Libby Wins A Round In Court

Libby's defense team got some help from the judge today.  Here is Matt Apuzzo of the AP:

A federal judge handed a victory to the defense Thursday in the Valerie Plame case, siding with Vice President Dick Cheney's indicted former chief of staff in a fight over release of classified information.

U.S. District Judge Reggie Walton decided that he won't impose strict standards sought by prosecutors who want to limit the amount of classified information used in the trial of defendant I. Lewis Libby.

Prosecutors had proposed a stringent three-part legal test that would have allowed information to be considered for the trial only when its benefit to the defense outweighed the government's need to keep it secret.

Walton sided with Libby's lawyers, who said any evidence that's relevant to the case should be considered for use. Once Walton rules on which evidence is relevant, government attorneys can propose portions to be blacked out or summarized, the judge said.

Thrillseekers can find the 14 page ruling here.

My quick perusal suggested the ruling was technical rather than topical, but perhaps someone else can find some case-related hints in there.

WISHFUL THINKING:  Joel Seidman of MSNBC finds "news" in the ruling:

WASHINGTON - The judge in the CIA leak case ruled Thursday that if Special Counsel Patrick Fitzgerald feels that admitting certain classified documents at the upcoming trial of I Lewis "Scooter" Libby can jeopardize national security, Fitzgerald can then move to dismiss the perjury charges against Libby.

Well.  First of all, frequent commenter Cecil Turner noticed the same thing.  Secondly, contra Mr. Seidman this is hardly a "ruling" by the judge; think of it more as a statement of fact.

Finally, we can only imagine the sighs of relief with which NBC News would greet a dismissal of the charges by Special Counsel Fitzgerald - this trial may be quite embarrassing for two of their reporters, Andrea Mitchell and Tim Russert.

Mr. Seidman does not dwell upon (or even note) NBC's rooting interest here.  Oh, well - he did not note their rooting interest in his previous story either.  My guess is that coverage of these journalistic conflicts of interest may be a bit light as the trial approaches - neither TIME, the NY Times, nor NBC will want to call attention to the roles played by their own reporters.

Comments

[danking70]

Fitzgerald given a way out...

Ouch!

ROTFLMAO!

[sad]

I can see it now ... Fitz having to stand before the judge and make an elocution of his "crimes" against we the people. LOL.

I was thinking in terms of media coverage but your idea is much better.

[cathyf]

If the OPR really starts an investigation, then can Fitzgerald really stop it by dropping the charges? What about Miller's chances in a lawsuit? Those Supreme Court justices probably don't like being made fools, either. If Fitzgerald drops the charges, Libby certainly has the power to gratefully accept. But it doesn't seem to me that Libby has the power to call off OPR, Judy Miller, Judge Tatel, the Supreme Court, or any of the other innocent parties sucked into Fitzgerald's Folly.

And if Fitzgerald drops the charges, then Cheney should hire him back that day.

[clarice]

I don't think that moving to dismiss the case can stop the OPR investigation but it might make it less vigorous than it might otherwise be. For that, there's still Congress, however.

Frankly, I do not see what cause of action Miller would have. Off the top of my headI suppose false imprisonment but those cases are hard to sustain. It 's an interesting thought.

Yes, Cheney should make the offer, but if I were he, I'd say no thanks. He's a smart, able man...who needs this ? It wasn't enough that he gave up a huge income for govt service? That his name was dragged thru the mud? That he and his family have been living in hell for 3 years with enormous legal bills hanging over their heads?

The next President who agrees to a special prosecution whould awake the next day to a resignation from every single member of his Administration.

[verner]

Cathyf:And if Fitzgerald drops the charges, then Cheney should hire him back that day.

Actually, I can see Cheney doing it, right after the midterms. Kind of an "in your face" to Joe Wilson, the democrats and all of the press pukes. There are advantages to being a lame duck.

It would drive them crazy.

[Bruce Hayden]

I do like it - Fitz able to save face by declaring that regardless of guilt, he can't go to trial because of the classified nature of the information, and, thus, has to dismiss.

Joel Seidman may be right here. The judge may be giving Fitz an honorable out. Maybe because I have dealt mostly in state courts and don't litigate all that often, but at least there, judges are always trying to find creative ways to reduce their dockets and get a little breathing room.

Besides, I suspect that by now the judge is seeing that Libby's lawyers are boxing Fitzgerald in more and more as they proceed towards trial, and the judge may see himself having to curtail the prosecution so much that it has to give up on less honorable grounds.

We shall see.

[clarice]

****The next President who agrees to a special prosecution [s]hould awake the next day to a resignation from every single member of his Administration**

[JM Hanes]

I'd rather see the judge dismiss than Fitzgerald withdraw.

[Birdseye]

JM Hanes,
I will second that any time. It is fair to Libby that way.

[Walter]

Just some quick thoughts:

J. Walton wrote a straightforward opinion on the law. I had disagreed with his CIPA discovery ruling, but I understand his position (and the statute) better now.

Jane,

One memory that stays in my mind from law school was a CLS meeting where a guest speaker made the point that more than half his practice was explaining to people that, certainly, they could sue and quite possibly end up with a "favorable" verdict. However, after legal fees, emotional stress and business distraction, they would lose even in winning.

