Libby's Reply

Libby replies (1 or 2; original Libby appeal; amicus brief) to Judge Walton and the prosecution arguments on Libby's bail appeal.  Keep in mind, the current appeal is simply on the issue of whether Libby's appeal points are close enough that he should be allowed to remain free pending a final resolution of his appeal; the judges are *not* being asked to reach a final ruling on the underlying issues of his appeal.

Similar arguments were presented to Judge Walton when he ruled that these were not close questions - links are here.

This part of the reply is comedy gold:

III. The Special Counsel's defense of the Andrea Mitchell ruling is especially anemic. True, Mitchell's attorney apprised the district court that, if called to the stand, his client would disavow her previous exculpatory statement. But that's why lawyers get to do cross-examination.9 In the face of questioning under oath, Mitchell may have gone back to her first story – and if she didn't, the jury might have credited her first version anyway. As we explained in our opening brief (and as the Special Counsel fails to dispute), there was abundant corroboration for Mitchell's prior statement.'

Only under a truly extravagant reading of United States v. Johnson, 802 F.2d 1459 (D.C. Cir. 1986), could such routine but crucial cross-examination be precluded. But precluded it was. Because Mitchell's testimony cut right to the quick of Russert's contradiction of Libby – a proposition that the Special Counsel does not dispute – the preclusion of this vital witness is yet another close question on appeal.

And the associated footnote:

The fact that defense counsel declined the district court's offer to permit them to examine Mitchell outside the presence of the, jury is scarcely a "waive[r]" (Opp. 18 n.21) of their right to establish that Mitchell's prior story was the truth. We are unaware of any rule of criminal practice requiring defense counsel, on pains of waiver, to do a dry run of their cross-examination outside the presence of the jury.
          
'° The Special Counsel cites Judge Walton's description of Mitchell's prior statement as "ambiguous." Opp. 17. We implore the Court to view the Mitchell statement for itself, together with her subsequent efforts at retraction. They are attached to our application and speak loudly for themselves.

I had mocked the "dry run" notion that Ms. Mitchell was entitled to a dress rehearsal at the time.

And since we are on the topic of what did NBC News know and when did they know it about a Plame leak, let's put Brian Williams back in the mix.  Here is Mr. Williams from Oct 1, 2003, speaking to Joseph Wilson:

WILLIAMS: Certain reporters have made it known that they were among the leaked-to, which means they know the leaker. Do they bear any responsibility? Is it incumbent upon them right now to stop what could be a long and costly investigation, come forward and say who gave you this stuff?

And a bit later, talking to Jimmy Carter's press secretary Jody Powell:

WILLIAMS: Let me put it this way. Journalists known to both you and me know who the leaker is. Are they under any responsibility to stop a monster from starting to roll in Washington that could hurt lives and reputations and cost millions of dollars?

So, to what reporters might Mr. Williams be referring?  As of Oct 1, 2003, only Bob Novak and the TIME trio with their byline on the "War On Wilson?" were know to the public as leak recipients.  Was Mr. Williams obliquely referring to them?

Or perhaps Walter Pincus, Bob Woodward or Judy Miller had gossiped about their status as leak recipients and word had gotten back to Mr. Williams.

Or closer to home, perhaps David Gregory or Andrea Mitchell really did know something.  A few days after Mr. Williams mysterious offering, Ms. Mitchell delivered her famous "widely known" comment - that, and her subsequent backtracking, appear here.

Yet, with all that said, there is also an NBC denial of Ms. Mitchell's involvement, offered by Tom Brokaw on Sept 28:

TOM BROKAW: NBC News correspondent Andrea Mitchell has been identified by some as one of the recipients of a leak about the undercover agent.  But tonight, Mitchell said that was not the case, that her first discussion with an administration official about the matter was after the Robert Novak column was published. And that discussion, she said, was off the record.

Pretty slim stuff - what in the world is "the matter"?.

Comments

[Walter]

The reply brief is the best case for the memory expert by Team Libby to date.

I Boldly Predict™ that Libby will be freed pending disposition of appeal. Frankly, I'm surprised that Walton did not grant this at the trial level.*

For the record, I am fully convinced that the "appointment issue" is a close question. I continue to maintain that it is not, ultimately, going to be resolved in Libby's favor.

-------------
*While I predicted he would, I did _not_ do so boldly.

