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February 16, 2007

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sbw

The comment "How did LIbby's testimony mislead investigators?" prompted this brief flash of mindfilm:

Wells, grasping his suspenders in Clarence Darrow-like fashion, "Ladies and gentlemen of the jury, In order for Scooter Libby's testimony to mislead investigators, the investigators need to have been being led in the first place..."

centralcal

Other Tom:

"These folks have allowed their politics to corrode their very souls. It is sickening."

Extremely well put.

Patrick R. Sullivan

'I wonder why the defense never called John Dickerson.'

So do I. However, Fitz stipulated that Dickerson has written contrary things to Ari's testimony, so maybe those things get introduced into the closing?

Sue

OT,

Sickening is when they feed you the bull that super duper secret Val was single handedly saving us from Iran's nukes and making snide comments about Libby's busy schedule.

clarice

Since all of the prosecution witnesses had similar memory failures w/o having been handicapped as to access to their notes and an opportunity to discuss them w/ others, one could just as easily argued that every memory failure of theirs "obstructed" the investigation. Trying to source who told what to whom when in a town that lives of the information exchange between officials and journalists is a fools' mission and the defendant shouldn't be tagged "it" because the fools' mission failed.

clarice

***"just as easily argue that every ****

JM Hanes

Thanks Clarice/OT & Sue, the point about the larger burden makes the sense of it clearer.

Semanticleo: "Don't think anyone here has discussed the paragraph (last) in Libby's final 'love' note to Judy."

You must be a really slow reader!

jwest

Great Banana,

I was watching from the peanut gallery your exchange with Pete on the other thread. It just goes to prove Ann Coulter’s point of the futility of arguing with liberals.

If they were capable of intellectual honest and rational thought, they wouldn’t be liberals.

Still, we continue with the arguments because something in our DNA refuses to let us have ignorance go unchallenged.

This is our lot in life.

danking70

Can the defense bring Waas' recent Ekenrode piece released after the Judge's Ekenrode stipulations before the court.

The defense brought the "Libby Trial Judge Hates Defense Team" article before Walton.

Would it even be worth it?

Sue

OT,

Sickening is when they feed you the bull that super duper secret Val was single handedly saving us from Iran's nukes and making snide comments about Libby's busy schedule.

Sue

OT,

Sickening is when they feed you the bull that super duper secret Val was single handedly saving us from Iran's nukes and making snide comments about Libby's busy schedule.

Pofarmer

On another note. I wonder how judge Hogan feels about being gamed by Fitz and NBC?

Ralph L.

Great, Great Banana, but they'll never read it.
I thought it was obvious SH shipped the chemical weapons to Syria, just like he tried to send AF to Iran in 91.

Other Tom, we can only pray they'll remain a tiny minority. But so were the Bolsheviks.

Sue

OT,

Sickening is when they feed you the bull that super duper secret Val was single handedly saving us from Iran's nukes and making snide comments about Libby's busy schedule.

JM Hanes

Great Banana:

Trolls like pete have been on auto-pilot for a long, long time. In fact, pete seems so half-hearted and repetitive these days, I've wondered if he's not just somebody's sock puppet who shows up to hi-jack threads whenever it looks like we're on to something.

Rick Ballard

I imagine one of the defense closing points will be that Fleischer "perjured" himself on the stand in a manner much more convincing than the thin tissue of circumstance presented by the prosecution regarding Libby and did so while clutching an immunity agreement. Or was it Pincus who "perjured" himself? Or both?

Will the jury apply Fitzlaw or common sense?

dorf

In Aug 2000, O'Donnel called the presidential race for Gore. He has never gotten over it. The left will never get over it. I just hope the jury understands the reasonable doubt instruction.

Ralph L.

Pete claimed I was Carol's sock puppet.
Projection?

Ranger

I wonder why the defense never called John Dickerson. Seems impeaching Ari would be a good thing for them.

Posted by: A.S. | February 16, 2007 at 07:20 AM

Well, my take is that they don't want to impeach Ari on telling Dickerson and Gregory. They need Gregory to know to impeach Russert.

Ari is already impeached by Pincus, so his testimony is questionable.

Even if Ari told the two reporters in Africa, the fact that he admitted to hearing the information just before he told them means that Libby is not essential for him to know and pass on the information.

The problem for Fitz is that if he argues for Ari's verasity, he argues against Russert's. Russert said that it was impossible for him to tell Libby because he didn't learn that information until he read it in Novak's column on the 14th. Russert also said that if Gregory had known, then he would have told him. Ari says he told Gregory, so if Ari is telling the truth, then Russert is lying about learning the information from reading Novak's column (or lying that if Gregory knew, whe would have told him).

So, to summarize, Ari can't be trusted to remember his conversation with Libby on the 7th because he forgot his conversation with Pincus on the 12th. But, even if you don't believe that Libby told Ari, Ari still could have told Gregory because he was told and/or read the same information from the INR on AF1. So, you can believe that he knew and told Gregory absent Libby. And, if Gregory knew, then Russert is lying about not knowing before the 14th.

Just the fact that the whole thing is so hard to explain helps Libby. It just shows how confusing everything was in those two weeks of July and how hard it would have been for anyone to remember acurately.

Ralph L.

Well should point out repeatedly that Wilson's wife didn't become important til Corn's article. That's why everyone's fuzzy, they just didn't care very much.

Other Tom

I wouldn't bother you nice folks with this, but I've exhausted my limited ability to search the web. (Also, the Bloodys are starting to kick in.) Does anyone know of a site where one can read the motions to dismiss, and the responses, in the Wilson civil case? Also, does anyone know when those motions are scheduled to be heard?

Remember, regardless of how the Libby matter comes out, we can gleefully anticipate the continued implosion of the Wilson fraud in the civil matter--probably by a dismissal. In a way that would be too bad, since the corpulent "Ambassador" will never appear anywhere under oath.

Rick Ballard

Corn's article is not in evidence. Both defense and prosecution are proscribed from arguing any facts not presented to the jury.

