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January 25, 2007


Other Tom

Martin: Of course the judge wouldn't allow it in as a "statement of belief to prove the fact believed.: He would allow it in precisely because it is NOT offered to prove the fact believed (i.e., that citing Valerie's role would undercut the claim that the VP's office was involved).

Here is the applicable exception:
"(3)A statement of the declarant's [Cheney's] then existing state of mind, emotion, sensation, or physical condition...but not including a statement of memory or belief to prove the fact remembered or believed..."

I'm not being either tough or lenient on Libby. I'm just telling you what the federal rules of evidence are.


Random thoughts….

It appears to me that Fitz wants to reinforce the prevailing (left) view (Cheney/Libby twisted intel, have something to hide) in the large case, and have the jurors narrowly focus the perjury aspect with that in mind.

Wells seems to be using the memory defense as a way of framing the wide case. I’m getting the impression that he is misdirecting Fitz and Walton with the left hand, keeping them occupied with watching for missteps in the memory defense, while actually telling the jury the large case story with his right hand.

Team Libby lawyers understand that regardless of any testimony or instructions, if the jury feels Cheney/Libby twisted intel, Libby will lose. If, on the other hand, the jury feels the media and Wilson lied, Libby wins.

While Fitz thought Wells was establishing the fact that people don’t remember things accurately, Wells was establishing the fact that Cheney didn’t send Wilson to Niger, a fact that Chris Matthews still can’t grasp. This is big news to jury members.

Using memory questions, Wells has shown the VP’s office had no idea who Wilson was, who sent him or what he did there. Martin was good at establishing that the only thing Cheney/Libby wanted to do was get the true story out. If this was done as a direct attempt to establish the background of the large case, Fitz would have been whining that Wells was trying to put the war on trial.


P.S. "Bring it on" is only addressed to terrorists and insurgents by the President of the United States to advocate attacks on Americans.

Or the democratic party by a pompous wanna-be president with a brahmin accent.


I understand that attorneys have a rule that it is dangerous to put the defendant on the stand. But the jury is really going to want to hear from Libby's own mouth what the hell he was trying to say in his GJ testimony.

Libby is supposedly such a "great guy" and a "brilliant lawyer." Then he should be able to impress the jury and to avoid the usual pitfalls of a defendant on the stand.

If he doesn't testify, I think the risk is too great that the jury will draw the wrong conclusion as to why.

Cecil Turner

I think the jurors are very engaged and listening closely and their questions reflect that.

Concur. And the most telling ones so far are the detailed inquiry about who wrote the notes on Schmall's TOC, and the absence of a "T" for "tasker". Not what I'd want to hear if I were Fitz, and I was disappointed the Defense didn't make a bigger deal of it.

"No independent memory" is ridiculously stilted: the Prosecution suggested it must've come from Libby or the VP in his presence, and it obviously doesn't. Schmall has no recollection of the question (or when he wrote it), and it stands to reason if the VP asked why, he'd have written the "T" (or sent a former ambassador to Africa, or something). IANAL, but you'd think the cross examination should've hit that hard enough to obviate the need for jurors to ask.


Wheeler: [quavering] At a time Libby ws supposed to be defending the country was going after a critic. I will not.

what a naive and vicious hack you are Marci, as if administrations are not allowed to refute their critics

Wheeler - I don't know that I have one. Maybe the first female President. Maybe the first African-American one.

no favorite Presidents because, you know, they are all white guys....what a pathetic small mind she has


'The confusion between interest in Joseph Wilson and interest in Valerie Wilson is part of Fitz's plan.'

I'm wondering why the defense hasn't started to draw this distinction out (specifically/overtly) with the prosecution's witnesses?

We caught a glimpse with Kathie Martin.


However, the main outstanding problem with Libby's story is the difference with Russert. Either they need to challenge Russert's credibility directly (which would be preferable from a simplicity standpoint), or they need to introduce the concept that he mixed up the conversation with Cooper (or whichever alternate version Libby will claim). AFAICT, the former is going to be pretty hard, and the latter, while relatively easy, can only be made by Libby on the stand.

Perhaps Russert's credibility could be impeached via Mitchell and Gregory. (IS Gregory on the witness list?). He's the boss, his job is to know what is going on with his staff, his staff knew, therefore he should know. If Mitchell and/or Gregory told him I'm sure they will plead they don't remember, but that is not a "no".

I'm pretty far out of the loop here - (far too much going on in my real job), so I may be out in left field. From what I see the biggest problem with Russert is he is popular, and people like believing him. Hell, I used to believe him.


Wheeler - I don't know that I have one. Maybe the first female President. Maybe the first African-American one.

We've had the first African-American president. I'm surprised she didn't name him. Democrats consider him a god.

hit and run

Potential Libby testification:

Wells: Before lunch Mr. Cline asked you a question regarding your grand jury testimony.....

