Powered by TypePad

« Russert, Semi-Live | Main | If I Were Defending The Hire Of Two Feminist Bloggers... »

February 07, 2007

Comments

cboldt

-- Sunny Day is trying to get the actual docs--I'm not ignoring your question, just trying to see if I can get the docs. --

She won't get them. The motion was filed under seal (one of three such cases, the other two being Cooper/Time and Miller/NYT). From Doc 269, entered on the docket today ...

Russert had nothing relevant to say because he had not been the recipient of any leak regarding Ms. Wilson's employment, and then by filing a motion (under seal) to quash the grand jury subpoena issued for his testimony.

I hear the assertion of "Russert made an actionable false statement," but so far, the accusation is unsupported.

Christopher Fotos

Hey clarice, is that right, in your American Thinker file, that Russert was up there for just 11 minutes?

Barney Frank

cboldt,

Is Russert saying that "spilling the beans on my sources damages my credibility as a keeper of secrets" a false statement? No, it is not.

If he is saying he should not be compelled by subpoena to testify because "spilling the beans on my sources damages my credibility as a keeper of secrets" when he is quite cognizant of the fact that he has already done just that, then I think that can fairly easily be construed as an attempt to deceive the court. It is my understanding that a factually accurate statement that is intended to mislead the court can be considered a false statement, but I could be wrong. Can it?

hit and run

11 minutes on direct, IIRC

topsecretk9

So the way i see it, Russert really screwed up immediately blabbing to the FBI guy - who knows the motivation - but it was a BIG mistake BECAUSE he was tied to what he said - no wiggly room

Seriously, he must have gone into cardiac arrest when that Andrea Mitchell transcript "it was widely known" finally was unearthed

And again, David Gregory has still not responded - if he disputed what Ari said he would have cleared that up ASAP.

cboldt

As long as you're chasing papers - may as well announce a couple new filings.

windansea

I hear the assertion of "Russert made an actionable false statement," but so far, the accusation is unsupported.

he didn't but the FBI or his lawyer did

JM Hanes

Per FDL [emphasis mine]:

F: At any time did you discuss the wife of Joseph Wilson?

T: No, because I didn't know who she was until several days later

F: Did Libby ever tell you?

T: No.

F: What would you have done?

T: Gotten more information from him and then discussed with my producers, would have been a significant story.

Did that question ring bells with anybody else? I wonder if Fitz didn't inadvertantly step into there, because it was eerily like a direct reference to the script (complete with prompts, as I commented elsewhere) of the Tim Russert show conclave where Russert, Mitchell, Gregory (& as I recall a rather bemused Pete Williams) sat around and persuaded themselves that Russert couldn't possibly have mentioned Valerie Plame to LIbby.

Aside from the obvious import of getting Russert to admit he had no specific recollection of "not discussing Wilson's wife," the following bit from Welles on cross struck what seemed to me to be a related note (also per FDL):

W: Do you have a present recollection of not discussing Wilson's wife, are you just reasoning backwards from the fact that you did not know about her until Novak's column.

T: I have no recollection, but it would have been impossible.

So a couple of questions for our legal eagles:

When Fitz himself asks "What would you have done?," has he opened the door for quizzing Mitchell & Gregory, since they were publicly discussing precisely that topic with Russert? Since Russert apparently had to reconstruct the conversation "reasoning backwards from the fact ...," is it perhcance relevant/material that Mitchell & Gregory were assisting with the reconstruction?

I seem to recall some other question(s) about what normal practice would have been, but don't know whether they would tie into this or not.

cboldt

-- It is my understanding that a factually accurate statement that is intended to mislead the court can be considered a false statement --


Certainly true in the general sense. Although I disagree that an argument of principle can amount to intention to mislead the court.

I gave a concrete example (in the way of a question) in my previous. I'll leave it at that.

topsecretk9

Centra
--Is Russert lying by telling A truth, rather than telling THE truth.--

Excellent phrasing.

Curly Smith

Cycloptichorn said:

"There is a difference between forgetting that an event happened, and completely inventing a new event which just happens to provide cover for you in a crime. That's why it speaks to more than just memory; he's remembering an event which someone else has claimed never happened."

No doubt but would you concede that people tend to remember different things?

Let's suppose you and I had a meeting a year ago and we each remember 50% of what transpired. We could remember all of the same things, we could remember some of the same things, or we could remember none of the same things. In the latter we'd each believe the other was inventing the meeting out of whole cloth. You have probably left a meeting and heard people talking and wondered "was I in the same meeting?" and that was immediately after the meeting. What happens when time and other events cloud the memory?