That's precisely where I believe that Fitz will go over the line in rebuttal. He's going to drag the big case in, one way or another, and risk sanction (minimal risk with Walton on the bench) in order to sway the jury.

windansea

Pelosi's cleanup is proceeding nicely:

William "Dollar Bill" Jefferson, under investigation for corruption, has been assigned to the House Homeland Security Committee, the Washington Post reports. The Congressman's last brush with security was having subpoenas served on his office and FBI agents raiding it, after earlier finding $90,000 in his freezer:

clarice

Other Tom, TS quoted from some of that stuff last night.You might email her and see if she has it or where she say it.(It's quite hilarious BTW)

clarice

**saW it*********8

MarkO

Just an observation. No one could possibly be Carol's sock puppet. She's a . . .unique . . . poster. Complicated, but singular.

Pofarmer

Rick,

I think it's hard to argue that the big case isn't already in. Why else the Newspaper articles? Why else the reading by Fitz about where Plame worked? That has nothing whatsoever to do with this trial.

Other Tom

Thanks Clarice--I'll give that a try. I saw some quotes last night, probably hers, and grinned from ear to ear. It's definitely amateur hour on the plaintiffs' side, including that poor hapless Duke prof.

Pofarmer

It seems to me that some judge with balls somewhere would trash the civil case. The whole thing is preposterous. And, if the defendants win, they'll never get a dime of the millions they's spend defending against it back.

Sue

OT,

cboldt has some, if not all of the civil case on his site. Look over here ----->>> for a link to cboldt.

centralcal

Completely OT, but did you hear the Florida prosecutors dropped all charges against TIGGER? I am so relieved that there truly is justice somewhere in our great land!

Jeff

(and checked the legitimacy of this with OVP Counsel Addington)

Note that this is making things a little too easy on Libby. Libby did not specifically ask Addington about declassifying or releasing the NIE. It was a more general question about the president's power to declassify, via an authorization to release documents (or maybe even information) to someone not authorized to receive classified info. Point being, it's not crystal clear or explicit that Libby was asking Addington about the NIE in particular. Add to it that, apparently in the same conversation, Libby asked Addington about paperwork from Wilson's trip - and Addington at one point may have testified that he asked about paperwork at the CIA is the spouse of an employee went on a trip. I believe the defense has sought to rebut that notion by seeking to show that in one of his FBI interviews or something Addington didn't say anything specifically about spousal missions.

Semanticleo

"I'll tell you one thing for certain: when a guy looks at that list of issues that were on Libby's plate that day--issues that for the most part affect us all--and elects to make a snide remark about an Iraqi housing shortage, you're talking about a seriously sick dude."

That IS a serious downside to being a prosecutor. You have to think like a sick dude to catch a sick dude.

bad

Jeff
I've missed you. How do things stand in your view?

JM Hanes

Ranger:

"Just the fact that the whole thing is so hard to explain helps Libby.

I quite agree with your assessment of the Fleischer conundrum, but I think that complexity in this case actually works against Libby. That may also be part of why the Defense decided not to muck around with Dickerson/Gregory, and possibly even Mitchell as well. The more you know, the harder it is to keep all the players and chronologies straight. Better to say, look this is simple. The prosecution witnesses are all damaged goods, with faulty reconstructed memories and their own personal reasons for cooperating with the prosecution.

Back on the over-complicated side of the scale, I've wondered if the fact that Judy Miller has been tangling with Fitzgerald elsewhere would have been impossible to get into the record? I think it's not unreasonable to infer that such concerns might have influenced her decision making process -- an inference which could have been accomplished with a pretty simple question on the basis of her reference to other sources. It was not just that she was trying to protect "other" sources at this trial, but that she had some interest in protecting them elsewhere by testifying on the prosecution's behalf here. I admit, that's just the kind of convolution I cautioned against above, but then Judy's appearance pre-dated the Defense decision to go minimal, I believe.

Sue

Jeff,

A stipulation was entered, I believe, stating that Libby did not mention spouse or wife.

clarice

Off topic, but fun on a slow day:
http://news.bbc.co.uk/2/hi/africa/6368927.stm>Mauritania

clarice

JMH with the count involving Miller out of the case I don't think the defense will spend much time on her.Perhaps note that WINPAC and Flame were wrong and that she admitted to other sources.

Ralph L.

Semanticleo, cognito ergo sum.
Did I spell that right?

Ralph L.

Was Corn's article excluded entirely by the judge? That is, couldn't even be mentioned? I think its important to Libby that the whirlwind didn't start until well after July 14. He could bring in the date of the President's response.

Semanticleo

A pedibus usque ad caput.

Descartes would be proud.

bad

Clarice

Any bets on how soon they all get sued for being mean to the poor misguided hijacker?

Ralph L.

Is there usually this much personal drama on this site, or has the trial put everyone on edge?

JM Hanes

Clarice:

Yes, I realize that, I was just interested that it never came up in Judy's cross, and wondered if the Defense would have been prohibited from eliciting the fact that she's tangled (still tangling) with Fitzgerald on another case -- esp. since the subject of those "other" sources whose names have slipped her mind did come up in testimony. After all, if they asked if she been promised anything else for her testimony, she could always answer no. :)

In any case, I think one of things that Fitzgerald was so "scrupulous" about was keeping as most of his negotiations with witnesses off the record/out of print, and hence un-discoverable to the Defense. In the same vein thought he seemed way too cozy with Mitchell's lawyer yesterday.

Ralph L.

The hijacker sought asylum in France but didn't speak French? Le fool!

Other Tom

Bulletin for you, Cleo: You're not a prosecutor, and you haven't caught shit.

clarice

"I think one of things that Fitzgerald was so "scrupulous" about was keeping as most of his negotiations with witnesses off the record/out of print, and hence un-discoverable to the Defense. "

Walter and I have gone around about this and have different opinions about it. I think Fitz is an officer of the court with a responsibility to protect his client's interests and to be open to the defense about any accommodations made to his chief witness. I think in failing to notify the Hogan Ct that the NBC filing was false, he didn't live up to his ethical responsibilities. I think in not being forthright about the accommodations made to NBC he also fell down on the job.