I've taken that advice to heart. Sometimes my clients go elsewhere, but I've been surprised how often they return chagrined.

On topic!

I thought the meat of the decision was in the footnotes. J. Walton is giving us a preview of the upcoming fight over admissible evidence.

Since he has but few off-topic comments, these jumped out at me:

First, in light of our discussions over the relevance of Libby's sanctioned "leaking":

"For example, courts often admit evidence of other crimes, but limit their use to show, inter alia, motive, identity, or a common scheme or plan."

So, for those keeping hope alive, we see this judge displaying (unprompted) a level of comfort with introducing evidence regarding an uncharged crime. (I'd be remiss in failing to note that I called for Fitzgerald to do this only yesterday, so I have little grounds to complain here). We may yet see more of the Grand Conspiracy.

Next,

It is also important to briefly discuss Federal Rule of Evidence 403, as the parties have diverging views on its application.

...

Rule 403 provides that relevant evidence can be excluded at trial “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed. R. Evid. 403. According to the notes accompanying Rule 403, “‘[u]nfair prejudice’ within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Id., notes. Thus, the import of Rule 403 is that evidence will be excluded if its viewing by the fact finder will improperly impact its decision.

... there must be some indication that the evidence will improperly impact the jury’s decision making process. Thus, for example, if the evidence is of a nature as to divert the jury’s attention to unimportant peripheral issues, it might be
proper to exclude it. United States v. Miller, 874 F.2d 1255, 1277 (9th Cir. 1989).

And this may not necessarily be the case merely because the evidence is classified.

I read this as previewing the battle over UGO/Armitage (not to mention the 16 words, the NIE, Cheney's annotated draft, &ad nauseum).

J. Walton doesn't want the jury to be talking about Armitage when they should be focusing on Libby.

Let Armitage and Cheney et al have their own trial, if they want one so badly. This one is Libby's.

[clarice]

I think you read too much into these footnotes, Walter. I see them as stock law, explaining this decision and no more.

[Walter]

Maybe. I do seem to be using them to justify my previously expressed opinions.

Only four months to go...

[cathyf]

Thus, for example, if the evidence is of a nature as to divert the jury’s attention to unimportant peripheral issues, it might be proper to exclude it.

I read this as previewing the battle over UGO/Armitage

So the very essence of the "lie" that Fitzgerald says that Libby told is, "Hey, since reporters told me about it before I ever said anything to reporters, it musta been somebody besides me who blabbed it way before me." And it what universe is the identity of the [somebody besides Libby who blabbed it way before him] peripheral to that accusation?

[Walter]

CathyF,

That's the way J. Walton saw it before. He (unlike us) has known about Armitage for several months.

It seems unlikely that he would view Armitage's testimony as relevant when he ruled earlier that even his very identity was unlikely to lead to admissible evidence.

I'm not holding out hope that the Woodward revelation will change his position. (Though I agree it should--and he was wrong earlier.)

[Bill in AZ]

Fitz won't take the out. He's too blinded by his autistic form of "justice" to notice the gate is wide open and all of the critters, save himself and Libby, have already left. I think the only hope for an early end to this ridiculous charade is that clarice's (and other) letters finally prompt some responsible adult to do something about Fitz.

[clarice]

Wasn't the earlier ruling BEFORE the Woodward disclosure?

[clarice]

In any event, now that Armitage has come out and we have Woodward's testimony, the refusal to allow Libby to question Armitage about other reporters he spoke to would seem to unfairly restrict Libby's defense--that he heard it from other reporters and that Russert told him all the reporters knew it.

[cathyf]

Well it's the date of the Armitage-Woodward conversation that matters. The identity of Armitage is only relevant to the question of "who blabbed?" It's not particularly relevant to establishing that "when Libby said somebody else blabbed before him, he told the truth."

Did Team Libby ask for the date or just for the identity?

[Walter]

Clarice,

I also wanted to highlight that stock law for the non-lawyers in the group so that they will have a basis for evaluating the coming battles. No disrespect meant to you or the others who can recite it from memory.

When I first appeared here, I avoided addressing some of the more fundemental questions that people had with the legal procedure. Of late, I've tried to explain the process from a layman's perspective. I may have over-corrected, though.

I'll dial it back a bit.

[Thomas Morrissey]

Bill in AZ

Fitz won't take the out. He's too blinded by his autistic form of "justice"

You might be right, he's far enough out on a limb now that he takes all the blame either way.

His Dem.allies Schumer,etc,and his MSM cheerleaders will have no problem sawing through that limb and watching Fitz fall, he's expendable.

If he loses at trial,he looks like a fool, if he wins, he looks like a sadistic fool.

At this point, given Armitage,the abscence of an original crime, and the scurillous nature of the Wilson's, going forward with this prosecution is dishonourable.

He wins, he's a pariah, what decent person would have anything to do with him?

[Gabriel Sutherland]

I thought this piece was written poorly. The AP writer brings up Dick Cheney in paragraph one. This seems like information that, if mentioned, should be buried at the end of the story. Libby isn't Cheney's Chief of Staff anymore. Libby is defending himself.

