Plame Open Thread

One day more.

Comments

[Ralph L.]

What is 1x2x6? I seem to have missed that.

[PaulL]

We all know that the great majority of press accounts of the trial have been extraordinarily biased. And we have Russert on Imus's show the day after, with Russert and Imus both congratulating Russert on the fine job he did.

My sort of philosophical question is, how much does it matter that the truth is unlikely to ever be spoken in the mainstream media? We might get a not-guilty verdict, but then the spin will be that Libby managed that only because he had an expensive lawyer.

I'm feeling frustrated by the incredible major media lock-out of the truth in this case. Will it always be that just a few percent of the public know what really happened?

[centralcal]

Some people are just not good liars (good=convincing). If Andrea Mitchell is allowed to testify for the defense and if she tries to play the Russert game of "I can't remember," I don't think she will be convincing.

Two instances that demonstrate this are: her back and forth with Imus on his show, where she stammered and stuttered and acted giddy, even allowing she must have been drunk; her granite face and glaring eyes when Bill O'Reilly pressed her about NBC's blatantly liberal slant and her rediculous assertion that she didn't think Chris Matthews was a liberal.

Unlike some, I believe that Andrea is just as capable of lying as Russert. I just don't think she has it in her to make it even minimally believable. I am sure that is at least one reason why they are trying so hard to keep her off the stand. Not that she won't follow the script, but that her acting will stink.

[sbw]

Ralph, 1x2x6=David Corn's column on July 16, 2003 -- the first to break the news of Plame's outing:

A senior administration official said two top White House officials called at least six Washington journalists and revealed the identity and occupation of Wilson's wife...."Clearly, it was meant purely and simply for revenge," the senior official said of the alleged leak.

[capitano]

Will it always be that just a few percent of the public know what really happened?

Yes, until the news-consuming public assumes the responsibility for learning the truth.

Most of the public now expects the Media to feed them the truth and unfortunately the Media standard has devolved to the "truth is whatever most people believe it to be." Therefore objective truth will remain elusive for all but the steadfast -- those who seek truth for its own sake.

[lurker]

Yes, until the news-consuming public assumes the responsibility for learning the truth

...learning and reporting the truth.

[lurker]

Any predictions of bombshells coming from the defense team?

[Ralph L.]

I suspect Libby will write a book to recoup his legal expenses. Perhaps that will help straighten the record, but the MSM will ignore him unless he dishes serious dirt (on Republicans), which seems unlikely.

Didn't the old Independent Counsel statute reimburse legal expenses in some cases?

Thank you, sbw. And we assume the "Senior Administration Official" quoted is Wilson. And of course, no one would have noticed Novak's wife reference if Wilson hadn't had a cow. He's a narcissist of Clintonian proportions.

[TommyO]

Somehow, in reading the 700+ comments yesterday, I did not find or missed a prediction that the FBIECK would be called by the defense.

Called or not called, can some scholar explain why.

Thanks

[Old Dad]

Centralcal,

I saw Mitchell's original claim that everyone knew, and heard her try to explain it away on Imus. The former was utterly believable, the latter a joke.

I have a theory about the former. My sense is that the network newsies are egomaniacs. There probably had been lots of gossip about "Wilson's wife" among the newsies. Who knows to what degree of specificity anything had been nailed down.

It's possible, as Mitchell said, that everyone knew. It's also possible that at that stage, everyone was speculating, and that Mitchell was merely grand standing--of course, every competent, in the know reporter knew, you fools.

What seems impossible to me is that Mitchell and Russert had not been party to the gossip before the Novak column. It also seems unlikely that they hadn't gone fishing trying to pin down the details with folks like, oh I don't know, Scooter Libby.

[Best]

The body wasn't normal. Her face had been eaten..............

[clarice]

From the prior thread where there is some suggestion that Eckenrode was Murray Waas' source on what was going on in the gj and investigation:

1. If E was leaking secret gj and investigative matters to Waas and maybe others, he establishes that he is a partisan with a purpose:Get the administration.
2. The summary shows that Russert's denial was not emphatic but hedged--he may have mentioned Wilson's wife to Libby it says.
3. The notes would provide more evidence of that but along with E they are missing.
4. Whatever Russert said to Libby is at the heart of Fitz' stupid case. Evidence in his[Eckenrode's] possession contrary to his claim would kill this tottering edifice.
5. If E was so partisan, and he took the notes, and they are missing, what is the jury to think?
6. And BTW the gj proceedings are secret and it is a crime for those involved to leak what goes on there whereas no one can show that anything Libby said was illegal to transmit.

Ta DAH

[PaulL]

Why were Eckenrode's summaries allowed in court without him present? Couldn't Wells have said that Bond testifying about them wasn't good enough?

[Other Tom]

Clarice, I think it is civil contempt, but not a crime, to leak grand jury material.

[omeenme]

?I thought that meant lumber for a mobile home?

Bush, known as “Bucky,” becomes the second member of the president’s family to become enmeshed in the stock options scandal this month.
(AP)

[Molon Labe]

The defense cannot put Eckenrode on the stand because he now has all the information he needs to construct a lie that supports Russert's testimony.

There's nothing the defense coud do about it without the notes.

It would be nice if the notes are missing because they were inadvertently given to the defense.