JM Hanes

RalphL:

Actually, since you asked, that would be cogito ergo sum. Unless, of course, you're hawking a somewhat more demanding version of the thing.

clarice

2 new filings re jury instructions:
Libby wants a "good faith" instruction and argues he is entitled to it even if he didn't take the stand.
"In Mr. Libby’s case, the evidence in the record plainly supports the giving of the proposed good faith defense instruction. Most importantly, that evidence includes Mr. Libby’s grand jury testimony, in which he describes his efforts to recall accurately the conversations he was asked to recount, and explains how and why any inaccuracies may have innocently occurred. Tr. of Def.’s March 5, 2004 Testimony Before Grand Jury 03-3 at 195-96 (attached as Exhibit

B). Indeed, though Mr. Libby chose not to take the stand at trial, the fact that the jury has been presented with a close surrogate to such testimony, in the form of Mr. Libby’s grand jury transcripts, weighs strongly in favor of providing the proposed instruction. The defense submits that, for purposes of evaluating the propriety of a good faith instruction, there is no real difference between the two.

In addition to Mr. Libby’s grand jury testimony, the evidence also includes the testimony of defense witness John Hannah, who described his own experience with Mr. Libby’s faulty memory, as well as the nature and intensity of Mr. Libby’s work during the period relevant to the

-3-

Case 1:05-cr-00394-RBW Document 291-1

Filed 02/16/2007 Page 4 of 13

indictment, Tr. of Feb. 13, 2007 AM Session at 38 (attached as Exhibit C); and a stipulation by the parties providing additional detail regarding the national security matters presented to Mr. Libby during that period, DX1850. All of this evidence supports a reasonable inference that any inaccuracies in Mr. Libby’s statements were the result of a good faith mistake rather than a knowing and intentional effort to lie or misrepresent the truth. Accordingly, the jury can and should be instructed that a finding of good faith on Mr. Libby’s part constitutes a complete and total defense to each of the crimes charged."

http://members.cox.net/liinda/291-1.htm

SP fighting some of Libby's requested instructions:

Most interesting item:
"Form Instruction 1.10, be given regarding the stipulated testimony of Inspector in Charge Jack Eckenrode and FBI Section Chief Timothy Fuhrman:

You have seen two stipulations that set forth the testimony of Inspector in Charge Jack Eckenrode and FBI Section Chief Timothy Fuhrman regarding their descriptions of statements made by witnesses Tim Russert and David Addington, respectively, on earlier occasions when the witnesses were not under oath that may be inconsistent with the witnesses’ testimony here at trial. The earlier statements were brought to your attention to help you in evaluating the witnesses’ believability here in court. In other words, if on an earlier occasion a witness made a statement that is inconsistent with his or her testimony in court, you may consider the inconsistency in judging the credibility of the witness. You may not consider the earlier statement that was not under oath as proof that what was said in the earlier statement was true.

It is for you to decide whether a witness made a statement on an earlier occasion and whether it was in fact inconsistent with the witness’ testimony here."

also--
"

The defendant has submitted a Revised Proposed Theory of the Defense Instruction. One sentence in the proposed instruction currently reads as follows:

1 As noted in court, evidence was presented at trial showing that defendant was advised orally and in writing regarding these other statutes in that (1) he was advised in writing through six nondisclosure agreements he signed; (2) being advised orally at the beginning of his first grand jury appearance that the grand jury was investigating possible violations of four statutes, 18 U.S.C. §~ 793, 641 and 1001 and 50 U.S.C. § 421. Other evidence presented at trial, such as the fact that the defendant generically denied leaking classified information after a criminal investigation was opened regarding disclosure of Ms. Wilson’s employment, provided additional bases from which the jury could infer that the defendant was aware that criminal prosecution under statutes other than one that would require that defendant knew that Ms. Wilson was a covert agent.

7

Case 1:05-cr-00394-RBW Document 290 Filed 02/16/2007 Page 8 of 14

Further, Mr. Libby was well aware when he was first interviewed by the FBI and when he testified to the grand jury that the investigators could and likely would talk to government officials and the journalists he spoke with concerning Ambassador Wilson and that those officials and journalists would truthfully recount their recollections of the conversations he had with them.

The government objects to this part of the Defense’s Revised Theory of the Defense on three grounds. First, it purports to set forth a fact, rather than the defendant’s contention, regarding defendant’s state of mind. Second, there is no evidence in the record indicating that journalists “likely would” talk with the FBI, or that defendant believed that that was the case. Similarly, there is no evidence in the record that “the journalists [defendant] spoke with” would in fact “recount to the FBI their recollections of conversations they had with the defendant,” let alone that they would do so “truthfully.” In fact, the evidence showed that a number of individuals with whom Mr. Libby spoke refused to recount their recollections to the FBI and to prosecutors, and that court orders were required to obtain the testimony of numerous witnesses. The government therefore submits the following proposed revision to that sentence from the defendant’s Proposed Theory of the Defense Instruction, which omits those aspects of the statement that are unsupported by evidence and also corrects the reference to “investigators” as the Court previously suggested:"

http://members.cox.net/liinda/290.htm


Ralph L.

The discovery process must be fascinating in a case like this. And if you don't trust the prosecutor, frightening.

clarice

Let's just say future defense counsel up against Fitz now have a template.

As for all this wrangling over jury instructions,non lawyers can now see how the deveil is in the details , not so much in the gotcha moments on the stand which are ususally far more subtle. It's why Apuzzo who only covers trials and knows what he's doing is worth paying attention to and why Neil Lewis and Shuster are not.

Jane

I quite agree with your assessment of the Fleischer conundrum, but I think that complexity in this case actually works against Libby.

I agree.

I think in failing to notify the Hogan Ct that the NBC filing was false, he didn't live up to his ethical responsibilities.

