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February 12, 2007

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Skip

OK, from FDL there's this whole sidebar where Walton's basically saying to Libby's lawyers - "You said Libby was going to testify and I made rulings based on that". He seems quite put out with Libby's lawyers. Am I reading that right?


Walton: I don't dispute that you said that, my mindset was that Libby was going to testify. I'm not going to hold the govt to this, if C of Appeals wants to reverse me, and allow defense to present a defense without any evidence to support based upon agreement that govt entered into, then I guess they'll tell me that's the case. Unless there's express indication by govt, that regardless of whether he testifies or not, we're agreeing that these are facts.

Can someone explain to me what was actually going on here?

Alcibiades

There are two "he's."

In the taped interview, Armitage told Woodward.

Then Woodward told Pincus.

Skip

OK, from FDL there's this whole sidebar where Walton's basically saying to Libby's lawyers - "You said Libby was going to testify and I made rulings based on that". He seems quite put out with Libby's lawyers. Am I reading that right?


Walton: I don't dispute that you said that, my mindset was that Libby was going to testify. I'm not going to hold the govt to this, if C of Appeals wants to reverse me, and allow defense to present a defense without any evidence to support based upon agreement that govt entered into, then I guess they'll tell me that's the case. Unless there's express indication by govt, that regardless of whether he testifies or not, we're agreeing that these are facts.

Can someone explain to me what was actually going on here?

topsecretkk9

Epphan

Yeah, Libby's team established all 3 of their first witnesses where highly awarded journalists who were all working on and asking questions about the "story" and Libby did NOT talk about it to them...Suddenly Fitz realizes the caliber here and has to ask SANGAR to vouch for Judy's high caliber.

Too funny.

Sara (Squiggler


Woodward Takes the Stand at Libby Trial...

Christopher Fotos

From Jeralyn:

The Judge said he misspoke when he said Libby couldn't raise the memory defense unless Libby testified. He was only talking about evidence that would show what matters were of specific importance to him. He wasn't talking about which matters he was working on, which his aides could testify to. The Government argues it's not relevant what specific matters he was working on.

Libby attorney John Kline says there has been no decision on whether Libby testifies. They won't decide until the end of the case.

They are now arguing over the admission of the Government's agreed upon facts. The Defense wants it admitted even if Libby doesn't take the stand. Kline points out that he told the judge during the CIPA hearings that Libby might not take the stand.

Judge will not allow it. He says the Court of Appeals can reverse him if it wants.

Walton has been saying this alot, yes?

topsecretkk9

Oops...forget the best part on Judy...the Karma - the left has trashed Judy to the point of working against Fitz.

Alcibiades

Skip, It is what it is: It looks like the judge is pissed off and making a stupid narrow, perhaps emotive decision about limiting what the defense can present about Libby's workload.

He seems to know and tell us that there is an excellent chance he will be reversed on this matter.

steve

I don't get conditioning stipulated facts on whether or not Libby testifies. What's the rationale?

Skip

OK, Jeralyn's version makes more sense than FDL's.

So can statements like Walton's be used as cause to do an immediate appeal on an issue? Or are they better to be left to only be done if in fact he's not acquitted.

Another Bob

Why does a judge get to allow or disallow admission of evidence, conditioned on whether the defendant testifies?

Carol Herman

FROM CAROL HERMAN

Is this whole trial about reputations? And, shifting blame?

Libby wanted to discredit WILSON'S STORY. The jury heard the GJ tapes. When Libby was asked if it was okay to send Wilson to Niger, he had no conflict with that. And, said, "yes, Wilson was qualified to go."

This really is a shell game.

Yes, Libby's job as Chief of Staff meant he would "protect" Cheney. On par with asking a Secret Service Agent, should a bullet come flying at Cheney, would he duck?

I think WOODWARD added information to the time line. Re: Armitage

And, Pincus says his "wife works at" leaker is ARI FLEISCHER.

