What Is Russert's Game (And Is Fitzgerald Helping Him Play It?)

Tim Russert's testimony, as elicited by the defense, painted a picture of a pundit with a puzzling problem.  Arianna Huffington has a great collection of links and a quick summary of Russert's baffling testimony and Jane Hamsher offered some helpful hints as well [and let's include Swopa's liveblogging 1, 2, 3, 4, 5, 6]. 

Let me point out a few dots that the defense has introduced and make some predictions about how they will attempt to connect them.  In one sentence, the defense insinuation will be that Russert cooperated with the FBI investigation and committed a firing offense by keeping that from his NBC overlords; he also misled the FBI and the grand jury about his talk with Libby in order to minimize his own role in this case.

Please keep in mind - I am attempting to predict defense strategy, not ascertain "the truth".

Here we go:

1.  Russert testified that he cooperated with the FBI investigation in November 2003.

2.  Russert then testified that he couldn't remember whether he mentioned this cooperation to his boss and friend, Neal Shapiro of NBC News.

3.  In 2004 NBC News filed a brief resisting Special Counsel Fitzgerald's attempt to subpoena Russert's testimony; Fitzgerald also submitted a filing, both of which are available here (and we thank Mss. Huffington and Hamsher).  The NBC brief did not mention Russert's earlier cooperation, which seems to be a bit duplicitous; one might even use phrases like "false" and "misleading the court".

So where is the defense headed?  Well, let's imagine that, despite Russert's non-memory, he did in fact tell Neal Shapiro that he had been approached by the FBI in the Plame investigation.  Is Mr. Shapiro really going to take the stand and tell the court that yes, after learning that Tim "The Franchise" Russert, his Washington Bureau chief, was embroiled in the biggest political scandal of the year, he simply blinked and moved on the next topic?  Is he going to say that he barely remembers it himself and is not surprised that Tim has forgotten?

Please.  There were obvious First Amendment press freedom issues to be discussed, as well as the practical question of whether it would be appropriate for Tim to continue covering a story of which he was a part.  So Mr. Shapiro will tell the court that, after Russert told him about the FBI investigation and EMT technicians had re-started his heart, he and Tim got into the issues.  How could Tim forget this conversation?  Hard to imagine.

Unless, of course, when Russert says he can't remember, he means that he did not tell Shapiro at all.  Is it even remotely plausible that a reporter would cooperate with the Feds and not tell management?

Well, yes.  Viveca Novak, former reporter for TIME, did exactly that on this very Plame case:

...the next week he told me Fitzgerald did indeed want to talk to me, but informally, not under oath. I hired a lawyer, Hank Schuelke, but I didn't tell anyone at TIME.

Did I mention that she is a "former" TIME reporter?  She eventually told her bosses about Fitzgerald's interest, went on a leave, and never made it back.

So let's see - it's impossible to believe that Shapiro will testify that Russert told him but that the conversation was brief and forgettable.  That makes it easier to believe that Russert pulled a Viveca and tried to keep his cooperation quiet.  That means he also kept quiet when NBC filed the misleading affidavit opposing his subpoena.

Might those be firing offenses?  Might that give him five million reasons a year to want to avoid any further trouble on this story?  I bet the defense will raise that question.

And what about Special Counsel Fitzgerald?  His role is a bit of a mystery here as well.  Look through his 48 page argument explaining why Russert should be compelled to testify and riddle me this - why is there no mention anywhere of the fact that Russert has already cooperated with the FBI?  As noted by Ms. Hamsher, Fitzgerald was delighted to point out that Russert had disclosed Richard Clarke as a source; surely the I. Lewis Libby example was even more on point.

Well, if the defense can raise questions, they can also insinuate answers - Fitzgerald was well aware of Russert's little problem and threw him a rope, at least in the public filing (there is also an Affidavit of Special Counsel which may cite the FBI cooperation.)  So, Fitzgerald kept quiet about Russert's problem, and now Russert is delivering payback with his still-helpful testimony.  True?  Who knows?  Reasonable doubt?  Make the call!

Let's connect a few more dots.  Let's imagine, HYPOTHETICALLY, that Russert did in fact mention Wilson's wife to Libby - why would he lie to the FBI about that?

Simple - his source was Andrea Mitchell; if Russert admitted he had a source, he would not be able to invoke reporter-source privilege (and lose that fight in court).  Instead, he would have to give up Ms. Mitchell and let her fight to protect her source (a fight she would have lost, if Judy Miller and Matt Cooper are useful examples).

And the impact on Tim?  Well, NBC reporters might be a bit less forthcoming with Tim if talking to Tim led to being subpoenaed.  And it would be harder to be Washington Bureau Chief if the other reporters stop talking to you, yes?  Maybe he could think of five million reasons a year to minimize his own involvement in the investigation - protect sources, protect Andrea, protect his paycheck. 

And why would Tim worry that his little white lie would come back to bite him?  It may never have occurred to him that Libby would be indicted, not for leaking, but for perjury.  Russert may have figured, back in 2004, that since he he given info to Libby, Libby did not have a problem.  Oops.

And a last thought - the initial, carefully worded NBC "denial" that Russert provided information about Ms. Plame to Libby was an attempt to keep Tim's options open - he had a good idea of "the truth", but was not clear just where he was going to jump when push came to shove.  Just a guess.  Now he has testified and has jumped in the direction of "I had a story and I'm sticking to it".

As to the "truth" of the above scenario, who can say?  But I do predict that the defense will insinuate something like this as a motive for Russert to stick with his story.