I agree.

Is there usually this much personal drama on this site, or has the trial put everyone on edge?

The latter. Well there is probably always personal drama, but it doesn't get mentioned. A trial is always a "come to Jesus" moment, for everyone involved. Adrenelan works overtime.

clarice

**devil, not deveil** though the latter is on point re Fitz' tricks.

clarice

**devil, not deveil** though the latter is on point re Fitz' tricks.

Ralph L.

Thanks, JMH, I thought it looked too close to cognition. Two years of jr high Latin down the drain.

JM Hanes

Clarice:

I agree. If it were only one instance, that might be a different matter. When you add in things like supposedly taking Fleischer as a total "pig in a poke" along with a substantial list of things which strike me as attempts to manipulate discovery in other ways, I think it amounts to pattern & practice. I've always thought that's part of why he kept his investigation "open" way past its due date -- that and the hope that Libby might miraculously decide to attempt a plea without ever knowing just how much of a nothingburger Fitz had to serve up at trial.

Ralph L.

The commenters on O'Donnell's post want Bush and Cheney impeached so they can't pardon Libby. Obsession?

Rick Ballard

Libby is charged with giving false statements to investigators. Fitz is telling the jury that they need to weigh witnesses recollections of statements made to the same investigators which conflict with their own testimony.

Cool, Libby is guilty of consistency in the first degree and Fitz's witnesses prove it.

clarice

As you know I filed a request for an investigation with DoJ's Office of Professional Responsibility some time ago and they reported back that they had jurisdiction and were looking into it.
The presser was over the line.
I have my questions about the disingenuousness of the affidavit provided the Miller court which cannot be fully resolved until it is fully redacted and made public and the court just indicated in the Dow Jones Foia case it wouldn't do that until the conclusion of the Miller case. Still, Tatel's comments are further indicia that the court was misled by the affidavit.
And now there is this--failure to notify the Court about the falsity of the NBC subpoena. (Now, I can see that there may have been other ways to deal w/ this..At a minimum, as a matter of professional courtesy, Fitz could have notified NBC counsel and said politely that he was sure they had no intention of filing a false affidavit and given them 24 hrs to revise it before notifying the Court. But he didn;t even do that.) Since the summary of the FBI interview was exculpatory to Libby and the gj testimony was incriminating, this is particularly questionable all around. And then we have the unlikely occurrence of the underlying FBI notes of the interviews being missing!!!Those notes are certain to have fleshed out in more detail the exculpatory nature of Russert's intitial interviews.

It may not be true, but the implication one could draw from all this is that in exchange for Fitz not blowing the whistle on the NBC/Russert perjury to Hogan, Russert shaded his testimony to help the prosecution.

It also speaks ill for the claim that the investigation was a search for the truth that the sp never interviewed Mitchell"everyone knew" or Gregory who their immunized witness Fleischer said he told.

jwest

Sometimes I think lawyers get caught up too much in the technical game.

Regardless of jury instructions, testimony they are told to ignore or facts that the jury thinks they know but the judge keeps telling them has no bearing on the trial, the jury will make a decision based on human nature.

Did a crime happen?
Was the person on trial involved?
Is it “fair” that he be convicted of something?
Is it “right” that he be convicted of something?

The rules and instructions will only be used to format the decision after a determination has been arrived at in their minds.

JM Hanes

Clarice:

I've developed a whole new interest in jury instructions. Can you believe the chutzpah (sp?) it takes for Fitzgerald to argue that Eckenrode's statement can't be offered for the truth of it? Wowzees!

If Walton agrees to Libby's expectation that "journalists would truthfully recount their recollections of the conversations he had with them." half of Fitzgerald's negligible assertions of intent go down the tubes. I think it was Ranger who nailed that one when he described how hard Fitz worked to make it look like journalists were holding out.

Considering Libby's multiple waivers, I'd say that suggesting he never intended them to be taken at face value goes waaayy beyond inference. At this point, however, who knows where Walton will land. He's tried to split so many babies here, it's impossible to predict.

Ralph L.

The 'bats are saying the GJ heard testimony that Plame was covered by the IIPA. News to me. Where do they get this stuff?

clarice

"Can you believe the chutzpah (sp?) it takes for Fitzgerald to argue that Eckenrode's statement can't be offered for the truth of it? Wowzees!"
No. Maybe the defense should be allowed to argue the jury need not take Fitz' representation that the original notes were lost as a statement of truth either.

percipio

"These folks have allowed their politics to corrode their very souls"

Well said, Other Tom. And although I promised myself that I wouldn't muck up the thread with my useless observations, I would like to add -
Their politics ARE their very souls. Too much invested. They've defined their very selves by an ideology, and any criticism of that ideology is perceived as a criticism of themselves; it becomes personal. Then they confuse that anger they feel with passion, which fuels their sense of 'importance'. I actually feel a little (little!) sorry for them as they all seem to have such a meanness of spirit one wonders how they get through life. Their only joy occurs when someone of contrary thinking is brought down a peg or two. That there are no brakes on this thinking is what concerns me the most; history is littered with the graves and gulags of its logical conclusion. One of the regulars here mentioned Walter Duranty the other day; he is journalism's pitiful poster-child for this spiral of thinking.

I think that is what worries me most about the jurors in this trial. Any liberals on the jury who vote for acquittal will have to justify their decision to all the other liberals they've surrounded themselves with; and there's no debate allowed any more. They will be viewed as 'traitors'; not to their country, but to their thinking. And I fear that this means more to them than anything.

theo

Sorry for jumping in so late, but I think Great Banana's very long post from a couple of hours ago makes a great number of very good points. I think it is in general excellent.

But those of us who support Libby here should look at it from the other point of view. It is possible that the war in Iraq was a good idea (or at least made in good faith) and that Libby is still guilty of deliberately "shading his recollection" (as TM puts it) before the grand jury.

I wish people would look at the evidence in this case without having to fit the guilt or innocence of Libby into pre conceived notions about politics or policies. This is in the final analysis a criminal case and not a political one.

