Neil Lewis Of Times - It's OK To Present The Defense, Too

Neil Lewis of the Times continues to cover the Libby trial and he continues to deliver his version of the old George Carlin joke, which I paraphrase: "In baseball action, we have some partial scores; it's Detroit 2.  Now for the weather..."

My plea to Mr. Lewis - this trial has involved defense attorneys responding to the presentation offered by Special Counsel Fitzgerald; feel free to feature both.  Here is his latest silly lead:

WASHINGTON, Feb. 5 — Prosecutors in the perjury trial of I. Lewis Libby Jr. on Monday played audio tapes in which Mr. Libby was heard testifying under oath before a grand jury that he had not discussed the identity of a Central Intelligence Agency operative with fellow administration officials in the summer of 2003.

The sound of Mr. Libby’s disembodied voice coursing through the courtroom vividly underlined the contrast between his sworn account and the testimony of the parade of prosecution witnesses presented to the jury in the last two weeks.

A parade?  I love a parade!  But what witnesses did Mr. Lewis have in mind? 

Marc Grossman of the State Dept., who told the FBI that he spoke with Libby on the phone about Ms. Plame but told the jury they spoke face to face? 

Bob Grenier of the CIA, who told the FBI and the grand jury that he was not sure whether he mentioned Ms. Plame to Libby, but had finally remembered in 2005 that he had?

Craig Schmall of the CIA, who told the jury that he must have mentioned Plame because it was in his notes, but he that he does not actually remember having done so?

Cathie Martin of Cheny's press relations office, who told the jury she briefly mentioned Plame to Libby sometime in June or July; eventually that was dated to June 11 and (my guess) is the Cheney-Plame reference Libby does remember from that period.

And Ari Fleischer and David Addington joined the parade as well.

So, three out of six had a credible memory of discussing Plame with Libby.  Three out of six did not.  Let me suggest a different lead: 

WASHINGTON, Feb. 5 — Prosecutors in the perjury trial of I. Lewis Libby Jr. on Monday played audio tapes in which Mr. Libby was heard testifying under oath before a grand jury that he had not discussed the identity of a Central Intelligence Agency operative with fellow administration officials in the summer of 2003. 

The sound of Mr. Libby’s disembodied voice coursing through the courtroom vividly underlined the hazy memories on display over the last two weeks when the jury heard from three prosecution witnesses who had vague or unreliable memories of discussing Plame with Libby at all.

Just a suggestion. 

Eventually Mr. Lewis does acknowledge the efforts of the defense side, here at the bottom of the story:

To demonstrate that Mr. Libby lied to the F.B.I. as well, which is charged in the indictment, prosecutors put Deborah S. Bond, an agent, on the stand. Ms. Bond, who was present at the two interviews of Mr. Libby in his office in October and November of 2003 completed her testimony on Monday but acknowledged she may have testified incorrectly last Thursday.

Theodore V. Wells Jr., Mr. Libby’s chief defense lawyer, was magnanimous with a purpose when he pointed out her error over a conversation between Mr. Libby and Karl Rove, the deputy White House chief of staff.

“I can’t believe I said it,” Ms. Bond said when shown last week’s testimony. Mr. Wells then prodded her to say that she must have answered in good faith but simply forgot, a proposition to which she readily agreed.

It was a reminder to the jury that one of the pillars of Mr. Libby’s defense was that if he spoke inaccurately to the grand jury and investigators, it was only a case of faulty memory.

With any luck Times readers won't make it that far.

MORE:  I'm on such a roll that if I left out a witness, I don't even want to know.  But I suppose you ought to tell me.

UNRELENTING:  Mr. Lewis has almost surely made a hash of this:

On the tape, Mr. Libby was heard saying repeatedly that he could not recall any conversation he ever had with Marc Grossman, a State Department official, about Ms. Wilson.

Mr. Grossman, who was then the under secretary of state, has already testified about two such conversations.

Please - Grossman testified to more than one chat with Libby about the Wilson trip, but he claimed only one brief mention of the wife.

However!  Grossman did tell two different versions - with the FBI the disclosure to Libby was over the phone, but it was face to face with the jury.  Maybe that was what Neil Lewis had in mind.

Comments

[centralcal]

Very funny Tom. You omitted any witnesses from the, uh, press?

[Dan S]

Is the press involved in this case somehow?

[hit and run]

Is the press involved in this case somehow?

Not in this case, no. But they are involved in one that they've made up to look very similar to this one -- hoping many people will mistake their case for the one that's really going on.

[Carol Herman]

THIS IS FROM CAROL HERMAN

I beg to differ. I see the press going on the ropes, the way the old south did, when the UNION kept fighting back. (And, it started with beligerency that Lincoln couldn't abate. Though he did try to calm the waters.)

We're probably at "the beginning of the end." (Lincoln turned that phrase. Before Churchill used it, in 1940 to say "we're at the end of the beginning.)

What the press isn't reporting is that every move that Fitz has made, Wells has countered. That's "defense." Offense, is when you're handed the ball.

And, "offense" can mean that Fitz put Walton in the box to lie to the jury. How so? By "agreeing" on Thursday, before the filings, how close his case was to "resting." (Before the 8 hours of schmutz and dreck came in.)

How do you think Walton looks, if you were a juror? Who went home on Thursday, feeling pretty safe to plan your own events, for, oh, say? Following the 16th of February?

Hmm? In what year?

Yes, the case can end in a timely manner. But then? Walton has to acquit. And, Libby then can speak out loud, and freely. Not handicapped by the lawyer's refrain that "as long as this case is being ajoo-dicated, he's silent as a mouse.

[Patrick R. Sullivan]

Well, we now know that Libby talked with Andrea Mitchell both before and after he talked with Russert. And, that he probably talked with Novak too, prior to the July 14th column.

Libby seems genuinely confused about who, what, when. Fitz thinks this makes his case?

[Cycloptichorn]

You seem to be deluding yourself, if you believe the case is going well for Libby. It most certainly is not...

The defense would have the jury believe that Libby - who was intimately involved with the WH response to Joe Wilson - forgot facts which were central and critical to the WH response to Wilson, just a week or two after he was discussing this on a daily basis with Cheney. He also had a few conversations about it in the couple of weeks in the middle, which were conveniently forgotten as well.