PILING ON: NBC has been fighting like fury to quash subpoenas to other NBC reporters (have fun storming the castle, boys!); Fitzgerald wants to keep quiet his negotiations with Russert.  No, I don't smell a rat... more like fish, actually.  But whatever it is, the defense will feast.

PAGING CAPTAIN QUEEG:  Russert's testimony about his chat with Libby is that he does not remember not discussing Wilson's wife, but since he had only learned about her later, it is  impossible:

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

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

Well.  Captain Queeg proved mathematically that there was a key to the refrigerator which had contained the strawberries, but his proof was undermined by false testimony.

If the defense can undermine the notion that it was "impossible" for Russert to have known, then his non-recollection becomes a real problem with his testimony.  And Andrea Mitchell is up today.

WHERE ARE THE PROSECUTION WITNESSES?  From Russert, via a liveblog:

W: But Fitz agreed to limit questioning.

(Tim begs to differ.  He pours some water as Wells puts a letter on the screen.)

W: (quotes the letter in which Fitz promises to limit questioning)  He was limiting the questioning, right?

T: I was not familiar with exact letter, but as I read it now, I understand it.

This could become a journalistic snuff film.

ERRATA:  I know Mickey Kaus discussed Russert's conflict of interest challenge (reporting on a story in which he was involved) way back when.  What I don't know is how to breeze through the Slate archives, but let me give credit where due.

And here is an example, anyway:

It's not that NBC's "reporters" aren't telling the whole story [that Libby called to complain about coverage of the Niger story rather than, for example, coverage of Cheney's energy task force]. They aren't even telling the minimal, basic gist of the story that others are telling. It's getting cult-like and creepy!**

Why would NBC keep its viewers in the dark--letting them think that maybe Libby was calling to complain about a report on global warming?  Possible answers: a) They're worried they might encourage early challenges to Russert's credibility; b) They're hiding something; Or c) If press accounts make Russert seem even more embroiled in the Wilson/Libby case than he is now, he will inevitably have to give up his perch as "neutral" moderator of Meet the Press, at least temporarily? ( I don't think he should have to give it up--it makes for better TV if he's a player! But there would be pressure for him to do so.) ... kf thinks: (b)!

Can he still keep his seat?  I bet yes - the media clamp-down on this story has been nearly total.

JUST TO HELP:  At the end of Swopa 3:

W: Right after Libby was indicted, do you remember having a roundtable discussion on TV?

Objection.  Sidebar.

W: Do you remember roundtable disussion on Libby indictment?

T: Probably two of those — on MTP, and on CNBC

W: And on CNBC, roundtable was you, Gregory, Mitchell, and Pete Williams. Correct?

T: Yes.

A redacted transcript is available at this old post.

And Andrea is on the way - lots of her material here.

Comments

[Daniel]

In a way Russert is right. He says it was impossible that he asked Libby about Plame.
That is a ridiculous absolute comment. But as far as Russert is concerned it is true that it was and is impossible for him to admit that he asked Libby about Plame.

For, if he were to do so, it would open up a Pandora's box of woe for him. He would have to answer such questions as: from whom did you hear about Plame, and he would land on the same hotseat as Judith Miller.

The utter impossibility of his making this admission seems to have transmogrified itself in his mind to an impossibility that he could have made the etatement itself.

And why did he try to avoid testimony to the grand jury? Obviously it was to avoid answering truthful questions about his sources other than Libby with whom he must have spoken as the information was common knowledge.

So it was lie about his conversation with Libby, or go to jail, or disgrace himself in the journalistic community.

Fitzgerald played into his hand by asking for testimony only about Libby, as he did ultimately with Miller.

So Fitzgerald set up a situation in which witnesses had to either contradict Libby about conversations or face either jail or disgrace, and he then took their word against Libby's.

Though the contradictions in conversation were of little or no consequence to anyone, he then indicted Libby for contradicting these witnesses!

Is there any other reasonable interpretation of this mess?

Has anyone suggested the slightest reason why Libby should lie about these conversations? Misremember perhaps. Lie? After talking frankly to the grand jury for hours and hours?

On the other hand it is almost impossible to imagine Russert or Miller not lying about these things, as Russert says

[Other Tom]

Following Thread Herder's excellent suggestion, I'll repost the comment/question I just posted on the prior thread:

"It's my understanding that materiality is NOT an element of the crime of obstruction of justice under federal law. See, e.g. the Martha Stewart and Arthur Andersen prosecutions. There has been some scholarly debate suggesting that it should be an element, but I think it is not as of today. If anyone has contrary info, please let me know--I can claim no expertise on this question."

[Sue]

I don't think I'm going to get my Perry Mason moment when Wells throws a phone bill at Russert and says there are two calls. Oh...well...

[Bill in AZ]

I don't get the Clarke reference at all. The MTP transcript is part of the filing and Clarke is on camera with Russert actively working to get his spin... er... story out to the world. Unless in Fitz's twisted worldview he expected Libby to do something similar, I can't see why that reference was even in the filing.

[Martin]

So it was Russert who lied to the FBI and is the one committing perjury in open court as we speak. IOW the Department of Justice has indicted the wrong man!

Is it really comforting for you to believe that the FBI/DOJ could get it so wrong that they'd indict the innocent and use the guilty as their star witness?

You know federal prisoners are at an all time record high in numbers...

[rogera]

I'm here threadherder--where is everyone else? other than Daniel, OT, and Sue

[clarice]

I think the SCOTUS in Anderson said it had to be implied that the obstruction was with the intent to do so, and though the Statute doesn't say so, if you do not the law is an ass.