Ralph L.

Jwest, I posted on that in the wee hours last night. That's in the back of their mind, but they'll likely fixate on small details to support their "feelings." The defense needs to focus on a few things that show reasonable doubt for each count, and explain that that's enough to acquit, and nothing else matters. Otherwise the jury will overthink and get lost in the details and missing information.

JM Hanes

I'll be really interested to see how the obstruction charge comes out in the instructions. That's the one Fitzgerald really needs the jury to buy, if he wants to salvage his own reputation here.

Ralph L.

Theo, what provokes us is that without partisan politics, there wouldn't BE a criminal one. Same with the Duke case. But you're right we shouldn't be knee-jerks, or just jerks.

Go look at some of the comments at Huffpo.

Rick Ballard

Percepio,

There's a noise to signal problem in your analysis. Only 20% of the population (roughly equivalent to the SD-1 number regarding IQ) identify themselves as liberal. The Dems ran centrists (or at least faux centrists) in the vast majority of the seats which they won. If the progs had any weight at all Senator Lamont would be making a fool of himself right now at the Capitol.

I figure one or two prog loons at most on the jury which is why I'm betting 'hung' slightly stronger than acquittal. Jabbering prog loons aren't going to make the sale in the jury room.

MikeH

I think (probably hope is a better word) Libby will walk free. But, after watching a very good History Channel documentary last night about the assassination of Pres. Kennedy, and all the insane loopy craziness promulgated by the movie 'JFK', I'm pretty sure that we'll next see Scooter Libby portrayed as a "Clay Shaw conspirator" (with the VeeP as Rasputin/Heydrich character) in the Oliver Stone movie. And, then America will really "know the truth." I'm betting the deal will be signed in April/May; filming beginning soon after, and the movie in theaters July 2009 (if the jihadi's haven't disrupted American movie viewing patterns by then). Oscars and accolades for Stone follow, along with a big WH screening w/ Pres. Clinton. (Submitted for your approval....)

clarice

Both the summary of the FBI notes (Russert) and a fair reading of Cooper's "somethine and I don't eve{n} know" both add to Libby's recollections, and those two conversations are the issue on what remains of the obstruction count.

CAL

I agree. Even if Libby is lying, how could it possibly have obstructed anything? The fact that he wasn't surprised to hear of Plame from reporters derailed the investigation how?

Sue

I think we should start a letter writing campaign to Bob Novak requesting he reveal the mystery man on the street. I am bitter we didn't learn it at trial.

boris

in the final analysis a criminal case and not a political one

Disagree on that.

There clearly was no conspiracy to punish the Wilsons for "exposing" the administration's crimes. Further the disclosure of findings of the pre-war NIE to rebut false accusations was legal and proper.

Without those elements there is no foundation for charging Libby with anything. There is no evidence in this case that rises above the level of day care hysteria. This has been a travesty and a sham from the beginning. For all practical purposes Libby is accused of being a witch.

Barney Frank

theo,

--I wish people would look at the evidence in this case without having to fit the guilt or innocence of Libby into pre conceived notions about politics or policies.--

I think most people do, even probably a good number of liberals. There's always the large sensible middle and then the over- represented and overly loud ideological fringe.
Having said that however, I do think Libby supporters have a stronger case for letting politics influence their judgement.
The politics informing the left is essentially "get Bush, get Cheney" which is neither reasonable nor reasoned.
The politics informing the right on Libby seems for the most part to be "Libby is being prosecuted partly because of the "get Bush, get Cheney" mania. Certainly there is some "my party right or wrong" to it but I think it is mostly indignation that whether Libby shaded the truth or not the prosecution of him would not have occurred absent the political climate of retribution, combined of course with Fitzgerald's zeal, for want of a better word.
So in a sense it is a political trial wrapped in the sausage case of a criminal proceeding.

Barney Frank

theo,

--I wish people would look at the evidence in this case without having to fit the guilt or innocence of Libby into pre conceived notions about politics or policies.--

I think most people do, even probably a good number of liberals. There's always the large sensible middle and then the over- represented and overly loud ideological fringe.
Having said that however, I do think Libby supporters have a stronger case for letting politics influence their judgement.
The politics informing the left is essentially "get Bush, get Cheney" which is neither reasonable nor reasoned.
The politics informing the right on Libby seems for the most part to be "Libby is being prosecuted partly because of the "get Bush, get Cheney" mania. Certainly there is some "my party right or wrong" to it but I think it is mostly indignation that whether Libby shaded the truth or not the prosecution of him would not have occurred absent the political climate of retribution, combined of course with Fitzgerald's zeal, for want of a better word.
So in a sense it is a political trial wrapped in the sausage case of a criminal proceeding.

Rick Ballard

Theo,

What are your thoughts on materiality and motive in the prosecution case? Do you believe that the prosecution must establish facts concerning both and if so do you believe that they have done so?

owl

I remember O'Donnell as fairly sensible in the Clinton years. When did he become so delusional? He got 5 pages of comments.

Let me clear that one up. O'Donnell was a major part of the NBC/MSNBC cabal at the time all this was going down. When his eyes finally glowed over Swifties as he shouted "Liar, liar", someone decided he needed a vacation. It takes a lot for me to put someone over Matthews but O'Donnell competes with Oberman.

I would not be at all surprised if Agent Eckenrode did not speak to the O'Donnell, the little sneak.

Gary Maxwell

Anyone know if a hung jury counts as a win on the tradesport betting lines. It does not take much to buy a contract right now for Libby walking as all odds of his conviction on at least one count, are very elevated. But I am hanging my hat that at least some jurors realize what a waste this whole clown show was. If that is a win I may go bet on the Scooter.

Ralph L.

MikeH, a premier screening at the RODHAM White House.

Sara (Squiggler


Departing NBC Analyst Cites "Retreat From Journali...

Ken Allard quits, William Arkin stays, and Keith Olbermann just got promoted. That should give you a pretty clear idea of where things stand right now at NBC News.