I mean, it isn't an open-and-shut case yet, but Libby had motive to lie, he had opportunity to see his notes but didn't change his story, and there is testimony from several people that he did lie. The defense has quite a hurdle to overcome, and it isn't as if Fitzgerald is just going to sit on his hands during that point of the trial.

Make a bet with yourself - if Libby is convicted, you do something nice for someone else, if he's exonerated, do something nice for yourself.

[Patrick R. Sullivan]

'forgot facts which were central and critical to the WH response to Wilson'

Wilson's wife was not central and critical to the response to Wilson. There's no evidence at all introduced as to that being the case.

[Cycloptichorn]

'Wilson's wife was not central and critical to the response to Wilson. There's no evidence at all introduced as to that being the case.'

You're right, there hasn't been any evidence produced that Wilson's wife was NOT central and critical to the resposne to Wilson.

Tell me, what was their response before the Wife issue came into play?

[Cecil Turner]

You seem to be deluding yourself, if you believe the case is going well for Libby. It most certainly is not...

Well, it sure isn't the "slam-dunk" Fitz outlined in his indictment. And I'd note the convicted-until-proven-innocent crowd tend, just as Tom notes, to ignore the Defense. I'd further note the lowest point for the Defense ought to be when the Prosecution wraps up its case. And if this is as bad as it gets . . . .

By the way, might want to file the following under "debatable" (or "delusional" if you prefer . . . but in any event "not proven"):

• facts which were central and critical to the WH response to Wilson
• but Libby had motive to lie
• there is testimony from several people that he did lie

[Cecil Turner]

Tell me, what was their response before the Wife issue came into play?

Is this another of those where you assert something nonsensical and then ask rhetorical questions as we try to prove a negative? Thanks, but no thanks. If you really have some evidence "the wife" was critical (despite nobody, including the Prosecution witnesses, having a clear memory of when or why), then trot it out.

[Cycloptichorn]

Well, let me say that there is testimony from several people which contradicts his GJ testimony. It is prejudicial to say that he was lying before the GJ, but there is quite a bit of evidence that he had multiple conversations which he forgot about something he was deeply involved with. Who knows how the jury will interpret that?

I don't think it is a stretch at all to say that Libby had motive to lie, however.

[Another Bob]

Wilson's wife was not central and critical to the response to Wilson.

It was if you buy the "brave whistleblower" trope.

[Other Tom]

Bear in mind that the reporters and government witnesses, including Agent Bond, were just as deeply involved in this story as Libby was--and every one of them has demonstrated a shaky recollection, even with the aid of notes. Remember, we're talking reasonable doubt here.

[Walter]

TM,

"...if I left out a witness..."

Heh!

HnR,

...summary...

In a (large, maybe coconut-sized) nutshell:

Fitzgerald presented evidence sufficient to permit a jury to find that Libby's statements to the FBI differed from the recollections of Cooper and Miller.

Fitzgerald has introduced circumstantial evidence sufficient to permit a jury to find that Libby had the requisite intent (related to, but not exactly the same as motive) to make false statements and obstruct justice.

I had earlier predicted that the Cooper and Miller counts wouldn't make it to the jury. I believe now that the jury will see at least the three counts for which Fitzgerald has presented evidence.

Fitzgerald reached in the indictment, but he still has Libby telling a consistent non-incriminating story that varies from other's recollections.

I continue to predict that Libby will be acquitted on the Cooper false statements and perjury charges.

The case will turn on whether Fitzgerald can get the jury to share his outrage at Libby. If the jury doesn't agree with his overarching theme, he loses. If they do, he picks up at least one false statement or perjury charge and obstruction of justice.

That's my 30,000 foot view.

OT: Fitzgerald's office just won an obstruction of justice conviction against a man who said and did nothing (but had an evil intent while not doing it).

No joke.

The guy was granted immunity but remained mute. He was convicted of obstruction of justice. His buddy was convicted of obstruction for lying in a civil suit deposition.

Why? Well, they were bad dudes. And Fitzgerald's office presented enough evidence to the jury to show that they were bad. Just not enough to convict them of the underlying crimes.

Cboldt may be right. If Libby gets off on my interpretation of obstruction/perjury, the Terrorists Will Have Won™. Or at least we'd have to convict them of being terrorists instead of fools.

-----Even further OT: I was confused last month and mistook your gender. When I reviewed your links to Ms Cruz, I remember being surprised because it was as if I learnt it then as if for the very first time. Although I have no independant recollection of knowing earlier, I would like to extend a brief apology for any misunderstandings.

[Cycloptichorn]

'If you really have some evidence "the wife" was critical (despite nobody, including the Prosecution witnesses, having a clear memory of when or why), then trot it out.'

Sure. I'm just trying to find evidence of what the WH's public response to Wilson was, once his identity had been revealed in his NYT article, other than outing his wife.

[Cecil Turner]

Well, let me say that there is testimony from several people which contradicts his GJ testimony.

I think it's obvious he got several things wrong. However, the "lie" part requires proving intent. And so far the proof on that side has been woefully lacking.

I don't think it is a stretch at all to say that Libby had motive to lie, however.

I think it is--at least if you're claiming he had a motive to tell the "lies" he actually told. He was obviously in no legal jeopardy, and the "official source" nonsense isn't a defense anyway. The political argument is fuzzier (and therefore better, as it's not easily disprovable), but there's little benefit in the "lies" he told, and far better ones available. I've yet to see a logical lie theory . . . but perhaps you could proffer one.

I'm just trying to find evidence of what the WH's public response to Wilson was . . .

Get back to us when you figure it out.

[Walter]

Cyclops:

Well, if I were inclined to wonder just what the administration wanted to put out to the press, I'd look at the talking points they drafted.

It is, after all, why they write them in the first place. You know, to remember what to say when talking to the press?

[Carol Herman]

FROM CAROL HERMAN

It's really easy to let facts slip away. The best one come out, and disappear quickly, too.

But yesterday? Anywhere from one to three sightings of Colin Powell.

Which does make the case harder for Fitz. Because Colin Powell knew Amb. Wilson from Gulf War One, at least. How so? Wilson was sent to be "da ambassador" ... or some such, in Iraq. WHILE HE WAS MARRIED TO WIFE #2.

Wife #2 is Jacqueline. A member of the french secret service.