[Walter]

Will it always be that just a few percent of the public know what really happened?

Speaking only for myself, I would be thrilled (& surprised) if I know what really happened when this trial concludes.

I've been toying with the idea that Wells will say something like this at some point in his closing:

"Mr. Libby talked to Mr. Russert. Both of them agree that they did.

They differ in their memories of what happened in their conversations. Mr. Fitzgerald has shown that it is possible for Mr. Russert's version to be correct. We, with Mr. Fleischer's help, have shown that it is possible for Mr. Libby's version to be correct. Virtually every witness has had difficulty describing their recollections to you. Some have even disagreed with their own notes, written during their conversations.

I am not going to stand here today and tell you that either version is absolutely true in every detail. But, unless you say with certainty that it is completely unreasonable for either of them to to remember the conversation the way they have described it, you cannot convict Mr. Libby.

[clarice]

OT--so let's assume it is civil contempt--Does that change the impact much: On the one hand *if* E was the leaker which is a punishable offense, and his exculpatory notes are missing in a case which ostensibly began about an illegal leak which turns out not to have been one(a) is this not the very sort of thing that will turn the jury against the prosecution?(b) does it not raise the odds on the possibility that these notes were not missing by accident?(c) would it not be an irony of the highest magnitude?

[sid]

From the Previous Thread...

Clarice,

I thought MJW's question had to do with the trial rather than the GJ. Doesn't Fitz have to introduce evidence to substantiate the elements of the alleged crime? Doesent he somehow have to show that he was actually investigating a real crime as defined by the statutes? Mustn’t he also show, at trial, how Libby’s statements, if actually false, were material to that investigation?

He does, and I think he's hoping the jury will be confused by the crime he couldn't prove (IIPA) which is why he got in the news articles etc.
clarice | February 11, 2007 at 07:33 AM

He didn’t do anything like that during the prosecution portion of the trial. Does he get an opportunity to present evidence on this later?

[clarice]

He will have to extract from the trial testimony those things from which he wishes the jury to draw those conclusions and argue them at closing. All he can put on after Wells' case is rebuttal evidence.

[Jane]

I'm feeling frustrated by the incredible major media lock-out of the truth in this case.

IMO that's the war going on in this country. The media, encouraged by the left has relinguished any committment to honesty in exchange for pushing their own agenda. And that's not just true in the Libby case, it's pretty much true with all major issues - the war, global warming, you name it.

I've always believed that democracy requires a free press; At this point I think it is more important to have an honest press, and we simply do not have one. And like politicians, they will go to amazing lengths to preserve the status quo. And the status quo right now is really really really bad.

[Jane]

Did anyone watch Reliable Sources? Any mention of the Libby Trial?

[windansea]

I hadn't seen this version of Andrea's denial:

“So clearly back in October of ’03, I screwed it up. . . . I was quite surprised to hear about [making the October 2003 statement] because it isn’t consistent with anything in my memory. I can’t find any notes that reflect this, this alleged knowledge, and so I was muddled on the timeline, that is all I can imagine.”.

LOL...how can you be muddled on the timeline before you know something?

[Walter]

Why were Eckenrode's summaries allowed in court without him present? Couldn't Wells have said that Bond testifying about them wasn't good enough?

Bond adopted Eckenrode's summaries of the Libby interviews as her own. Thus she could be (and was) questioned on the differences between her recollections, her notes, and what actually happened and that summary.

And you didn't ask, but someone might be confused--without that summary and associated testimony, Fitzgerald would not be able to prosecute Libby on the "false statements" counts regarding Cooper and Russert. As you surmised, without someone attesting to the accuracy of those summaries, they are inadmissible hearsay as to Libby.

Unless he adopts them as his own. But, as Grenier and Russert didn't subscribe to the accuracy of the FBI reports of their interviews, it would be unlikely for Libby to do so.

For the record, it's not unusual for defendants to stipulate to police reports, etc. I once had a case where the police officer was absent (he had showed for the trial but had to leave before testifying to respond to a bomb threat in another building) and I offered to stipulate to the contents of the police report. The prosecuter refused any stipulation to his testimony that did not include a confession by my client (which, of course, did not appear in the report). The case was held over for a week. When the officer testified, he said what was in the report--no less, no more. Peeved me to no end, that did.

[Pofarmer]

Doesent he somehow have to show that he was actually investigating a real crime as defined by the statutes?

Good luck with that one. You'll notice that Fitz has never given enough information to determine if there was a real crime to begin with.

[clarice]

So, Andrea's testimony like fine wine improved with age, did it? A familiar pattern in this case and one not in accord with reality.In the absence of notes to refresh recollection, most people tend to remember things better closer in time to the actual events.

[Patton]

Begs the question, was Eckenrodes little talk with Russert, where he revealed Libby's testimony AUTHORIZED by anyone??

[Walter]

I was quite surprised to hear about [making the October 2003 statement] because it isn’t consistent with anything in my memory.

Heck, it may be worthwhile to call Mitchell merely to get this statement on the record. That would give us three people testifying "it couldn't have happened that way because I remember being surprised when I heard about it."

Not the same as a memory expert, but data is the plural of anecdote.

[azaghal]

Addendum to my speculation from last night.