Carol Herman

FROM CAROL HERMAN

JUST LIBBY?

I wrote to Mark 0. I said to him, I think Russert is "off of star-board" and is a harpooned whale resting on his side. Because" Because he can't recover from public ridicule, once people realize he faked it when he said, "HE'D GO TO JAIL FOR A SOURCE." Not just a chicken-hawk, he. Actually, chicken shit.

And, then, I wrote to Mark O. that he's right about walton's error, "grabbing a judge doofus" for a private chat. Off the record. And, to refresh his memory on the subject, from a medical point of view, I emailed him this:

They're in the chart! You don't just ask colleagues. PLUS, you must have patient PERMISSION. You are so on-target with your observation.

JOM has lawyers, but I think this one flew over their heads.

Because they've personally not experience malpractice lawsuits.

I even remember Clinton's heart surgery. It was an emergency procedure. It was the 4th of July. And,the best surgeon (who did Letterman), named ISOM, wasout on the golf course in the Hamptons.

Because of HIPA, the doctor calling ISOM couldn't give him the patient's name. He said, "IT IS SOMEONE VERY IMPORTANT." To which ISOM said "everybody says that." (And, I have a 9:00 AM T-TIME at the golf course.)

Clinton had to take the 2nd best (Smith.) Also a different hospital. And, yes, afterwards Clinton had "complications." Which can happen to any surgeon.

But your point should be so well-taken! You can go to "experts" IF you have BOTH COUNSELS agreeing. Walton didn't.

Someone on JOM said the 5th and 6th Amendment logs must be very long by now. So, even if the media rushes to judgement. This is gonna get kicked upstairs. To the wailings of another GoreBush syndrome? I don't think so.

By the way? On GoreBush? The Florida numbers, re-done, and re-done, again, gave BUSH THE WIN. SO that's win. Win. Win. (Anthony Kennedy said so, in quotes I read in SUPREME CONFLICT.)

Now, Roberts isn't Rehnquist. The next time a big football arrives at the court? I think Roberts can control Kennedy, and probably Souter. (Souter, and others took a terrible beating on KELO.) I think people ON THE BENCH will see a need to clarify itz'
appointment. An issue Walloon ignored.

And, the other issues. Including the courtroom advertised trigger. "I wasn't at lunch. I was gathering opinions." Whose? Who knows? Why JOMster's made fun of your analogy to Ted Turner, I do not know. But I think some of them were drunk. They began drinking this morning. And, bragging. Till
Hit & Run went over the top. And, became incoherent.

But epiphanies happen. As a matter of fact, just like HANNAH described about LIBBY. Two hours after hearing Hannah's ideas, he repeated some of them as his own. Promptly forgetting attribution. AND, EVERYBODY DOES
THIS!

On the other hand, we either have the LAW. And, it is solid. Or we have this crappy affirmative action elevator. When the doors open, the freaks get in. Once? They went up. Now they all go down. And, when
the elevator goes up? THE CAR IS EMPTY.

No wonder there are chips on so many shoulders.

Ahead? Either Walton gets a few V-8 moments? Or he's like Kofi Anan. Who "arrives" nicely. Pulling up the
ladder that got him there, from behind.

Personally? "One if by land. Two if by sea." PAUL REVERE.

As to see-changes? Greenspan's Invisible Hand, may adjust walton enough so that he gets a V-8 moment over the weekend. OFF THE RECORD! It's only gonna happen, sadly enough, illegally.

Charlie (Colorado)

Anyone know if a hung jury counts as a win on the tradesport betting lines.

Gary, a hung jury voids the contract; all the money is returned.

JM Hanes

TM:

The New York Times construction (Prosecution Witnesses/Defense Witnesses) also allowed them to leave Libby's own testimony off both timelines & summaries. It's like a reverse "first to leak" play. This time it's Libby's admission that Cheney broke the news that's missing, and with it, the little orange box upon which reasonable doubt squarely rests.

The timelines would also look a lot less damning if the intesity of the orange fill correlated to the credibility of the testimony in question, no?

theo

Ralph --

I agree. I think we should avoid making the same categorical error that the BDS crowd makes. According to them, they KNOW (without evidence) that the White House misled us into the war by faulty intelligence and that when Joe Wilson exposed this lie, they put into motion a plot to punish him for telling the truth. As we keep pointing out, this is factually nonsense and even if it were true it does not mean that Libby is guilty.

However, I just think we need to recognize that by the same token, even if we believe that the war was justified and that the President made a good faith determination based on an honest assessment of the intelligence and that Wilson was a serial self aggrandizer who greatly misrepresented his role and his findings in this matter it does not actually lead to the conclusion that Libby is innocent.

We should want the politics out of this case and the facts, the evidence and the law to prevail. A guilty verdict does not mean Bush lied or that Wilson is a hero. But an acquittal is not a vindication of the decision to go to war either.

MaidMarion

A few brief observations about the trial, which I attended Feb 5 (saw the final 30 minutes of Agent Bond) through Feb 14. I missed the morning of Feb 7, which contained the final few hours of Libby’s March 2004 testimony.

1) Agent Bond, who is part of the Prosecution team, was present everyday in the courtroom, either at the Prosecution table or in the first row of seats reserved for the team. She is very dour…can’t recall ever seeing a smile on her face…and the jury would have noticed her all day long since the Prosecution table was right next to the jury box. Bond did not seem part of the team in the sense that she didn’t “pro-actively” engage with other team members at breaks or during internal discussions, she’d just be in receive mode. She seemed more like a fifth wheel with nothing to contribute.

2) At least one of the courtroom deputies (bailiff?) who was always present inside the courtroom during proceedings, was brought down to DC from NY to work the trial. He’s from SDNY and of course has worked with Fitzgerald in the past. Why wouldn’t the DC court use its own personnel? Is this unusual?