Sometimes, ya just don't know which wife was involved with sending Wilson to Niger. And, which one was involved with the "french forgeries."

But to claim ignorance of "not knowing?"

Sorry. People inside KNEW. Just like in any exclusive club that denies membership to Jews. People "know" who threw the 8-ball.

But you won't hear a word.

Well, hillary used the same defense about being knowledgable about Monica. Press was credulous. Count me "IN" ... as in incredulous.

Oh. And, Walton still doesn't know Valerie's status. The judge is missing brain cells "not to know." Or he's being as cute as hillary. (Same thing.)

[Cycloptichorn]

'He was obviously in no legal jeopardy'

I guess this is obvious to you only, because it certainly wasn't obvious to anyone else. Remember that at the time noone really knew whether or not Plame would be considered Covert under the IIPA, and since Intent is a large part of the IIPA, it is pretty damn important to show that you didn't intend to do something bad, even if you did by accident.

[Rick Ballard]

Another Bob,

Cathie Martin testified to the focus of the pushback on Wilson and testified that the nepotism angle was not considered important. Assertions to the contrary are accusations that she perjured herself in this trial.

The provision of the information concerning nepotism by the CIA to the OVP indicates that Plame was through there and that the CIA wanted her gone. Harlow's confirmation/denial is further evidence of that.

The first reaction of the OVP was to ignore the nepotism - until the publication of Ambassador Munchausen's Fantasy. Everything changed on the morning of July 7 and I'm not at all sure that we will ever know precisely how that change was effected or whether Libby was even aware that the change had occurred.

Rove was aware, Bartlett was aware and I believe Fleischer was aware.

[Cycloptichorn]

Walt:

Yeah, I know. I'm trying to find out exactly what those were, post-Wilson's article being published.

I see from timelines that Wilson published on the 6th, and then on the 7th -

9:22 a.m. - The Office of the Vice President sends talking points to White House Press Secretary Ari Fleischer, that the Vice President had not requested Wilson's trip, had not been aware of it, and had not seen the results.

But that's it; I can't find an official response to Wilson in between this time and Novak's article.

[Tom Maguire]

Very funny Tom. You omitted any witnesses from the, uh, press?

Uhh, check the Times lead again:

...with fellow administration officials

One comment down and I am unscathed. The roll continues!

[Walter]

Cy,

Check the handwritten talking points drafted by Cheney and relayed by Libby to Cooper.

Martin and Cooper have both testified that Libby passed them on.

[Tom Maguire]

'He was obviously in no legal jeopardy'

I guess this is obvious to you only, because it certainly wasn't obvious to anyone else.

Even if Fitzgerald could prove, after the fact, that Plame was covered by the IIPA, he would still need to prove that Libby knew that *before* he leaked.

And Libby is in an excellent position to judge whether he had prior knowledge of Plame's status. And from his fall comments to Addington, it appears that he did not.

And as Mr. Turner suggests, why didn't he invent better lies? For example, if Libby *really* remembered his talk with Fleischer, he had to figure that eventually the press secretary would get interviewed in a case about press leaks. So his story would take on water even if the investigation never got to Judy Miller on July 8 or June 23.

Why not just say repeatedly, I never knew she was classified, I may have discussed her casually with anyone and everyone, it just wasn't an important detail and I don't recall?

Points to ponder - being indicted for perjury = loss of job, law license, and personal freedom.

Admitting to FBI and grand jury that you leaked about Plame = nothing, if no crime can be charged and proper grand jury secrecy is maintained.

I don't see why Libby found that to be a hard call, if he was in fact lying.

OR, if you want to imagine that Cheney told Libby that Plame was covert, then Libby's lie makes no sense anyway - either Cheney lies to cover for him (in which case a simpler Libby story works), or Cheney tells "the truth", in which case, no one will believe that Libby forgot that anyway.

I think the defense can find a lot of traction here. Time will tell.

[Cycloptichorn]

Thanks Walter. I'm looking into Condi on MTP on the 13th as well.

I don't know how the jury will see things, but I have a difficult time squaring this up with what we know about the case:

‘L: I didn’t know that at that time, lots of people work at the CIA. I didn’t know anything about the wife sending him until I read the Novak article.’

From the timeline -

June 11 or 12 - * Undersecretary of State Marc Grossman tells Scooter Libby that “Joe Wilson’s wife works for the CIA”, and that State Department personnel are saying that Wilson’s wife was involved in the planning of the trip (Libby indictment, p. 4; Fitzgerald affadavit, p. 11; Hearing transcript, pdf p. 6).

June 12 - Vice President Dick Cheney tells Libby that Wilson’s wife works for the CIA’s counter-proliferation division. Libby understands the information to have come from the CIA (Libby Indictment, p. 5). This is during a conversation about the Pincus inquiry (Fitzgerald response, p. 4).

June 14 - * Scooter Libby meets with CIA briefer Craig Schmall at Libby’s home, and they discuss the Niger trip (Libby Indictment, p. 5). Schmall’s handwritten notes indicate that Libby referred to “Joe Wilson” and “Valerie Wilson” (Fitzgerald affadavit, p. 12; Tatel opinion, p. 31; Schmall testimony).

—

Hard to see how Libby's statement stands up to any reasonable investigation of the facts. There isn't just one person he discussed this with, or two, but multiple people. It is something of a stretch to claim that you've forgotten important details which you've discussed with several people.

[Walter]

TM,

Well, if you didn't mean it that way, I hereby take back my Heh.

"...the testimony of the parade of prosecution witnesses..."

Where was the parade? On Mulberry Street, natch.

[JM Hanes]

Cycloptichorn:

"I'm just trying to find evidence of what the WH's public response to Wilson was, once his identity had been revealed in his NYT article, other than outing his wife."

You could start with Cathie Martin's testimony -- especially where she talks about how the press simply ignored both official & unoffical White House responses to Wilson's allegations. They. just. weren't. interested. In fact, it elicited a question from a juror wondering what they can do when the press just won't print their side of the story. Definitely not a good sign for the Prosecution. Have you actually been reading what passes for daily transcripts? If you had, I should think you'd realize that Martin among others highlights Libby's apparent lack of any consuming interest in Plame, not the contrary.

"The defense has quite a hurdle to overcome, and it isn't as if Fitzgerald is just going to sit on his hands during that point of the trial."

