The Libby Trial Meets "American Idol"

Let the people speak!  Which witness do you most want to see at the Libby trial - who is the one that will have you rushing home early and flipping on Court TV, only to be reminded that the trial is not televised?

Some contestants:

Dick Cheney - "Big Time" will almost surely not appear in a sulfurous puff of smoke with horns and a tail, nor will he reach under his sport coat, pull out a shotgun, and pepper Special Counsel Fitzgerald; by these acts of forbearance, Cheney will exceed current expectations.

But will he fulfill the lefty fantasy and wither under Fitzgerald's brilliant and ruthless cross-examination?  Will he be this generation's Oliver North, thrilling the right with a stirring defense of Libby and the Administration?  Dick Cheney has to be the favorite for "Biggest Headlines".

Tim Russert:  Will Tim Russert stun the courtroom by clearing his throat and admitting that, well, maybe his grand jury testimony was a trifle misleading?  Let's reprise his classic, easily parsed "denial", for which he took heat in 2005:

Mr. Russert told the Special Prosecutor that, at the time of that conversation, he did not know Ms. Plame's name or that she was a CIA operative and that he did not provide that information to Mr. Libby. Mr. Russert said that he first learned Ms. Plame's name and her role at the CIA when he read a column written by Robert Novak later that month.

Too specific!  Did Russert tell Libby that Wilson's wife (name unknown) was at the CIA (position unknown)?  Unknown!  But this was cited in a judge's footnote as a description of Russert's testimony (page 3 of argument):

In his deposition, describing Plame’s employment as a fact that would have been “[v]ery” significant to him – one he would have discussed with NBC management and potentially sought to broadcast – Russert stated, “I have no recollection of knowing that [Wilson’s wife worked at the CIA], so it was impossible for me to have [told Libby] that.” Asked to describe his “reaction” to Novak’s July 14 column, Russert said, “Wow. When I read that – it was the first time I knew who Joe Wilson’s wife was and that she was a CIA operative…. [I]t was news to me.”

Easily parsed!  What is in the ellipsis?  What does it mean to "know" that Wilson's wife is at the CIA - does that rule out Russert saying to Libby "I have heard some gossip that  Wilson's wife is at the CIA; do you know anything about that and should I take it seriously?"

If Russert wobbles on this point, the trial is over.  Logicians, literalists, and Fitzgerald will point out that even if Russert did mention Ms. Wilson to Libby on July 10, that could hardly have triggered Libby's leak on July 8 to Judy Miller.

The rest of us will shake our heads and ask ourselves the same question the defense will pound on a daily and hourly basis - if Tim Russert could mislead the grand jury, who else might have?

Andrea Mitchell:  Ms. Mitchell either knew that Ms. Plame was with the CIA or she didn't - she said she did in October 2003, then famously backpedaled on the Don Imus show.  Maybe she misspoke, or maybe she decided that she did not want to invite the Department of Justice investigators to come inquiring about her sources. 

Clarice Feldman has lots on the Andrea Mitchell mystery, but let's say this - if Ms. Mitchell admits that she was in on Plame's CIA secret, that undercuts the notion that her boss, Tim Russert, was in the dark.  My guess - she is a tough-minded independent woman unlikely to experience stage fright, so she will stick to her "I knew nothing" story, now that she has rehearsed it. 

But I still believe she had State Dept. sources and is protecting them - her beat is foreign affairs, she was working the Wilson-Niger-ueranium story, and there was a stretch in June when the State Dept had the INR memo and no one thought the Plame tidbit was anything other than an amusing anecdote.

David Addington - formerly Cheney's chief counsel, now his chief of staff, Mr. Addington had a conversation on July 8 with Libby that will be hard for the defense to skate past.  From the indictment:

18. Also on or about July 8, 2003, LIBBY met with the Counsel to the Vice President in an anteroom outside the Vice President's Office. During their brief conversation, LIBBY asked the Counsel to the Vice President, in sum and substance, what paperwork there would be at the CIA if an employee's spouse undertook an overseas trip.

My guess - Addington wants to protect Cheney and the Administration; if he can also protect Libby with an all-encompassing explanation, good for him.

Kathie Martin - [In addition to two other significant cameo appearances], Cheney's press relations aide was in the fateful July 12 conversation with Cheney and Libby which precede Libby's leaks to Judy Miller and Matt Cooper.  Speaking of whom...

Judy Miller - Ms. Miller will be called as a prosecution witness by the fellow who put her in jail for 85 days in order to gain her testimony, and is also pursuing her on an unrelated Islamic charities case.  Let's say that Ms. Miller may set a new standard for hostile witnesses, and may be delightfully opaque in her testimony - delightful for the defense, that is.

For example, in her public account of her testimony Ms. Miller suggested that in addition to Libby she had other sources for her information about Plame, but her deal with Fitzgerald allowed her to refuse to name names.  The defense should have fun with that.