3) The jury will be given some documents that the Judge has warned contain information which has not been proven factual, yet are being introduced as evidence of state of mind etc., etc. I’m trying to recall if there WERE documents in which the contents HAVE been deemed factual and wonder how the jury will be able to remember which were which.

4) Wells: Likeable. Tall, handsome. His demeanor throughout most of the trial was very collegial except for the first day with Russert. He seemed to be getting antagonistic (mostly for effect I think) and was obviously trying to trip Russert up on things, but Russert was adeptly keeping his calm and not taking the bait. I’m sure Wells knows what he was doing, but I was starting to worry if the jury was becoming sympathetic towards Russert, who practices this “down to earth” persona on TV and was keeping to this same script on the stand. The next day Wells wasn’t quite as strident with TR. Also, although the sound inside the courtroom can be difficult at times, I think Wells has a speech impediment: I hear “truff” instead of “truth” and “wiff” instead of “with” and it’s distracting every time I hear it. Just thought I’d mention this because I suspect his closing statement will contain the word “truth” over and over.

5) Jeffries: Very even-keel, calm demeanor. Succinct respectful questions. Pleasant; likeable. Petite, nice-looking.

6) Cline: Just as likeable as Wells and Jeffries. Seems quiet. Tall and on the thin side; not bad looking. Short and concise questions…sounded very much like Fitz: “Is it fair to say…” His questioning of Hannah was very good in that it was easy to follow, however it ran on for much too long…I actually dozed off.

7) Don’t know his name, but one of the young black Defense lawyers asked a few questions at one point. He had a hard time formulating some questions. Tall, good looking.

8) The Prosecution's lawyers all seemed professional, competent. Fitz asked pretty straight-forward questions. Noticed in the Libby March 2004 testimony he constantly asked "Do you recall this?" "Do you recall that?" to which Libby would answer many times "No, I don't recall that." I'd hear comments from the peanut gallery afterwards that Libby was using the 'I don't recall' to protect himself. (!) Then in this trial, the portions where I was present, I noticed Fitz using different phraseology: "Is it fair to say..." I don't recall the other lawyers doing much of the questioning in front of the jury. The female (name starts with a B) did a lot of the legal wrangling when the jury wasn't present. She's very professional and competent but didn't come across as particularly likeable. The blonde lawyer, also professional, seemed like she'd be more approachable. The male lawyer (name starts with a Z) seemed just as professional as the rest of the team, IIRC. If I were asked "Which team would you like to go out and have drinks with?" without hesitation it'd be the Defense team.

How I see it:

1) I think the jury has received a lot of stuff they can’t make heads or tails of…and will realize they too have memory problems: “What did Libby say in those audio tapes again about xxx?” When they deliberate they will surely have instances where one juror heard things one way, others another way, and will have to check the transcript to resolve discrepancies. I just can’t help but think most of the jurists will be fair in applying the same “ability to recall” standard to Russert and Libby. As far as I can tell, Fitz didn’t provide any “evidence” of Libby’s lie (unless I missed that…)

2) I hope Wells reminds the jury that EVEN WHEN HE HEARD THE AUDIO played back to him, Russert STILL could not recall going on the IMUS show the morning of the indictment. Russert couldn’t even say “Well, now that you play it, it does sound familiar.” He absolutely didn’t recall it. Libby, who was just as busy if not more so, does not have the benefit of a replay of a tape of his July 10 call to Russert to refresh his memory. And for the record, I think it was Andrea Mitchell who called Libby back…after Russert passed on to her Libby’s complaint…and she asked about Wilson’s wife. She probably saw the embargoed Novak article late July 11, already knew from Armitage about the wife, and called Libby for a second Administration source confirmation. Unfortunately for Mitchell, Libby wouldn’t confirm.

3) Motive: The government wants the jury to believe that Libby manufactured his Russert “Wilson’s wife” comment in order to use that as source cover for the calls he made to journalists on July 12. Libby is a smart lawyer…why would he do such a dumb thing? All he had to do on July 12th was lie to the reporters: “Other reporters are telling me that Wilson’s wife works at the CIA.” He didn’t need to make up a false source, either for those reporters or subsequently for Fitz. Those reporters would have had to go to the CIA to get confirmation of Libby’s “reporter” rumor.

4) Armitage: Haven’t been reading all of JOM lately so I don’t know what others think, but after hearing the tape and rereading the transcript, seems to me Armitage’s leak to Woodward helped Joe Wilson and hindered the OVP getting their side of the story out. For the sake of argument, assume Valerie Plame worked at the Kennedy Center, and CIA’s John Doe/leading WMD analyst was the one who selected Joe for the Niger trip, and Armitage passed Doe’s name to Woodward. It served to clear up Woodward’s confusion as to why the VP would send this Administration foe (he didn’t), and at the same time establish which WMD analyst sent Joe, which presumably Kristof and Pincus already were using as their internal CIA source. Armitage’s goal in this Woodward conversation was to ensure State came out clean vis-à-vis the 16-word controversy. Armitage didn’t want to destroy Joe’s credibility because Joe’s reporting (via Kristof and Pincus) benefited State. I believe several reporters (including Mitchell who heard from Armitage) already knew around mid June the “John Doe”/Joe Wilson connection because during this period various rumors were in the air about analysts having been forced by Cheney to change assessments; but none came forward…in fear of losing their jobs, we might assume. It would make sense that the unidentified Ambassador was simply fronting for the cowering CIA analysts; how else could the analysts “get the truth out”? Joe’s bona fides remained intact thanks to Armitage.

Will now go back and read today's and yesterday's JOM threads...but will post comments on this thread...

clarice

Thanks MM for that very interesting report.

Sara (Squiggler

As we keep pointing out, this is factually nonsense and even if it were true it does not mean that Libby is guilty.

The Left succeeds so well with their agenda because they never give weak statements like the Right does. For instance, they would never add "and even if it were true" to the end of a declarative statement. We understand Theo's statement, but it leaves a big gaping hole for the Left to drive a truck through. If something IS "factually nonsense" then there is no "and even" about it.