Libby: Excuse me, but to correct the record, that was you who was asking.

Wells: Uh, I, no, Mr. Libby, it was Mr. Cline, I assure you.

Libby: Seriously? You sure? Can we check on that?

Wells: Your honor, can we please have the court reporter read from the transcript?

[transcript read, revealing question indeed by Mr. Cline]

Libby: Really? Huh. Well I'll be. I coulda sworn it was you. I'm sorry, what was the question?

Dan S


I think that's dead on. I've been impressed by how much we've heard about the greater picture, and how it's undermined the "street" view. It may have little effect outside the courtroom due to the accuracy in reporting of the media, but the jury is hearing it.

The question is, will enough (one, just one strong willed juror) of that jury be comfortable with a 180 degree shift in paradigm. They have to move from what is probably their comfort zone, to a very uncomfortable place where most of their acquaintances will villify them for accepting a view that a significant majority of DC will not hold:

Bush didn't lie. He went to war based on the opinions of (among others) CIA. Wilson didn't whistleblow, he just blew smoke.

If they can at least allow that that is a significant possibility, they can support their reasonable doubt against the torrent.

That's no small move though.

Thus optimism comes hard for me. But I do have hope, based on the questions from the jury.

Cecil Turner

But the jury is really going to want to hear from Libby's own mouth what the hell he was trying to say in his GJ testimony.

I agree, but if they hear some rambling crap like he gave the GJ (or what he wrote to Miller), they might convict just out of annoyance. Maybe Wells could rig him up with one of those dog-training shock collars or something (like in Saving Silverman) . . .

Other Tom

No one knows at this point whether Libby will testify. Wells doesn't know; Libby doesn't know.

My own sense is that a number of the typical reasons for keeping the defendant off the stand don't apply here, and the usual risk that the jury will draw negative inferences from his not testifying (no matter how the judge instructs them) would outweigh the other considerations. I predict he'll testify.

Dan S

Hit & Run,

I think Wells is aiming to do that with the witnesses... maybe he SHOULD have dragge out CM's cross so it would span the weekend so he could shoot for exactly that. :)


"If Mitchell and/or Gregory told him I'm sure they will plead they don't remember, but that is not a "no"."

Yet when administration officials tell Libby but have memory problems, that is indeed a "no".

A curious paradox.


The left/press won't give up their mantra that the adminstration was lying about WMD, and thus the push-back at Wilson.

When the real story is that Wilson was lying about his trip, and thus the push back at Wilson.

Wells needs to make that simple fact clear to this jury. If they understand that, eveything else makes sense.

Rick Ballard


The other gj testimony from Libby reads as simple and direct, as do the questions asked. I'm betting that we will see direct answers from Libby on the stand with an explanation that he was returning bafflegab answers only when asked bafflegab questions. I'm really looking forward to the FBI investigator's cross. I like Wells so far but he will become a real favorite if he succeeds in illustrating that pretzel questions beget pretzel answers.


Florence: Is the public responsible to know all of this on their own somehow, or is the press responsible for accuracy in what they tell the public? Just asking.

The press is not responsible, but is held accountable -- by you. Which is why if one relies on only one source for news one is open to be misinformed and overconfident.

I used to think better of my fellow journalists and was proud of my field. Then I learned from Eric Burns' book that soon after the invention of movable type, a Renaissance blackmailer and pornographer, Pietro Aretino, the first journalist, "produced a regular series of anticlerical obscenities, libelous stories, public accusations, and personal opinion." Even worse, Aretino's opinion was for sale.

Progress? There is reason to doubt it.



The jury has been made very aware that they are receiving information that has been highly classified previously. This is reinforced every time a sidebar is called or Fitz objects to some content.

People are much more likely to change their opinions if they believe they are hearing new information “as if for the first time”.

Folks are also more likely to do a 180 degree change if they believe someone was trying to deceive them. This could be the reason Wells isn’t hammering on the “interest in Joe/interest in Val” conflation being perpetrated by Fitz. It will be much more effective if that distinction is made during the defense portion of the trial.

hit and run

"If Mitchell and/or Gregory told him I'm sure they will plead they don't remember, but that is not a "no"."

Yet when administration officials tell Libby but have memory problems, that is indeed a "no".

A curious paradox.

Neither is a definitive "no". Both are maybe's. (not to be confused with the altogether lovely MayBee)

There is quite a difference between the defense trying to create reasonable doubt -- and the burden of the prosecution to eliminate it

Dan S

Yes, the "new information" angle is important. And I suspect you are right on not unconflating (deflating?) until later. If nothing else, having that very fresh in the jury's mind (hmm, grammar there is ugly, jury is a collective noun, but it doesn't have a collective mind exactly) along with, perhaps, a feeling of betrayal by the prosecution... that would be nice for the defense.

