Libby replies (1 or 2; original Libby appeal; amicus brief) to Judge Walton and the prosecution arguments on Libby's bail appeal. Keep in mind, the current appeal is simply on the issue of whether Libby's appeal points are close enough that he should be allowed to remain free pending a final resolution of his appeal; the judges are *not* being asked to reach a final ruling on the underlying issues of his appeal.
Similar arguments were presented to Judge Walton when he ruled that these were not close questions - links are here.
This part of the reply is comedy gold:
III. The Special Counsel's defense of the Andrea Mitchell ruling is especially anemic. True, Mitchell's attorney apprised the district court that, if called to the stand, his client would disavow her previous exculpatory statement. But that's why lawyers get to do cross-examination.9 In the face of questioning under oath, Mitchell may have gone back to her first story – and if she didn't, the jury might have credited her first version anyway. As we explained in our opening brief (and as the Special Counsel fails to dispute), there was abundant corroboration for Mitchell's prior statement.'
Only under a truly extravagant reading of United States v. Johnson, 802 F.2d 1459 (D.C. Cir. 1986), could such routine but crucial cross-examination be precluded. But precluded it was. Because Mitchell's testimony cut right to the quick of Russert's contradiction of Libby – a proposition that the Special Counsel does not dispute – the preclusion of this vital witness is yet another close question on appeal.
And the associated footnote:
The fact that defense counsel declined the district court's offer to permit them to examine Mitchell outside the presence of the, jury is scarcely a "waive[r]" (Opp. 18 n.21) of their right to establish that Mitchell's prior story was the truth. We are unaware of any rule of criminal practice requiring defense counsel, on pains of waiver, to do a dry run of their cross-examination outside the presence of the jury.
'° The Special Counsel cites Judge Walton's description of Mitchell's prior statement as "ambiguous." Opp. 17. We implore the Court to view the Mitchell statement for itself, together with her subsequent efforts at retraction. They are attached to our application and speak loudly for themselves.
I had mocked the "dry run" notion that Ms. Mitchell was entitled to a dress rehearsal at the time.
And since we are on the topic of what did NBC News know and when did they know it about a Plame leak, let's put Brian Williams back in the mix. Here is Mr. Williams from Oct 1, 2003, speaking to Joseph Wilson:
WILLIAMS: Certain reporters have made it known that they were among the leaked-to, which means they know the leaker. Do they bear any responsibility? Is it incumbent upon them right now to stop what could be a long and costly investigation, come forward and say who gave you this stuff?
And a bit later, talking to Jimmy Carter's press secretary Jody Powell:
WILLIAMS: Let me put it this way. Journalists known to both you and me know who the leaker is. Are they under any responsibility to stop a monster from starting to roll in Washington that could hurt lives and reputations and cost millions of dollars?
So, to what reporters might Mr. Williams be referring? As of Oct 1, 2003, only Bob Novak and the TIME trio with their byline on the "War On Wilson?" were know to the public as leak recipients. Was Mr. Williams obliquely referring to them?
Or perhaps Walter Pincus, Bob Woodward or Judy Miller had gossiped about their status as leak recipients and word had gotten back to Mr. Williams.
Or closer to home, perhaps David Gregory or Andrea Mitchell really did know something. A few days after Mr. Williams mysterious offering, Ms. Mitchell delivered her famous "widely known" comment - that, and her subsequent backtracking, appear here.
Yet, with all that said, there is also an NBC denial of Ms. Mitchell's involvement, offered by Tom Brokaw on Sept 28:
TOM BROKAW: NBC News correspondent Andrea Mitchell has been identified by some as one of the recipients of a leak about the undercover agent. But tonight, Mitchell said that was not the case, that her first discussion with an administration official about the matter was after the Robert Novak column was published. And that discussion, she said, was off the record.
Pretty slim stuff - what in the world is "the matter"?.