Sorry but the prosecution has the hurdles and burden here! (Civil Rights 101) Although Fitzgerald would dearly love to be working with the "strains credulity" standard, I'm afraid he's still stuck with the reasonable doubt convention. Don't fool yourself; if Fitz can't get past first base in his own case in chief, he's got almost no way to get beyond it when the Defense steps up to bat. From what we've seen so far, he's got almost nothing but inference and pop pyschology to use in his closing. Russert is going to have to knock it out of the park -- it could happen, but it's not as easy to do as some might think when you're not the one controlling the interview.

[Rick Ballard]

Handwritten notes on OVP pushback

Typed OVP talking points

Val ain't inem.

[Cycloptichorn]

Tom, thanks for running a great site for discussion of the Libby case.

Your last post is compelling, other than this part:

'Admitting to FBI and grand jury that you leaked about Plame = nothing, if no crime can be charged and proper grand jury secrecy is maintained.'

But, you don't know at the time who is going to be charged with what. You can't admit things to the FBI or GJ that could possibly lead to your being charged with the IIPA. It is entirely possible that Libby simply wasn't sure how this thing was going to play out - hell, it's years later and noone is sure how this thing is going to play out!

[Another Bob]

Rick Ballard....

Thanks. (And I should have noted the $1 for my use of "trope".)

To be clear (I've tried to follow along best I can), you're not arguing that nepotism was the primary component of WH pushback at Wilson's 7/6 op-ed, right?

[hit and run]

Walter:
When I reviewed your links to Ms Cruz,

OK, but let the record clearly reflect that whatever links there are to associate me with Ms Cruz, I disavowed having spent the night with her

(thanks for your summary!)

[Carol Herman]

FROM CAROL HERMAN

RE: THE TALKATIVE AMB. WILSON

Why tie the date down to Novak's article?

Wilson was "talking" as early as May, in '03. But then he was only known as a "former man sent by cheney to discover the truth about the 16 words in the SOTU. Which he says were based on forgeries."

And, since the SOTU had been given months earlier, it seems that the press had time to imbibe whatever it was Wilson was serving.

Cute that the "gee, I didn't know Monica was doing that" defense is being re-tread, here. I thought hillary had the copyrights.

On the other hand? Gee, the President wanted the truth to come out. And, in spite of the press, you have no idea how many people already know that WILSON was drawn into KERRY's CAMP early. How early? That's where this "story" was conceived.

And, the press birthed it. Claiming they had "no choice." But in fairness to the "baby" they weren't gonna tell about who the "father" was. Or how excited Kerry got when he "heard this news."

It didn't work.

Can the DC jury still convict? I think WELLS is more impressive. And, so he ends up in the starring role. It's too late to just "miscarriage this thing," anyway. It was the birth of an elephant. And, it's now in the room!

[clarice]

Cycl--How do you explain then, that Libby said he told Cooper (something Cooper denis) and that IIRC he also said he told Glenn Kessler (something Kessler denies?

If his motive to lie was to avoid prosecution for leaking Plame's identity and employment, why did he say he did?

Re Miller IIRC he testified he didn't believe he did,but left open that it was a possiblity--

[Cycloptichorn]

Thanks Rick for the link.

I note that the notes don't actually counter anything Wilson said, or attack him at all; they merely distance the OVP from the trip and the conclusions.

I'm looking for the first pushback against Wilson which actually claimed that Wilson was incorrect or working from a partisan cause. I'm scanning the Condi appearance on MTP to see what she said.

[JM Hanes]

"It is something of a stretch to claim that you've forgotten important details which you've discussed with several people."

It's less of a stretch when you add in the stacks of daily briefing materials on every conceivable topic to read/absorb/act upon, in between non-stop meetings with politicos/officials/staff -- from the moment you walk in the door till the hour you depart. Fitz has been trying really hard to introduce the Wilson tidbits into a vacuum -- just as you did here -- but that just doesn't accurately reflect the reality of White House operations at the highest levels.

[Cycloptichorn]

Hi Clarice, thanks for responding. I find it to be quite helpful to my understanding of the case to engage in discussion such as this.

'If his motive to lie was to avoid prosecution for leaking Plame's identity and employment, why did he say he did?'

There are several possible answers to this question -

1, Libby prepared an incomplete defense for his actions (which he suspected were going to get him in trouble).

2, Libby was attempting to show that he was only passing on info that he heard from reporters; IIRC, the K and C conversations were supposedly after he heard about it from Russert. This gives him the level of deniability he needs in order to show that he didn't intentionally out Plame.

3, Libby was covering for others in the WH.

Any of these could be true or untrue - I'm not claiming any particular one is true - but there do exist scenarios which plausibly explain Libby's actions. The problem for the defense is that every one of these scenarios revolves around Libby lying; the 'memory' defense doesn't seem to explain some of these discrepancies.

My question to all of you: will Libby take the stand, or not? To me, he could seal his memory case by doing so, if his testimony is credible.

[JM Hanes]

TO CAROL HERMAN:

Props to you for being a good sport!

[maryrose]

Fitz is puuting all his eggs in the Russert basket. It's like betting in Las Vegas -just one turn of the wheel or one roll of the dice. Risky stategy but in the end-not enough to provide substance to this case.

[boris]

"It is something of a stretch to claim that you've forgotten important details which you've discussed with several people."

Before July 7 what evidence has been presented that Libby discussed the envoy's wife with anybody?

[maryrose]

Fitz is putting all his eggs in the Russert basket. It's like betting in Las Vegas -just one turn of the wheel or one roll of the dice. Risky stategy but in the end-not enough to provide substance to this case.

[Cycloptichorn]

Boris -

'Before July 7 what evidence has been presented that Libby discussed the envoy's wife with anybody?'

From the GJ testimony -

'L: He (cheney) was interested in how this person came to be selected for this mission. At some point after he learned that his wife worked (at CPD)

F: Cheney had told you this in June.

L: Yes.

F: So when you say "after we learned…" didn't you already know?

L: By this week I no longer remembered that.'

So, Libby himself provided evidence that he discussed this with Cheney prior to July 7th. His defense is that he forgot that discussion and forgot every other time it came up inbetween.

Remember that it wasn't just a topic they covered in passing amongst many others - from the same line of questioning:

'F: Was this discussed on a daily basis in WH over the next week?