Sorry Theo, not criticizing you, just pointi8ng out something that you see all the time when there is left/right argument.

Wilson's a liar

Theo, I was just about to post something similar. I, for one, was perfectly willing to accept a finding, backed by real evidence, that there was a nefarious effort to retaliate against Joe Wilson by revealing his wife's CIA status. I ceased long ago to be shocked by anything done by a White House staff facing a serious political firestorm. I was also willing to accept that even if this wasn't a big bad conspiracy, Scooter Libby and even Karl Rove might have lied about what they said to or heard from reporters, both to save their own skins and to protect their relationships with favored journalists. And I am still mighty suspicious about just what Libby's relationship is with Judy Miller.

Right now, I am willing to accept that a jury could find Tim Russert's testimony compelling, and be unable to find reasonable a theory of why Libby would have testified that he first heard about Valerie Plame from Russert or any other reporter. I think the defense has done a superb job of presenting a plausible theory and poking some truck-sized holes in the prosecution's case, but I also think they have made a big crapshoot by not having Libby take the stand.

theo

Barney --

As always, your comments are sensible. But if Libby is in fact guilty of the offense charged, it is not much of an argument to say that he would not have been nailed for it except for his political enemies. It comes down to a "selective prosecution" argument, which is generally weak.

Rick B --

I do not think that the prosecutor has to prove motive, but evidence of motive is a very good way to counter the defense of "innocent mistake." The whole issue of materiality is a thicket. I recall how many conservatives argued that even though Paula Jones' civil suit was thrown out for other reasons, Bill Clinton's lies in his deposition undermined the rule of law. I think those of us defending Libby should be careful of arguing "well maybe he lied but in the end no one got hurt."

JM Hanes

theo:

I'm not sure who you mean by "we." Most of us have been sifting the evidence and the law here almost constantly from day one -- including those who believe this has been a political trial from the get go. As a matter of fact, I personally have yet to state whether I think Libby is guilty or innocent. What I do firmly believe, however, is that the investigation and the related coverage is a travesty of very large proportions.

CAL

Lying about sex is obviously material to a sexual harassment suit. There was never really any question of materiality in my mind.

Lying that you forgot something until it was brought up again is material to what?

clarice

I think that's why the defense isn't taking materiality on directly..they will try to show that Libby's knowledge about Plame-CIA eas fleeting and not significant when he heard it. Show how there is so little difference between what he and Cooper recall of that converation months before, even considering Cooper's demonstrated bias, that it is in the machts nicht category.

As for Russert, Libby was reaching for something to explain when Plame's name/affiliation had some signficiance to him--it was during the great 'Buzz" time when it is obvious the DC press corps was tracking it down--From July 6 2003 when Wilson revealed his ID in the NYT and MTP and July 14 when Novak's article hit the newsstands. There is plenty of evidence of the buzz. There's Libby's uncontested statement that he told Rove of the Russert call (why didn't the prosecution call Rove if that was wrong?), there is uncontested evidence that Rove told Libby of the Novak call. There is Novak's call to Libby, Mitchell's call to Libby, Cooper's call to Libby, Kessler's call to Libby, anyone of these calls he may have confused w/ what Russert told him--even if the jury does not accept the FBI summary.

azaghal

These folks have allowed their politics to corrode their very souls. It is sickening.

Posted by: Other Tom | February 16, 2007 at 07:37 AM

Libby is innocent until they prove him guilty.

If that were true in this case it never would have gone to trial.

Posted by: boris | February 16, 2007 at 07:39 AM


Cuts through all the legalese. This is where we're at. Adoption by the left of ends justifies the means politics has corroded their souls. And we see it in this trial.

cathyf

Ok, wait a minute here, I just realized, as if for the first time, something that I read about Eckenrode.

Wasn't he the FBI agent in charge of the gee-we-dunno-who-dunnit investigation into the 2001 anthrax attacks? So, as we've heard from the trial, wasn't Eckenrode reporting their non-progress on the case directly to the Cheney-Libby national-security daily morning meeting? So Eckenrode personally had been professionally embarrassed in front of Cheney and Libby? Wasn't it Eckenrode who was demanding that Ashcroft recuse himself from the case?

Shouldn't Eckenrode have recused himself?

Isn't Eckenrode in a position where he could have leaked the Hatfill info to Kristoff? If he was JL's source in the Fitzie investigation, doesn't he become the prime suspect for the Hatfill leak? What the h*ll is a leaker doing running a leak investigation?

Wilson's a liar

Clarice -- add to that the fact that Russery is apparently the only journo other than Miller who Libby called; the others all called him. Which conversation would you find more memorable - one of several in which reporters called to you gab about the same old stuff and took you away from all the rimportant stuff you were doing; or one in which you took the time to call the head of NBC's Washington bureau to complain about his coverage of your boss?

Ralph L.

From the descriptions, perhaps MM wants to change her maid status. If she's going thru old threads, she'll be gone a week.
That's possible about Armitage, but he may just be a rumormonger feeding Novak.

Barney Frank

theo,

--But if Libby is in fact guilty of the offense charged, it is not much of an argument to say that he would not have been nailed for it except for his political enemies. It comes down to a "selective prosecution" argument, which is generally weak.--

A selective prosecution argument is legally weak but is not politically or morally weak. If the prosecution of a crime of this nature occurs because of political pressures between opposing parties, a prosecution that would not otherwise have occurred, and the party is found guilty, the overriding point that has been encouraged is more political prosecutions, not more respect for the law. That is neither in the interests of our political process nor our public discourse.

When the law becomes the servent of politics, proper discretion would seem to me to be not to apply it at all until it's integrity has been restored. Otherwise we risk going from convicting Libby to convicting Dreyfus.

clarice

cathy, you are a genius. A true genius.

clarice

Well, Wilson's a liar, Russert didn't even remember having made 2 similar calls to the Buffalo news reporter.

Russert didn't remember a single thing about the pre-indictment gala at NBC, did he? Not even after he viewed the tapes?

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Wilson/Plame