And the defense should have fun with clear, compelling testimony such as this:

Soon afterward Mr. Libby raised the subject of Mr. Wilson's wife for the first time. I wrote in my notes, inside parentheses, "Wife works in bureau?" I told Mr. Fitzgerald that I believed this was the first time I had been told that Mr. Wilson's wife might work for the CIA. The prosecutor asked me whether the word "bureau" might not mean the Federal Bureau of Investigation. Yes, I told him, normally. But Mr. Libby had been discussing the CIA, and therefore my impression was that he had been speaking about a particular bureau within the agency that dealt with the spread of nuclear, biological and chemical weapons. As to the question mark, I said I wasn't sure what it meant. Maybe it meant I found the statement interesting. Maybe Mr. Libby was not certain whether Mr. Wilson's wife actually worked there.

Maybe it was the CIA; maybe Libby wasn't sure she worked there; maybe Libby asked Miller if she worked there.

My guess - the defense will play "Isn't it possible" with Ms. Miller, and she will play along, just to undercut Fitzgerald.  For example, "Isn't it possible that the question mark means you meant to ask Libby whether Wilson's wife was at the Bureau?"  "Yes, it's possible". 

Lots of things are possible.

Matt Cooper - Mr. Cooper is the TIME reporter who, per the judge, could not keep his story straight while typing it up for TIME readers:

...upon reviewing the documents presented to it, the Court discerns a slight
alteration between the several drafts of the articles, which the defense could arguably use to impeach Cooper. See TI00011. Compare TI00030, MCX0013, MCX0021, with, MCX0003, 0005, 00027.20 This slight alteration between the drafts will permit the defendant to impeach Cooper, regardless of the substance of his trial testimony, because his trial testimony cannot be consistent with both versions.

Also, there is apparently nothing in Cooper's notes about Libby's confirmation of the Plame CIA affiliation - odd, since it was so newsworthy and memorable.

Nick Kristof - Mr. Kristof may create new embarrassment for the Times by admitting that, well, yes, Joe and Val had let him in on their little State Secret back in May.  This would call into question the thoroughness of the Fitzgerald investigation and enhance the probability that Libby really was reminded about Plame by some lying reporter.

Kristof's "denial" is weak and easily parsed:

I know Mrs. Wilson, but I knew nothing about her CIA career and hadn't realized she's "a hell of a shot with an AK-47,'' as a classmates at the CIA training "farm,'' Jim Marcinkowski, recalls.

Too specific - he doesn't need to know her full career or her facility with automatic weapons to know whether she was with the CIA in 2003.

My pick for most entertaining witness - Andrea Mitchell, who was just awful with Don Imus and may be awful here.  But I am sort of braced for disappointment all around - I doubt we will see a Perry Mason moment in this trial.

Nominees are open (and who did I overlook?)

MORE:  The nominees are piling up - Joe Wilson may be called by the defense; Marc Grossman of the State Department is someone the defesne wants to impeach, as is Ari Fleischer, former press secretary.

Re Ari Fleischer, there is an excellent chance that he is the person mentioned in court filings as having received immunity.  Immunity from what?  Well, Mr. Fleischer may have leaked to Walter Pincus (that is my belief, anyway.)  And why immunity?  other Administration employees had been exhorted to cooperate with the investigation or lose their jobs; since Mr. Fleischer had left the Administration on July 14, 2003, the threat of job loss may not have been quite enough to motivate him to forego his Fifth Amendment protection against self-incrimination.

Comments

[Foo Bar]

even if Libby did mention Ms. Wilson to Libby on July 10, that could hardly have triggered Libby's leak on July 8 to Judy Miller.

The schizophrenia defense? The first "Libby" should be "Russert", I believe :).

[TimS]

When this is over is there somebody, anyone at all, that someone can sue for wasting all this time and money on the Wilson-Plame issue and the subsequent Libby trial?

Can a counter suit be brought against Wilson-Plame by the people they are accusing of conspiracy?

Does Libby (if found innocent by this kangaroo special prosecutor trial) have recourse to suit?

[MJW]

Besides being on the plane with Libby and Cheney, Cathie Martin had two other significant ties to the case. First, according to the indictment, sometime in June or early July she told Libby that Plame worked for the CIA. Second, according to Libby's motion in limine relating to the reporters' first amendment litigation, Martin along with Jenny Mayfield, was in the room when Libby talked with Cooper.

She's a real wild card, since she's been little discussed in the discovery motions. I'm quite curious to find out why Harlow mentioned Plame to her in early June.

[MayBee]

Nick Kristof also said:

Third, Mrs. Wilson's intelligence connections became known a bit in Washington as she rose in the CIA and moved to State Department cover, but her job remained a closely held secret.

[Sara (Squiggler)]

If Martin told Libby in June or early July, who told Martin?