L: Yes.

F: Multiple times each day?

L: Yes.'

The memory defense doesn't like things like this, I guarantee.

Cheers

[boris]

Given that defense has emphasized how important notes and landmark events have been in reconstructing the witnesses "memories", it seems very likely that any factually inaccurate testimony of Libby's can be attributed to faulty reconstruction of his "memories" as a result of memory lapse occurring after July 2003 and before his FBI interview.

IOW in September 2003 he misremembers a critical landmark event and misconstructs a full blown coherent recollection from that mistake.

Software debuggers on this site can attest that compilers generate tons of false assertions based on a single fubar. Memory reconstruction is somewhat analogous to lexical analysis in a language compiler.

[Cycloptichorn]

That is the Defense's case, yes.

[boris]

Cheney had told you this in June.

And he wrote it down.

That's not a discussion sport.

[Pofarmer]

Except, Cycho, Libby admitted in his testimony he'd heard it before.

And the

"Was this discussed?"

Was what discussed? The trip, the ambassador, the wife, the Op-ed? What?

Nobody has testified that Libby made the wife out to be a big deal. Nobody.

[Patrick R. Sullivan]

'I guess this is obvious to you only, because it certainly wasn't obvious to anyone else. Remember that at the time noone really knew whether or not Plame would be considered Covert under the IIPA'

Baloney. Libby had been given a copy of IIPA, and also knew that the CIA press guy (Harlow) had confirmed to Novak that she was CIA. That fact alone puts the IIPA out of bounds, because the act requires the CIA be actively trying to keep her affiliation a secret.

[Cecil Turner]

I guess this is obvious to you only, because it certainly wasn't obvious to anyone else.

It was obvious to Fitz:

In order to establish a violation of Tide 50, United States Code, Section 421, it would be necessary to establish that Lobby knew or believed that Plame was a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years. To date, we have no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work.

But that's it;

Yep. Looks like you got your answer . . .

It is something of a stretch to claim that you've forgotten important details which you've discussed with several people.

Did he? Several? Was it face-to-face? If it was important to Libby, why not the guys he was discussing it with? And why did he make only one entry in his notes?

I'm looking for the first pushback against Wilson which actually claimed that Wilson was incorrect or working from a partisan cause.

Try George Tenet's statement on July 11th.

[Tom Maguire]

My question to all of you: will Libby take the stand, or not? To me, he could seal his memory case by doing so, if his testimony is credible.

I am not sure just how Libby should deport himself. If he appears on the stand to be a guy with a steel trap mind, he undermines his own memory defense.

But if he goes for the Judy Miller-Admiral Stockdale Immemorial "Who am I? Why am I here?" presentation, he may look like a shifty, evasive liar.

Very tricky.

Plus, Fitzgerald will no doubt ask him to hazard a guess as to how his chat with Fleischer unfolded as well as a bunch of other awkward stuff.

[Carol Herman]

FROM CAROL HERMAN

There's live blogging of the court now in session, at Maine Blogger. And, I think I see that Fitz is depending on this "badgering process" to break down the will of the jurors, so they grab the GJ's rubber stamp.

On the other hand, while I've been seeing NIE, bandied about; on tape, I can hear Libby explaining that the NIE was one of two "pieces of paper" that were prepared for the President's SOTU address. To support "the 16 words."

For this reason, the jury will understand what Libby went through with all these "interviews." In other words? He was being badgered. And, Patrick Fitzgerald is no John Houseman.

The Maine Blogger is a wonderful site. I'm glad I bookmarked it. As the world turns, and the trial continues.

Not sure. But I think the judge ruled that Sanger from the NYTimes is coming in. Next? (The typo says "Wells says Sanger sits.")

And, other than the fact that both the NYTimes and Fitzgerald have been fighting against letting Sanger take the stand; I'll presume, "coming in" is for Well's witness. To corroberate (sp?) ... the NIE report info was disseminated (legally) to Judith Miller.

Oh yeah. Kudo's for demonstrating the Carlin rule for baseball sportscasters.

[Cycloptichorn]

Cecil,

'Did he? Several? Was it face-to-face?'

Yes, Several people have testified that he did, face-to-face is immaterial.

'If it was important to Libby, why not the guys he was discussing it with? And why did he make only one entry in his notes?'

Libby was central (or at least involved) with the deliberation in the WH about what to do about this issue. Therefore it really isn't a stretch to imagine he spent more time discussing and thinking about it than the ancillary players in the story.

'Try George Tenet's statement on July 11th. '

I did; I didn't see any mention of Wilson being incorrect or partisan in that statement, only Tenet taking heat for the SOTU address.

[cboldt]

-- Why not just say repeatedly, I never knew she was classified, I may have discussed her casually with anyone and everyone, it just wasn't an important detail and I don't recall? --

A rhetorical question, I hope. The answer lies in the intersection of "legal concerns" and "political concerns."

[Pofarmer]

So, why is the administration attempting to correct the record a "Push back"?

Why doesn't the MSM ever report Wilson was working for the Kerry campaign?

Why wasn't it ever reported that Wilson had a 100% opposite finding just a year or two before, on the same topic?

Why, if Cooper could Google Wilson and get Plame, why couldn't the other reporters who he had been leaking stories to for some time before the op-ed came out. Woulnd't these "reporters" be interested in who they were dealing with?

Indeed, did "everybody know"?

It would seem at least a few certainly did.

And that's where Cycho's conspiracy blows up.

The bias is all there in the phrasing, or lack thereof.

[roanoke]

I'd vote to kepe Fitz off the stand if at all possible.

Essentially though-Fitz has Libby testifying against himself-with the eight hours of GJ testimony.

It could turn into a virtual he said/he said for Libby against Russert.

Russert. Who's paycheck is based on his established credibility with the public.

The jury could look for scraps from Fitz to support Russert.

Russert is the guy they've been programmed to love.

Russert vs. Libby-

Cripes you have to keep Libby off the stand...I think.

[hit and run]

Tom:
I am not sure just how Libby should deport himself. If he appears on the stand to be a guy with a steel trap mind, he undermines his own memory defense.

But if he goes for the Judy Miller-Admiral Stockdale Immemorial "Who am I? Why am I here?" presentation, he may look like a shifty, evasive liar.

And if Libby starts to wax on connected Aspen roots?