[Walter]

TM,

I agree with you about the comedy inherent in the Mitchell section. But, technically, since the defense wished to call her, wouldn't it be an examiniation, regardless of how cross it made Fitzgerald and/or J. Walton?

[Other Tom]

Interesting question, Walter. Under rules 607 and 611(c) of the federal rules of evidence, a party can impeach any witness, and can use leading questions if the witness is hostile, even if the witness was called by that party. I remeber that in the California practice, when you examined your own witness in that manner it was referred to as cross-examination. Can't remember whether it's called that in the federal system or not.

[Other Tom]

Even if the Mitchell question is taken to be a "close" one, I don't see how it passes the test of "likely to result in a reversal or a new trial." As I recall it, if Mitchell had been called and had done everything the defense hoped for, the net result would have been a serious undermining of Russert--but nothing more. I thought the prosecution did a pretty good job of showing that Russert was in no way essential to a conviction. Am I remembering this wrong?

[boris]

Russert was in no way essential to a conviction

Well Mitchell is to Russert's story what Ari is to Libby's. Given that jury I doubt anything would have made a difference ... but ... If one assumes a reasonable jury would have given weight to evidence that reporters already knew and to the possibility that Russert said something to Libby that surprised him, that increases odds in Libby's favor.

Libby's "lie" that reporters already knew would turn out to be accurate and the sense of "obstruction" evaporates.

[cathyf]

Russert was in no way essential to a conviction

Well, duh, since Libby was convicted for being Cheney's chief of staff.

[clarice]

Frankly, I do not anticipate this Court's wanting to leave that ruling as precedent and I can't imagine why denying such a fundamental right--to examine before a jury someone who has made statements that seriously undercut the govt's chief witness against a defendant--wouldn't be said to have been essential to a conviction.
It's not a minor thing.

[clarice]

Speaking of political prosecutions:
"The state’s highest criminal court today affirmed the 2005 dismissal of a felony indictment against former U.S. House Majority Leader Tom DeLay and two associates.

In the 5-4 decision, the court affirmed Judge Pat Priest’s decision to throw out an indictment accusing DeLay and his associates, Jim Ellis and John Colyandro, of conspiring to violate state election laws. The Sugar Land Republican, who retired from Congress in 2006 because of the indictments arising from the 2002 elections, still faces a charge of conspiring to launder corporate money into campaign donations.

In 2005, just months after the indictments, Priest ruled that the state’s conspiracy statute did not apply to the election code until Sept. 1, 2003, long after the 2002 elections in which DeLay’s political committee, Texans for a Republican Majority, spent about $600,000 of corporate money on consultants, professional fundraisers and pollsters as part of an effort to elect a GOP majority to the Legislature. That Republican-dominated Legislature then approved DeLay’s plan to redraw the state’s congressional map to favor Republicans.

. . .

A decision on the second indictment, which Priest upheld but DeLay appealed, is pending at the Third Court of Appeals"

http://www.statesman.com/blogs/content/shared-gen/blogs/austin/legislature/entries/2007/06/27/high_court_upholds_dismissal_of_indictment_against_delay.html>Earle0-Delay 1

[Other Tom]

Wow. This item from Powerline on the immigration bill is sure ominous:

"I have only my intuition to go on. My intuition tells me that it is impossible to be cynical enough about what is transpiring here, that the second cloture vote is the last chance to kill the bill in the Senate if the fix is not already in, and that the bill's passage is assured in the House if it makes it out of the Senate. If some version of the bill passes in the Senate as a result of the procedural short-cuts that have greased the skids for it, every Republican who lent an assist should be held accountable."

I sure do hope he's wrong. I've been assuming that it would go down in flames in the house. Wonder how its passage will play out in 2008...

[clarice]

Actually, the Dems are facing lots of opposition to it, too, though that is less reported....many of the unions oppose it, and if the Black voters paid attention they'd be unhappy as well.

[Walter]

Other Tom,

My understanding is that the rules describe the questioning as "direct" regardless of hostility. But I defer to your trial experience, as my understanding is academic and primarily informed by the language used in appellate decisions. In any case, it's clear that Team Libby was anticipating a hostile questioning environment, so cross-examiniation is as good as any other abbreviation and fits well with Walton's earlier ruling (different context) that cross-examination is the best tool ever devised for discerning the truth.