[MJW]

Andrea Mitchell may perhaps pose something of a problem for Wells. Her Imus statements would seem to make her easy to discredit, but, as she'll be a defense witness, that would serve little purpose (even ignoring the general rule that a witness can't be called simply to be discredited). However, if she's confronted with her original statement on Imus that she knew about Plame prior to Novak's column, I don't see how she can fall back on her original illogical disavowal without risking perjury. I doubt if Wells will play along the way Imus did.

I just hope Libby's allowed to call her.

[MJW]

Sara, CIA spokesman, Harlow, told her. We don't yet know why. Nor do we know why, if Harlow knew about Plame in early June, he wasn't aware of her classified status at the time he confirmed to Novak that she was with the CIA. Perhaps he was hearing it from Novak as if for the first time.

[Daddy]

I want to see Joe Wilson on the witness stand. At Dick Cheney's "Behest" of course.

[MayBee]

Anyway, on this American Idol, I'd call in a vote for Marc Grossman.

He's got to straddle his friendship with Wilson and his boss Armitage, he's got classified emails to answer to, he has to explain the re-dating and urgent faxing of the INR memo...and you know, he's selling arms to Turkey according to Sibel Edmunds, who also is after Walton. So there's a bond there. ;-)

[MayBee]

One more thing (sorry to be spamming the thread)...I don't know what Cathie Martin will say, although some expect excitement. I would be shocked if Libby's side doesn't know exactly what she'll say, so I think they will be well prepared for her. She may be a prosecution witness, but unlike Fleisher, I think she'll still be sympathetic to Libby.

[P]

Its fitting that after all the left/media hype, the person that will spend the most time in jail in this blockbuster case was a NYT reporter.

[sad]

I hope the jury doesn't come down to one sensible person who can see how stupid the case is, being railroaded into a guilty vote by the other jurors who just want to get it over with and go home.

[Don]

Re: Miller. "Isn't it possible" questions will be objected to and sustained. Witnesses aren't allowed to speculate.

[Don]

i.e. "For example, "Isn't it possible that the question mark means you meant to ask Libby whether Wilson's wife was at the Bureau?" "Yes, it's possible"."

No way. Libby's counsel will have to flat out ask her: "Does the question mark means you meant to ask Libby whether Wilson's wife was at the Bureau"? A leading question, but it's cross.

Miller can answer yes, no, or I don't know, not "it's possible."

[clarice]

What about Bob Bennett and the others called to explain a waiver is a waiver? A side issue to be sure but a fun one.

And will a number of reporters--not just Kristof--be called to say they knew Wilson and Plame and were never questioned in the investigation?

Thrills, chills and a certainty that this all will be reported as badly as everything that led up to the prosecution.

[Cecil Turner]

If Russert wobbles on this point, the trial is over.

Could be. But if this thing were about cosmic justice, it'd have been over when Armitage 'fessed up (or, at the very least, when he was shown to've leaked prior to Libby). And while there's always the chance of Fitz missing one of the strong-willed "show me" types with his preremptories, odds are good that he'll press on with the "little case" to a predominantly sympathetic jury. And if they convict, the media will do its collective best to gloss over the inconsistencies.

"Isn't it possible" questions will be objected to and sustained.

Is that an expert opinion? Because it certainly doesn't match my extensive experience watching Hollywood courtroom drama. Trying to remember something she claims to've forgotten isn't speculation, and I'd expect they'd get have some leeway in exploring what coulda happened.

[cboldt]

Nobody has picked Libby. What is he, chopped liver? ;-)

One of the comments at FDL's Libby Liveblog / Jan 22, Part I hints at a conflict between Libby and Martin, that manifests in grand jury transcripts.

From the folks in the media room, here are three things Libby was trying to exclude but won't be excluded:

... And finally, a passage from both Cathie Martin's and Libby's testimony, in which it seemed like Martin was being blamed for leaking. She felt like Libby didn't stand up to defend her as not being the one who leaked.

Could be BS. I'm going to miss having the rulings reduced to writing and published as opinions, as takes place in pre-trial. It's good that the public has several media sources, as clarice noted, reports are more often wrong than right. But I'm not so interested that I plan to obtain and read trial transcripts either.

[cboldt]

Bad link above ...
Libby Liveblog: Jury Instructions Jan 22, 2007

[Don]

A fact witness can only testify about facts. What "facts" are you looking for in asking someone whether "is it possible?" By definition, you're asking for possibilities, i.e. speculation.

That's a garden variety objection. Under the Federal Rules governing this trial, only an expert witness, so qualified, can offer an opinion.

[cboldt]

Expressing a degree of (un)certainty about your personal recollection is not speculation. Asking the witness to fill in the uncertain part with an alternative fact pattern is speculation.

[clarice]

With Miller we will have one of those "anything is possible days" which IIRC were a feature on Mr. Rogers.