Last night I speculated that, since the referral was handled by the espionage section at DOJ, part of their initial concern would be to get the FBI fully on board with this investigation--committed, willing to devote resources like a hard charging chief investigator. Given the nature of the case--intelligence violation alleged--their logical contacts at the FBI (outside of Mueller) would be the counterintelligence and espionage people. That seems pretty unarguable.

I further presented a rationale by which DoJ, CIA and DoS (possibly) could convince the FBI that this was a major case worthy of significant investigative attention. Is their precedent for the type of obsessive, wrongheaded pursuit of Rove/Libby that resulted? It seems there may be. The Hanssen spy case came down in 2001. That's pretty close in time to Plamegate. Part of that Hanssen case was the obsessive and wrongheaded pursuit of CIA employee Brian Kelly over a period of years. Were the same FBI people who bungled that case still in positions of authority at the FBI when the Plame referral came along? It would be interesting to know the answer to that question. Might the CIA have argued: trust us on this one--after all, you owe us big time!

[Ralph L.]

Has anyone posted a glossary of all the Plame shorthand? Or is it a moving target?

I don't know which I find more appalling: the FBI's E-man first interviewing Russert over the phone, or Russert (or anyone with sense) actually telling him something without establishing bona fides. Is this normal procedure for either party? Let a thousand conspiracies (continue to) bloom.

[Patton]

QUESTION:

Was anyone else surprised by how weak Fitz's case was? With all the poor memory and mis-remembering, etc.
Testimony by Grebier, Smallz, Miller which was basically I don't remember anying but what Fitz needs me to.

I would rate his case was about 50% of what I had expected to see.

THOUGHTS??

[clarice]

azaghal says it had to have been and that he certainly made it on a speaker phone with others identified to Russert on the other end, that after the call, those people discussed the conversation as the notes were prepared to be sure they were accurate reflections of the conversation.

Again--and here's the main thing--how likely is it that notes which apparently are exculpatory to Libby on the main charge of the case missing by accident?

[Patton]

I think Fitz's only strong witness was Ari Fliescher, MR IMMUNITY. Funny how much better everyones memories got as they cut deals with Fitz....

[Walter]

Doesen't he somehow have to show that he was actually investigating a real crime as defined by the statutes?

I'm beginning to see that Fitzgerald was thinking ahead when he made the argument that the Justice Department oversaw his investigation through press reports.

That allows him to make the case that leaks of the investigators' focus (1x2x6) were not only legal (because necessary for proper oversight), they were binding as notice of the investigation's objectives on those being interviewed.

(tongue only somewhat in cheek)

[clarice]

azaghal as you know David Szady was the FBI guy who bungled the Hanssen and other major CI cases, to the best of my recollection he was head of CI at the FBI when this was begun. I researched that for another article. Let me grab it and see.

[azaghal]

Patton, I don't think E. revealed "testimony" (as in GJ testimony) but rather he revealed what Libby said during an interview. Big difference. Plus, GJ material can be used for investigative purposes. For example, subpoenaed documents are extensively used by investigator--not maintained by the GJ itself.

[Dan S]

While releasing GJ sealed info may only be a civil contempt violation (assuming that is right), doesn't motive enter the picture? If the intent was (and can be proven to be) to swing a court case against a defendant, that would appear to me to be a civil rights violation too. And if more than one were conspiring...

Just playing Fitz's game.

[Ralph L.]

Agazhal, you would think the first thing DoJ would look at is: Were laws broken? Does the Spy Outing Statute apply to Plame? Did CIA lie to them about her status to get the ball rolling?

If I were Libby, I would be so angry. So much for Truth, Justice, and the American Way.

[clarice]

Sunny Day has the latest filing by Fitz trying to gag Mitchell--It repeats much of the same stuff and I'm hoping SD will post a link to it and put it on her site. Much of it is repetitive of his initial filing but I think this is amusing:

"In his response, the defendant asserts that the issue of “whether Ms. Mitchell had heard a rumor that Ms. Wilson worked for the CIA prior to July 14, 2003 is directly relevant to Mr. Russert’ s credibility,” and that it is “unfair for the government to make the issue of when Mr. Russert learned of Ms. Wilson’s identity of critical importance in this case, and then hide behind a cramped view of evidentiary rules to bar the defense from introducing a contradictory statement by Ms. Mitchell.” Def. Resp. at 17-18 (emphasis added). Any suggestion that testimony regarding a rumor Ms. Mitchell may have heard (which stems only from an inference suggested by a purportedly prior inconsistent statement that has been repeatedly disavowed) is somehow directly relevant to Mr. Russert’s credibility is absurd. Since there is no good faith basis for believing Ms. Mitchell would testify that she knew or even had heard a rumor that Ms. Wilson worked for the CIA prior to Mr. Novak’s column, and no basis for believing she would have passed such a rumor on to Mr. Russert,4

4Mr. Russert in fact has already testified that his news organization tries “to stay away from rumors,” and that “[y]ou can get tips and things you want to pursue but rumors don’t make it on the air.” 2/7/07 p.m. Tr. at 37. Moreover, although defense counsel repeatedly stated “all I have to show is that they heard some kind of buzz or enough to ask a question” or “could have heard a rumor,” 2/8/07 p.m. Tr. at 76, 80, 81, that is not sufficient; if it were, the Government would have the right in rebuttal to call everyone at NBC News who Ms. Mitchell or Mr. Russert had contact with for all of them to say the same thing that Mr. Russert said in his testimony and that Ms. Mitchell would say in her testimony if asked, that they did not know the information and did not tell anyone else.