It comes off as an attempt to continue to relate anything and everything Plame to Dick Cheney.

It's time the AP moved on and focused on Libby's case from Libby's perspective or from the courts. Cheney is out of the picture.

[clarice]

Walter, don't be defensive. There's no need to be. Everybody here argues their points , and youshould, too.
cathyf I;m afraid I don't understand what you're referring to when you asked what Team Libby had asked for. In criminal cases, discovery is far more limited.

[clarice]

Hey, Gabriel--there is some progress. I didn't notice Halliburton in the first graph.

[cathyf]

Wasn't the earlier ruling BEFORE the Woodward disclosure?

I thought Woodward came forward (and pushed Armitage out) within a few days of the indictment. Before Walton was even assigned to the case.

But I'm willing to entertain the notion that Team Libby asked for the wrong thing. Libby's alleged "lie" is that he told the FBI that there existed a person who told the press about Plame before July 10th and it wasn't Libby. You could establish that Libby's testimony was true strictly on the testimony of Woodward. When Libby told the FBI his story that they didn't believe, he knew that this person existed who had done this thing, but he didn't know who the person was. So it is possible to prove that Libby told the truth without disclosing the identity of UGO. So I suppose technically it is reasonable to deny Libby the identity of UGO.

I'm still having a tremendous difficulty with the logic here. Imagine Mom comes into the room and sees little Johnny standing over a broken lamp. Johnny says, "It was already broken when I got here!" Mom then punishes Johnny for lying. If Dad was in the room five minutes before Johnny, and saw Johnny's older brother break the lamp, how can that be irrelevant to the question of whether Johnny lied?

[clarice]

It doesn't make sense to me either. Because. It. Is. Not. Logical.

[cathyf]

Heh, clarice. So you are telling me that if my 12-yr-old writes a computer program to diagram Fitzgerald's case, then he can run it and use the computer to heat his room?

(Remember those star trek episodes where they defeated the insane computer by making it calculate all the digits of pi? And I'm kind of worried that Hal will start killing off the crew any day now...)

[Jane]

I've taken that advice to heart. Sometimes my clients go elsewhere, but I've been surprised how often they return chagrined.

Walter,

When you think about it, it's a luxurious position but one that was necessary for my sanity.

~`

I'm not exactly convinced that Fitzy will walk to the podium today and announce he can't go forward lest he risk national security. I'm not sure we are at this point yet. And of course there is the chance that he actually has something.

If the media was interested, fair, unbiased, honest or in any way responsible they would be pounding this story, til the cows came home. But they won't. So the denouement may be a while in coming.

You know that's a good angle for a book about this whole mess Clarice - how the media abrogated it's obligation in an effort to frog-march Karl Rove from the WH. You could call it "Frog-marched".

[maryrose]

The media couldn't get enough of this story when they actually thought they could get Karl Rove frogmarched out of the WH. Now they are all running for cover.
The most egregious example of being partisan was Chris Matthews last night sounding terribly disappointed that a deal was reached on the torture issue. They just don't want us to be safe if it means repubs hold onto power. Chris also said that President Bush is giving in to the CIVILIANS in his administration. He is really off the hook when it comes to the Iraq war. It has muddled his thinking on every other issue.

[Sue]

Walter,

Can you clear something up for me? Walton knew about the Armitage/Woodward conversation when he ruled that UGO (Armitage) could not be revealed, innocent accused, etc. Did that mean the conversation between X (UGO) and Y (Woodward) would not have been allowed into evidence or just the names?

[paul]

What are the chances that Armitage was Russert's source?

It meets the name/'cia operative' denial.

RA simply tells Russert, 'Wilson's wife got him that job, she works at the CIA.'

So far Armitage has been known to talk to Novak and Woodward-two reporters who have some sympathy for conservatives.

Russert? I know Arianna hates him, so he has to have some conservative leanings.

Russert's defense was Novak keeping his silence, but he can now remain silent for the civil trial, which now includes RA.

Did RA tell Andrea directly, or was it Russert who mentioned it to her? (I think she knew way before 2003, though.)

Sorry if someone has put this theory out, consider me late to the party.

[paul]

It meets the name/'cia operative' denial.

Insert 'works' at the end of that.

[clarice]

Paul, goodness knows how many reporters Armitage told and who they told. It was not part of the Don't ask, don't tell investigation.

Jane what about "Ambassador Munchausen, Lady Peel and the Frog March Boogie"?

[Sara (Squiggler)]

So let's recap ...

There are all the people who were at the original meeting where Valerie Plame Wilson introduced her husband. How many were there? How many did they tell? Include staff and secretaries.

There are all the people at the State Department who had a hand in arranging Wilson's diplomatic part of the trip, i.e., the current Niger ambassador and staff, etc., State Dept. staff and secretaries.

Powell, Armitage, Grossman, Ford, and how many more? Their staff and secretaries.

All the people at CIA who knew or had a hand in the trip or the after action debriefs. Their staff and secretaries.

Wilson himself.

Plame herself.

Think how many people they all might have told, including reporters. How many are already "sources" for these reporters. Look to the little guys. Like Novak said, he likes to develop his sources from the low levelers.