[clarice]

It should be sufficient to go thru all the points at which her testimony was less than positive and have her reiterate that she simply is not certain of any of the points that Fitz is relying on her to establish.
Plame's name and job being among them.
Whether she raised the matter or Libby did being another.
The duration of that portion of their conversation compared to the length and substance of the rest of the meeting.
How certain she is that her notes record that conversation vs. conversations with others.
Without asking for names--and letting the jury know she had been promised she'd not reveal them--get her to concede she had other sources for that information and some of those occurred before the meeting with Libby
A concession that she had sources at levels throughout the govt.
etc etc.

[Other Tom]

I disagree with Don. The "is it possible" question is perfectly valid for a lay witness, and is used all the time. And even if it weren't, the "it's possible" answer is often the best the witness can do, and it happens all the time.

[Cecil Turner]

Asking the witness to fill in the uncertain part with an alternative fact pattern is speculation.

So you couldn't have a question series like:

"Are you sure he (Libby) brought it up?
Isn't it possible you are the one who brought it up?"

If so, the writers for Law & Order (et al) are taking some serious liberties with reality.

[hit and run]

"Isn't it a FACT that you do not know with certainty what that question mark in your notes really means?

Isn't it a FACT that that question mark in your notes may refer to your intent to ask Libby whether Wilson's wife was at the Bureau?"

I'm not a lawyer, but I did stay in a Holiday Inn Express on New Year's Eve.

In other words, I have no idea. But I can play semantics to work "fact" in there all day long.

[clarice]

I think the issue with a lay witness depends on what the substance is of the "isn't it possible "
question.
Probably okay--In reading your notes, I see what you've described as a "t". Comparing it with other notes on that page, would you say it's possible that that is actually an "r"?

Not okay--You say that you saw the car speeding thru the intersection--isn't it possible that what you saw was a Klingon in a shape-changing vehicle?

In other words, when you are asking them something less speculative and based on something rational (their own handwriting on the same page) I don't see a problem.
It's not the formulation that makes it speculative, but the substance in context.

Now, that matters in Judy's case, because you can explore her note taking practices, her news gathering practices etc to set up a perfectly good predicate for "Is it possible that.."

[cboldt]

Not plugging Firedoglake - but Marcie Wheeler guest typing over there is doing a pretty straight description of events. It's vastly superior to the mass media. Don't bother with the comments, they are mostly expressions of opinion and question, and contain very little (if any) useful analysis.

Walton ruled this morning on "potential crime of alleged classified." His verbal instruction as paraphrased seems fair.

Walton makes an important point about the legal meaning of reasonable doubt too, "A doubt for which you have a reason based on the evidence or lack of evidence in the case ... this doubt cannot be based on imagination or speculation."

[Don]

No-I think cboldt has it right, OtherTom.

If "it's possible" is another way of saying "I don't know", that's kosher. But you have to look at the question which prompted the response-does it have a foundation? Otherwise you object the question calls for speculation.

I mean="Isn't it possible you have an evil twin" just doesn't cut it. Neither does asking about any more plausible speculative scenarios for which a foundation has not been established.

[clarice]

OT but an interesting contrast--A former high-level State Department official was sentenced to a year in prison yesterday for keeping more than 3,500 classified documents at his Fairfax County home and concealing his relationship with a Taiwanese intelligence agent.

Prosecutors said Donald W. Keyser possessed far more unauthorized classified documents than any government employee ever prosecuted by the Justice Department. Keyser, 63, is one of the nation's leading experts on China and was a top adviser to Colin L. Powell, former secretary of state.

"What I was doing was to further U.S. interests," Donald Keyser said. "It was not to further Taiwan's."

http://www.washingtonpost.com/wp-dyn/content/article/2007/01/22/AR2007012201139.html a channel to Taiwanese intelligence

[Dell]

'......that dealt with the spread of nuclear, biological and chemical weapons.

I wasn't sure what it meant.'

The bureau remarks are important because it is really the DIA that deals with the above. The misunderstanding would be that Plame was actually DIA. This is mostly irrelevent now that CIA(analysts) have moved to DOD(DIA/NSA). If Plame was DIA, then CIA would have been a cover just like DEA or FBI. So, did Plame claim this?

'Too specific - he doesn't need to know her full career or her facility with automatic weapons to know whether she was with the CIA in 2003.'

The AK 47 comment is important because these means Plame was paramilitarily trained. These are the same as military officers and highly trained. The leak was Plame at 'Vanity Fair.' She admitted this and 10 operations officers were murdered in Irag the next day. In the community, the paramilitary training means she was very important and the assassinations were now worth it. In the community, she was the highest at the DO and very dangerous. So, no, once they know she is paramilitarily trained(AK 47 shooting jokes mean just that in the community) the other career information is not really important, other than to the 'Iraqi police' who assassinated those operations officers they knew she worked with. Paramilitarily trained was a key admission by her and in the community, she was leaking this for a response, which she finally got; the other leaks could not achieve this even though they claimed the leaks were from the President and VP. 1. Plame confirmed who she was 2. It was confirmed by her 'farm' mates Jim and Larry. 3. She admitted she was paramilitarily trained with the intention of using this informaiton for a response.