9

Case 1:05-cr-00394-RBW Document 276 Filed 02/10/2007 Page 10 of 12

and no basis for believing that even if Ms. Mitchell had heard such a rumor and had passed it on to Mr. Russert, and that Mr. Russert would have asked the defendant about it, which is the inference the defendant wants to make, this is pure unfounded speculation.5 The Court noted on Thursday, “[t]hat’s a whole lot of inference to draw,” 2/8/07 p.m. Tr. at 91, and asked the defendant to provide cases that show that that type of speculative analysis is appropriate to put before a jury. 2/8/07 p.m. Tr. at 92. Defendant’s response provided no case law on that issue.

Finally, prohibiting the defendant from eliciting from Ms. Mitchell a prior statement lacking any indicia of reliability does not come close to raising constitutional concerns. The Supreme Court has made crystal clear that “state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials.” E.g., United States v. Scheffer, 523 U.S. 303, 308 (1998). See also Montana v. Egelhoff 518 U.S. 37,42 (1996) (plurality opinion) (terming such rules “familiar and unquestionably constitutional”). “While the Constitution.. . prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.” Holmes v. South Carolina, 126 S.Ct. 1727 (2006)(holding that rule excluding reliable evidence of third-party guilt violated defendant’s rights). See also Washington v. Renico, 455 F.3d 722, 734 -736 (6th Cir. 2006)(enforcement of legitimate rules is no violation). Neither Chambers v. Mississippi, 410 U.S.

5Defendant seemingly ignored the fact that defendant testified in the grand jury that Mr. Russert told the defendant information about Ms. Wilson’s employment as a fact, not as a rumor, and added that “all the reporters know it” thereby negating any possible suggestion that this would have been an idle rumor being passed from Ms. Mitchell to Mr. Russert to the defendant.

10

Case 1:05-cr-00394-RBW Document 276 Filed 02/10/2007 Page 11 of 12

284 (1973)(holding that prohibiting the defendant from impeaching his own witness and from presenting trustworthy out-of-court statements that his witness had admitted to the murder with which he stood charged rendered defendant’s trial fundamentally unfair), nor any other precedent, requires this Court to depart from generally applicable evidentiary principles to allow a criminal defendant to present to the jury inadmissible hearsay that is untrustworthy and marginally relevant,"

[boris]

That would give us three people testifying "it couldn't have happened that way because I remember being surprised when I heard about it."

Hey that's my one note samba!

How reliable is "surprise" as a landmark event? If someone testifies "I'm very certain that's what really happened because IT CAME TO ME IN A DREAM", what credible claim have they in fact actually testified to?

[Elroy Jetson]

Andrea Mitchell is in this up to her eyes. It is obvious from the wealth of strange quotes attributed to her during the initial stages of this mess. She should be compelled to testify.
We can handle the truth, Mrs. Greenspan, we swear!!!

[Dan S]

Ralph L.

Based on unrelated experience with FBI, I was called and interviewed over the phone. But I was expecting a call and knew what the topic would be. I suppose it could have been someone other than FBI. And I could have been someone other than who I said. No real ID handshake took place.

I think it's likely Russert was told to expect the call. But I don't see how the FBI could proven his bona fides over the phone to a reporter (unless a prior ID protocol had been established) on an open home line. So Russert probably just took E's word that he was E. Likewise, E took Russert's. Not exactly solid chain of evidence if either wanted to play games (and it appears at least one did). All that can be established with "hard" evidence is that a call went from number A to number B.

Not exactly what I'd consider to be tight procedure.

[Jane]

Well Russert just thru in the comment that Mitchell, Woodward and Pincus were going to testify.

The rest of the conversation (suggesting the WH is using the press to carry out their politics) is frustrating.

[clarice]

David Szady --In Sept 2004 David Szady held a senior position in the FBI's CI unit.(per Maariv)
Aptil 2002 he is Assistant Director, Counterintelligence Division
Federal Bureau of Investigation http://www.fas.org/irp/congress/2002_hr/040902szady.html>Szady

[Dan S]

Clarice,

I'm suprised Wells didn't decide to impeach Russert on that bit about not airing rumors.

Introducing about 3 examples of just that wouldn't have taken more than 10 minutes.

Though, it would end up being a definition of "is" situation. In my book a story sourced only anonymously, especially if by more than one, is by definition a rumor. Especially when it's proven false.

[clarice]

Jane--Russert said TODAY that Mitchell was going to testify? I wonder if that was fact based or rumor based--on no, he said at trial he doesn't report rumor and Fitz wants us to take that as gospel.
I have no knowledge that the judge has yet ruled on this.

[Other Tom]

Clarice, I was simply nitpicking on the issue of grand jury disclosure. I certainly would not minimize the seriousness of the conduct, nor its apparent sleaziness. But for some reason congress has never got around to passing a statute on the subject, so it simply remains a violation of Rule 6 of the federal rules of criminal procedure.

[clarice]

Yes. OT. I haven't time to do it, but anyone who wants to dig thru the attic can certainly find critiques by TM on Waas' articles in that period and we can see how likely it was that E was his source.