Consider that we remember things that are important to us and that we tend to remember things in a way that puts us in the best light. I don't know if Libby is lying or not BUT if he is, he's a remarkably poor liar. IMHO the focus was on Wilson, Libby didn't give a flip about the wife, and he's just plain confused. However, you may drive a hybrid and get better mileage.

cboldt

-- he didn't but the FBI or his lawyer did --


I haven't seen any evidence of that either. The specific items touted by Wells do not amount to legal false statements. Therefore, if there are legal false statements as asserted by some here, there must be some evidence to support the contention. All I'm asking for is "show me" or give a paraphrase of the actionable false statement.

Carol Herman

FROM CAROL HERMAN

Great article on American Thinker, Clarice! It is up there. I just saw it now.

And, from the transcript you quoted, Wells did show that Russert tried to cover his "silence" with journalism's privileges. And, then had to admit he already talked to Ekenrode. Perhaps even twice?

I don't know what the questions meant that referred to Shapiro. I gather he must be a legal eagle at NBC. And, all Russert could do was say: "I don't remember. I can't recall."

The jury left knowing that Russert's attorney had attempted to quash Russert's court appearance by saying "Russert needed to protect Libby, his source." And, that's the HOLE dug for Russert to either fall into, tomorrow. (I did read, somewhere, that it would be unfortunate IF Wells is using false facts, in presenting stuff to Russert).

I always thought Exhibits get "reviewed" first. But here? They come in as Wells whips them out to "show" Russert.

I feel better, about this case, now, than I did yesterday. Libby must be feeling more and more relief, too.

MayBee

All I'm asking for is "show me" or give a paraphrase of the actionable false statement.

What do you think about Fitzgerald and Walton apparently giving Well's question a pass?

Enlightened

"There's another way to phrase that and that is that the absence of evidence is not the evidence of absence.

It is basically saying the same thing in a different way.

*Joe Wilson went to Niger in 1999 and returned with absence of evidence that Iraq was not seeking uranium, and upon his return from Niger in 2002 his evidence of absence directly contradicted his previous report..

Simply because you (Joe) do not have evidence that something does exist (Joe was before Niger/Iraq/Uranium before he was against it) does not mean that you have evidence that it doesn't exist.

topsecretk9

Is there a transcript of the Matthew's show in question?

I'd be curious how many times Matthew's said "Scooter Libby" (He said Libby called and said he was tired of hearing his name) since at that time Matthew's show consisted of

"Rove. Rove, Rove, Rove. Rove. Cheney. Rove.

Cheney. spittle. Rove. Cheney. Cheney. Cheney. Rove...(and on and on and on)"

windansea

I haven't seen any evidence of that either.

okay...but does the loss of FBI notes and Russert's non answer give you pause?

JM Hanes

Forgot to add that in the Maine Web Report's version, Russert's "I have no recollection, and it would have been impossible." is immediately followed by:

(some kind of objection, sustained, not sure exactly what).

In light of how I was interpreting the thrust of that question, it made me think aha, Fitz doesn't like where this is going either.

centralcal

tsk9: thanks, but I don't think it is merely my phrasing, I believe that is what Russert has convinced himself of - that as long as he tells A truth, he is not then lying.

That is how he looks Big Russ in the eye, that is how he goes to Mass on Sunday, that is how he faces the public on Meet the Press. He has not told A lie, he has only told A truth.

The question for me, is -again- what is his motive? Purely political? I believe that it is.

windansea

Purely political?

I'd say self preservation

Dan S

windandsea...

and isn't he doinga GREAT job of that? His living depends on his credibility, I thought. He's certainly enhanced that today!

clarice

It is apparently paragraphs 5 and 6 of the declaration Russert filed with J Hogan..I cannot retrieve that document just yet. But certainly if it misrepresented the pleading, Fitz would have been on his feet and the judge's gavel would have been planted firmly between Well's ears.

cboldt

-- What do you think about Fitzgerald and Walton apparently giving Well's question a pass? --


Walton will generally follow the lead of whichever party is not questioning the witness, so I take his relative inaction as "normal."


I take Fitz's inaction as absence of serious concern about the line of inquiry. Wells is trying to make Russert into an unreliable witness in general. Same thing he's done with all the others. By now the jury would think something was amiss if Wells didn't go on the attack.

centralcal

also, tsk9, I posted this earlier from Ariana:

"Russert prides himself on being the Everyman from Buffalo who cuts through the Washington double-speak and can explain it simply to his Dad, the legendary 'Big Russ.' So how would he explain this pompous double-speak to his Dad?"