Cathie Martin? Alot of Peace Corps jokes about Kathy Martin Peace Corps Nurse. The real Plame real 'sell' was done by these(another theory) because, as an operations officer, Joe was getting nervous and that's what he says in the interview; Plame couldn't 'run' him. That is why she was 'sold.'

[clarice]

http://www.washingtonpost.com/wp-dyn/content/article/2007/01/22/AR2007012201139.html> "creating a channel to Taiwanese intel"

[maryrose]

I look forward to Fleischer's testimony. It is not a coincidence that he quit his job right around the time this all started coming down. I think he has immunity but I think Wells will get him on cross. Mitchell will not be able to extricate herself like she did on Imus. Russert will parse his words and I believe be discredited in the process. He will remember he is under oath and will not want to risk a perjury indictment if he isn't forthcoming. Remember he provided very limited testimony from the get-go and set his own terms.

[Patrick R. Sullivan]

Even if the judge were to disallow 'isn't it possible' formulations, a good lawyer can get around that by simply asking something like, Why does it have to mean X, why not Y?

Anyway, lets not forget this admission from Russert on his CNBC show back in October 2005:

---------quote---------
RUSSERT: Well, that's exactly right. "Meet"--Joe Wilson had been on "Meet the Press" on Sunday, which you moderated because I was on vacation.

MITCHELL: And...

RUSSERT: I came back after that interview, after The New York Times piece, and there was a discussion about Joe Wilson and I didn't know very much. And then when I read Novak's column the following Monday, I said, `Oh, my God, that's it. Now I see. It's his wife, Valerie Plame, CIA, sent him on the trip. Now I understand what everybody was trying to figure out.'

MITCHELL: But you'd already talked to Libby, and you couldn't possibly have shared that name with Libby 'cause you didn't know it.

RUSSERT: Well, the interesting thing is that I was so far down the food chain going through this indictment, it appears that he spoke with seven government officials, according to the indictment, starting with the vice president, a CIA briefer, the undersecretary of State, the White House press secretary, the vice president's press secretary...
---------endquote---------

Note; 1. "I said, `Oh, my God, that's it. Now I see....Now I understand what everybody was trying to figure out.'"

2. Andrea reverts to 'that name' when she hears him admit there was talk at NBC about this before Libby called him.

3. Russert then changes the subject.

[Pete]

I'd like to see the defendant Libby on the stand.

[clarice]

cboldt--I think the two most important things in the instructions are how"materiality" is defined and whether mens re (intention) is put into the obstruction count (per the Anderson ruling).

[HYC]

South Korea handled their Plame immediately.

[cboldt]

-- Asking the witness to fill in the uncertain part with an alternative fact pattern is speculation. --

To be pedantic about it, when the line of question poses only two mutually-exclusive alternative answers, expressing a degree of (un)certainty about one of the options determines the degree of (un)certainty on the other option. This does not constitute speculation. In recounting a conversation between Libby and a witness, the question "How certain are you that Libby brought it up?" has that quality.

Objections to asking a witness about their own degree of certainty in recollection about an event that they witnessed will be overruled.

[clarice]

James Joyner:"Judge Walton has instructed the jury that Valerie Plame’s actual status with the CIA or the degree to which any revelations made by Scooter Libby put her in danger are totally irrelevant to the facts of this case. The only issue is whether the statements he made before the grand jury were factual and his state of mind in making these statements.

This is huge, as it would seem to undermine the defense’s quite reasonable stance that misstatements about something which is not a crime is not in fact perjury, since they would not be material to the case at hand.

Update: Later in the instructions, he was more specific about the definition of “material facts” as related to the perjury charge: Those which have a “natural tendency to influence the exercise of the grand jury’s decision-making process.” It must relate to “important fact” with “capacity to influence or effect” the grand jury. “Not necessary for government to prove that the grand jury was in fact misled.”

[boris]

It must relate to “important fact”

Why wouldn't that open the door to the big case?

[Pete]

And while we are parsing the statements of journalists, how about this doozie from Novak in an article published July 22 2003:

"Novak, in an interview, said his sources had come to him with the information. "I didn't dig it out, it was given to me," he said. "They thought it was significant, they gave me the name and I used it."

[clarice]

Boris,Because J Walton has stuck a 1000 pound chiffarobe behind the door?

[boris]

Wow that is a doozie pete!

Gee who actually knew her Plame name?

[boris]

1000 pound chiffarobe

Materiality and importance is automatically assumed given the degree of pomp and circumstance surrounding the utterence of some unscripted bafflegab.

[clarice]

Joyner says the judge lets the witnesses take notes (good--it is stupid not to) and to send up questions they'd like answered..Both good ideas I think to keep the jury engaged in the proceedings.

[boris]

I know you meant "jurors".