[boris]

Several people have testified that he did

Not. Several people have testified that THEY MIGHT HAVE MENTIONED IT. Only 1 remembers actually saying something TO Libby, and she changed the month it happened in based on the date of a TV show.

Your use of the word "discussed" is false.

[Pofarmer]

Cycho

You assume Plame was central to the story. Nothing corroborates that, nothing. And, repeatedly saying it won't make it so. What are you gonna do after Wells parade of witnesses, including Libby's CIA briefer, blows that out of the water?

[Cecil Turner]

Several people have testified that he did, face-to-face is immaterial.

You cited three (one of which Libby acknowledges, the other two don't know where or when . . . . or even if?) . . . that ain't "several" and face-to-face is material.

Therefore it really isn't a stretch to imagine he spent more time discussing and thinking about it than the ancillary players in the story.

Yeah, like why would the CIA guy worry about cover? Or Grossman about his buddy's wife (sent by his agency and leaked by his boss)? Persuasive.

Plus, Fitzgerald will no doubt ask him to hazard a guess as to how his chat with Fleischer unfolded as well as a bunch of other awkward stuff.

I'm not sure that bit is particularly awkward. Remember, this is two hours after Fleischer made an absolutely untenable (and clearly unplanned) over-rowback on the African uranium issue that led to having to disclaim the President's perfectly valid "16 words" statement. I suspect the discussion at lunch touched on that topic . . . and Fleischer would like to pretend it didn't.

[cboldt]

-- I am not sure just how Libby should deport himself. --

If one adopts the prevailing view expressed by participants on your blog -- that Fitz has already blown the case -- the answer is a slam dunk. "Don't take the stand in your own defense."

The more doubt the jury has, the better.

[boris]

The answer lies in the intersection of "legal concerns" and "political concerns."

No it doesn't. Unless you are willing to claim that legal concerns would encourage one to Lie Smart and political concerns encourage one to Lie Stoopid. That's just a cop out to avoid considering your POV logically.

[Pofarmer]

Cripes you have to keep Libby off the stand...I think

Depends on what happens with Russert.

I agree with another poster on a different thread. Russert has been looking hagard, and not all that good, lately.

[Cycloptichorn]

Pofarmer, I assume that you were addressing me, though you appear to have misspelled my name by accident.

'You assume Plame was central to the story. Nothing corroborates that, nothing.'

Hmm, I believe that Plame was the way the admin decided to push back against Wilson. It certainly was latched onto by the usual partisans on the Right as evidence that Wilson was a lying scumbag quickly enough.

'And, repeatedly saying it won't make it so. What are you gonna do after Wells parade of witnesses, including Libby's CIA briefer, blows that out of the water?'

Personally, I'm not going to do anything; I'm not the one trying this case. Probably I will make some nachos or perhaps some 7-layer dip and enjoy a nice soda.

[Carol Herman]

TO: TOM McGUIRE
FM: CAROL HERMAN

Up at Maine Blogger, from his review of the tape testimony so far, the luncheon with Ari was memorable because:

It was a "going away" goodbye.
He wanted to know what Ari's plans were.
And, he remembered talking about the Dolphins, or some sort of fish that plays either baseball or football. In Miami.

I think the tapes show that Libby is really good! He was an asset to the VP. And, it's a shame that someone so smart was taken off the staff at the White House, over this nonsense.

And, to those who are real DC insiders? Wolfowitz is as now at the World Bank! While Libby sits in the dock. What a topsy turvy world this is.

By the way. I have no idea about Libby's "voice." I do remember reading that Lincoln had a high-pitched voice, that would keep him out of politics in today's world.

But he's also SITTING IN THE COURTROOM. Where the jury can listen, and look around at the same time. Who says "all settings are the same?" And, the jurors feel like the way the grand jurors felt? The whole "eyeball thing" for those in the courtroom might be a significant difference?

And, if not? Bush can always wield his pen.

[Cecil Turner]

I didn't see any mention of Wilson being incorrect or partisan . . .

The "partisan" pushback meme is made up after the fact by the conspiracy theorists (supposedly providing the motive for outing Plame . . . that makes no sense). The "incorrect" bits were the same as the talking points:

• "CIA’s counter-proliferation experts, on their own initiative, asked an individual with ties to the region to make a visit
• There was no mention in the report of forged documents -- or any suggestion of the existence of documents at all.
• it was given a normal and wide distribution, but we did not brief it to the President, Vice-President or other senior Administration officials.

[Cycloptichorn]

Um, yeah, I read it, Cecil; I disagree that this is any sort of pushback at all against Wilson, because it doesn't claim that any of the material is untrue. In fact, Tenet's letter still apologizes for the SOTU address; it doesn't excoriate Wilson in any way.

[roanoke]

Pofarmer-

I have to admit the looming Russert testimony has me wetting my pants.

How do you go up against Russert and get treated fairly anywhere in the US of A?

I can't wait for Russert's testimony to be over.

[Patrick R. Sullivan]

'I believe that Plame was the way the admin decided to push back against Wilson.'

Based on zero EVIDENCE. It's faith based. Unfortunately, there are probably several people on the jury with exactly your grasp of logic. The best Libby can hope for is probably a hung jury.

[Cycloptichorn]

'The best Libby can hope for is probably a hung jury.'

When things are looking as bad for you as they are for Libby, you're probably right.

[clarice]

Cyclo--I believe that snippet of gj testimony you cited above is misleading as you used it. It related to the post July 6 period--after Wilson identified himself in the NYT op ed.

Someone pointed out how little the WH knew about all this ..certainly compared to almost everyone else in the cocktail(media DoS circuit). Exactly so. They lacked the Clinton instinct to put all their time into oppo research and media manipulation.

Again, I remid you much of what we knew about Starr was a pack of lies generated by people like Sid Blumenthal who famously stood on the courthouse steps and lied his ass off about his interrogation knowing full well that Starr could not respond. The gj made special notice of that outrage in its final report.

And then there was Hillary who spun what she said knowing that the truth would catch up only after the gj was released--and that truth was the prosecutor said that he'd have indicted her for perjury but feared it was impossible to convict the First Lady in D.C.

[Cecil Turner]

I disagree that this is any sort of pushback at all against Wilson, because it doesn't claim that any of the material is untrue.