The left is never going to admit this is all trumped up. But so many Americans felt Clinton SHOULD get away with lying. Even with "I did not have sex with that woman." Because who said blow jobs were sex, anyway?

And, now? And crumb satisfies?

And, Fitz wants the jury to see the WORDING for the dropped charges? While he had previously agreed with Libby's counsel, that the charges would be dropped?

About truth-telling, Fitz has failed the test.

But will the courts ever notice?

Rick Ballard

Cecil,

Walter Pincus says his source was Ari Fleischer - how did Fleischer testify and never mention that?

Fleischer refused to be interviewed by the defense prior to testifying. "Who else did you tell?" may not have been an acceptable question on cross because of rules. Fitz might not have left a hole that Wells could exploit.

azaghal

You have to wonder whether reporters like Woodward, who aren't simply lefty cheerleaders, realize the threat this case is to their whole profession and are determined to sink it. The precendents will still stand, but prosecutors will think twice or more before following Fitz' steps.

Walton does keep talking about letting the Court of Appeals overrule him, but when push comes to shove how many judges outside the 9th Circuit have such a cavalier attitude toward being overruled? He may be trying to exert pressure to get his way, to shape the trial the way he wants it and get one or both parties to agree to it. He can bluff too, but when he has to make a ruling...

Alcibiades

This from Jeralyn is interesting:

Woodward asks why Wilson was sent to Niger. Armitage's voice is interesting. He clearly relishes telling Woodward that Joe Wilson's wife works for the CIA and had a hand in sending him to Niger.

Armitage said Wilson's wife was a WMD anlayst at the CIA.

Cecil Turner

Can someone explain to me what was actually going on here?

Pretty much what you said. The Defense doesn't want to put Libby on unless they have to, and they're not sure they have to. They want to get all the evidence they can in, and don't want to commit to Libby testifying. Walton won't make 'em put Libby on, but will circumscribe what evidence they can introduce unless they do. (And apparently he and Fitz were counting on Libby testifying when they made some earlier rulings/agreements they will now revisit.)

Patrick R. Sullivan

Walton: 'That's fundamentally unfair to govt for you to be able to establish facts that you haven't proven.'

There's a line that's sure to find itself quoted in any appeal.

It wouldn't be fair TO THE PROSECUTION for Libby to defend himself by presenting evidence of how many details he had to juggle every day, unless Libby waives his 5th Amendment right not to testify!

steve

OK. The word "analyst" keeps coming up. Most layfolk would probably get the impression that she is not covert or classified, hence no motive to worry about her stauts while leaking.

People who park in the CIA parking lot are probably not covert.

Sara (Squiggler

Where is Clarice with the color commentary? I want to know Fitz's demeanor, etc.

Alcibiades

You have to wonder whether reporters like Woodward, who aren't simply lefty cheerleaders, realize the threat this case is to their whole profession and are determined to sink it. The precendents will still stand, but prosecutors will think twice or more before following Fitz' steps.

I agree, but I think it is more than that.

Nicholas Kristof got this whole game rolling with his ridiculous article about Joe Wilson.

I think the real Washington professionals stayed away from that, because they suspected it was a crock.

Kristof is not a Washington insider, so he got led around by the nose by Wilson and the VIPS crew.

azaghal

Walton: 'That's fundamentally unfair to govt for you to be able to establish facts that you haven't proven.'

What am I missing? How is it fundamentally unfair to establish what the agreed upon facts were? That's what he's talking about, right?

topsecretkk9

IANAL, but it sure sounds like Walton is having to step in and weight it for Fitz.

james

'establish facts that you haven't proven.'

Maybe this makes sense in legal-speak, but in English it's plain gibberish.

danking70

"'That's fundamentally unfair to govt for you to be able to establish facts that you haven't proven.'"

Funny, I was going to mention how fair it was to read newspapers to the jury to infer Libby's state of mind.

Skip

Walton: 'That's fundamentally unfair to govt for you to be able to establish facts that you haven't proven.'