[sbw]

"chiffarobe" -- Wow! I haven't heard that word since Harper Lee's "To Kill a Mockingbird."

[sbw]

Hmm. Fitz' opening statement sets the stage with "Big Case" background.

[clarice]

boris--thanks. Of course, you are right.

[Cecil Turner]

The bureau remarks are important because it is really the DIA that deals with the above.

Seems to me the "bureau" remarks are more likely a miscommunication, either of a "bureau" in the CIA--most likely WINPAC--or the Bureau of Intelligence and Research [INR]. In either case, it's also wrong.

The AK 47 comment is important because these means Plame was paramilitarily trained.

Not sure how much to read into this one, either. It seems to be a comment from her supporters to suggest she was more Jane Bond-ish than she actually was. (And since we're talking basic weapons training, and an AK-47 is hardly a marksman's weapon, it's hard to see how it'd be a major bragging point . . . if there were anything else to brag about.)

[Martin]

Getting a witness to admit something is "possible" is relatively worthless since on cross/redirect opposing counsel will force the admission that whatever is "possibly" true is also "possibly" false or vice versa. That's why pure speculation is usually nipped in the bud.

[PaulL]

At Firedoglake the blogger is describing Fitz's opening statement. Mentions that Fitz's voice shakes at times. Fitz refers to the Iraq war and the 16 Words and so forth. I don't see how the judge can keep the case narrow after that.

[boris]

is relatively worthless

Depends on whether Fitz or Libby gets the benefit of doubt.

[boris]

refers to the Iraq war and the 16 Words and so forth

Mistrial.

[clarice]

If you are hoever trying to establish that a witness--Miller for example--is not certain of the strength of her own testimony it has value.
It is hard not to find reasonable doubt when the prosecution witness (as I think she will) casts doubt on the very testimony on which the prosecutions relies.
Not sure he raised Plame or I did.
Not sure how he described where Plame worked .
Not sure if this note reflects knowledge obtained from other sources.

In fact, the only thing from the reports of her testimony that I recall she was firm on was that Libby was always very careful about handling classified materials.

[PaulL]

From Firedoglake, Fitz paraphrased:

"Evidence will show that Wilson was accusing the VP of misleading the country. Someone was being accused about lying about the cause for war.

VP cut out the newspaper, underlined it, and wrote handwritten notes on the top of the page. Kept it, it was found months later, in OVP.

Defendant had his own copy (a printout). He underlined his own copy. They were not going to take this lying down. Defendant was VP's right hand man."

[clarice]

As for the opening statment-- Wells always anticipated Fitz would do this. I expect that he will convey to the jury that they are directed only to determine if Libby intentionally lied and that all the other stuff is to try to get them to treat this as a politics. Since the judge will certainly restrict the factual presentation to the narrow case it may well appear to the jurors--as it does to me--the rest is just an appeal to prejudice.

[Pete]

Fitz: "You can't learn something startling on Thursday that you give out on Tuesday."

[clarice]

Joyner: Fitz admits Libby was very busy man---but he took time out to talk to the press about Wilson because it was important to Cheney.

[cboldt]

-- Defendant had his own copy (a printout). He underlined his own copy. --

That one could leave a mark, if it makes it into trial.

I wish I wasn't up to my ears in work right now - it sounds as though some new evidence, things beyond what has been discussed regarding the pleadings - is coming up. Of course, Fitz may be blowing smoke, as it would be difficult to prove that an underlined printout was underlined by Libby, or when it was underlined. This could be a promise that Fitz won't be able to fulfill, as the defense objects to the exhibit.

[boris]

They were not going to take this lying down.

Nor should they, Wilson and the MSM were making false accusations. The declassification and disclosure of NIE findings was their response, not going after somebody's wife.

[Tom Maguire]

Wow, where is Fitz headed with Libby's motive here - is he going to go for the whole Wilsonian punishment-by-outing theme?

Bring it. And bring the mistrial.

Hmm, a semi-rhetorical question - is a mistrial bad for Fitzgerald? Put another way, is losing in dramatic fashion a bad thing? it doesn't sound like him - I don't think he is angling for the book deal and a Democratic seat in Congress - but what does he lose with an all-out assault on Evil BushCo?

[clarice]

Counsel is forbidden to refer in opening statements to a piece of evidence he will not introduce.

I'd be astonished if Libby didn't have the op ed and that he hadn't underlined the charges--they were substantial and they had to be addressed.
(Anything in the op ed saying and my wife's name is Val Plame and she works at the CIA and played a role in my trip? No.)
It is perfectly consistent with Libby's defense that he was tasked to and did response to the substance of the charges Wilson made.

[Tom Maguire]

Re speculation being disallowed - I take the point, but remain confident that a high priced lawyer can get Ms. Miller to express her maximum doubt, just as Fitzgerald probably attempted to minimize it before the grand jury.