I think Ariana has it right about Russert's view of himself and I think that ties in with why he is telling A truth - and only A truth.

JM Hanes

cboldt:

"Therefore, if there are legal false statements as asserted by some here, there must be some evidence to support the contention."

Could you point to the assertion/contention you're talking about? I'm not sure exactly what it is that you're asking.

highcotton

waving hand wildly! Suggested that Fitz was vulnerable on charges of suborning perjury ages ago! (Omigosh, is this my dream come true or what???)

cboldt

-- certainly if it misrepresented the pleading, Fitz would have been on his feet and the judge's gavel would have been planted firmly between Well's ears --


certainly, you assert. There is no doubt. Pardon me for wanting to read the legal false statement.


Personally, at this point, I think it's just more puffery - when the dust settles, there will be no "there" there. Just like there was no "there" with Fitz having to withdraw 100 counts of obstruction. Sounds nice and hot, pulls in the suckers, but eventually is a nothing-burger.

Pofarmer

FBI Notes of interview with Russert are MIA

FBI Report of interview with Russert was produced to defense

Well, I think Bonds testimony shows those two things could be quite different.

Rocco

Inspector Clouseau enters a hotel lobby and steps over a large dog sleeping by the clerks desk.

Does your dog bite?...Clouseau asks the clerk. The clerk answers no.

A few seconds later, the dog bites Inspector Clouseau on the leg.

Clouseau screams...I thought you said your dog doesn't bite!

That is not my dog, replied the clerk.

Russert should have been the hotel clerk today!

topsecretk9

Cent

That's why I liked the "gossip" and "rumor" questions.

lurker

Great article about Russert, Clarice. Also, a great closure.

P.S. Supervising is misspelled.

highcotton

P.S. Cboldt, you're a real prick. For the longest time, I read your posts in good faith, thinking you had something to say. You don't.

MayBee

I take Fitz's inaction as absence of serious concern about the line of inquiry.

Even when the line of inquiry is "So you lied in your affadavit?" You don't think that merits an objection?

Walton has stepped in many times, completely to clarify something of his own liking. He has corrected attorneys when it seemed they were mischaracterizing witness's testimony. He stepped in when Wells was wrestling with Bond over the word "claimed" vs "told".

cboldt

Nobody took my "paper chase" bait above, so here's a more specific HINT

Doc 272 TRIAL BRIEF by I. LEWIS LIBBY (Wells, Theodore) (Entered: 02/07/2007)

Doc 273 TRIAL BRIEF by USA as to I. LEWIS LIBBY (Kedian, Kathleen) (Entered: 02/07/2007)

One is a Libby's rebuttal to Fitz's motion to preclude evidence on Russert accommodations, and the other is a Fitz filing to preclude Abramson testimony.

cboldt

-- P.S. Cboldt, you're a real prick --


Don't recall seeing you around, but thanks for sharing. I'm tired of this shithole anyway., Sayonara, shitheads.

topsecretk9

--Great article about Russert, Clarice. Also, a great closure.--

what's the link? I scolled up and didn't see it

hit and run

Russert on the Hot Seat

lurker

Sorry, her new article is over at American Thinker. But it looks like Clarice opened a new thread using the same article.

Barney Frank

cboldt,

Here is a paraphrase that DanS posted on another thread either from FDL or the Maine dude.

--Wells submits as evidence, and displays, a declaration by Russert filed with court. Paragraph 5 emphasizes that an essential part of his job is keeping conversations with government officials confidential, that he will not discuss identities or information publicly.

W: You are swearing that you will not release confidential information freely, right?

T: It depends on the nature of the conversation

Wells continues reading from the document. Quotes Paragraph 6, which specifically says Russert cannot testify about Libby conversation without violating confidentiality.

W: That's what you're saying to Judge Hogan under oath?

T: That it would have a chilling effect, yes.

W: You're saying under oath that you can't even confirm that

T: As a journalist, I didn't want to do it, correct.

W: Not just didn't want to, you can't do it, correct?

T: Correct.

W: You don't say that you had already talked to this to Agent Eckenrode in Nov 2003.

T: There is no mention of it.

W: You had already disclosed the substance of the conversation

T: There's a difference

W: But this does not say you had confirmed the existence of the conversation, and the content of it as well.

T: Correct.

W: In June 2004, your position that you could not do this.

T: Correct.

W: In Nov 2003, you violated this, didn't you?

T: No, because they asked about my side of the conversation, and conversation was a viewer complaint.

W: Are statements to Judge Hogan true or false?

T: So you violated these statements when you talked to Eckenrode.