TM, you are quick and more brilliant than ever today. That is exactly where this is heading.

(for the record here is Apuzzo's latest filing and as I predicted, he does a decent job of informing readers about the cross which occurred after he prepared his initial filing yesterday. I respect him. He reminds me of the old time court reporters I used to deal with, not the ill-educated, partisan flakes with fancy haircuts you see on tv .http://apnews.myway.com/article/20070208/D8N5HPT80.html>Apuzzo

[Bill in AZ]

Martin, Fitzgerald has a unique strategy for ridding the world of crime and corruption. He has made a highly successful practice for years of going after crime and scam victims. His theory is that if we put away all victims, criminals and scam artists will have no one to ply their trade on and will turn to honest work.

[Jane]

I'm here. I did a google search on OT's question and all I came up with is a paper saying Materiality should be an element of Obstruction of Justice.

It's more Clarice's balliwick than mine.

[Ranger]

It looks like Wells is putting David Gregory in a no win position. Russert has now said 1) he never learned of Plame's relationship to Wilson or that she worked at the CIA until he read it in Novak's column and 2) if Mitchell or Gregory had known, they would have told him. This means Gregory's testimony will either kill Ari's or Russert's creds. If he says that Ari didn't say anything about Plame and that she sent Joe, hard to believe he is remembering the Libby lunch accuratly too. If he backs up Ari, then Russert's claims are toast. Gregory must have told him that weekend at some time before the Novak article ran.

[azaghal]

The "creative solution" we discussed last night--to Russert's and Fitz's mutual in-a-box conundrum--seems to be taking on flesh and plausibility. To see this unholy SC/FBI/MSM alliance makes me ill.

clarice, in re FBI agents acting as accomplices rather than independent truth seeking investigators, a little known historical fact is that, when Earl Warren--then AG (or whatever) of California--ordered that ethnic Japanese citizens be rounded up and their property confiscated on national security grounds, J. Edgar Hoover forbade FBI agents to assist. Too bad Mueller doesn't have the intestinal fortitude to do something similar. This business about Eckenrode's notes, giving Russert a mulligan, etc. is outrageous.

[Carol Herman]

FROM CAROL HERMAN

Step back a moment. What happened in the court room yesterday was a meltdown for Russert.

Quite similar to the way the Nixon deal went down. Because? At first most Americans gave Nixon the advantage. He spoke on TV. People looked at all the binders from his tapes that his secretary typed up. And, it took MONTHS TO UNRAVEL.

In those days? It was called STONE WALLING. And, when it was over? Nixon, himself, was blamed for his own mistakes. And, how he handled the indictment(s).

BECAUSE last night's TV shows lacked the information that followed Well's cross? It dawned on me, because I looked, that DRUDGE DIDN'T HAVE IT UP! How were the news folks gonna know? They don't read "our" blogs. And, the places where they go kept repeating the mantra.

So, you're gonna have to wait.

After the denial, will come anger. And, then the left with EAT IT'S OWN. No going to step 3. Which is "acceptance." Maybe? A little bargaining, ahead? So what.

Lee lost. Grant gets the surrender. Russert needs to turn over his sword to Wells. (Or Walton.)

Lies go into buckets that leak. Fitzgerald never had a case that held water.

Now. How will the clock get managed, today? I'll guess that Russert leaves the stand. And, the judge takes questions from the jurors. That will keep everyone alert to discuss this over the coming weekend.

As to the best report I read, yesterday? FREE REPUBLIC had Kristinn's court house report. Lots of big wigs in Russert's audience. PEOPLE LEFT CRESTFALLEN. Faces dragging down. (So, the media will hear what happened through gossip. Standard procedure for them, ahy-hoo.)

Again, Kristinn said when Wells RUPTURED Russert on the LIES to the Court? Fitzgerald slumped down in his chair. And, did nothing much except stare at the jurors. Which Kristinn read as his "trying to decifer how they were taking in the FACTS.

If I'm talking to myself, here, so be it.

[Jane]

MSNBC should be in a bit of a panic today.

I think it is wrong that the thought of that makes my heart go pitter patter.

[clarice]

Exactly, Bill--SDNY rules--file lots of obstruction charges which under the pre-Anderson ruling were very hard to defend against, home in on who YOU think did it, and play all sorts of hardball games with witnesses to make sure you get the story (and victim/defendant) you want in the dock.Wells is doing the criminal justice system a very big favor in this case, exposing what has for far too long been hidden from sight.

[Great Banana]

O/T, but feel the need to ask:

Tim Russert worked for Mario Cuomo when he was governor. Now he the Washington Bureau Chief for NBC News.

What other editor/bureau chief of any mainstream news organization can you think of that worked for an elected politician as far to the right as Cuomo is on the left (and I mean cheif of journalists, not punditry)?

Indeed, what editor / bureau chief of any mainstream news organization (we are talking reporting, not punditry) can you think of who was worked for a republican elected official before his/her present job?

Every time I think of things like this, and the easy transition between far-left "alternative" publications and mainstream news organizations that "journalists" routinely are able to make, and I am astonished.

Sorry, back on topic everyone.

[Jane]

Except the "exposure" isn't really getting exposed. The media has clay feet about all of this.

[Other Tom]

During what appears to be a bit of a lull, let me throw out a thought that is beginning to crystallize. The defense may well be hoping that this jury is not really going to deliberate such matters as the parsing of "as if for the first time," but that it rather will simply come to the conclusion that something stinks here. It's beginning to put me in mind of the trial of John DeLorean, where the guy's guilt was established beyond any doubt whatsoever (he was shown accepting a huge load of cocaine on videotape), but the jury was fed up with the government's tactics and DeLorean walked. I think at this point--and we're still in the prosecution's case--there is a pretty persuasive argument that could be put together along those lines.