If he was caught out at it, it certainly would have been a firing offense.

[Rick Ballard]

Azaghal,

Re your contention that someone was standing beside Eckenrode during his "phone interrogation" of Russert - why wouldn't Fitz call the second FBI party to the conversation? If he heard both sides his testimony sure wouldn't be hearsay.

I agree with others that investigator's notes are sometimes lost but notes central to a key event are lost much less frequently. With the notes "lost", doesn't the prosecution have some duty to provide the defense with, at minimum, the name of another party to the interrogation?

[Jane]

Jane--Russert said TODAY that Mitchell was going to testify?

That should have been "threw" not thru. He said something like: "and now Andrea Mitchell, Bob Woodward, and Walter Pincus will have to testify. It was a definate statement, no qualifyers. It's the very last think said on Meet the Press today.

My guess is that Mitchell's lawyers have probably communicated that it's a lost cause and they are preparing her.

Howie Kurtz was on MTP, and he responded about how the public will now believe that journalist are being used by the WH to further their agenda. Ugh

[Walter]

Patton,

I see the prosecution case as much less than I expected. I would expect to leave the prosecution's presentation with a feeling that guilt is the only logical conclusion.

But Fitzgerald had to show only that (1) Libby knew (from official sources with access to highly classified information) about Plame before Russert; (2) Russert disagrees with Libby's sworn testimony that Russert told Libby; (3) Cooper and Miller disagree that Libby told them that he only knew what he heard from reporters; and (4) Libby had some reason to intend to misead the investigation.

He introduced that evidence.

Libby cannot win by disproving 1, 2, 3, or 4. That is, no matter what happens from here on out, Libby will still have known of Plame (if only from Cheney) before talking to Russert. Russert will still be on record denying telling Libby. Miller and Cooper will not recall Libby telling them that he heard about Plame only from reporters. And Libby will still have had in his office articles saying that Plame was a covert agent and that the investigation had moved beyond Novak's article.

Libby will certainly attempt to show that there is reason to disbelieve Russert, Cooper, and Miller. He has already demonstrated that their memories are unreliable in (tangential but related) matters. He will continue to demonstrate Fleischer's interest in providing testimony pleasing to Fitzgerald.

These efforts may possibly suffice to show reasonable doubt. (I've argued that they have succeeded with regard to Cooper, but I'm not on the jury.)

But Libby's only sure shot at an acquittal is to disprove intent by showing he had no reason to lie: he cannot disprove any of the other elements.

THAT is why Libby will almost certainly testify.

No one else KNOWS what was going through his head when he testified. If he is convincing, he wins. If not, he (probably) loses.

And if he does, he has a wealth of issues to bring up on appeal. [I'd go with introducing 1x2x6 as evidence of Libby's understanding of the case when much of the prosecution's case shows that Libby actively disputed media coverage of OVP as my first prong. Clarice might start with Comey's super-duper unprecedented delegation as hers. cboldt has what is becoming a long list at his site. MJW, Jane?]

[clarice]

Thanks , Jane--I would guess then that he is not reporting fact but something he heard on the grapevine. Maybe we can call him at home on clarify. Sunday is the day he takes calls, isn't it?

As for"Howie Kurtz was on MTP, and he responded about how the public will now believe that journalist are being used by the WH to further their agenda. Ugh"
If the public believes that they are spending too much time in the wrong places.

Wells is a brilliant defense counsel. I'm thinking he has lots of surprising stuff up his sleeve. And he is not going to defend according to the simple pattern.Re the prosecution's well-prepped witnesses he did what anyone would do--though better than most--attack their credibility and memory. But I fully expect some surprises on his case..

[Jane]

Do we know at this point the proposed jury instruction on motive? How about the proposed jury form treats motive.

Right now lack of motive seems Libby's best chance, but motive is all the press has been talking about since day one, as seen on MTP today. So a lot depends on whether the jury actually bases its verdict on what is in the trial.

[Patton]

""Patton, I don't think E. revealed "testimony" (as in GJ testimony) but rather he revealed what Libby said during an interview.""

Well, we don't really know that do we?

But, shouldn't the FBI ask you FIRST for your recollection, rather then share with you someone else first? Kind of stacking the deck isn't it.

[clarice]

Jane:"Do we know at this point the proposed jury instruction on motive? How about the proposed jury form treats motive."

Both parties' proposed jury instructions and arguments about disputed instructions are at CBoldt's site.

[Rick Ballard]

It's very entertaining to consider that the first defense witness (if Woodward is first) has a reputation built solely on the fact that a high FBI officical (Mark Felt) chose him as a pliable press conduit in order to take out a disobedient President.

That was 33 years ago. Nothing changes.

[clarice]

cboldt thinks Mitchell will not be compelled to testify--Russert says she is testifying. Cboldt says that he thought Libby went to far in outlining what he'd ask. I think he had to, both to persuade the judge that her testimony was essential for a fair trial and as well to make the record on appeal should he lose this motion and be convicted.
Two lawyers. Two views. Naturally.

[clarice]

But Rick, Kurtz says that what the public will take away from this case is that the press is a tool of the administration. LOL

[Walter]

It seems to me that the serious leaks (CIA referral, 1x2x6,etc.) happened before the grand jury was empaneled and Fitzgerald was appointed.