OK, it's definitely making more sense. I guess that Fitz and Wells negotiated a set of facts that Libby stipulates are true, to be given to the jury if he doesn't testify. And Wells wants those stipulated facts to be presented even if Libby does testify, and the judge is saying that he can't do that because they're not proven.

It seems to me that that's a great issue on appeal, because if the Government was willing to accept them without his testimony it sure doesn't make sense that they'd not accept them with it.

ARC: Brian

From FDL:
Wells, at no time in my opening statement did I make any reference to no one getting charged. Fitz has this jury nullification on his mind and is imagining things.

Fitz reading from Wells' opening statement."But unlike Karl Rove, you will learn that the person sitting her was not pushing the story. The innocent person was not pushing a story."

Wells no, what you imagined is that I said someone had not been charged.

Maybe its just my reading... But is Fitz getting frustrated? Passion seems high among the attornies in the case.

Just another example of my theory that Fitz never expected he would have to try this case at all. He expected Libby to roll over.

He should have dropped the case after he talked with Woodward.

Sara (Squiggler

OT and FYI only -- Another Duke University bathroom party rape. This time, however, the victim is an 18 year old Duke student.

ARC: Brian

disregard all spelling errors.. I've been in two year old mode all morning. Day off, watching my daughter....

Christopher Fotos

Jeralyn says it's lunchtime. Judging from what Clarice said this morning, I expect some kind of sitrep will be transmitted soon.

danking70

Is Libby's schedule/appt. book entered into evidence? Perhaps the defense can just read the schedule/appt. book to the jury.

Rick Ballard

The other reason that Wells didn't draw Fleischer on Pincus may be that he knew that he would get it from Pincus.

I think it's more effective coming from Pincus. The jurors may ask themselves why the prosecutor didn't bring up Fleischer's disclosure - if disclosure is such a big deal.

Alcibiades

Skip, I think you have that backwards.

They are now arguing over the admission of the Government's agreed upon facts. The Defense wants it admitted even if Libby doesn't take the stand. Kline points out that he told the judge during the CIPA hearings that Libby might not take the stand.

Carol Herman

FROM CAROL HERMAN

RE: "WORD" DISTINCTIONS

Before this trial is over, ordinary folk might come to understand that CIA "ANALYSTS" JOB DESCRIPTION MEANS:

It's their JOBS to LEAK to journalists.

How do I know? InstaPundit. Today. Has a mention of this. Where Jules Crittendon REFUSED TO BE SPOONFED BY ANALYSTS.

Now, you know why the media has trying to pass "blow jobs" off as not being sexual contact? Because if PLAME was an ALALYST it was, in fact, her job, to bamboozle the press for the CIA.

Keep poking. "Leaks," and "information," are also words in play.

P

""Walton: ....my mindset was that Libby was going to testify."""

And why should that be our problem??

clarice

I am still having problems online and Kim Pearson, fellow MBA blogger is letting me use her computer on the break.
I leave it to others to give you the stenography. What we are watching today is the defense knowing the starch out of "Elliott Ness with a law degree" by highlighting a series of blunders they've made..Two of the biggest blunders to date were failing to put anything on to support the July 12 count on Miller.With that out, obstruction is only available on the Cooper count(are you kidding?) and the Russert count.Fitz seemed shook as he made what I thought waas a very week argument that the jury should not be told to disregard the other Miller stuff in the instructions, .(I will detail this further tonight when I get home but he never charged Libby with perjury re Miller, only with obstruction and if that's out, it would only seem logical to tell the jury to disregard all that.)

A potentially bigger issue is the offhand remarks the judge made that Libby couldn't put in the memory defense if he didn't testify..Most particualry the CIPA stuff. There was heated argument on it and at 4:30 it will continue. Basically, in stipulating to relevant facts (including that Libby was focused on all that stuff in the CIPA materials) the govt never reserved that the stipulation applied only if Libby testified.

The defense is arguing an agreement was made, not based on Libby's testimony, and they have based their opening statement and case on that agreement.