[clarice]

azaaghal, exactly so. OTOH this has been building up for some years and I am happy that we finally have a defense counsel good enough to expose it. Ever after the courts ignore it only at the cost of being complicit in these injustices , and the FBI simply has to change its role or suffer the consequences.

[Jane]

can you think of who was worked for a republican elected official before his/her present job?

Bill Kristal. It's a fairly standard leap

[Appalled Moderate]

Is my memory right that Fitz never talked to Gregory?

Seems a pretty amazing omission under the circumstances...

[maryrose]

Got to go to class-Bummer!

[Jane]

I think at this point--and we're still in the prosecution's case--there is a pretty persuasive argument that could be put together along those lines.

I keep coming back to the make-up of the jury. They are liberal and to some degree connected. They will have to have a tremendous amount of integrity to take that path. It may be the best - and most honest path for Well's to walk, so I think you are on to something.

[Great Banana]

Jane,

What mainstream media outlet is Bill Kristol the bureau cheif / editor for (again, in charge of news reporting, not opinion)?

[Dan S]

Jane,

I must admit the dilemma NBC is facing makes me smile. Based on what we're hearing here, Russert's one screen value should be plummeting.

[Dan S]

err... ON screen value

[Thomas H. Ryan]

Today ought to be a come to Jesus moment for the media, and especially so for NBC. It's time to have a little chat with the Investor Relations people at General Electric.

[Jane]

GB,

Oh he's not the bureau chief of anything - but that's because all the networks are left leaning and Britt is irreplaceable.

I just think it is a fairly standard route for reporters to take - witness Russert, Mathews (Jimmy Carter) Stephanopolus and many many more.

[Rick Ballard]

Letter outlines special consideration for Russert that allowed his attorney and NBC’s attorney would be in the room. Wells asks if he understands that to be out of ordinary, that normal procedure is no lawyer in grand jury.

Russert makes the ridiculous claim that he was not aware that this is normal practice. Wells is kind of incredulous, after reporting all these years you didn’t know that?
no
You’re an attorney correct?
Non practicing
Wells moves on. This was a dumb answer by Russert, he obviously knows this like the rest of the world.

Russert is lying through his teeth on that. I won't be surprised if Wells has a clip of Russert reporting on the fact that lawyers aren't allowed to be with their clients in front of the gj.

What a clean, wholesome, upstanding piece of crap propagandist.

[Tom Maguire]

So it was Russert who lied to the FBI and is the one committing perjury in open court as we speak. IOW the Department of Justice has indicted the wrong man!

If the jury has a reasonable doubt as to that being in fact the case, they ought to acquit on at least a few of the counts.

Are you *certain* Russert is not lying, despite an abundance of motive and a very friendly prosecutor?

If you are certain, why?

[Dan S]

fdl snark:

"The filletiing of Tim Russert continues into a second hour this morning… the first hour focused on Russert never disclosing his gabby interview with the FBI in November 2003, either to TV viewers or in fighting a grand jury subpoena in 2004."

Heh, different snark from earlier witnesses.

[Another Bob]

Jane, I think GB's point is most of the political set who end up in media aren't on the "hard news" side. Russert, as bureau chief of NBC news is on the hard news side.

[Dan S]

Jane,

GB's point is it's a fairly normal route for leftist journos, not conservatives.

[Great Banana]

Jane,

Oh he's not the bureau chief of anything - but that's because all the networks are left leaning and Britt is irreplaceable.

I just think it is a fairly standard route for reporters to take - witness Russert, Mathews (Jimmy Carter) Stephanopolus and many many more.

That was my point. We can all point to many "journalists" who worked for lefty politicians in the MSM, just not many who worked for righty politicians, and certainly none who are in charge. It's even worse when you compare those who worked for far left publications and are now "reporters" in the MSM, versus those who worked for far right publications and are not "reporters" in the MSM.

I realize that it is a standard transition for someone to be a political activist on the left, and then become an "independent, neutral" reporter. I just don't think it is so standard from the other direction.

[Sue]

W: Given that you have gone on so many TV shows to talk about your deposition, would it be embarrassing if it turned out you had a mistaken recollection?

Uh...oh...

::grin::

[Tom Maguire]

Is my memory right that Fitz never talked to Gregory?

Seems a pretty amazing omission under the circumstances...

That is the story so far.

Letter outlines special consideration for Russert that allowed his attorney and NBC’s attorney would be in the room. Wells asks if he understands that to be out of ordinary, that normal procedure is no lawyer in grand jury.

Russert makes the ridiculous claim that he was not aware that this is normal practice. Wells is kind of incredulous, after reporting all these years you didn’t know that?

On a good day, the blogosphere would pile up cites of Russert reporting on stories and noting that detail - maybe from the Clinton years, there were plenty of grand jury sotries then.

Are we having a good day?

[Ranger]

Looks like Wells is going after Russert's motivation to claim "impossiblity" of discussing Wilson's Wife.

W: Given that you have gone on so many TV shows to talk about your deposition, would it be embarrassing if it turned out you had a mistaken recollection?

Objection. Sidebar. Now they're taking a break.

[Walter]

Other Tom,

You are correct in that materiality does not appear as a separate category in the statutory definition.