Many of the later ones can be traced back to witnesses or defense counsel*. I remember a couple of years ago reading Luskin's quotes in the NYT and WaPost on the same day and remarking on how how he contradicted himself.

*Or some really, really, really choice psychodelics obtained by someone at Raw Story.

[clarice]

That was my thought. But ts last night had some interesting Waas article which seems almost certainly to have been sourced by E. Now, it may be that some of those leaks were about inside the investigation stuff not yet before the gj--witness statements etc and if those came from E that are every bit as damaging to the govt. These witnesses did not take the Fifth and were compelled to cooperate and had every reason to expect their remarks to investigators would be confined to use in the investigation and not plastered in the press.

And some may have been deliberate disinformation to get shoe clerks like Fleischer to confess to anything--even things not true.

[Ralph L.]

Would people clam up if investigators recorded all interviews? I assume they would legally have to announce it. It would certainly clear many things up in this case.

[Sue]

I can't understand how Walton allows newspaper articles in for the jury to 'infer' what Libby's state of mind was and refuses to allow tapes of Russert and Mitchell in which would cause the jury to 'infer' something. I don't think Mitchell will testify. The judge has ruled more for Fitz than against him and I think he is tending to lean that direction in this instance too. What I can't figure out is why Fitzgerald is so worried about Mitchell testifying. If the story her and Russert have concocted is true, what's the harm?

[boris]

But Libby's only sure shot at an acquittal is to disprove intent by showing he had no reason to lie: he cannot disprove any of the other elements

One step further, Libby can recant certainty based on "surprise". Claim that whatever it was Russert said that "surprised" him misled his reconstruction of events. Perhaps Rove and Cheney can support that something Russert said had an observable effect on Libby.

Also the Cooper note that plausibly meant "didn't even know if it were true" or "didn't even know if he had a wife" indicates Libby may have said something about unofficial sourcing. Reporters do seem to over interpret ambiguous language as confirmation, ie Novak and "heard that too". Perhaps they distill information on the fly and discard portions unimportant to their take.

[Walter]

Boris--Sorry, didn't mean to steal your applause. Let's just call it a particularly sincere form of flattery.

Clarice,

While I still have a chance to be proven incorrect, I'd like to agree with cboldt on this one.

I don't think that J. Walton will allow Libby to make the case that he didn't leak to many reporters, and that seems to be the best predicate for admitting her testimony.

If Wells was willing to represent that Libby now recalls hearing from Mitchell, he could probably get her in. But, given her current testimony, it seems highly unlikely that he would trade one NBC person who claims he couldn't have told for another who claims that she couldn't have told. And it wouldn't help wrt Fleischer.

Of course, if Wells got her to admit knowing on the stand, we could expect that argument in the following question.

[clarice]

Re Cooper, Boris, even his own editors didn't regard what Libby said as confirmation--they said he hadn't enough to go with it.

An interesting thing from the Novak-Russert MTP appearance:
MR. RUSSERT: As you know, Harlow works as an NBC News consultant. I talked to him on Friday. He said that he told you, "It would be really bad if you wrote her publicly."

MR. NOVAK: He didn't say that. He never said that. Now, he may think he said it, but he never said that to me. I don't know if you know Mr. Harlow very well. He's a very low-key guy. I like Mr. Harlow, he's a novelist, he's a very interesting man, but he's very low-key. He didn't press me. "

"

[centralcal]

Jane: Kurtz had Ariana Huffington and Glen Reynolds on to discuss Libby trial during Reliable Sources. When Glen said that he thought Mitchell should have to testify, Kurtz quickly countered that she would be testifying, which I thought was odd since it could still be up in the air due to filings.

Ariana, of course pounded on Russert blabbing to the FBI before NBC tried to quash GJ subpoenas. At the end of her piece, Kurtz stated that everyone felt Russert did a fine job of testifying as compared to Judith Miller.

[boris]

I don't think Mitchell will testify

If her subsequent denials were as credible as the original statement against interest, Walton's inclination against might hold. He really doesn't have much choice now since he's already mentioned that her notes contain something of interest on the issue.

[Rick Ballard]

"Re Cooper, Boris, even his own editors didn't regard what Libby said as confirmation--they said he hadn't enough to go with it."

Mr. Grunewald couldn't even get a quote for attribution correct and agreed to correct it ib the online version. It's litte surprise that the TIME editors might require require a bit more from him. That's also possibly why they fired his sorry ass.

[JOMJunkie]

I believe that if Libby is acquited the government is required to reimburse him for his legal defense costs. Does anymone else think that is the law regarding prosecution of government employees? In that case, Libby gets to keep this legal defense fund contributions and buys a nice yauht in south Florida.

[danking70]

I just really surprised that Russert is talking about his testimony and now commenting on the case.

Doesn't he realize that there's the distinct possibility that he'll be recalled?

[Ralph L.]

I ask that because I've been rear-ended twice in 20 years, and both times the cops had me hitting the other driver. Not confidence inspiring.

[Ranger]

My guess is Wells will use Woodward to show what Fitz's original idea for motive was, and that it was totally wrong. I really hope he manages to show Fitz stating with all certainty during the presser that "Mr. Libby was the first government official to talk to a reporter." Would be great to have that in the juror's minds when they listen to Fitz's closing. This man is capable of making a totally false argument sound convincing.