[cboldt]

-- Since the judge will certainly restrict the factual presentation to the narrow case it may well appear to the jurors--as it does to me--the rest is just an appeal to prejudice. --

There's a reason it's called the prosecution. To an innocent person, ALL prosecution constitutes unreasonable prejudice.

I thing the 16 words, Wilson article and other background is necessary to understand why there even an investigation. It also opens the door for Wells and Jeffress to attack the investigation as improvidently undertaken.

[jwest]

Wow. I expected Fitz to frame this as narrowly as possible, but it seems like he has brought in everything plus the kitchen sink.

What can he be thinking?

[Sue]

What can he be thinking?

He has a DC jury and has to whip them up and remind them why they hate Bush and Co.

[boris]

So if Cheney says under oath that Wilson's wife was not part of any pushback, doesn't that imply in order to convict Libby they have to assume Cheney is guilty of perjury?

(whacky conspiracy theory ... that's the plan all along)

[Sue]

It also opens the door for Wells and Jeffress to attack the investigation as improvidently undertaken.

I was going to ask if anyone saw a door open in Fitz's opening remarks. Thanks.

[hit and run]

Can't Wells work in a baseball analogy into his opening statements? Oh, I don't know, something about Fitz trying to throw sand in the jurors eyes or something...

[Sue]

Joyner tells us "Fitzgerald interprets this as Libby lying to the grand jury and claiming he learned it from Russert. My take was that Libby was just lying to Russert in order not to be on the record confirming Plame’s status." EW kind of skips it. "The transcript is going up on the screen, highlighted. He has had to go back and correct himself twice.

About 2 minutes of this."

It will be interesting to know exactly what was asked and what was answered.

[clarice]

I can't wait to see reporters on the stand asked how frequent it is that unnamed sources are deliberately misidentified by them to hide fingerprints.
This may be a free journalism course for Fitzgerald.

[danking70]

How can Fitz open with the "Big Case" and the defense not be allowed to address it (Wilson, Niger, the 16 words, State vs. CIA fight, etc...) during the trial?

[clarice]

Let me add to the witness list the FBI agents who worked this case so they can explain the brilliant "reverse Battleships" plan they utilized--including good leaks and bad leaks--to NOT get to the bottom of this story.

[topsecretk9]

Evidence will show that Wilson was accusing the VP of misleading the country.

Evidence shows that Wilson was lying to accuse the VP so?

[Sue]

Hmmm...I need to see more of Libby's gj testimony, but from the little bit provided by FDL and Joyner, I am not as convinced as I once was he actually lied.

[Soylent Red]

Oooo... boris,

Cheney indicted for perjury and obstruction. Bush indicted for lying about WMDs. Double impeachment (trumping Clinton's single, halfway impeachment). Say hello to President Pelosi.

Not such a wacky conspiracy theory as you might think. Just for fun, float it over at DU and see what kind of response you get.

[topsecretk9]

Evidence will show that Wilson was accusing the VP of misleading the country.

Evidence shows that Wilson was lying to accuse the VP so?

[jwest]

Wells has the opportunity to lead off with a correction on the public perception of the “16 words”.

Fitz has tried to frame the whole case around this using words to make it seem the WH retracted the idea that Saddam was seeking yellowcake. Wells could shake Fitz’s foundation by asserting that the “16 words” were (and are) undisputed fact.

[Sue]

“being a scapegoat” and “being set up” by “people in the White House” trying to “protect Karl Rove.”

Ding. Ding. Ding. There goes Rove over the side of the Libby ship.

[maryrose]

Fitz going for broke-who knew? At this point he has nothing to lose so he is going to throw in the kitchen sink. The defense will make him pay dearly for it.

[Other Tom]

Every question a lawyer asks must have a foundation; you can't ask about cerrtaintly, possibility or anything else without a proper foundation.

To begin a question with "isn't it possible that..." is perfectly appropriate as a means of ascertaining the witness's degree of certainty about his testimony. It happens all the time. I've done it innumerable times. "Isn't it possible that you have an evil twin" would be appropriate if the existence of such a twin were material to a triable issue of fact, but I concede that it's hard to conceive of a circumstance where it would be.

[Other Tom]

Sorry--"certainty."

[Dell]

INR. The State Department, so maybe it's not DIA. Anyway, I was researching this office at Peace Corps. The office was created and it hired Shayes'(RPCV Intelligence Commmittee) wife to run it. It was formed at Peace Corps and the Peace Corps was changed so that each country was run by a desk, alot like State. The Peace Corps officers who run this department do studies and policy; they also created a law enforcement arm, Peace Corps Special Agent. Certain employees were classified based on their jobs(e.g. Doctors and Dentists). Like State, it seems to be a way to keep employment long term. This all occurred before the war and Wilson's fame as an RPCV.

As far as Plame bond (OOps), the new theory is that she is a protection agent for Wilson that developed her job into something more at the DO. Wilson's dad was a diplomat(CIA operations officer) in Spain and that's probably why he got the extra protection because he grew up with his dad there. The assassinations in Iraq make more sense because the Spanish admitted those were operations officers in Iraq and later there was Madrid.