This story started in 2002, not May of 2003 or June or July of 2003.

[Jane]

Works for me - I like the beat, particularly.

[clarice]

Jane, we could run it up the flagpole--that is, past Soylent.

[Walter]

Sue,

I thought about answering you earlier, but I wanted to look at the actual language used by J. Walton.

I haven't found it, but I doubt it would be of much help, so I'll try to rephrase what I said earler.

In the discovery portion of pre-trial procedure, Libby was allowed access to things that would not be conceivably allowed into evidence. Things like hearsay. Things like PDB briefings. Things which have prejudicial impact that exceeds their probative value. He was allowed them because, after evaluating them, he might well be able to find something which might lead him to admissible evidence.

J. Walton ruled that, in his opinion, Armitage's identity would not likely lead to admissible evidence.

Knowing Armitage's identity would logically enable Libby to apply for a subpoena for Armitage's testimony. Put differently, not knowing it presents a big problem in serving the subpoena.

Therefore, if J. Walton thinks that knowing Armitage's identity is unlikely to lead to admissible evidence, he thinks that Armitage's testimony is not admissible evidence.

If he thinks so because it is a distraction from the case, then discussion of Armitage's actions are also inadmissible for the same reason.

You can probably add Novak to the list. I suspect there will be a battle over admitting even Novak's full article or just a summary of it's contents.

I'll be surprised if Libby is allowed to present his five witnesses that Plame was known. But, I suspect that Fitzgerald will be extremely constrained in discussing the "national security" angle.

IIRC, the theme in my first comment at JoM was that Libby did not want to win all his discovery arguments--He wanted Fitzgerald to be limited in what he was allowed to present.

Because if it comes down to: "I forgot" vs. "That's odd, everybody else remembered perfectly", it's hard to send someone to jail.

[Walter]

I should point out, of course, that my comment above is speculative in nature. J. Walton is not precluded from ruling either way on admitting Armitage's testimony or descriptions of his actions.

I just think it's unlikely.

[clarice]

Walter, it would not surprise me at all to see that issue revisited if this proceeds to trial. If I were Libby and one of my defenses was that reporters told him I'd start with the Pincus refutation on June 12 of Kristof's article which said Cheney sent Wilson.

Pincus could not have done that unless he knew Cheney hadn't. We know Cheney would have been on the Bad leaker lying warmonger list in the SP office. So it wasn't him, and Pincus' description (scanty as it is) sounds remarkably like Novak's description of his source.

As for the other witnesses Libby intends to call--they will say what General Vallely has said, Wilson himself (source of the very first story in May) volunteered his wife's employment at the CIA to burnish his own "expert" credentials.

How does it come in? Fitz has been implying that Libby had a motive to lie because he "should have known this was classifed information". The answer is who should have known better than Wilson? And since the story was so widespread and her name and position so poorly protected from disclosure, Libby (like Armitage) had neither reason to believe this was secret information nor , in fact, any motive to lie about who he told and when.

As I''ve said before, Fitz preposterpusly seems to be trying to use Libby's very discretion as proof of guilty knowledge.

[cathyf]

IIRC, the theme in my first comment at JoM was that Libby did not want to win all his discovery arguments--He wanted Fitzgerald to be limited in what he was allowed to present.

Well it was pointed out months ago that one of the most bizzare and unprecedented "features" of this case is that nobody can think of another criminal case out there where the prosecution is desperately trying to have all sorts of evidence surpressed while the defense is trying to bring it into evidence. I think that you are still trying to force the square block of this case into the round hole of the normal case -- I think that the reason that Libby is demanding stuff is that he believes that the prosecutor is hiding exculpatory evidence.

"I forgot" vs. "That's odd, everybody else remembered perfectly"

But it's not that at all. The conduct of the investigation was to studiously avoid finding out anything about "everybody else" and now they want to hide the identities of "everybody else" so that they can prevent the defense from taking evidence from them. The prosecution's theory seems to be more like, "well we didn't ask hardly anybody, and we won't tell you who we did ask or what they said, but trust us, we are really really really sure that if we had asked then all the reporters would have told us that they didn't know and so Libby must have made that up."

[boris]

Fitz asserts things several degrees stronger than known evidence would seem to support. In some cases getting things flat out wrong.

It almost makes sense that if the issue is simply that Libby told the FBI and Fitz he forgot about Wilson's wife when there are a string of government officials ready to claim Libby discussed it with them, then which reporter Libby claims the remembered learning happened with is not relevant.

The problem is that's not the case Fitz has publicly made, which is Russert, Miller, and Cooper. Libby didn't hear it from reporters because Russert didn't tell him and Libby didn't tell Miller and Cooper that the info was from other reporters. So obviously Libby just made that up to mislead the investigation.

To THAT case, the possibility that info went from Armitage to Woodward to Libby is very relevant.

Is Fitz presenting one case publicly and a different case to the court?

[verner]

Here's a wild "what if" scenario Clarice.