T The focus was on my words at that time, and Libby's viewer complaint was not in any way confidential. As is my policy, I did not report on them.

W: So why say you can't talk about the same conversation?

T: We did not want to get involved in an open-ended fishing expedition.

W: (Accuses Russert of making a false statement to federal judge)

T: I just talked to Eckenrode about my side of the conversation

W: You talked to him about both sides of the conversation

T: I listened to him describe Libby's side.

Walton calls a truce recess for the evening.--

Now if Russert submits an affiadavit to quash a subpoena saying he cannot discuss his conversation with Libby (not a conversation in general but this particular conversation with Libby) because it is confidential, but he has already discussed it with the FBI, how is that not an attempt to mislead the court? He could discuss and he had discussed it.
That is not a general proposition. It is an attempt to convince the court that he cannot be compelled to testify about a particular conversation that he in fact already had.
And his attempt to wiggle out of it today by claiming that he only discussed his side of the conversation is directly contradicted by his earlier confirmation IIRC that he had discussed both sides of the discussion with Eckenrode. He would seem to be misleading the court then and now.
All of this is with the caveat that we are working off of a paraphrase.

pete

Enlightened (not)

"First Lt. Ehren Watada - The new Cindy Sheehan of the blithering idiot brigades."

Spoken like a true chickenhawk.

Terry Gain

Unless words no longer have any meaning not being willing to risk his life to enable others to live in freedom does not make him a hero.

You need help. Take a course in remedial English or remedial honesty.

Enlightened

Paragraph 6 Russert filed that he CANNOT testify about the SPECIFIC Libby conversation due to confidentaility issues, therefore quash the subpoena.

The falsity is that he had already discussed the confidential call previously and had not asserted the privilege of confidentiality to Eckenrode.

One phone call, two definitions by Russert as to nature and import of the call. One or the other must be false.

windansea

Sayonara, shitheads.

whoa horsey

remember who u r talking to

topsecretk9

Thanks both H&R and Lurker.

arcanorum

"James, you said -

'What a twisted mind you have. "Absence of evidence is not the same thing as evidence of absence".'

I was trying to remember where I heard this lately, and then it hit me:

"There's another way to phrase that and that is that the absence of evidence is not the evidence of absence. It is basically saying the same thing in a different way. Simply because you do not have evidence that something does exist does not mean that you have evidence that it doesn't exist." -Donald Rumsfeld, on Iraq's weapons of mass destruction"

BRAVO, that was well done.

Rick Ballard

At least he could have thanked us for all the fish.

lurker

Oh, speaking about Sheehan...

There is one site that posted today showing that Sheehan failed to take time to have a tombstone placed over her son's grave.

windansea

CBolt

you r a great commentator...don't go away

vnjagvet

Looks like CBolt left just before that bold assertion that Russert did not make a false statement in his affidavit was proven without foundation:>)

I question the timing.

azaghal

To BF's excellent summary, I'd like to add another summary. If you look closely, I think you'll see that Russert has involved himself in a total contradiction: on the one hand he says he discussed his own end of the Russert/Libby conversation with Eckenrode because those were his own words and not confidential; on the other hand, he says at one point that Libby's words were no more than a complaint call and therefore they weren't confidential either.

T The focus was on my words at that time, and Libby's viewer complaint was not in any way confidential. As is my policy, I did not report on them.

Now, this is rather convoluted thinking, but the important thing is that Russert did not share this thought process with J. Hogan when he sought to quash Fitz' subpoena. Instead, he argued that he was trying to protect the confidentiality of sources that his work relies upon. If not a direct falsehood, he is unquestionably withholding relevant information from the Judge--and Fitz knew that he was. Interesting situation. Not many judges I have known appreciate this type of hide-the-ball game playing. They just don't have a sense of humor about that.

Here I've tried to outline this mess in a type of chronological order:

Russert talks to Eckenrode (FBI) freely about his conversation(s) with Libby.

When Fitz subpoenas Russert, Russert tries to fight the subpoena by claiming, under oath, that he will be asked to speak about matters (the conversation(s) with Libby) for which he has promised confidentiality. He does not mention to J. Hogan that he has already had discussions about the same Libby conversation(s) with Eckenrode.

At trial, under oath, Russert states that he and Eckenrode discussed both what Libby said to Russert and what Russert said to Libby.

When Wells accuses Russert of misrepresenting the situation to J. Hogan, Russert makes several responses. The first, and the one that he stresses, is that the "focus" of his discussion with Eckenrode was on Russert's words: what he said to Libby. Secondly, with regard to Libby's words, Russert maintained that Libby's call was a complaint call and therefore he (Russert) did not regard it as confidential.