We will hear more about this. I predict that while the stipulation might be whittled down a bit--the judge thinking the govt might have misunderstood (ie. been taken to the cleaners by shrewder counsel), most of this stuff will find it's way into the record even if Libby does not testify.
wHAT IS CRITICAL AT THIS POINT IS THAT THE JUDGE HAS BACKED WAY OFF of earlier comments suggesting Libby can't use CIPA stuff etc if he doesn't testify. He can, if he lays the proper foundation.

The more subtle point is the defense counsel has outmaneuvered the prosecution at several key points and the prosecution knows it and is off its edge in my opinion.

(I lent Jim Engle last night's pleading and we discussed this. We seem to be in agreement on this point--Smacking the SP around a little.)

I thought Woodward was an impressive witness, helpful to Libby and that the jury is paaying attention--asking him if anyone else knew--to which he said he'd told Pincus..

james

Wells" No, what you imagined is that I said someone had not been charged.

So why doesn't Well's just come right out and tell the jury about Armitage? Did he make some agreement not to do so?


Carol Herman

FROM CAROL HERMAN

At some point ahead, Walton will be compared to Thurgood Marshall, and how he wasn't a particularly sharp bulb up on the Supreme-O's bench. That's just another "insider's well kept secret box" up to now.

Charlie (Colorado)

There's a line that's sure to find itself quoted in any appeal.

It wouldn't be fair TO THE PROSECUTION for Libby to defend himself by presenting evidence of how many details he had to juggle every day, unless Libby waives his 5th Amendment right not to testify!

Is anyone getting the impression ---as I am--- that Walton desperately wants any "innocent" verdict to clearly be Not His Fault?

clarice

***defense knoCKing the starch out of "Elliott Ness with a law degree" by highlighting a series of blunders they've made..Two of the biggest blunders to date were

topsecretkk9

After Clarice's update, I am feeling good about my Posted by: topsecretkk9 | February 12, 2007 at 10:01 AM

Sara (Squiggler

It seems to me that what the morning brought was that Libby WAS NOT telling reporters about Wilson's wife, but Armitage through Woodward and Pincus was. The jury must be pissed if they are hearing this as if for the first time. And, no matter why Fleisher did not testify that he told Armitage, the fact remains he did not, even though he had immunity. That has to go to the prosecution's detriment, IMHO.

Carol Herman

FROM CAROL HERMAN

Not just on Saturday Nite Live, the laugh line "So, you want to make a Federal Case out of it?, will return into play.

As to FireDogLake, Huff-Po, and SWOPA (where I guess Maine Blogger went home?), the reality is that ANALYSIS will be done over time.

Meaning? Woodward is free to write an op-page now. Pincus can come clean in front of the DC readership. And, Kristinn, the wonderful Kristinn, found a seat, again, at trial. ANd, will post the day's testimony up on FREE REPUBLIC. So, too, today, does the court room see our Clarice. Jane, I think. And, Sara. Plenty of room to correct errors.

REMEMBER TO TITLE IT: THE ACCIDENT SCENE. What the first passersby's missed because of so much smoke and fire.

Sara (Squiggler

Also, the reporters testifying positively for the defense are straightforward and have retained their memories. Whereas those that Fitz chose to present were flakes with serious memory flaws making them look far less credible. In fact, incredible.

ghostcat

Wells + The Raporter = New Backstory Narrative. Cool.

kaz

Any chance the VP could be used to bring in all of the CIPA stuff and how incrdibly busy Libby would be on a typical day?

topsecretkk9

Sara

Yes - the straightforward composure contrast is certainly striking.

hit and run

kaz:
Any chance the VP could be used to bring in all of the CIPA stuff and how incrdibly busy Libby would be on a typical day?


Yeah, get Cheney up there and say something like, "With no disrespect meant toward David Addingtion, he is no Scooter Libby. I mean, David is as competent as anyone in DC, but Libby handled so many more things than I have ever seen any human before or since. He was invaluable."

Of course, then you might end up getting Cheney to..."Damn right I ordered the Code Red! I don't care if Plame was covert or not, the nation needed Libby on that wall."