What if other reporters came to Armitage for a "confirm' of what they already knew thanks to Washington gossip about the Wilsons? IF he was a regular source, certainly that might have happened after Kristoff mentioned an "ambassador." And let's remember, there were many reporters hot on this story for well over a month before Novak published Plame's name. Do we really think no one (like Mitchell) called the gossipy Mr. A to find out what he knew, other than Woodward, and before Novak came calling. It could also be a reason that Armitage didn't think she was "covered", along with the memo--people were telling him about Wilson's wife! Maybe even that she worked under Foley at WINPAC. (And I still want to know where that came from)

If that was the case, and Armitage was candid about it, but somehow simply forgot Woodward, Fitz might not have been so eager to charge him with perjury. Especially since there was no crime in outing a non-covert agent who had already outed herself to the press and others. And he's been very good about trying to protect the rights of some reporters.(As in , the good leakers)

If anything like that happened, it sure would make what Fitz did to Judy Miller and Scooter look even worse.

[Walter]

"How does it come in? Fitz has been implying that Libby had a motive to lie because he "should have known this was classifed information"."

I think that's my argument. With regard to the perjury and obstruction charges, it's far more dangerous for Libby to allow Fitzgerald to frame the narrative as an evil conspiracy than to go to trial on a he said/she said basis.

I see his arguments and the information we have been discussing as ammunition in his motion in limine. That is, "if Fitzgerald gets to say anything, we have the absolute right to attempt to rebut it." So, the only way to keep this trial from dissolving into an ungovernable mess is to keep Fitzgerald from making unsupportable or even debatable assertions about Libby's motives.

[clarice]

I think it more likely Armitage heard it from his underling Grossman, a lifelong frined of Wilson and Plame or from others in the DoS who knew them both and whom Wilson was peddling his snake oil to--or even Scowcroft.

I think it not at all unlikely that Armitage told other reporters..either directly or as a confirming source.

And I think our first invitational press grill ought to be with Pincus to find out how even before Armitage told Woodward, he knew that Cheny had not behested Wilson.

[clarice]

BTW in DC Pincus is regarded as the CIA's stovepipe to the WaPo. So it is possible he heard it from the agency, perhaps even Tenet. Now think of that can of worms.

[clarice]

BTW--speaking of prosecutors, Nifong's timeline has become so compressed, he's now claiming all three rapes took place in a total 5-10 minute span of time.

[Sue]

Because if it comes down to: "I forgot" vs. "That's odd, everybody else remembered perfectly", it's hard to send someone to jail.

Thanks, Walter.

[Sue]

Walter,

On page 11 of the hearing transcript, Walton discusses why UGO won't be identified. If you want to re-read what he said at the hearing.

http://talkleft.com/Libbycourttranscriptfeb242006.pdf#search=%22february%202006%20court%20transcript%20libby%22>February hearing - UGO (warning: pdf file)

[boris]

So Libby's defense wants the judge to exclude and wall off any reference to original sources and what reporters knew because the case they want to face in court is: Libby told the FBI and Fitz he had forgotten about Wilson's wife when there are a string of government officials ready to claim Libby discussed it with them.

Because that's going to be a harder case for Fitz to make. If so I would think after Martha Stewert Libby must be in a position to discredit some of that claim.

[clarice]

THANK YOU SUE.

I have trouble reading pdf files, but my scan indicates he didn't say the defense would be barred from questioning Armitage on the stand.

He just limited the disclosure of Armitage's name at this point because of--ta da--the "ongoing SP investigation".

HEH..

[Sue]

I'm still trying to find what the order actually said. When I find it, I'll post it.

[Sue]

Unless I'm just totally missing it, the judge hasn't made an official ruling on whether or not the contacts with UGO and other reporters will be allowed. All I can find is the court hearing where he discussed it. If someone else knows differently, please advise.

[clarice]

My scan said Libby can have the info the SP has on him, but in all public hearings he is to be referred to as UGO until the remaining investigation is closed. That is, Libby may use that information in discovery --asking reporters if he spoke to them, for example--but my not name him in affidavits or public hearings until trial.

He most definitely has not determined that he cannot be called as a witness.

[clarice]

**That is, Libby may use that information in discovery --asking reporters if he spoke to them, for example--but mAy not name him in affidavits or public hearings until trial.

He(the Judge) most definitely has not determined that Libby cannot call Armitage as a witness.********

[Sue]

Clarice,

That is what I got too. So when Armitage is called as a witness, they will be able to ask him about his conversation with Woodward? And any other reporter? Or will they be limited to only conversations he had with reporters that are known?

[clarice]

I think they will ask him about all the reporters they think he spoke to.

[sad]

http://theanchoressonline.com/2006/09/22/colin-powell-the-male-valerie-plame/

The Anchoress on Colin Powell, the male Valerie Plame

[Walter]

Boris,

The prosecutor in Martha Stewart's case was allowed to present evidence of an attempt to cover up a broader conspiracy. It plays towards rather than against my theory.

Clarice and Sue,

I could be misreading this, but I think this is the Official One ruling (from page 16 (0035) at lines 05-14):

"Obviously there has to be a showing of materiality in order to warrant under Rule 16 this information being provided clearly based upon what's been submitted to me and what was submitted to me ex parte.