But, as the USSC said in Aquilar (and repeated in Arthur Andersen LLP: “[I]f the defendant lacks knowledge that his actions are likely to affect the judicial proceeding,” we explained, “he lacks the requisite intent to obstruct."

Which is to say, if the defendant lacks knowledge that it's material, he doesn't obstruct justice by concealing it.

So it's there, just subsumed in another element and disquised by using definitional language. Don't you just love the common law?

I suspect that's part of why we see Wells harping on what Libby understood the investigation covered.

It's also why 1x2x6 got in. Fitzgerald is arguing that Libby (despite his experience dealing with Cooper, Tweety and friends) actually believed what he read in the papers.

I expect him to testify, if only to clear up these little questions.

Posted here in deference to that busybody threadherder...

[Jane]

GB,

I don't think it is so standard either (and I apologize for missing your point). I guess I've gotten to the point where I rarely think a reporter is either "neutral or independant" perhaps for the reason you cite.

[Curly Smith]

Next Sunday morning on "Meet the Weasel" Tim Russert talks to... nobody!.

George Bush is a genius, he took down Dan Rather and Tim Russert... is Katie next on his list or will he go slumming for David Gregory?

[sbw]

Does the current cross-examination mean that simply for the pretzel-twisting entertainment value alone I'm going to have to break my rule and watch Chris Matthews' Hardball after Russert's testimony today?

[hit and run]

Tom:
On a good day, the blogosphere would pile up cites of Russert reporting on stories and noting that detail - maybe from the Clinton years, there were plenty of grand jury sotries then.

Are we having a good day?

Yeah, but who's gonna step away from the live-blogging to do it? Anyone who's interested enough in this case to go do the digging is probably drawn like a moth to the flame that Russert is currently being consumed by.

[Walter]

And I suppose it's actually a tougher standard than materiality in that obstruction requires "likely to affect" as well as knowledge of the capability to affect whereas perjury requires merely "capable of affecting" and intent to affect.

[Carol Herman]

FROM CAROL HERMAN

Eisenhower once said "Beware the Military Industrial Complex."

He got it wrong.

We should beware the press riding the donkey herd.

Young once. Then ya grow up.

[jwest]

Did Russert just admit to telling the NBC lawyer about his FBI interview?

It seems like that lawyer might be in a bit of trouble now concerning Russert’s false affidavit to the court.

[sbw]

T: I did not disclose Libby's side, I just confirmed it.

Ouch! It is so easy to confirm things to reporters -- that's what I heard, too.

[Jim E.]

Speaking of Mickey Kaus (TM mentions him in his post), has he posted about the phone call testimony yet. I thought he were going to here about charges of antisemitism.

[Barney Frank]

I told you lawyers make lousy witnesses.

[maryrose]

sbw:
I will watch Hardball so you don't have to!

[Ranger]

Here comes the big question. Wells is trying to get clearance from Judge Walton to introduce it:

Apparently Mitchell said she had discussed statement controversy with Russert, also admits that question/answer were clear when she said she knew.

[theo]

I think the key here may be as ranger noted -- the box Gregory is now in. If in fact says that Gregory never told him and Gregory would have told him if he had heard such a thing, the only logical conclusion is that Gregory never heard such a thing. And if so, Ari is wrong.

I am not sure that Wells even needs to put on Gregory to make this point, assuming he gets Russert to say that Gregory would have told him if he had heard. Putting Gregory on is then dangerous, as Gregory can say he -- for whatever reason -- actually did not tell Russert.

[clarice]

Motions to quash (per Sunny Day):
http://members.cox.net/grammawade/index.htm

[Dan S]

Walter,

Should we be turning that question around and asking it about the Libby charges, rather than the Russert?

If there was no crime in Plame's "outing," and Fitz says there's no evidence of a crime, then where is his materiality in charging Libby?

By Fitz's standards, as exemplified in this case, Russert is equally, or more, chargeable.

[Other Tom]

I think you're right, Walter--hard to satisfy the SCt's Andersen test without there being materiality. "Likely to affect the judicial proceeding" takes care of it.

I don't expect the Hardball crew to be fazed one bit by anything that's going on today, or any other day, in the courtroom. Why start now?

[Carol Herman]

FROM CAROL HERMAN

Curly Smith, you ask if Katie Couric "will be next." And, Drudge just posted (above the fold) that she's LAST in the LA Market. After all sorts of re-run shows. And, CBS, with her as anchor, is, to paraphrase, taking the news-ship down. Worst ratings. Dead last, department. (Our President has nothing to do with this!)

[clarice]

ranger:"Apparently Mitchell said she had discussed statement controversy with Russert, also admits that question/answer were clear when she said she knew"
WOW.

Wells will certainly call Gregory and Mitchell, not only for the substance but to establish the Russert/NBC deal and show what a charade the investigation was AND Russert's motive to lie.

(I wonder if Eckenrode will be called as he seems smack dab in the middle of this set up)

[theo]

Clarice --

If Mitchell testifies as indicated it is a bombshell. But as I noted earlier I am not sure if Wells is not better off leaving Gregory out of it. What he needs is to get Russert to say that Gregory would have told him (if he can get that). If he gets that, putting Gregory on is a risk because Gregory can say that yes, Ari told me and no, I did not tell Russert.

[JJ]

Yesterday's mention that Russert's testimony would be on crutches was right on.

(Sigh, I miss Marcy, but Swopa did a better job yesterday)

I think Russert got himself on dangerous thin ice yesterday.

...and I am glad that TM mentions the defense's possible probing of Russert's testimony.

Howard Kurtz mentions that Russert spent time "answering the questions that he would like to have been asked" instead of the questions Wells asked.