As far as an investigation. Fitz is a criminal conspiracy investigator. That's how bad agents at CIA are prosecuted. Their response was to sue. If Plame is claiming to be a protection agent in the Operations Directorate or a DIA agent this changes everything. Also, she can't be under disability when doing the above jobs. Maybe DIA, but the protection end would be over.

As far as the 16 words, don't forget that Bush said he doubled the size of CIA and planned the same thing for Peace Corps. An RPCV may have said something right there, although one RPCV who is employed did admit there were CIA operations officers in Peace Corps around the time that Peace Corps admitted a woman who is a 'retired teacher' with the same name as Howard's and Aimes' CIA trainer(operations officer) was working in Morocco for Peace Corps, which makes more sense with Chayes.

Alot of PC here, but that's how Plame was originally 'blown' with Aimes and no one there would trust her. Period.

[PaulL]

Firedoglake:

***Now we'll hear a question that came from a grand juror.

If you didn't understand the info to be classified, why is it that you were so careful to tell other reporters that you didn't know?

Libby: It wasn't coming from me.

What I was telling them was that I didn't know Mr. Wilson. I didn't know he had a wife.***

Me: Is Libby making a distinction that he didn't know Wilson or his wife personally, just that he had heard about them?

I think Fitz is confusing lying to reporters (and even that isn't the case; misleading at worst) and explaining why he did so to the grand jury, with actually lying to the grand jury. In other words, it is not a crime to lie to regular people, and it is not a crime to explain to a grand jury why one lied.

So far it sounds to me that the supposed lies to the grand jury are just explanations of why Libby told reporters he heard it from other reporters.

[windansea]

At this point Fitz has to know his small case is looking weak...after seeing the biased and misinformed juror pool he is probably playing to that to win at any cost and salvage his reputation.

He is an asshole and I hope Wells embarasses him.

[Cecil Turner]

Evidence will show that Wilson was accusing the VP of misleading the country.

How interesting. The obvious rejoinder is: "Wilson lied, and the NIE demonstrates that conclusively, as it matches the Administration's version and not Wilson's." But Fitz's red meat works perfectly if Walton constrains the Defense from the "Wilson Lied" path--which appears to be the current state of the rulings. This is gonna be fun! (Popcorn, peanuts . . .)

[Jane]

Stupid question of the day - again (please forgive me, I sort of have a lot of work interfering with my Libby schedule these days) -

Is there a live feed somewhere? Can someone post a link.

Thanks

[P]

I would be very interested in opinions (esp. Clarice) on whether Wells will be able to devle into Miller/Cooper other sources. If Miller/Cooper won't tell who their other sources were won't the judge have to make them. Or if Miller claims she can't remeber any other sources, even though she admits she had them..wouldn't that impeach her ability to remember a single sentence vice an entire source?

[cboldt]

There is no live feed, unfortunately.

[P]

"""Evidence will show that Wilson was accusing the VP of misleading the country. ""

But more evidence will show that Cheney and Libby knew Joe Wilson was misleading the country.

[KD]

Wilson lied? He disagreed with the person he reported to who wrote the report. He wrote nothing.

[sbw]

The live blogging from FireDogLake describing Wells' statement just descended into something I can't comprehend.

[Martin]

hey sorry wingnuts-but if Fitz has evidence to back up his opening (and he certainly does) Libby is toast.

And I love that Wells is setting up the Rove vs. Libby angle. No wonder Bush won't pardon Libby. He's gonna take all the blame for the WH!

[Walter]

Jane,

Firedoglake and Outside the Beltway (via Media Bloggers link on TM's right-hand side) have live coverage.

[clarice]

Jane--here. http://www.mediabloggers.org/scooter-libby-trial
P. it's an interesting question. Certainly Wells will bring out that she had other sources and that there was an agreement with the SP that she didn't have to reveal them. Without compelling her to name them he may get her to concede that on this point she had them throughout several departments of the govt.

[Cecil Turner]

There is no live feed, unfortunately.

Yeah, and emptywheel at FDL is falling down a bit on Wells's opener (editorializing vs reporting).

[clarice]

Joyner on the defense opening:
'Libby defense attorney Ted Wells stated in his opening argument that his client feared “being a scapegoat” and “being set up” by “people in the White House” trying to “protect Karl Rove.”

[Sue]

EW is wearing me out with her sidebar comments. Couldn't she wait until afterwards to inject her bias?

[Other Tom]

He wrote nothing to the CIA, but that certainly doesn't mean he didn't lie. For openers, in his op-ed he falsely left the suggestion that he had been dispatched by the VP. That was the conclusion drawn from his wording by, among others, Senator Rockefeller, and it was repeated often by others. Wilson knew they were drawing an incorrect inference, but remained silent about it.

[Sue]

Cecil,

Exactly. Oh well.