Problem #1: "focus" does not preclude bringing in other matters, such as what Libby said to Russert, to provide context. Furthermore, since Russert views his own words to be non-confidential, would he be agreeing to testify before the GJ strictly about his own words? But the terms of his pleading, as far as one can tell, were a blanket assertion of confidentiality.

Problem #2: if Libby's "complaint call" did not, in Russert's view, qualify for confidentiality, and since Russert felt free to discuss his own side of the conversation, exactly what did Russert view as confidential--what was he fighting? By his own words, it appears he viewed neither side of the Libby/Russert conversation to be confidential.

clarice

azaghal, so true. And because he made this claim, he negotiated a super special presidential interrogation of 22 minutes with his counsel present in his counsel's office, not alone in front of the grand jury . And Fitz thinks he wil be able to persuade the judge from allowing the defense to show the disparate treatment offered journos --especiall y those thought to have incriminating info about Libby as opposed to those who seemed to have exculpatory evidence and everyone at NBC it seems.

clarice

** will be able to KEEP the judge from allowing the defense ****

azaghal

From a new post at FR:

http://www.freerepublic.com/focus/f-news/1781101/posts

If Russert and Fitzgerald were feeling a bit crestfallen by the exposure of Russert's faulty memory, their moods went south quickly when Wells introduced into evidence the sworn affidavit that Russert submitted in an attempt by him and NBC News to squash the grand jury subpoena for Russert in 2004.

The affidavit began with Russert explaining what a big wheel he is in the media, lists his awards, and then explains how he has sources all throughout the government that he protects with promises of confidentiality. The affidavit then says that because of Russert's promises of confidentiality, he cannot even confirm to the government whether the conversation with Libby took place, let alone tell what was said.

Wells revisited the interview with the FBI agent, named Eckenrode(sp?), which took place in November 2003--many months before the affidavit.

Wells pointed out that Russert spoke about the conversation with Libby with the FBI agent without even verifying that the man on the phone was indeed an FBI agent or whether Libby had indeed waived confidentiality on the conversation.

Russert tried to weasel out of it by saying he considered Libby's phone call a "viewer complaint" about Hardball's coverage of the Joe Wilson story and that he had only told the agent his side of the conversation because the agent told him Libby was saying Russert told him about Plame.

Wells hammered home that Russert had not included this conversation with a government agent in his affidavit--raising the possibility that Russert filed a false affidavit with the court.

By this point Fitzgerald was slouched in his chair, intently staring at the jury to gauge their reaction to his star witness getting methodically taken apart.

Judge Walton recessed for the day a little before 5 p.m. He asked Wells how long he intended to question Russert when court resumed in the morning. Wells answered, with Russert watching from next to the witness box where he was leaning on his crutch, that he would question Russert for a long while. He repeated that answer when Walton asked him again. The third time Walton asked him Wells said about two hours.

Russert left out a side door while Fitzgerald and Wells spoke with Walton about the schedule for the trial.

As the media filed out, there were few happy faces to be found among them.

clarice

Thanks. I wondered about the media and prosecution reactions.

windansea

The third time Walton asked him Wells said about two hours.

Heh

azaghal

I should have bolded this part. If this is a true representation of Russert's pleading it seems deceptive and sanctionable. I have to believe Fitz would have a responsibility to the court--J. Hogan in that instance--to point this out:

The affidavit then says that because of Russert's promises of confidentiality, he cannot even confirm to the government whether the conversation with Libby took place, let alone tell what was said.

azaghal

One can see the box Fitz was in when Russert submitted his motion to (s)quash: if he pointed out the falsity of the motion's central argument he would, in effect, be impeaching his star witness before he ever got his testimony before the grand jury. The kind of legal problem that calls for a "creative" solution.

clarice

Yup.

Very hard not to step over the line when you're playing by SDNY rules.

At a minimum, I suppose, he should have picked up the phone, called NBC counsel and said that he was certain they didn't intentionally file a false pleading and was bringing the Eckenrode conversations to their attention to give them time to withdraw it before he , as an officer of the court, would be compelled to bring it to the court's attention.

clarice

Odd, too, that it appears that JUST the very notes of that conversation (those conversations) are missing.

I wouldn't be surprised if we hear more on that.

Skip

Are prosecutors required to reveal evidence that impeaches their witnesses when they're aware of it?

I know they're required to reveal exculpatory evidence, but this would seem to be a different category.

Walter

I'd say the affidavit was misleading but not perjurious.

And Russert's chief legal danger would be a contempt hearing before J. Hogan and/or an ethics complaint. And since the matter and parties are no longer before J. Hogan, seems to me that Russert faces no significant jeopardy.