There is no indication that this information would in anyway amount to Brady and I don't conclude that it satisfies the materiality requirement. I just think it is too attenuated to conclude that the revelation of this information would, in fact, lead to information that would assist Mr. Libby in his defense. So in reference to that particular request, it will be denied."

Boris, regarding Fitzgerald's theory of the case, there's this (from page 14-15 (0031:04 through 0032:14):

"MR. FITZGERALD: Your Honor, the one thing that is clear is we should focus on what the allegations are. It is not just the single statement of whether, it's whether Mr. Russert said all the reporters knew, not even the truth of that.

But the indictment alleges that on Monday Mr. Libby told Mr. Fleischer this information about Mr. Wilson's wife and indicated that it wasn't widely known, on a Monday. On Wednesday he claims to have learned it as if it were new for the first time from Mr. Russert in his conversation even though we've alleged six different conversations, more than six conversations in the month before he discussed it with everyone from the vice president to people at the CIA, to ranking officials at the State Department.

If he's giving the information out on Monday and yet on Wednesday he says he was struck by this information as if it were something new, when, in fact, Mr. Russert has publicly stated on TV he didn't know the information until it came out in Mr. Novak's column. At the same time he is testifying under oath that he has a specific recollection that he was telling the reporters, Ms. Miller, Mr. Cooper, that he didn't know if it were true. He didn't know if Mr. Wilson had a wife.

If you focus on July 7 through July 12, he's giving out specific information indicating it is not widely known and yet then later that week he is claiming to have heard it as if it were known for the first time and specifically characterized it as something he did not know if were true."

[Sue]

I have been reading old posts and links. It is amazing what you forget. ::grin:: I had forgotten that Libby's lawyers discussed 2 classified emails in relation to Grossman that have the potential of impeaching his testimony. Wouldn't you just love to see those emails?

I also re-read http://strata-sphere.com/blog/index.php/archives/2509>this post at AJ's by Elindil. If anyone hasn't read it, please do so. It opens up lots of possibilities.

[Sue]

Walter,

Okay, but what does that mean? (I did miss the ruling, BTW, thanks. I skimmed too fast, it would seem.) Libby will not be allowed to bring in Armitage's earlier discussion with Woodward?

[boris]

The prosecutor in Martha Stewart's case was allowed to present evidence of an attempt to cover up a broader conspiracy

We seem to agree here, I probably wasn't clear. ... given Martha Stewert ... Libby better have something to discredit the claim or else he's in the same boat.

[Sue]

I was thinking earlier that I wished I had started a trial notebook on this case, long ago, with public records, of course. It would be a bitch to put it together now.

My expertise is in state civil cases, but I would love to have all of the known facts in a single place to refer back to. And to chart the direction the case seems to be going. It is so hard to keep up with it. I'm not sure how Clarice did such a wonderful job of laying all of it out so concisely. Did you prepare a mock trial notebook Clarice?

[Walter]

Sue,

_If_ I caught the right ruling, it means that J. Walton didn't think Armitage's testimony was material to the charges in February.

It implies, that unless something has changed, he would rule the same way in regard to trial testimony.

[clarice]

Walter, isn't that reference to the Powell meeting transcript where Powell apparently said "everybody knew" and not Armitage's disclosures?

[Sue]

How could it not be material? Because the charges are limited?

[clarice]

Sue, I waited until late at night and then just sat down and wrote the way I always try to as if I were explaining this to a smart friend who hadn't paid attention and was asking someone to tell what this was all about.

The words just come out of my head.

No outline.

[boris]

on Monday Mr. Libby told Mr. Fleischer this information about Mr. Wilson's wife and indicated that it wasn't widely known, on a Monday. On Wednesday he claims to have learned it as if it were new for the first time from

And what happens if Ari takes the stand and says "oh yeah it was actually Armitage or Grossman who told me that"?

[Sue]

Something doesn't make sense to me. They are discussing official one (UGO/Armitage) and then Jeffress says this about the tape:

MR. JEFFRESS: Your Honor, there is one thing that I 03 neglected to mention and again this is subject to filings that 04 have been made under seal but there is, in fact, a transcript 05 of a tape recording that involves official one. 06 And I remind you, Your Honor, that's exactly who 07 we're talking about. In the particular transcript there is, 08 and the government filed something else yesterday, there is a 09 factual dispute as to what is said or what is meant by a 10 portion of the transcript wherein it appears the official 11 saying, "everyone knows it," referring to the wife's employment 12 at the CIA. 13 We have not heard that tape. We did to hear that 14 tape. If, in fact, as the transcript suggests that one 15 official said, "Everyone knows it," who did he mean by 16 "everyone knows it." 17 It's vitally important to us, Your Honor, number one, 18 to investigate what other reporters knew and may have mentioned 19 it. And number two, to confront Mr. Russert with what other 20 reporters knew it. 21

Why do we think this is Powell?

[Sue]

Then this.

THE COURT: Let me ask government counsel. Is there 05 anything in that transcript or tape recording whereby this 06 government official number one says something to the effect 07 that everybody in the media corps knows about this? 08 MR.

MR. FITZGERALD: Mr. Wilson didn't reveal himself as 15 the unnamed ambassador until July 6. This was prior to that 16 time [emphasis mine]. We turned it over in an abundance of caution but I don't 17 believe

Fitzgerald is saying the tape is prior to Wilson's July 6th op-ed, right?