Yeah, except for Wilson not being sent by the VP, his report not mentioning the documents and his supposed "debunking" of them, and never having been briefed to the VP, it doesn't contradict Wilson's story at all. And the fact that you can read that as not critical of Wilson (and deny the focus of effort from OVP to get it issued in the first place that came out clearly in witness testimony) is indicative of the perfectly objective approach I've come to expect from those on the left discussing the case.

[Jane]

You assume Plame was central to the story. Nothing corroborates that, nothing.

I agree, and it's fun to imagine how badly this is sitting with Joe. It seems pretty clear from the administration officials who have testified that the push back was clearly aimed at the lies in Wilson's story.

Now Val may have been central to Matt Cooper, (and if I was in a nasty mood I could ponder why) but she wasn't central to anyone else.

[Barney Frank]

cboldt,

If one adopts the prevailing view expressed by participants on your blog -- that Fitz has already blown the case....

What is your estimation of the prosecution's presentation so far, with the recognition we are only seeing portions of it, and that through filters?

As one who has always leaned toward the view that Libby very possibly lied, but the circumstances were too ambiguous for a prosecution, I am not convinced Fitz's case has been blown. I don't think Libby should be convicted based on the evidence I've seen but I don't think it is a remote possibility he will be. People get convicted by spotty memories all the time.
Virtually every trial is a contest between attorneys and witnesses over imperfect recollections to some extent. My own view is Fitz's witnesses have done worse than he wished them too, but that doesn't solve Libby's problems.

[boris]

Cecil, you don't understand. Setting the record straight is not "push back" against Wilson. Just exposing his false accusations does nothing to punish Joe and make him pay and pay and pay.

That has to be something particularly nasty and vindictive GIVEN how nasty and vindictive everybody knows Cheney really is. So what's out there that would qualify ???

Smash The Wife !!! PERFECT !!!!

[Jane]

I think Russert is gonna hedge. I think he will hedge to protect Mitchell, and I think he will hedge because he has no notes. It's not credible that he would have a clear-cut note-free memory of that conversation at this point.

[boris]

If one adopts the prevailing view expressed by participants on your blog

For all cboldt's sensitivity to how others interpret his posts here, IMO cboldt does not do very well in interpreting the posts of others if that's his take.

[Ranger]

Virtually every trial is a contest between attorneys and witnesses over imperfect recollections to some extent. My own view is Fitz's witnesses have done worse than he wished them too, but that doesn't solve Libby's problems.

Posted by: Barney Frank | February 06, 2007 at 10:45 AM

This is true, but the biggest problem I see for Fitz is that he never prepared the jury for how much impeachment material there was. Either he never even reviewed her orignial notes of the interviews, or he didn't realize how bad they would make the final reports the FBI wrote look. One of the first rules of presenting evidence is be the one that gets the bad news to the deciders first, with your take on it. Wells did that by being the one to put the Kristoff articles in front of the jury and have a prosecution witness completely demolish them for him. Fitz has done a lousy job as far as getting his side of the case before the jury.

[hit and run]

Jane:
I agree, and it's fun to imagine how badly this is sitting with Joe. It seems pretty clear from the administration officials who have testified that the push back was clearly aimed at the lies in Wilson's story.

No, Joe's now saying:

"They weren't after my wife afterall. They were after ME! ME! It was always about ME!"

...

"Now. Where's my mirror?"

[clarice]

I think so, too, Jane. Especially with Gregory and Mitchell on the line and with the connection between Matthews and Adam Levine.

[Ranger]

*Either he never even reviewed her orignial notes*

Reference to agent Bond.

[cboldt]

-- What is your estimation of the prosecution's presentation so far --

Mediocre.

[clarice]

Also, and I say this on the basis of how thinly done the investigation was done, it is not unthinkable that he was asked only very specific things about the initial conversation and not the follow up after he clearly must have spoken to Mitchell.

Thus he might have been more circumspect if the questioning was only about the first call and/or it was limited to did you tell Libby that Valerie Plame was Wilson's wife and he worked at the CIA.
In fact he might have mentioned the thing that triggered Libby's recognition of a connection by saying something more like, don't you remember his wife--doesn't she work on counter proliferation stuff--or do you think his trip had anything to do with his wife's work? In fact, for ages, we've been picking at the robo-language he uses to describe what he didn't say, haven't we?

[Carol Herman]

FM: CAROL HERMAN
RE: RUSSERT'S TESTIMONY

I think the witness box is a wee-bit different from being a host on something like Meet The Depressed.

On MTP, Russert "owns the microphone." He's got staff that preps the room. And, preps the guests in the "green to blue room?," too.

Here, he can't call out "CUT TO COMMERCIAL," either.

And, if he sweats? The jurors will notice.

Besides, how did he get his name "PUMKIN-HEAD?"

Do the jurors get to make visual assumptions based on what they've heard? Nick-names just aren't the province of our President, anymore.

And, besides. When you're a member of the "in group" you could be like Bertie Wooster.

[roanoke]

Jane-

Well Russert has been hedging in all of his comments thus far.

He has to be aware of how this whole case has been set up to pivot on his recollections of a conversation three years ago.

I can see Fitz's close now-he plays Libby's grand jury testimony of the Russert phone call-which is surprisingly detailed and then whatever he gets out of Russert on the stand.

Fitz doesn't seem to have much more for his close.

[Barney Frank]

Ranger said,
Fitz has done a lousy job as far as getting his side of the case before the jury.

and cboldt said,
Mediocre. in answer to my question of how he thought the prosecution went.

I think both comments are accurate and reflect the material he has to work with not any particular lack of competence on his part, unless you consider the original decision to charge.
When you choose to prosecute with what seems to be mediocre evidence and witnesses how do you not present a mediocre case?
Hard to see what he could have done differently, unless his witness prep is to blame, which is seldom the case. You can't coach a dope not to be a dope.

[roanoke]

Carol

I think the witness box is a wee-bit different from being a host on something like Meet The Depressed.

On MTP, Russert "owns the microphone." He's got staff that preps the room. And, preps the guests in the "green to blue room?," too.

Here, he can't call out "CUT TO COMMERCIAL," either.

And, if he sweats? The jurors will notice.

Good point....didn't think of it like that.

[Molon Labe]

Libby has testified to the GJ of contemporaneously telling Rove that Russert brought up the wife in the call.