But, I must question "much more likely" in your statement based on observable evidence on the street and personal experience. I think that is a "much" to far.

Dan S

err, "too far."

Dan S


Isn't this constant confusion over who has to prove the case interesting? I think it stems from the BDS side feeling Fitz is defending them. The conspiracy clearly DOES exist! It's up to Well & Co to prove Libby isn't a part.

The media is all "confused" on this point too.


Sure it wasn't Imbroglio vs. US? They're having a nice race in Campagnano.

FDL is using the trial to make some money for herself. She is just MSM. She deletes what she dosen't like, even if it's factual.


Fitz filing on motive to lie:

The government intends to prove that, at the time he made the charged false statements, defendant was aware that, if Ms. Wilson’s employment status was in fact classified, or that Ms. Wilson was in fact a covert CIA officer, in addition to potential criminal prosecution under a number of statutes, defendant faced the possible loss of his security clearances, removal from office, and termination from employment as a result of his disclosures to New York Times reporter Judith Miller and Time magazine reporter Matthew Cooper.


The nondisclosure agreements executed by defendant tend to establish that defendant undoubtedly fully understood the serious obligations imposed by the nondisclosure agreements – and the severe potential consequences of violating them. Given other evidence that will establish that defendant was also aware at the time he made the charged false statements that Ms. Wilson’s employment may have been classified, and that the FBI and grand jury were investigating possible crimes arising from the disclosure of Ms. Wilson’s CIA employment to reporters, the nondisclosure agreements are directly relevant to the issue of whether defendant lied intentionally about his role in receiving and disseminating information concerning Ms. Wilson’s employment. Thus, the agreements should be admitted.

Patrick R. Sullivan

'Yet when administration officials tell Libby but have memory problems, that is indeed a "no".

'A curious paradox.'

No, it's the burden of proof. It's on Fitz, not Libby. You're in way over your head here, Martin.


"Fitz. I think it was improper to put memory defense in without making Libby testify. We've now perfected getting around the court's ruling of only introducing the CIPA stuff if Libby testifies. I think we shouldn't stick in their mind and then tell them to forget about it."

This from the guy who argued for months that this should be a trial about the "small case," then starts his opening with the "big case."


Thanks JWest.


Talkleft says that Fitz is trying to club Libby over the head with the NDA.

I think it's bunk. The NDA applies to classified information. If you don't have any reason to even suspect that some tidbit of information is classified, the NDA doesn't force you to do anything. The wording in the NDA says: I understand that if I am uncertain about the classification status of information, I am required to confirm[sic] from an authorized individual that the information is classified before I may disclose it, except to a person as provided in (a) or (b), above.

If Fitz heard that Plame was a CIA agent, that information isn't automatically classified. If he heard it without the admonition that this was classified information, then he'd have no reason to think it was classified. And if Plame truly was a NOC, I doubt Libby'd be on the short list of people who were authorized to know. If Plame was a NOC, then a crime probably was committed, but not necessarily by Libby.


I doubt anyone would feel that Valerie was classified or covert when CIA's Harlow was telling your communication's secretary that Valerie the wife sent Joe to Niger.


That has nothing to do with burden of proof concerns, Sullivan. Really. I'd explain it, but why bother.


Here ponder this: What if Grossman testified he told Libby and Russert at the same time in a face to faces meeting, and had the same impeachment problems with his testimony, i.e. he told the FBI it was a conference call.

A juror could of course infer he didn't tell Libby but did tell Russert, but that ain't about burden of proof, it's about lack of rationality.


I'd explain it, but why bother.


Here ponder this:

Talk about fruitcakes. ::grin::


Maybe when Wilson is on the stand they can ask him about his NDA. The one he didn't sign, that is.

Patrick R. Sullivan

I repeat, you're in way over your head, Martin.

As to the latest motion by Fitz, it's officially panic time for the Prosecution. They've just admitted they created a perjury trap for Libby.


I think Fitz's new motive to lie filing shows weakness....Libby (at the time)faced being charged with outing a covert spy, disclosing classified info and other scary stuuf...he is still facing 5 counts of perjury and/or obstruction...

and he was worried about losing his security clearances??? weak!



Is Plame one of those? You know, drug the guy and NDA him. If that's the case she may not be using Joe's NDA, but another guy who got his stolen. It's wrong, but, maybe Libby goes along with that too and ends up with all these chicks...............not that they're the perfect candidates.


jwest, both your posts were brilliant.
Wells knew what Fitz "smoke and mirroes--now you see if now you don't" would do with the big picture and just jujitsued it back at him

Cecil :"IANAL, but you'd think the cross examination should've hit that hard enough to obviate the need for jurors to ask"

I believe Schmall refused to voluntarily meet with defense counsel, they had no idea what his notations meant and prudently did not want to open up something that might be damaging.
The rule is a good one:Never ask a witness on the stand a question to which you don't already know the answer.(That is a danger to the Judge's allowing the jurors to ask questions but he screens them so it doesn;t open up too much and it does seem to permit the jury to play a more active role--something likely to keep them paying attention.)



follows is the only "juror question" I can infer here...are their others?