As far as Fitzgerald suborning perjury, remember that he was an adverse party when the affidavit was given. His role was to defeat the motion to quash.

He knew that Russert's testimony would be necessary to convict Libby, so of course he would avoid impugning his credibility on the affidavit unnecessarily.

Walter

Must. type. faster.

azaghal

And Russert was in a bit of a box, himself. His apparent eagerness to screw Libby would undoubtedly have met with the approval of his colleagues, and yet he needed to show solidarity with the "journalistic community" by resisting, or appearing to resist, the subpoena. If it appeared that his GJ testimony was coerced, all would be well. And it would have been well if he hadn't blabbed to Eckenrode. What was he thinking?

Walter

highcotton,

cboldt may be prickly, but he's the only cboldt we have. Please don't abuse him.

clarice

Walter, he was technically opposing counsel but had an obligation to the court. I once had a case where opposing counsel presented an obviously false affidavit by another (non party)lawyer on a matter in the case. I called that lawyer and said out of respect for him, I was notifying him before I notified the court that the affidavit was false, that I wanted him to have an opportunity to act before I was forced to. He acted fast to withdraw it.

azaghal

Walter:

As far as Fitzgerald suborning perjury, remember that he was an adverse party when the affidavit was given. His role was to defeat the motion to quash.

He knew that Russert's testimony would be necessary to convict Libby, so of course he would avoid impugning his credibility on the affidavit unnecessarily.


Well, the easiest way to defeat the motion would have been by impugning his credibility, much as he would have wanted to avoid doing that. But then, as an officer of the court, it would have been his duty to bring to the court's attention the contemptuous behavior while the matter was before the court. As a practical matter, knowledge of this and other corner cutting behavior by Fitz (and that is being very kind) will be widespread among DC judges. If there are any appeals I should think that knowledge would have its effect.

clarice

Besides, supposedly he was trying to get Russert to testify..he violated his obligation to represent the government by pointing out the filing was false.

clarice

Sorry,Cross posting azaghal.

Walter

Skip,

...this would seem to be a different category.

Oddly enough, the Court heard arguments about that very subject right before Russert's testimony. Fitzgerald did not believe the fight for Russert's testimony was relevant or exculpatory. He (mostly) lost.

And remember, the only reason that Libby has Russert's FBI summary is because Fitzgerald handed it over.

azaghal

Walter:

cboldt may be prickly

I'm not the ethics police here, but I think you're misquoting highcotton. :-)

clarice

sunny day has two new filings tonight:
The govt is trying to keep out Jill Abrahamson's testimony and Libby has filed this in response to the prosecution's filing last night to keep from having to turn over everything relating to the accommodations to Russert:
"

I. LEWIS LIBBY’S RESPONSE TO THE GOVERNMENT’S MEMORANDUM IN OPPOSITION TO REQUEST FOR DISCLOSURE OF INFORMATION

RELATING TO GOVERNMENT WITNESS TIM RUSSERT

To ensure that it has all materials necessary to prepare an effective cross-examination of the government’s final witness, NBC correspondent Tim Russert, the defense requested a limited amount of discovery regarding the facts and circumstances surrounding the litigation of Mr. Russert’s motion to quash the grand jury subpoena and his subsequent deposition. See Govt’s Memo. in Opp’n to Defendant’s Request for Disclosure of Information Relating to Accommodations Provided to Media Witness Tim Russert (Dkt. 269) (filed Feb. 5, 2007). The government has produced certain materials in response to those requests, such that the defense now has all materials docketed in connection with the grand jury litigation—save for the ex parte filings the government submitted in response to Mr. Russert’s motion. The government has also withheld certain information regarding the government’s communications with Mr. Russert and his counsel regarding the accommodations Mr. Russert received from the government in connection with his deposition. The government contends that it is not required to "

Case 1 :05-cr-00394-RBW Document 272 Filed 02/07/2007 Page 2 of 3

Case 1 :05-cr-00394-RBW Document 272 Filed 02/07/2007 Page 3 of 3

Dated February 6, 2007

Walter

Clarice and azaghal,

I'm sorta with cboldt on this. I'd say it's gray enough that Russert might have escaped contempt proceedings. I don't think that Fitzgerald acted particularly unethical here.

The boundaries of a common law reporter's privilege are not clearly defined. A good faith argument could be made that it should resemble the marital privilege, which is not waived if inconsistently asserted, rather than the attorney-client privilege, which is destroyed forever once waived by disclosure.

As far as representing his client, he'd do the government a greater disservice by undermining a witness critical to making his case.