I mean that TIC, of course.

cathyf
Why does a judge get to allow or disallow admission of evidence, conditioned on whether the defendant testifies?
It's one of those principles of Fitzlaw -- the Constitution is a multiple-choice test, and defendents have to choose between 5th Amendment and 6th Amendment rights.

(In a corollary Fitzlaw, Fitzgerald chose not to check off "subject to the Constitution's Appointment Clause" on his test.)

jwest

My take on this morning’s proceedings is that Libby’s team has scored a big victory (in a subtle way).

By luck or design, Wells has introduced through testimony on obscure fine points a few of the larger truths that we here at JOM take for granted, but the world at large knows nothing about. What the jury has found out as if for the first time:

1. Libby wasn’t the first to leak.

2. Other reporters around town knew of Plame without any help from Libby.

3. Reporters are not towers of virtue and truth.

Not a bad morning.

ARC: Brian

You have to wonder whether reporters like Woodward, who aren't simply lefty cheerleaders, realize the threat this case is to their whole profession and are determined to sink it. The precendents will still stand, but prosecutors will think twice or more before following Fitz' steps.

Woodward is the poster child for anonymous sources isn't he? He knows this case is dangerous to his profession. His bread and butter is anonymous sourcing. People talk to him because they know it won't be in the paper tomorrow. It will be in a book in a couple years.

Woodward was on Larry King (?) talking about what a sham this all was before the indictments. He saw where this was going.

Skip

No, I think I have it right, but I may not have been clear in my typing. There are a set of facts that the Government and Libby agreed to stipulate if he didn't testify. And Wells wants to be able to introduce that set of facts regardless of whether or not he testifies.

Dan S

I love this logic:

"B To read from 6A ruling, your honor said Morning briefings are not relevant, they merely represent what Intell Community thought was important."

So, the intel community which is tasked with figuring out what's important presents what it thinks are the important things, but let's not make the assumption that Libby would accept that to any degree.

Seems exactly backwards. In that situation we should assume he does accept them, unless he has other information to counter the intel briefing.

danking70

I don't know top...How can you compare Judy's notebooks to Woodward's tape?

smh10

On new thread Clarice says Novak up.

Sara (Squiggler


UPDATE: Woodward on the Stand: Tape Shows Armitage Revealing Plame Multiple Times...

Dwilkers

IANAL but some of this strikes me as so bizarre I have to conclude I'm missing something.

I have no clue what a judge is doing worrying about what's fair to the government. They're clearly on their own and his job is to protect the rights of the defendant. If Fitz can't climb that hill on his own that's tough sh*t, he shouldn't have put on his cleats.

And the right to not testify is considered so sacrosanct and important it can't even be mentioned before the jury down here where I live. It is totally isolated from anything else...I simply do not understand how any decision mid-trial (or pre-trial) can be based on some supposed commitment that the defendant will or will not testify. The last trial for which I sat as a juror it was never even mentioned in the jury's presence, not even in the jury instructions (the guy didn't testify).

I can't believe that will EVER fly on appeal.

Dan S

dank,

I must admit, Judy's shopping bags are a lot more memorable than Woodward's tapes... or maybe not, Woodward and tapes have a real history behind them. Not having tapes with him involved would be like the dog that didn't bark, wouldn't it?

Dan S

Dwilkers,

There are already so many "the appeals court can overturn if they like" on the record here that it seems the Fitzlaw would guarantee success (lots of charges/grounds throw at wall means some will stick!)

But who wants appeals? We want acquittal or nullification!

hit and run

Who wants acquittal or nullification?

We want Rule 29s out the ying yang!

(or whatever they're called)

Molon Labe

Who knew that after all this, they actually had a frigging TAPE of an actual ARMITRAGE leak of Plame's identity.

And LIBBY is on trial!?