[boris]

Sorry, didn't mean to steal your applause

It was not a possesive exclamation, it was supportive. Hey Look !

[Walter]

Regarding "Russert knew" when he talked to Libby:

I listened to part of the grand jury testimony last night. I know that portions of this have been discussed here before, but it struck me that Libby, in 2004, was telling the grand jury that the portion of the conversation with Russert wherein he was told of Plame happened much later, possibly on the 11th.

Again, apologies (to tsk9?) if it's been covered, but I suspect that's related to Fitzgerald's focus on Libby's phone lines, as he was trying to obtain independant verification of that second call.

Wells has enough to imply at closing that Russert could have known from Gregory or from the advance wire. (Of course, our summaries, which are not transcripts, don't tell us whether Russert remembers reading Novak's column on Sunday morning. Fitzgerald may well have elicited that he read it in the physical paper, which precludes Friday the 11th.)

[centralcal]

Also, C-Span played one hour of the Libby GJ tape today, but I only caught the last 20 minutes or so. I thought Libby came across as very honestly trying to answer to the best of his ability (during the segment I heard).

[Dan S]

Let's hope he goes a blab too far before that happens.

[clarice]

Well, Walter, I for one would take as dispositive a proffer of her testimony from the NBC lawyers who prepared Russert's pleadings on the subpoena and I do think she has information valuable to the defense and that the Fitz argument is not so fabulous against the Constitutional right to a fair trial.
Who's right? I don't know, but today both Russert (on mTP) and Kurtz said she's testifying, As to the claim that the Oct 3 statement can be mitigated by an instruction to the jury that it is only impeachment not substantive evidence--goose/gander with the news articles on intent Fitz was allowed to put in.

[clarice]

***YIPES***Should be "I for one wouldNOT take as dispositive a proffer of her testimony from the NBC lawyers who prepared Russert's pleadings

[owl]

Today's MTP was quite a media lovefest. Anyone under the mistaken impression that Howie does not play ball w/his fellow pros...really needs to be informed. Kurtz is as bad as any of them. They are all flat out lying to the public on mutiple of issues.

The media STINKS. It has never been this bad in my lifetime. They do not have to tell the truth. They have full control.

Someone tell me who else in this country gets to tell the People? This bunch decided they knew The Truth. So they write it/show it and promote it. They created the Val Lie even though we all know Val had to be the Leaker. They demanded the SP. They are the Witnesses. The court allows some of them to Hide and others to write the Evidence.

They are all in bed together and have the camera. The media has just wrecked what was left of our justice system. But Mr FitzMagoo got his man....HE was able to punish Miller/Libby and the administration for hiring Libby. Vengence and Stinking Media.

[clarice]

JOM Junkie..the now lapsed independent prosecutor statute provided reimbursement of legal fees for successful defendants. I see nothing in this special special appointment that does, perhaps upon acquittal Libby will test the unconstitutional appointment again as grounds for reimbursement or find some other basis to sue for them.

[Dan S]

"The media STINKS. It has never been this bad in my lifetime. They do not have to tell the truth. They have full control." -- Owl

I hear you and I agree that the media smells badly of rat urine, but I'm unsure the "never been this bad" part is true. Do we know how had they were in, say, 1980? We have some inkling they were pretty bad in 1970.

I suspect we just have much better tools to dissect their work and communicate our findings today. And that IS hope inspiring.

I just pray we can keep Congress's ink-standed hands off those channels of communication. They also help us track and communicate just how bad a job those incumbents are doing.

[Patrick R. Sullivan]

If Libby testifies and is asked if it's possible he's conflated Russert and Mitchell's conversations in his mind, and he answers, 'yes', then it would seem he'd be allowed to call Andrea.

Surely, if his GJ testimony had been that he'd heard, as if for the first time, SOMEONE at NBC news, maybe Tim Russert or Andrea Mitchell, she'd be in.

[Jane]

Kurtz quickly countered that she would be testifying, which I thought was odd since it could still be up in the air due to filings.

Interesting. And it's interesting Russert was addressing his comment to Kurtz on MTP.

Of course I don't believe much "journalists" have to say these days, so I won't hold my breath.

BTW on MTP Gwen Ifill mentioned that at least one reporter she knows is now burning his notes.

[Patrick R. Sullivan]

'Russert remembers reading Novak's column on Sunday morning.'

But it didn't get published until Monday, the 14th. And I don't believe his reaction was what he said it was. There's no evidence anyone at NBC reacted to Novak's column at all.

The earliest report on Valerie being CIA that I can find is July 22nd on the Today Show. It took eight days for Andrea Mitchell to call up Bill Harlow to confirm what Novak wrote?

[Patton]

Do you think the judge would have allowed a Duke lacrosse player on the jury??

[Patrick R. Sullivan]

Howie Kurtz was particularly obtuse this morning discussing his own name being mentioned in the cross examination. He said of his role in embarrassing Russert over the forgotten phone calls to the Buffalo Reporter, something like, "I only thought that showed Russert, like everyone, has less than a perfect memory."

Duh!

[Walter]

...buys a nice yauht in south Florida.