Russert is an attorney... We shall see.

[fdcol63]

Gregory would throw his own mother under a bus if it advanced his career.

He might not want to place himself into any more legal jeopardy, but if all it meant was that his buddy, Russert, was no longer "in the way" as Washington Bureau Chief, Gregory wouldn't hesitate to push Tim off the cliff.

[Martin]

TM-here's the deal. You agree that people have no problem committing perjury for base motives. You believe Russert is the one doing it.

You know way more about this trial than me. OTOH the FBI/DOJ knows way more about it than you. They decided to seek to indict Libby, not Russert.

Furthermore, since Bush could shut this down at any second, I assume the FBI/DOJ is not actively trying to frame Libby.

So your analysis is right: we have here a perjurer who lied to protect his own ass. It's just that's it you-and not the FBI/CIA-that has fingered the wrong man.

[Rick Ballard]

Dan S,

You've got your lineup sheet screwed up. Russert is on the "Good Guys" team (Armitage as leadoff batter). Russert is batting eighth for the good "Good Guys" (obviously because he can't handle a changeup). "Good Guys" on Fitz's team have nothing whatsoever to fear from Fitzlaw.

Fitzlaw only applies to the "Bad Guys" team and Fitz is willing to blindfold the umps in order to prevent any dust being thown in their eyes.

Fitzlaw is exactly like Calvinball in the simplicity of its rules.

[Great Banana]

I think someone else asked this, but if no underlying crime ("outing" plame) was committed, how can anything Libby said / did not say to the GJ be material?

What would the lie / ommission be material to? How can you materially obstruct an investigation when the investigator knows that no crime has been committed?

[theo]

fdclo63 -

Gregory may be selfish and ambitious as all hell but I cannot believe that Wells KNOWS that he would say that he told Russert before July 10. If he gets that, the trial is basically over. If he had it now, he would have told Fitz and the case would have been dropped. I do not know if Fitz has talked to Gregory but it is hard to believe that Wells has -- and knows that Gregory will destroy Russert's credibility.

[clarice]

He has to put him(Gregory) on if for no other reason to get him to say he was never questioned. The prosecution's star witness--Fleischer--says he told Gregory and Gregory was never questioned. (He wasn't only to cover for Russert, I think.) Get the set up?

And as I said about one hundred years ago, since the reporters would not willingly talk to the defense and the discovery options for the defendant are so limited, not questioning such a key figure is the equivalent of burying exculpatory evidence.

[Jim E.]

I hope Mitchell *does* get to testify. She's such an idiot. Fitz can show how unreliable she is by pointing out that she also said that it was not until after the Novak column that she even knew that Joe Wilson had gone to Africa. (The old lady hosted Wilson on MTP the day his op-ed was published, so her own confused misstatements show the necessity for her quick retirement.) I don't think she will necessarily help Libby, but she will undoubtedly embarrass herself, which would be fun to follow.

[jwest]

Lance at MWR is trying to read the jury’s reaction to Wells’ “heavy handed” line of questioning.

Wells set this up early with his “5 million a year” remark.

Everyone on the jury, in particular a DC jury, likes it when someone who makes a lot of money is taken down.

[theo]

I am not so sure Clarice. Ari testified that Libby told him. Whether Ari then told Gregory (and Dickerson) or not does not change this. It could be considered impeachment on a collateral matter and thus not admitted. Moreover, with the whole problem about talking to reporters about their sources (even though in this case the source -- Ari -- already talked) it is not crucial to alk to Gregory about his conversation with Ari. But it does seem real odd not to connect up whether Gregory knew and told Russert. Again, I think Wells might be better off to let the inference hang there that Russert might well have learned from Gregory. The problem with putting Gregory on is that he is unlikely to say that he did tell Russert (but oh happy day if he does) but if he insists he did not and repeats that Ari told him, his testimony is a set back for Libby.

[Ranger]

Russert did say he may have mentioned the FBI converstation to NBC counsel (says he told the FBI agent when he was asked to keep it confidnetial that he would mention conversation to counsel). That means that NBC legal staff and Fitz engaged in a Kabuki dance to appear to be contesting something they both knew was a bell that couldn't be un-rung all for public consumption.

[ROA]

My local paper's total trial coverage today:

Russert Contradicts Libby story in CIA leak case

WASHINGTON – NBC newsman Tim Russert drew the biggest audience of Washington's hottest new courtroom reality drama Wednesday when he took the stand and testified against former White House aide I. Lewis “Scooter” Libby.

The host of “Meet the Press” said he never discussed a CIA operative during a July 2003 phone conversation with Libby. Libby has testified that, at the end of the call, Russert brought up war critic Joseph Wilson and mentioned that Wilson's wife worked for the CIA.

“That would be impossible,” Russert testified Wednesday about such an exchange. “I didn't know who that person was until several days later.”

[fdcol63]

theo,

I can see where you're coming from. I was just saying that if push came to shove, Gregory would do whatever he needed to do to pursue his own interests.

But then, most of us would .... to a point ..... wouldn't we? LOL The question is: where is the point?

Gregory just makes me ill.

[Sue]

Judge isn't going to allow Mitchell's rambling statements. I just feel it.

[clarice]

Ari's statement that Libby told him will be contradicted by other witnesses. Dickersonn can be called to testify Fleischer did not tell him, thereby challenging that part. But Gregory has to be called to testify that he was never questioned by the FBI.(If that's all he's asked, Fitz cannot go into what Fleischer told him).