Utterly ridiculous.

cathyf
So, the intel community which is tasked with figuring out what's important presents what it thinks are the important things, but let's not make the assumption that Libby would accept that to any degree.
Sure, makes perfect sense. Goes along with how the news articles (which we don't even know whether or not he read) illustrate Libby's state of mind, while the IIPA law which Libby the lawyer read himself is irrelevant.
percipio

'...Woodward and tapes have a real history behind them...'

Yes - and not only that, but I'm hoping the jury, after hearing the clarity of Woodward's tapes, will wonder why the heck the FBI couldn't use such a system.

Dan S

H&R,

Nah, unless it's Fitz dropping the charges, the moonbats would take a rule 29ing of all charges as proof the fix is in with the judge.

Arguing that with a jury (which they will do anyway), especially a DC jury, is just not believable to anyone based more on reality than the extreme reality-based.

Appalled Herder

If you are here, move on to the next thread. I'm awfully late in doing this. I was getting the scoop on the Anna Nicole scandal...a different sort of leaking, I must say...

JM Hanes

Skip:

No you have it backwards. Prosecution stiupulated to a set of facts on the presumption that Libby would testify. Defense wants to enter those facts/stipulation into evidence regardless of whether Libby testifies or not. I suspect that the Judge sees foundational problems here, in which he could be seen to have inadvertantly erred in favor of the defense -- which is why he may be pissed off at the defense, not the prosecution here.

Dwilkers:

"I have no clue what a judge is doing worrying about what's fair to the government. They're clearly on their own and his job is to protect the rights of the defendant."

Actually, I believe the judge is there to ensure a fair trial all around.

appalledpercipio

Oh no, you don't, Thread Herder. I've been sitting here quietly for years, lacking the nerve to post and yelling questions at my monitor like some sort of crazed Arnold Horshack. The few times I finally find the courage to post, and you miraculously show up each time. I.Will.Not.Be.Herded.

azaghal

Anyone know whether Wells would be allowed to play a tape of Fitz' presser, saying Libby was the first to leak? Would he be allowed to address the presser at all? I'm thinking not, but...

Tom Maguire

You have to wonder whether reporters like Woodward, who aren't simply lefty cheerleaders, realize the threat this case is to their whole profession and are determined to sink it. The precendents will still stand, but prosecutors will think twice or more before following Fitz' steps.

If I were an utterly detached journalist I would love to see a result where journalists look good (OK, that won't happen) but prosecutors don't try this again.

If I were a public policy savant, I would be troubled that no future Administration will cooperate with a Special Clounsel (oops Freudian typo - that should read "Special Clownshow" as this one did.

That is probably water under the bridge at this point, but a Not Guilty verdict would be good for the press and increase the likelihood that a subsequent Spec Counsel is a bit more restrained.

Appalled Herder

Hey TM!

How are we supposed to keep the heards properly threaded if you post comments on old threads!!!

I mean, it is your blog, but think of us who make this our life's escape from work!

Structured Chaos

"Anyone know whether Wells would be allowed to play a tape of Fitz' presser, saying Libby was the first to leak? Would he be allowed to address the presser at all? I'm thinking not, but...

Posted by: azaghal"

Here's an angle. The prosecution offered immunity to witnesses. The terms of immunity are unclear. But those terms go to the credibility of the witnesses statements. And therefore defense has the right to explore those terms and make them known to the jury to the extent they relate to the credibility of the witnesses.

If Libby was the leaker, as admitted by the prosecution, then the terms of the immunity deal did not extend to the outing of Plame. So, it allows the defense to narrow in on the terms of the immunity and to suggest that the immunity was for prior false statements or obstruction or perjury committed by said witnesses to whom the immunity was extended. Such a term or terms go directly to the truthfullness of the witnesses and to their credibility this is especially true given the moral turpitude associated with a charge of perjury.

So, in this way, I could see the relevance of Fitz's affirmative statement that Libby was the Leaker.

Jim

Looking back,
maybe Ari Fleisher got fired (Bush said he would fire any leaker) and he thought Libby was the one who got him fired, consequently he really can't remember accurately, so he creates this "Libby told me" story.

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Wilson/Plame