As someone who signed on to this proposition early on, I feel compelled to disabuse others who may have relied upon my endorsement (Now THAT's the ethical cumpulsion that Fitzgerald arguably ignored).

1. The old special prosecutor law allowed reimbursement only if a person was not indicted. Since Libby has been indicted, he would not qualify even if acquitted. Current law contains no such provision.

2. Another law allows reimbursement in extraordinary cases. As that standard is much tougher than merely "not indicted", it is unlikely that it will be interpreted to require or even allow reimbursement for Libby. [Rove might have a shot].

3. I don't know if you've been to a lot of boat shows recently, but a truly nice yacht costs a bit more than $3 million. (I haven't priced yauhts recently, though. :P)

[Patton]

Is it possible that Woodward would testify and say that although he doesn't remember specifically telling Libby, he could have since the information was on his notepad when he talked to Libby.

It would probably help if Woodward says: ""Weirdest thing is he kept calling me Tim...""

[Carol Herman]

FROM CAROL HERMAN

Byron York's SUNDAY article at the NY POST.
(No. I have not begun to read this thread. Just up and rising, now, when I found this)
http://www.nypost.com/seven/02112007/postopinion/opedcolumnists/libby__the_leak_opedcolumnists_byron_york.htm?page=2

[Rick Ballard]

Somehow I doubt that Kurtz got around to asking:

"Say Tim, that Wells fellow called you a liar and a hypocrite in open court and the prosecutor and the judge didn't even object. They let his claim just soak into the juror's minds. Why do you think they didn't object?"

[windansea]

MURRAY: And the second question is: Do we have any idea how widely known it was in Washington that Joe Wilson’s wife worked for the CIA?

MITCHELL: It was widely known among those of us who cover the intelligence community and who were actively engaged in trying to track down who among the foreign service community was the envoy to Niger. So a number of us began to pick up on that. But frankly I wasn’t aware of her actual role at the CIA and the fact that she had a covert role involving weapons of mass destruction, not until Bob Novak wrote it.

Fitz motion to prevent Mitchell testifying

Ms. Mitchell has said that she mis-spoke or misunderstood the question being asked on the Capital Report program, and since that broadcast, she has consistently has maintained that her comment on that show should not be understood as an indication that she knew of Ms. Wilson’s employment prior to Mr. Novak’s July 14, 2003 column. The October 3, 2003 statement can in fact be read consistent with her not having
had such knowledge prior to Mr. Novak’s column.

more Fitzle logic

[Walter]

Sorry, Clarice. I got distracted looking at boats for my link.

As far as Wells/Libby taking the NBC lawyers's statements at face value, I agree wholeheartedly.

But Walton, in the absence of contrary admissible evidence, has to make his decision based on something other than mere suspicion.

And Fitzgerald is more than happy to take the representation at face value, especially since he has no indicia that she is misrepresenting a material fact. (Unless, of course, there is something in the raw FBI notes from her interview...Nah, that would have been turned over as exculpatory. Wouldn't it?)

[Other Tom]

It's my understanding that if Libby is acquitted he is entitled to reimbursement of his fees and expenses by the government. I am uncertain what would happen with his legal defense fund money at that point. I assume that everything that has come in to date has been paid out to Wells's firm. In any case, his book could be Gone With the Wind and it still wouldn't make a dent in his defense costs--they are well up in the millions, and counting.

[clarice]

The best research job on everything you wanted to know about Plame.
http://freerepublic.com/focus/f-news/1780926/posts>Fedora does it again

If you scroll to the bottom you will see about inside leaks to reporters. He says Mark Allen was getting them, too.

Andrea and Russert and everyone else (as Fedora documents) thought very little of the story until Corn gave it his special twist.
And that was a few days after Novak's story.

[Patton]

Actually having Woodward on the stand could thoroughly embarrass Fitz.

Imagine questioning him about why he decided to go public.

Well, the prosecutor went out there and did a press conference and said Libby was the first to disclose this and I knew that was a damn lie. I knew Armitage was out spreading this stuff..I just couldn't figure out why the prosecutor didn't know..I mean, how dense was he after investigating for over two years??

I knew I had to come forward because the government was making irresponsible statments to the press that just weren't true.

Fitz will be boiling.....

[Dan S]

"And Fitzgerald is more than happy to take the representation at face value, especially since he has no indicia that she is misrepresenting a material fact. (Unless, of course, there is something in the raw FBI notes from her interview...Nah, that would have been turned over as exculpatory. Wouldn't it?)" -- Walter

You mean, assuming they haven't lost them?

[Walter]

DanS--Sure, that's what I meant...

[Walter]

Other Tom,

Where Clarice and I are united, none shall prevail against us. (USCA at 20 paces at dawn?)

[Florence Schmieg]

It is beyond the pale that Russert is talking about this case while it continues. Inexcusable!

[Sue]

Andrea Mitchell's statement "It was widely known among those of us who cover the intelligence community and who were actively engaged in trying to track down who among the foreign service community was the envoy to Niger." goes to the heart of Libby's testimony. Reporters knew. It should be up to the jury whether Ms. Mitchell was telling the truth when she said it was widely known, or whether she is telling the truth when she says she was drunk. To not allow Libby at least the opportunity to put her under oath and make her retract the widely known statement is wrong.