[clarice]

I'm positive if you poke in the archives to a day after the hearing you will have your answers, Sue.

[totopsecretk9]

TM has a new post up, with new filings.

[totopsecretk9]

-- Mr. Wilson didn't reveal himself as 15 the unnamed ambassador until July 6.--

Yes, but Bob Woodward addressed him BY NAME to Richard Armitgae on June 12 and Armitage didn't think much of it OR play dumb to THE NAME and confirmed it --even though Wilson was supposedly anonymous and everybody was desparately trying to find out who the "envoy" was

I know I am not expressing it well, but this has always bugged me.

[Sue]

Top,

Which makes it all the more weird that it isn't relevant to the defense. But, and this is what I'm trying to track down, why do we think the official on the tape is Powell? They are discussing the tape in the same context as official one, who just prior to that is the person who told 2 reporters or as we now know, Armitage.

[clarice]

I am waiting for Fitz to raise that at trial and watch him get cut off at the knees.

[Sue]

http://justoneminute.typepad.com/main/2006/03/this_just_in.html#comments>Check what we were discussing on March 2nd of this year. Knowing what we know now, could the mystery of this:

2. The information and items responsive to Libby’s demands and which we are not producing generally consists oftestimony, information and items which: (i) reveal the identity of REDACTED

ii) concern others subjects of the investigation and numerous witnesses who testified about their knowledge of the conduct ofthose subjects, often focusing on conversations after July 14, 2003, during which various persons referenced events of spring 2003 not relevant to defendant Libby;

be Armitage's fall 03 visit to the DoJ and FBI?

[Sue]

Okay, until I can find something that changes my mind, official one and the tape recording (pre-7/6/03) seem to be all Armitage. And that supports what Walter said about the ruling by the judge...denied.

[cathyf]

on Monday Mr. Libby told Mr. Fleischer this information about Mr. Wilson's wife and indicated that it wasn't widely known, on a Monday. On Wednesday he claims to have learned it as if it were new for the first time from

What happens when Fleischer gets on the stand and admits that what Libby really said was that Wilson's trip was the idea of some pointy-headed morons at the CIA, and that of course after David Corn's article a week later everybody knows that the "pointed-headed morons" were CIA covert agents including Wilson's wife.

[cathyf]

on Monday Mr. Libby told Mr. Fleischer this information about Mr. Wilson's wife and indicated that it wasn't widely known, on a Monday. On Wednesday he claims to have learned it as if it were new for the first time from

As far as I can tell, the July 9th date (the "Wednesday" in this quote) was not something that Libby ever claimed to have remembered, it was inferred. He "remembered" that the conversational snippet was part of a particular conversation with Russert, and there were phone logs and emails that established when the phone call was. (I thought, according to the indictment, that it was July 10th, which would have been Thursday, not Wednesday, but that's probably not fatal to Fitzgerald's point.)

But, according to the Fitzgerald, everyone knows by common sense and common knowledge that when people are recalling many details about many incidents at the same time (i.e. being grilled by the FBI) normal-functioning human memory will tend to recall the details of an incident relatively accurately but mis-identify the person that the incident happened with. Especially something like a phone call, where you have many phone calls where you are sitting at the same desk in your own office looking at the same wall talking on the same phone. Now Russert's testimony is that nothing like this ever happened at all in the "Wednesday" conversation. But we do have another journalist (Woodward) who 1) knew about Plame (from Armitage); 2) worked with other journalists who knew about Plame (Pincus, Bradlee); 3) has notes indicating that he intended to talk about Plame with Libby; and 4) Libby was sitting at the same desk on the same phone when Woodward had a phone conversation with him. On June 23rd. So now it becomes:

on Monday Mr. Libby told Mr. Fleischer this information about Mr. Wilson's wife and indicated that it wasn't widely known, on a Monday. On the Monday two weeks before he had a conversation during which he claims to have learned it as if it were new for the first time from

Um, well, if you put it that way, I can already hear Emily Litella's voice saying "Never mind."

[Sue]

I still can't believe Libby called Russert to complain about Matthews' show and didn't mention Wilson at all. If you go back and read the transcript of the show I, and others, think was what got Libby's dander up, it was all about Matthews saying to every guest that at the behest of the VP. Libby then calls Russert to complain about anti-semitism? If Libby was so focused on the Wilson trip, why on earth would he have not ripped into Russert over Matthews' coverage of what Wilson was saying? Yet, according to Russert, they didn't discuss either Wilson.

[Sue]

Two things from Isikoff, pre-book...

The deal was not, as many assumed, for Russert's testimony about what Libby told him: it focused on what Russert told Libby.

I'm trying to track down where Russert publicly stated what the conversation with Libby was about.

But the CIA's initial "crimes report" to the Justice Department requesting the leak probe never mentioned that law, says a former government official who requested anonymity because of the confidential material involved.

How does Isikoff square this tidbit in his book?

http://www.msnbc.msn.com/id/8682500/site/newsweek/>Source

[clarice]

Never mentioned WHAT law, Sue? The IIPA?