What does Rove say about that? Has Rove substantiated it? Do we know?

In the he-said/he-said battle between Libby and Russert, wouldn't testimony from Rove that Libby had mentioned the wifely content of the Russrt call destroy Russert?

[Carol Herman]

FM: CAROL HERMAN

You know, how love is in the eyes of the beholder?

Perhaps, this should be extended to cover opinions. Because Maine Blogger, (who says he swamped with stuff coming out on the tapes), reaches for this quote, from Karl Rove, where Libby is being asked "if this isn't proof that the interest to hurt Wilson ran high!"

Well, here's the quoted Fitz question from Maine Blogger: "From Libby’s handwritten notes, Karl Rove is quoted as saying “So now they are accepting Wilson as a credible expert?”

Okay. I made up my mind. (Wilson was NOT a credible source to counter the 16 words in the president's SOTU speech.) And, that's with hindsight, too.

[Cycloptichorn]

'He has to be aware of how this whole case has been set up to pivot on his recollections of a conversation three years ago.'

I'm pretty sure the case pivots on whether or not the jury believes that Libby actually forgot things he'd discussed several times a few weeks before, or whether or not he was lying to protect himself or others.

[Jane]

Like every lawyer, Fitz will cherry pick his close - "everyone was talking about Wilson's wife - remember when Grossman said this, and Miller said that blah blah blah; Isn't it odd that Libby had his first and only lunch with Ari on the day the VP ordered pushback on Wilson, blah blah blah, and at somepoint the jury will be persuaded by what they want to believe.

To me that's the biggest risk. Cause it never matters what is true in a trial - the only thing that matters is what the jury wants to believe.

And if you don't believe that, contrast the comments at FDL with the comments here. I want to believe that Libby is innocent, so I hear things one way, the moonbats want him to fry so they hear it another way.

And for me, when trying a case that was the hardest thing to overcome - separating your own bias from what resonates with the jury. I was never great at hearing that, to my regret.

[Molon Labe]

oh man, my insightful post immediately occluded by a hermarrhoid.

[Other Tom]

Cyclo, to answer your question, until quite recently I felt that it would be better for Libby if he took the stand; now I am not so sure. Reports seem to suggest that, on balance, his grand jury testimony paints him in a generally favorable light. I think no one can sensibly make a judgment on this point who has not been present in the courtroom throughout the trial. Some of the reasons for keeping a defendant off the stand--e.g., impeachment with prior felony convictions--aren't present here. You can bet that Wells has gone through a dummy cross with him over and over, asking all of the most difficult questions, and only Wells knows how he did. We don't know.

Same with the larger picture. I've said it before and I'll say it again: it is extremely difficult to tell how a jury is going to come in, even if you've just tried the case. Very seasoned professionals get it wrong all the time. So I'll resist all urges and just say that I haven't a clue, and won't predict.

At least not yet...

[Carol Herman]

As the taped testimony continues, and you can see Maine Blogger grabbing at things that stand out; the questioning of Libby turns to notes from Mary Matalin. Here, she says to Libby, he sould call Tim Sanger at the NYTimes, "to get the President's messages out."

Don't think Fitz had a clue that the judge would rule Tim Sanger gets to testify.

[roanoke]

Molon Labe-

That would indeed..great catch!

Rove said that at the time Libby told Rove that Russert brought up the wife at the CIA, during the phone call?

Uh wow-I misremembered that as if hearing it for the first time.

Where is that?

Who has immunity Ari-and is the other Armitage or was that just an educated guess?

[clarice]

Now, Carol that is a very good point. Thank you.
We have Libby testifying that Sanger is one of the people he was tasked to "get out the point was" and it appears Sanger will confirm that "getting out the point" did not include anything about Wilson's wife.

[Cecil Turner]

. . . the case pivots on whether or not the jury believes that Libby actually forgot things he'd discussed several times a few weeks before . . .

Again we get the formulation of whether or not Libby remembered this on pick-your-date (between July 7-12). That's not valid. The question is whether he remembered it as having remembered it when he discussed it three months later. And that's an entirely different question.

[Carol Herman]

FM: CAROL HERMAN

Gee, I'm not focussed on how Fitz will close. That's like a kid asking "are we there, yet?"

What if Walton pulls the plug, instead?

But if any of you are thinking of Fitz's close, why not think how he "dabbled at it in his presser?" He can come in wearing a baseball referee's uniform.

[Molon Labe]

Roanoke:

Rove said that at the time Libby told Rove that Russert brought up the wife at the CIA, during the phone call?

Help me out here. Can't parse that. Are you saying that Rove has previously verified the Libby statement that he mentioned content of Russert call to Rove?

[Jane]

From FDL: But wait — defense attorney Bill Jeffress says that Russert's attorney will be called as a witness!

Who is Russert's attorney?

[Cycloptichorn]

'The question is whether he remembered it as having remembered it when he discussed it three months later.'

If Libby's defense relies on the jury being able to parse statements such as this, I wouldn't bet on his exoneration.

[roanoke]

Molon Labe-

On reread you are saying that Libby said he told Rove about the phone call and that is part of the GJ testimony.

I guess I was wondering if Rove would confirm that. I personally wouldn't go anywhere near that trial if I worked for The Adminstration without immunity.

Ari's choice to grab immunity is looking more and more like a talent for survival rather than something onerous.

[Robham]

Cyclo said
"Thanks Rick for the link.
I note that the notes don't actually counter anything Wilson said, or attack him at all; they merely distance the OVP from the trip and the conclusions."

Bush SOTU 16 words –
“The British Government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa .”
Joe Wilson from the NYT – 7/6/03
“Then, in January, President Bush, citing the British dossier, repeated the charges about Iraqi efforts to buy uranium from Africa.
The next day, I reminded a friend at the State Department of my trip and suggested that if the president had been referring to Niger, then his conclusion was not borne out by the facts as I understood them.”

Talking points Memo link provided by Rick Ballard – 7/11/03
“The only written record of Joe Wilson trip included that “the former Prime Minister of Niger said he had been approached by and met with a delegation of Iraqi officials in what he believed to be an effort to acquire more Uranium in 1999.”

It looks clear to me that the OVP intended to use the truth counter Joe Wilson with nothing less then the only written report of Wilson trip to Niger.