[Other Tom]

Beautiful Freudian slip, Martin: "...FBI/CIA has fingered..."

Time to grow up: neither Fitz nor any other special prosecutor gives a fig what any reporter does or says; the game is to get administration officials, and the higher up the better. Anyone who doesn't recognize that that's the way things work is in a dreamworld.

[topsecretk9]

- She's such an idiot.-

I am so curious what your nick-name for Andrea

Tim Russert- Pumpkinhead
Matthews- Tweety (even though he resembles a pumpkinhead too)

[clarice]

Sue, the defendant is charged with obstructing the investigation. There is sufficient evidence on the record of Fitz manipulating the witnesses to obstruct the truth about a key witness' testimony (see TM's analysis at the top of the thread). I'd be astonished if Mitchell is kept off the stand by the judge.

[Sue]

Walton rules against tape admission. Says that if he’s wrong the Appeal court will overrule him.

Absolutely...mind boggling. Inference was the reasoning. Wells argued the jury is being asked to infer lots of stuff with regards to Libby.

[fdcol63]

LOL - Martin said: " ...Furthermore, since Bush could shut this down at any second ..."

Ah, yes. Bush - the "imperialist" president, able to shut down Special Prosecutor investigations with a snap of his finger.

LOL

[Jim E.]

Hmmm, never heard a nickname for Ms. Greenspan. Perhaps folks here should suggest some?

[Walter]

Sue,

I feel that J. Walton will give a little more leeway to the defense after seeing what Wells has done with the material that Fitzgerald swore was not exculpatory. Kind of calls into question his judgement of what is helpful to the defense.

[theo]

clarice --

As we both know, putting on an unfriendly witness and hoping he can be limited to one or two points and not say things you do not want is a very risky undertaking. I am not sure how much value there is in having Gregory say that he did not speak to the FBI? So? What matters here are Did he hear it from Fleischer? Did he tell Russert? The defense however cannot get two good answers out of him. If he did not hear it from Fleischer he could not have told Russert. The danger is that Gregory will get out two answers the defense does not want -- Ari told him and he did not tell Russert.

In practice, sometimes it is better to leave an inference -- Gregory would have told him -- than to establish the facts. Wells is not trying to get at the truth per se, just cast reasonable doubt on the government's case.

[Dan S]

I think Walton is being a little easier on prosecution's use of inferences than defense's. I think Walton's statement about "on appeal" shows he's conscious that may be the case also. He ruled against defense here. But is leaving door open for Mitchell testimony, and might revisit issue then.

[Ranger]

Judge Walton is being a little obtuse... He says he's not even sure her statement means what she herself said it meant.

Wells made the point that Fitz got the 1x2x6 article in by inference, but is denying this.

[Carol Herman]

FROM CAROL HERMAN

Need a nickname for Andrea? Russert's fry basket. Works on the hot seat.

[Ranger]

Or maybe Judge Walton thinks Russert is toast in the juror's eyes already. He was keeping Wells on a much shorter leash this morning than yesterday. I get the feeling everyone was too stunned to react with the way things happened yesterday.

[clarice]

This is the tape of Mitchell saying "everybody knew"? Does that mean Wells cannot ask her if she said that? Can he not get that in some other way?

[jwest]

Unbelievable.

Walton allows Fitz to bring his entire case based on media reports, but disallows an admission by Mitchell on Imus that she knew of Plame.

What is he thinking?

[clarice]

Is he saying only that the tape cannot be brought in on Russert's cross? After all Russert is in no position to explain it.

[theo]

Good questions, Clarice. I assume the judge is saying that you cannot impeach Russert based on something Mitchell told Imus. The problem is that it will be difficult to put Mitchell on and just impeach her. If she would testify that she told Russert, oh happy day. But if she denies it and all Wells has is impeachment, Walton may not permit it. Rules of evidence can be a bitch.

[Thread Herder]

New Thread Up

The new thread is about Andrea Mitchell -- and there is certainly more to be discussed regarding Mr. Russert.

You may come and go as you wish.

[Barney Frank]

Walton rules against tape admission. Says that if he’s wrong the Appeal court will overrule him.

I've heard this from judges before. It either means they know they are doing something they shouldn't or they think they are.

[Carol Herman]

FROM CAROL HERMAN

Wells' isn't afraid of the judge. No wonder the judge is now discussing "I'll be appealed." Here's this, just copied from SWOPA:

It's 11:20.

Tape of Imus interview with Russert is played — Russert says Mitchell misspoke. Tape of Imus interview with Mitchell the next day is played — Mitchell says she has been trying to figure out what the heck she was talking about in that clip. She knows what she knew, and she knows she didn't know about wife — she was not one of people who knew who Joe Wilson was, and that's what she was trying to find out during that time period (i.e., who was envoy sent to Niger). She just misunderstood question, and screwed up. She says people weren't as focused on timeline then as opposed to now (what was pre- and post-Novak). There's nothing in her notes or memory that she knew. Imus bring up Russert, and Mitchell says, "It's not fair to ask him about what I said, or what I knew." (Wonder if Fitz will pick up on that.)

Walton: "This is nitpicking, at best. I don't see how this becomes relevant to Russert's credibility, that because he has made comments about this that he has bias."

Wells argues that because he's gone on TV saying he didn't know about wife, and Mitchell says something "that totally blows up" his story — since he's said that if she knew, whole NBC team would have discussed it — it "goes to the core" of Russert's credibility.

Walton says he doesn't even interpret Mitchell quote as saying she knew Wilson's wife works at CIA. Wells points out that Mitchell concedes this herself in second Imus interview.

