROM CAROL HERMAN

Step back a moment. What happened in the court room yesterday was a meltdown for Russert.

Quite similar to the way the Nixon deal went down. Because? At first most Americans gave Nixon the advantage. He spoke on TV. People looked at all the binders from his tapes that his secretary typed up. And, it took MONTHS TO UNRAVEL.

In those days? It was called STONE WALLING. And, when it was over? Nixon, himself, was blamed for his own mistakes. And, how he handled the indictment(s).

BECAUSE last night's TV shows lacked the information that followed Well's cross? It dawned on me, because I looked, that DRUDGE DIDN'T HAVE IT UP! How were the news folks gonna know? They don't read "our" blogs. And, the places where they go kept repeating the mantra.

So, you're gonna have to wait.

After the denial, will come anger. And, then the left with EAT IT'S OWN. No going to step 3. Which is "acceptance." Maybe? A little bargaining, ahead? So what.

Lee lost. Grant gets the surrender. Russert needs to turn over his sword to Wells. (Or Walton.)

Lies go into buckets that leak. Fitzgerald never had a case that held water.

Now. How will the clock get managed, today? I'll guess that Russert leaves the stand. And, the judge takes questions from the jurors. That will keep everyone alert to discuss this over the coming weekend.

As to the best report I read, yesterday? FREE REPUBLIC had Kristinn's court house report. Lots of big wigs in Russert's audience. PEOPLE LEFT CRESTFALLEN. Faces dragging down. (So, the media will hear what happened through gossip. Standard procedure for them, ahy-hoo.)

Again, Kristinn said when Wells RUPTURED Russert on the LIES to the Court? Fitzgerald slumped down in his chair. And, did nothing much except stare at the jurors. Which Kristinn read as his "trying to decifer how they were taking in the FACTS.

If I'm talking to myself, here, so be it.

[Jane]

MSNBC should be in a bit of a panic today.

I think it is wrong that the thought of that makes my heart go pitter patter.

[clarice]

Exactly, Bill--SDNY rules--file lots of obstruction charges which under the pre-Anderson ruling were very hard to defend against, home in on who YOU think did it, and play all sorts of hardball games with witnesses to make sure you get the story (and victim/defendant) you want in the dock.Wells is doing the criminal justice system a very big favor in this case, exposing what has for far too long been hidden from sight.

[Great Banana]

O/T, but feel the need to ask:

Tim Russert worked for Mario Cuomo when he was governor. Now he the Washington Bureau Chief for NBC News.

What other editor/bureau chief of any mainstream news organization can you think of that worked for an elected politician as far to the right as Cuomo is on the left (and I mean cheif of journalists, not punditry)?

Indeed, what editor / bureau chief of any mainstream news organization (we are talking reporting, not punditry) can you think of who was worked for a republican elected official before his/her present job?

Every time I think of things like this, and the easy transition between far-left "alternative" publications and mainstream news organizations that "journalists" routinely are able to make, and I am astonished.

Sorry, back on topic everyone.

[Jane]

Except the "exposure" isn't really getting exposed. The media has clay feet about all of this.

[Other Tom]

During what appears to be a bit of a lull, let me throw out a thought that is beginning to crystallize. The defense may well be hoping that this jury is not really going to deliberate such matters as the parsing of "as if for the first time," but that it rather will simply come to the conclusion that something stinks here. It's beginning to put me in mind of the trial of John DeLorean, where the guy's guilt was established beyond any doubt whatsoever (he was shown accepting a huge load of cocaine on videotape), but the jury was fed up with the government's tactics and DeLorean walked. I think at this point--and we're still in the prosecution's case--there is a pretty persuasive argument that could be put together along those lines.

[clarice]

azaaghal, exactly so. OTOH this has been building up for some years and I am happy that we finally have a defense counsel good enough to expose it. Ever after the courts ignore it only at the cost of being complicit in these injustices , and the FBI simply has to change its role or suffer the consequences.

[Jane]

can you think of who was worked for a republican elected official before his/her present job?

Bill Kristal. It's a fairly standard leap

[Appalled Moderate]

Is my memory right that Fitz never talked to Gregory?