""Walton (juror question). What do you mean "independent recollection." what's your understanding of what you say. A recollection w/o the benefit of looking at notes I may have written.


I'm not over my head here Sullivan, but I do agree I'm up to my neck in the bs you guys keep spinning. See me on the new thread with your sure to be hilarious retort!


Thanks Clarice.

I'm having your comment framed.


It's not altogether clear from EW's summary but I think there were 2 or 3 more things the Judge asked and answers were supplied. And I they seem to be the Judge reading questions and the witness answering..like what does "t" and"s" mean?


Gee, if everyone in DC took their NDAs as seriously as Fitz claims Libby did, there would be no news coming out of that town at all. How many NDAs were violated just in the NSA story, including one by a member of the FISA court!


I think there are always a lot of brilliant posts here, Javani, and if I failed to mention yours before it was just an oversight. Today you caught what so many people missed and it was an important observation.

hit and run

Maybe when Wilson is on the stand they can ask him

Wilson's testification:

Wells: Sir, please state your name for the record.

Wilson: Um, are the cameras on?

Walton: There are no cameras allowed in the courtroom.

Wilson: ...

Wells: Sir, please state your...

Wilson: I'd like to declare myself a hostile witness.

Wells: ...

Walton: ...

Wilson: One more thing, if I have to testify again tomorrow, I have to receive clear instructions on where hair and makeup are in this building. For the life of me, I couldn't find it this morning.

Walton: Counsel please approach the bench.



Walton: Case dismissed.

Cecil Turner

follows is the only "juror question" I can infer here...are their others?

According to Joyner, the rest of the ones Walton asked right afterward were from jurors as well. EW was ambiguous on the point, but it would track.


Ahhhh Javani, we understand now....calzone!

I'm with Jwest Clarice.


Wilson was paid every time he testified about the contract Plame got him at CIA. I think it was alot of money.


Yes, I meant jwest.
Well, everybody's wonderful!



More importantly, the question before that was asked by the jurors as well.

That is, the jury wanted to know why the CIA briefer was asked about all of those threats and said that he didn't recall any of them.

Wasn't clear from the transcript, but it comes out in Fitzgerald's comment that he doesn't want the jury to be able to ask if there was a basis for (read reason for) any of counsel's questions, followed by J. Walton's statement that there was indeed a basis--but refusal to admit that basis into evidence and admonition that the questions were not evidence.


Wheeler - I don't know that I have one. Maybe the first female President. Maybe the first African-American one.

Why does she hate Latinos, Asians, etc... Why doesn't she consider one of "those people" to be a favorite future president? The intolerance and prejudice is shocking, to say the least.

Sara (Squiggler)

Regarding skewed press reports using the testimony from direct and ignoring the cross exam is standard ops. As one of 170 cyber jurors for the OJ trial, we saw it with coverage every day. We had access to full live coverage and all the transcripts and evidence every night to download. We'd listen and then hear the press coverage and think, "what trial are they watching?" Court TV covered gavel to gavel and CNN claimed to do the same. But, CNN would stay commercial free through the direct exam and then use the cross time to run all their commercials. Hence at the end of the trial we voted 168 to 2 for not guilty just as the jury voted not guilty and yet the whole country cried foul and from remarks I've heard hear, many very intelligent people still believe the skewed version of that trial they got from the media. It was, for many of us, a sad day to see how the press completely trashed that case through ignorance of the actual evidence. They even carried it through the closing. They showed all of the prosecution's closing arguments and Cochran's but went dark or to commercials during the brilliant Barry Scheck presentation, which is what was the deciding factor for not guilty. The public is still in the blind more than 10 years later.

Now it is deja vu because the media with its preconceived story is doing the same thing. I think the statement that frosts me the most is that Libby said he heard it first from Russert. Hearing "as if for the first time" is a far different statement than hearing it "for the first time" and yet as late as this morning, the press is still saying Libby is lying because he says he heard it first from Russert.


All commentors on this thread with the exception of "Martin" {I agree he needs to get a clue or take a trip to the archives}have done a wonderful job of targeting the cogent points and explaining the process. This is as much fun as I hoped it would be. Keep up the good work everyone.



they way I read it - Larry was saying Joe was picked for this trip because he had made tripS before - but you are right - he'l say anything.



they way I read it - Larry was saying Joe was picked for this trip because he had made tripS before - but you are right - he'l say anything.

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