Given the FBI interview, he didn't particularly need Russert's testimony before the grand jury to get an indictment.

topsecretk9

--What was he thinking?--

I don't think he was, that's the problem.

JimE seems to think Russert was on a quest to help Libby because Russert is an Admin. lapdog.

I don't (think he is a lapdog) but I am not sure he was intentionally screwing Libby - I'm just not sure.

I do think somewhere about 5 minutes after the call Russert wondered if taking that call was a really, really dumb move.

Considering the carefully parsed statement and the little Gregory, Mitchell kumbaya roundtable - the Mitchell transcript "widely known" prolly gives him heartburn.

Beth

I'm loving this. I tell ya - this is one of W's finest poker games ever. Once he learned the truth about our glam couple, our dishonest media and the Kerry campaign (and possible involvement with Dem congress members also) - I bet he asked for volunteers, guaranteeing full pardon if it didn't work. Scooter said "I'll do it"!

What better way to get the sunlight into this cesspool? We all know the media would never believe the administration if they had laid this out directly.

Go Wells - he's helping to improve my opinion of lawyers a little bit.

BTW - my psychic skills are very good. I was the first one to post on RightWingNutHouse suspecting President Logan of being a bad guy on '24', WAY before anyone else did. I was called crazy and accused of 'jumping the shark'! But...look who was right on that one!

JM Hanes

azaghal:

"One can see the box Fitz was in when Russert submitted his motion to (s)quash: if he pointed out the falsity of the motion's central argument he would, in effect, be impeaching his star witness before he ever got his testimony before the grand jury. The kind of legal problem that calls for a "creative" solution.

One of the most egregious elements of that creativity, I've always felt, was that of not, in fact, submitting Russert, his star witness, to examination by the grand jury at all. I assume his deposition was read to those jurors, but who knows if, or in what form, it was presented to them? The disappearance of the examiner's notes simply piles insult upon injury.

clarice

Walter, I disagree. I disagree most strongly. The pleading falsely stated that Russert could not and would not speak to the govt about the conversation. He already had. Govt counsel (all counsel really, but govt counsel in particular) are officers of the court with an obligation not to sit on their thumbs when they know a false affidavit has been made.
And in particular since he was arguing that he needed this testimony, pretending that he could get it no other way except by negotiating this charade of a deposition with NBC, was misleading to the court.

Dan S

JMH,

I'm with you on that. I don't much care for this royalty treatment for faces on news programs. But, I suppose, letting them be all high and mighty that way does create a bigger splash when they plummet.

Russert should have gotten the full GJ treatment, as should have a few other gaping holes in the investigation list we've seen. Especially Mr. A. hole.

(The Armitage hole! Get your mind out of the media!)

vnjagvet

Yeah, Azaghal. It is called dismissing the portions of the indictment based on his testimony.

Integrity matters.

Walter

Good catch, Clarice!

&SunnyDay!

Now, what was that website again?

I have to say that I think the odds of them getting more information are much greater after Well's demonstration today.

clarice

It is in fact a continuing fraud..Fitz is arguing at the very same time that he should be allowed to put on testimony (Fleissner) and get jury instructions claiming he was constrained in what he could questions reporters about because of DoJ regs on such subpoenas..But here we know he had a perfect right to haul Russert before the grand jury and let Russert lie to avoid that.

clarice

I don't know if sunny day has posted that on her site yet. You might check the AP, DoJ or cboldt sites.

topsecretk9

Didn't one of the jurors or potential jurors mention he thought it was incredible the treatment Woodward's testimony conditions?

Dan S

Okay, I must preen (since everyone else seems to).

Was my return quip this morning precognitive or what?

Lame testimony indeed!

I have to savor that one. Not apt to happen again soon.

Dan S

Walter, are you looking for the defense exhibits from today? I found them at cboldt:

http://noeasyanswer.blogspot.com/

clarice

How dare Fitz try to argue to this jury and Court that he couldn't have done more with reporters because of DOJ regulations when at a time when he could have had Russert, his key witness before the grand jury, he looked the other way at a false pleading and let him get off with this presidential appearance in his lawyer's offices? How dare he!

Pete

Lets just say that nobody has been charged with a crime with respect to outing any top-secret agents. Either there was no such crime, or Fitz is part of a neocon cabal aimed at covering the crime up.

That is because the cover up was successful.

To say that nobody has been charged with a crime does not prove there was no cover up.

Barney Frank

Well the lawyers here know a lot more about the technicalities of this than me.