Seems a pretty amazing omission under the circumstances...

[maryrose]

Got to go to class-Bummer!

[Jane]

I think at this point--and we're still in the prosecution's case--there is a pretty persuasive argument that could be put together along those lines.

I keep coming back to the make-up of the jury. They are liberal and to some degree connected. They will have to have a tremendous amount of integrity to take that path. It may be the best - and most honest path for Well's to walk, so I think you are on to something.

[Great Banana]

Jane,

What mainstream media outlet is Bill Kristol the bureau cheif / editor for (again, in charge of news reporting, not opinion)?

[Dan S]

Jane,

I must admit the dilemma NBC is facing makes me smile. Based on what we're hearing here, Russert's one screen value should be plummeting.

[Dan S]

err... ON screen value

[Thomas H. Ryan]

Today ought to be a come to Jesus moment for the media, and especially so for NBC. It's time to have a little chat with the Investor Relations people at General Electric.

[Jane]

GB,

Oh he's not the bureau chief of anything - but that's because all the networks are left leaning and Britt is irreplaceable.

I just think it is a fairly standard route for reporters to take - witness Russert, Mathews (Jimmy Carter) Stephanopolus and many many more.

[Rick Ballard]

Letter outlines special consideration for Russert that allowed his attorney and NBC’s attorney would be in the room. Wells asks if he understands that to be out of ordinary, that normal procedure is no lawyer in grand jury.

Russert makes the ridiculous claim that he was not aware that this is normal practice. Wells is kind of incredulous, after reporting all these years you didn’t know that?
no
You’re an attorney correct?
Non practicing
Wells moves on. This was a dumb answer by Russert, he obviously knows this like the rest of the world.

Russert is lying through his teeth on that. I won't be surprised if Wells has a clip of Russert reporting on the fact that lawyers aren't allowed to be with their clients in front of the gj.

What a clean, wholesome, upstanding piece of crap propagandist.

[Tom Maguire]

So it was Russert who lied to the FBI and is the one committing perjury in open court as we speak. IOW the Department of Justice has indicted the wrong man!

If the jury has a reasonable doubt as to that being in fact the case, they ought to acquit on at least a few of the counts.

Are you *certain* Russert is not lying, despite an abundance of motive and a very friendly prosecutor?

If you are certain, why?

[Dan S]

fdl snark:

"The filletiing of Tim Russert continues into a second hour this morning… the first hour focused on Russert never disclosing his gabby interview with the FBI in November 2003, either to TV viewers or in fighting a grand jury subpoena in 2004."

Heh, different snark from earlier witnesses.

[Another Bob]

Jane, I think GB's point is most of the political set who end up in media aren't on the "hard news" side. Russert, as bureau chief of NBC news is on the hard news side.

[Dan S]

Jane,

GB's point is it's a fairly normal route for leftist journos, not conservatives.

[Great Banana]

Jane,

Oh he's not the bureau chief of anything - but that's because all the networks are left leaning and Britt is irreplaceable.

I just think it is a fairly standard route for reporters to take - witness Russert, Mathews (Jimmy Carter) Stephanopolus and many many more.

That was my point. We can all point to many "journalists" who worked for lefty politicians in the MSM, just not many who worked for righty politicians, and certainly none who are in charge. It's even worse when you compare those who worked for far left publications and are now "reporters" in the MSM, versus those who worked for far right publications and are not "reporters" in the MSM.

I realize that it is a standard transition for someone to be a political activist on the left, and then become an "independent, neutral" reporter. I just don't think it is so standard from the other direction.

[Sue]

W: Given that you have gone on so many TV shows to talk about your deposition, would it be embarrassing if it turned out you had a mistaken recollection?

Uh...oh...

::grin::

[Tom Maguire]

Is my memory right that Fitz never talked to Gregory?

Seems a pretty amazing omission under the circumstances...

That is the story so far.

Letter outlines special consideration for Russert that allowed his attorney and NBC’s attorney would be in the room. Wells asks if he understands that to be out of ordinary, that normal procedure is no lawyer in grand jury.

Russert makes the ridiculous claim that he was not aware that this is normal practice. Wells is kind of incredulous, after reporting all these years you didn’t know that?