Walton says it requires too many inferences by jury. Wells says, govt. has supplied plenty of evidence that requires inference — e.g. if Libby has an article in his file, he must have read it. Gets very wrought up, arguing that to deny defense right to confront Russert and then Mitchell with this is unfair and undermines the justice system.

Walton says he's not trying to undermine the justice system, and he's not happy at suggestions that he is.

[JJ]

Whole trial is about inferences!

The "Imus Rules on Evidence" -- that's good.

[Ranger]

I don't see how Judge Walton can really do this. Russert specificly said that if Mitchell knew, she would have told him. Therefore any public statement on her part that she knew should be admissable as impeachment of his statement. The foundation was clearly established to do this.

[theo]

I assume that is the basis for the ruling Clarice. How can Russert know what Mitchell meant? If she had told Imus "I told Russsert on July 8" that could be proper impeachment. But I think he is being careful here.

The next question is whether Wells can call Mitchell.

All of these could be good appeal issues.

[clarice]

Lead up to ruling suggests, that Mitchell can be asked about it I think>
"W: During the week of July 6, Mitchell was on TV and reporting on Wilson, rigth?

T: Yes.

W: And Gregory was in Africa with President Bush, right?

T: Right.

W: No question in deposition about Gregory talking to Ari Fleischer

Objection. Sustained — hearsay.

W: Were you asked any question –

Walton: He's already said.

W: You said if you had known about Wilson's wife, you would have called colleagues together, right, and discussed what to do, right?

T: Right.

W: Same thing if Andrea Mitchell had information, right?

Objection. Sustained.

W: Was it the expected practice that if a key reporter got important information, they would report it to the group?

T; Yes.

W: And Gregory and Mitchell were key reporters?

T: Yes, and they never came forward.

W: Were you aware that Mitchell refused to be interviewed –

Objection. Sustained.

W: Right after Libby was indicted, do you remember having a roundtable discussion on TV?

Objection. Sidebar.

W: Do you remember roundtable disussion on Libby indictment?

T: Probably two of those — on MTP, and on CNBC

W: And on CNBC, roundtable was you, Gregory, Mitchell, and Pete Williams. Correct? "

[JOMJunkie]

Andrea Mitchell = Sweet Polly Purebread from Underdog fame

[politicaobscura]

New thread is up...

[David Walser]

Martin,

I agree that law enforcement should normally be given a lot of deference. They have access to information we do not and, as long as it appears that they are acting in good faith, I think we all owe them the benefit of the doubt. (The same argument applies to the military, by the way.)

However, there are two reasons this default bias in favor of law enforcement should not carry the day for the Special Council. First, it is obvious that Fitzgerald has NOT been acting in good faith. He's filed briefs with the court trying to distinguish between "good leakers" and "bad leakers". In his press conference he stated that it doesn't matter which law a prosecutor alleges is violated, as long as the bad guys are punished. This, together with his unwillingness to conduct a thorough investigation, makes it obvious that Fitzgerald has not been acting in good faith. He is out to punish the Administration for something that he thinks is "bad" (but not against the law) and he set up a perjury trap to do it. When a prosecutor is out to get someone, he no longer deserves the benefit of the doubt. He's no longer the objective observer just trying to figure out what happened. He's become an advocate and as such, he's just as apt as any other advocate to only present things helpful to his case and to try and obscure other points of view. In this case, it matters not that Fitzgerald may know more than we do -- Fitzgerald is doing his level best to keep us from knowing all he does because such knowledge might undermine his claims.

The second reason the prosecution does not deserve the benefit of the doubt is that this is a trial. In a trial, the benefit of any doubt belongs to the defendant, Mr. Libby. Even if, as in a normal situation where the prosecution is acting in good faith, we were to believe that Libby most likely did not believe some of the things he said in front of the grand jury, Libby shouldn't be convicted of perjury if there is substantial doubt that our conclusion is correct. When both Russert and Libby have reason to lie, the defense does not need to prove that Libby is truthful and Russert is dishonest. They just have to demonstrate that it's impossible (to use Russert's word -- properly in this case) to know for sure which is telling the truth. Without the ability to "know" that Libby was being intentionally dishonest in his testimony, he should walk.

[theo]

Barney Frank --

It can also mean that the judge does not think that the side he is ruling against is going to need to appeal.

Could be wisful thinking, but I have seen judges go out of their way in favor of the side they think will lose.

[Tom Maguire]

From Jim E:

Speaking of Mickey Kaus (TM mentions him in his post), has he posted about the phone call testimony yet. I thought he were going to here about charges of antisemitism.

Jim E - I am not sure what your point is or why neither side wanted to bring this up.

The story is that Russert did not tell it to Fitzgerald, but circulated it to friends/colleagues later.

The defense may feel like it is a distraction that makes Libby out to be a kook.

But if you doubt that the story circulated, well, don't. Whether it is true or not, who can say (other than Libby and Russert). But Russert's version of an anti-semitic tirade did circulate.

[theo]

Clarice -

There is no question that Mitchell can be called to testify to impeach Russert. The question however is whether if her testimony does not impeach Russert whether it can be presented to the jury. Normally the rule is that witnesses cannot be called just for the purpose of impeaching them.

Ranger --

I do not think from clarice's excerpts that Russert went as far as to say that Gregory and Mitchell would have told him. Pretty close though.

I still say that the smart move here is to lay out the dots for the jury -- according to the prosecution, Gregory knew from Ari and Russert would have heard from Gregory -- rather than risk getting flat denials from Gregory on the second prong of that argument.