All I can say is if my lawyer let me sign an affidavit like that in those circumstances I'd fire him on the spot and represent myself. If the issue had been pressed, Russert might have skated but it would have been a close shave.
More importantly it, along with his two faced testimony about source/viewer and the nature of the conversation with Eckenrode reveals his cultivated joviality and tough minded fairness as just another DC facade.
Of the sorry pack of news mutts who have barked on command so far he has been the most mendacious and self serving.

Rick Ballard

Clarice,

Do you think Wells will swat Russert with his [Russert's] law degree a few times in the morning re the affidavit? Kinda tough to do the "I don know what all that legal stuff means." bit with a law degree on the CV.

Walter

Clarice,

As a practical matter, I can't see an obligation to point out every mis-statement, gross shading of the truth, or outright falsity in every verified pleading.

Fitzgerald seems to have made a judgement call that this wasn't material to the motion hearing. I just wish he had made similar decisions with regard to Libby's errors.

MayBee

Will Fitzgerald continue to make the argument that Libby expected reporters to keep quiet? Will he make that argument with a straight face?

FWIW, I think Russert got thrown off by the FBI guy telling him it was a national security issue. But still...it took him 1 phone call to give up his source to the Feds.

clarice

I think the Judge will do what they usually do when they think a lawyer has tried to pull a fast one. Every single discretionary ruling from now on--from the pending motion to get more evidence about the Russert accomodation to the pending questions about jury instructions--will be resolved in Libby's favor.

I also think we may hear a great deal more about the critical Eckenrode notes of the Russert conversation/s which have gone mysteriously missing.

I think, as he telegraphed, Wells will come to court in the morning with lots of interesting papers.

Pete

Monica's dress proved beyond reasonable doubt that Clinton perjured himself.

No it just proves that Clinton borrowed Monica's dress and jacked off on it.

Walter

I may be confused, but, as I understand it Fitzgerald won (squashed) the argument over the the motion to quash. Only then did he negotiate conditions with Russert.

I suppose I'd go with angry rather than confused if that paragraph had any effect on or affected J. Hogan's ruling.

Dan S

Clarice,

Can't answer that one. It is disheartening to see this on the heels of Nifong.


clarice

Walter, this was not a teensy bit--this was the entire NUTS of the Hogan hearings.

Let's say you are representing the plaintiff in a quiet title proceeding and the defendant shows up with a phony Deed of Trust hoping that you'll just settle with him, are you saying your obligation to the court and your client is met if you overlook that it's fake?

Walter

Dan,

Thanks for the cite. I was looking for Sunny Day's, but I found the link in an earlier comment.

Walter

Well, sure, if you put it that way.

But I might overlook the falsity if the forger had mistakenly described address and property next to that at issue to the case.

In other words, if the defendant wanted to rest his case on a piece of paper that didn't help him, I wouldn't go too far out of my way to disabuse him so we could get back to a battle on the merits.

A war story of my own:

I represented a client in an unemployment appeal. The company sent the president and the general manager who spent 45 minutes presenting their case, throwing in quite a few provable falsehoods along the way.

I asked two questions after they finished presenting their case and presented no contrary evidence. My client thought that I was crazy--he wanted to call them out on every lie.

But we won the case, as the other side had focused their presentation on irrelevancies. When the judge made her decision, she had only my questions in her head--and didn't have to resolve any evidentiary matters.

JM Hanes

azaghal:

"Russert tried to weasel out of it by saying he considered Libby's phone call a "viewer complaint" about Hardball's coverage of the Joe Wilson story and that he had only told the agent his side of the conversation because the agent told him Libby was saying Russert told him about Plame."

As I recall, the subsequent deal worked out with Russert didn't require him to do more than that either. Wish I could remember the source of that impression, a public statement of some kind I think. Could be wrong. If not, it's ironic, to say the least, that after successfully defending Russert's subpoena and throwing Judy Miller into jail, he proceeded to give them precisely what they wanted in the first place.

hit and run

Wow, you ladies and gents are gooood. That was a grrrreat discussion.

Clarice, Walter, Dan S, JM Hanes, Rick Ballard, MayBee, Barney Frank, vnjagvet, topsekretk9

and

azaghal - hey, there, I don't think we've been formerly introduced. I'm hit and run and I like your style. And substance. Oh, what substance.

(I really hope I didn't miss anybody - I just scrolled back up the thread looking at names......)

Walter

HnR, I read Arizona Aggie Hal. I'm starting to get confused again...

Not that there's anything wrong with that.

azaghal--welcome. I've been enjoying your contributions as well.

Did I parse correctly? I'm a UCD Aggie myself.

The comments to this entry are closed.

Wilson/Plame