On a good day, the blogosphere would pile up cites of Russert reporting on stories and noting that detail - maybe from the Clinton years, there were plenty of grand jury sotries then.

Are we having a good day?

[Ranger]

Looks like Wells is going after Russert's motivation to claim "impossiblity" of discussing Wilson's Wife.

W: Given that you have gone on so many TV shows to talk about your deposition, would it be embarrassing if it turned out you had a mistaken recollection?

Objection. Sidebar. Now they're taking a break.

[Walter]

Other Tom,

You are correct in that materiality does not appear as a separate category in the statutory definition.

But, as the USSC said in Aquilar (and repeated in Arthur Andersen LLP: “[I]f the defendant lacks knowledge that his actions are likely to affect the judicial proceeding,” we explained, “he lacks the requisite intent to obstruct."

Which is to say, if the defendant lacks knowledge that it's material, he doesn't obstruct justice by concealing it.

So it's there, just subsumed in another element and disquised by using definitional language. Don't you just love the common law?

I suspect that's part of why we see Wells harping on what Libby understood the investigation covered.

It's also why 1x2x6 got in. Fitzgerald is arguing that Libby (despite his experience dealing with Cooper, Tweety and friends) actually believed what he read in the papers.

I expect him to testify, if only to clear up these little questions.

Posted here in deference to that busybody threadherder...

[Jane]

GB,

I don't think it is so standard either (and I apologize for missing your point). I guess I've gotten to the point where I rarely think a reporter is either "neutral or independant" perhaps for the reason you cite.

[Curly Smith]

Next Sunday morning on "Meet the Weasel" Tim Russert talks to... nobody!.

George Bush is a genius, he took down Dan Rather and Tim Russert... is Katie next on his list or will he go slumming for David Gregory?

[sbw]

Does the current cross-examination mean that simply for the pretzel-twisting entertainment value alone I'm going to have to break my rule and watch Chris Matthews' Hardball after Russert's testimony today?

[hit and run]

Tom:
On a good day, the blogosphere would pile up cites of Russert reporting on stories and noting that detail - maybe from the Clinton years, there were plenty of grand jury sotries then.

Are we having a good day?

Yeah, but who's gonna step away from the live-blogging to do it? Anyone who's interested enough in this case to go do the digging is probably drawn like a moth to the flame that Russert is currently being consumed by.

[Walter]

And I suppose it's actually a tougher standard than materiality in that obstruction requires "likely to affect" as well as knowledge of the capability to affect whereas perjury requires merely "capable of affecting" and intent to affect.

[Carol Herman]

FROM CAROL HERMAN

Eisenhower once said "Beware the Military Industrial Complex."

He got it wrong.

We should beware the press riding the donkey herd.

Young once. Then ya grow up.

[jwest]

Did Russert just admit to telling the NBC lawyer about his FBI interview?

It seems like that lawyer might be in a bit of trouble now concerning Russert’s false affidavit to the court.

[sbw]

T: I did not disclose Libby's side, I just confirmed it.

Ouch! It is so easy to confirm things to reporters -- that's what I heard, too.

[Jim E.]

Speaking of Mickey Kaus (TM mentions him in his post), has he posted about the phone call testimony yet. I thought he were going to here about charges of antisemitism.

[Barney Frank]

I told you lawyers make lousy witnesses.

[maryrose]

sbw:
I will watch Hardball so you don't have to!

[Ranger]

Here comes the big question. Wells is trying to get clearance from Judge Walton to introduce it:

Apparently Mitchell said she had discussed statement controversy with Russert, also admits that question/answer were clear when she said she knew.

[theo]

I think the key here may be as ranger noted -- the box Gregory is now in. If in fact says that Gregory never told him and Gregory would have told him if he had heard such a thing, the only logical conclusion is that Gregory never heard such a thing. And if so, Ari is wrong.

I am not sure that Wells even needs to put on Gregory to make this point, assuming he gets Russert to say that Gregory would have told him if he had heard. Putting Gregory on is then dangerous, as Gregory can say he -- for whatever reason -- actually did not tell Russert.