[cathyf]

Fitzgerald's case theory in this filing is that Libby's testimony is freaky non-sensical so it must be a lie. That is a fairly bizarre interpretation. Much more logical, simpler, is that Libby scrambled some details.

Imagine this series of events: On June 23rd, on the phone, Woodward tells Libby that all the reporters know about Plame. Libby is surprised that enough reporters care about Plame to make the knowledge widely-known, because he sure didn't see it as important. Then on July 7, he tells Fleisher about Joe Wilson and that he was sent by low-level clowns at the CIA on their own initiative, but that this was not widely known. Then Judy Miller tells him about Plame during their July 8 meeting, but he doesn't specifically remember it because they are engrossed in substantive matters (the declassified NIE). Miller has known about Plame since mid-June, but didn't mention it in their June 23rd meeting because she's a geek not a gossip, too, and had to hear it a few more times before she realized that gossipy people found it interesting. Then, on July 11, Cooper calls Libby and asks him about Plame. At this point, Libby realizes that the "all the reporters know" tidbit is actually true.

See, if you move the "all the reporters know" conversation back 2-1/2 weeks, the whole story now seems quite reasonable and plausible. I can't imagine how Fitzgerald can prove beyond a reasonable doubt that Libby didn't have this actually quite small failure of memory. And I don't see how Fitzgerald can sustain the obstruction of justice claim -- if a witness has a perfect memory, it makes the investigation much easier, but FBI agents are professionals and should be able to figure out that the simplest explanation for witness testimony that doesn't make sense is that the witness is recalling something incorrectly.

[sad]

Fitzgerald has been said to be investigating whether any aides violated the 1982 Intelligence Identities Protection Act—which makes it a felony to disclose the identity of a covert CIA employee: it requires showing the violator knew the agent's undercover status. (The State memo makes no reference to that.) But the CIA's initial "crimes report" to the Justice Department requesting the leak probe never mentioned that law, says a former government official who requested anonymity because of the confidential material involved. Fitzgerald may be looking at other laws barring the disclosure of classified info or the possibility that current or former White House aides made false statements or obstructed justice.

Hope this helps

[Sue]

Sorry Clarice, I cut it off short. The IIPA.

[Sue]

Cathy,

Okay, to help you out a little with your theory, make the phone call to Russert from Libby one where Libby is livid about Matthews' coverage

On "Hardball" on July 8, 2003, for example, Mr. Matthews blamed Mr. Libby and others in the White House for failing to warn President Bush that a reference in his State of the Union speech that winter about Iraq trying to buy uranium from Niger was wrong. Mr. Wilson, a former ambassador to Gabon, had just published an Op-Ed article in The New York Times in which he said he had been sent to Niger by the C.I.A. the previous year to investigate an intelligence report about a possible uranium sale, and concluded that it was "highly doubtful."

Mr. Matthews said on the air, "Somebody's to blame here, and it's a very high level."

of the Wilson trip and Russert could have said something along the lines of we are hearing it is low level CIA that sent him, and months later, Libby conflates the 2 conversations. Of course, my scenario all depends on a bunch of what ifs, but hey...

[brenda taylor]

it was on fox news earlier that scotter will testify at his trial.

[Nick]

"A Funny Thing Happened on the Way to the Frog-March"

[cathyf]

Hey, Sue, let's give a little more of the Fitzgerald Treatment here...

in Oct '05, Mr. Fitzgerald told the world that Libby talked to Russert on a Thursday. In Feb '06 Mr. Fitzgerald told Judge Walton that it was a Wednesday

Or let’s try another one:

Fitzgerald's account that July 10, 2003, was a Wednesday is substantially at odds with essentially every material calendar consulted to date

PERJURY!!!!

FALSE STATEMENT!!!!

OBSTRUCTION OF JUSTICE!!!!

OFF WITH HIS HEAD!!!!

[Sue]

::grin::

He wasn't under oath was he?

[Jeff]

Finally, we can only imagine the sighs of relief with which NBC News would greet a dismissal of the charges by Special Counsel Fitzgerald - this trial may be quite embarrassing for two of their reporters, Andrea Mitchell and Tim Russert.

Maybe that producer feels like that, but it seems hard to fit Tim Russert's questions to Cheney on MTP the other week, pressing him on whether he ordered Libby to disclose Plame's CIA employment, into your idea that NBC wants it to go away. There was not reason Russert had to bring up the topic, but he did. And he asked the relevant questions that get you called by the other Dean of CR in DC - Broder - a conspiracy theorist.

That was right before Cheney assured Russert that he needn't worry about his bringing his shotgun to the show, as Russert wasn't in season. It was pretty funny.

[Cecil Turner]

. . . it seems hard to fit Tim Russert's questions to Cheney on MTP the other week, pressing him on whether he ordered Libby to disclose Plame's CIA employment, into your idea that NBC wants it to go away.

It seems hard to fit Tim's question into any rational world view, as well. Makes a nice opportunity for an eye roll, I guess.

[Sue]

It's kind of odd though that Russert waits until almost all MSM have called for Fitzgerald to go home. It's kind of like he got brave after the revelation of Armitage.