I'll note, however, that FRE 611, which allows leading questions to hostile witnesses in subparagraph (c) (subrule?), limits the scope of cross to questions asked on direct in subparagraph (b), which would make arguments over the testimony objected to on both grounds somewhat confusing if one didn't stick to direct for the party calling the witness.

I believe you are correct with respect to Russert's testimony not being necessary for conviction. That is, the "surprise" expressed by Libby upon hearing about Plame could constitute perjury if proven intentionally false. The jury was given (by Fleisher) sufficient evidence to conclude that Libby had not forgotten two days before talking to Russert (although not much about whether he had forgotten by October).

I see a difference between Russert not being necessary and Russert's actual knowledge prior to speaking with Libby. If Russert actually knew, then the FBI summary wherein he reportedly said that it was possible for him to have told Libby becomes much more believable. And if he could have told Libby, then Libby's version might be literally true. If factually accurate as to the content of the conversation, then Libby's testimony becomes much more believable as to his recollection of his state of mind at the time of the conversation .

[Walter]

I see that I have piled an inference upon a speculation upon a hypothetical in my last paragraph.

I guess that's why harmless error analysis will be determinative on the Mitchell question, even if the legal issues are resolved in Libby's favor.

[boris]

Isn't Russert necessary to establish Libby's surprise?

No Russert, No surprise.

Then it falls to only the conversation with Cooper that "I dont know if it's even true" and his GJ claim that was an accurate statement at the time.

Fitz claimed that didn't happen either though. The whole thing devolves to Libby not remembering telling Ari, and that was not charged.

[boris]

A clearer question is this ...

Russert tells the FBI "yeah when I told Libby about Wilson's wife he seemd genuinly surprised ..."

Does any of this travesty actually happen?

[Carol_Herman]

Reading this thread, and the comments, stays interesting. And, I'm just an outsider around these parts.

Plus, I have no faith at all in judges, or the judiciary. However, like a Superbowl footgall game, with lots of money riding on the franchise table; and the cameras able to do re-plays ... I see the 3-judge appellate panel, now, also aware of a larger audience.

So, it's gonna be harder to throw the game, because the referee is your son-in-law. And, tha mafia's threatened to break your kneecaps, if their "picked" winnah isn't found when the game is over.

Heck, even in Vegas, the mafia got tossed out by big business. Ya know why? The goons from Chicago made too much of a mess of things in the streets. So they went "goom-bye."

As to tea leaf reading, I'll take a "shove out the door on the 4th of July," in that the judges hate the limelight as much as cockroaches; so no matter what, they'll look for the cover of a slow news day.

Meanwhile, the one thing Robbins has done, he's taken the "old dry language of da' law," and given it oomph.

As to Reggie Walton, what's new? Kofi Annan also grabbed the ladder that led to his success, up in the air. These folks aren't interested in giving a fair chance to others. It not only shows, it smells bad, too.

[cathyf]

A clearer question is this ...

Russert tells the FBI "yeah when I told Libby about Wilson's wife he seemd genuinly surprised ..."

Does any of this travesty actually happen?

So now you can be convicted of perjury based upon the failure of the only other witness to be a good practitioner of ESP?

(Hey, what I really want is to see whether Mitchell will deny under oath that Eckenrode was her source.)

[clarice]

Or Harlow or Wilson or Armitage, cathy..all of which taken together with "if one of us knows all of us knows" and the pretend covertness would be killers.

[PatrickR]

'Isn't Russert necessary to establish Libby's surprise?'

Exactly. He doesn't have to be surprised for any particular reason.

Just because, upon reflecting on his surprise in July, in October (or even March of the following year), he thinks it was surprise at his not having known about Valerie at the time of the Russert conversation, he could simply be misremembering the reason for his surprise.

He could have been surprised that Russert would bring it up during a call about Chris Matthews claiming that Libby was sent by Cheney. Sort of, if Russert knows then what's up with Matthews?

His GJ testimony is that he 'inferred' he hadn't known earlier.

[cathyf]

Can one of you legal experts explain the Two Witness Rule For Perjury? It seems to me that the only reason for disbelieving the Libby was surprised on July 11th is if you believe that he told Fleischer on July 6. There is no evidence other than Fleischer's memory for the July 6 Plame disclosure. Fleischer is only one person. (When I say no other evidence -- suppose we knew that Fleischer had no other access to the information. Since we know that Fleischer told people, that would be circumstantial evidence that the way he came to possess the knowledge was that Libby told him. But since we know that Fleischer had access to the INR report, we don't need a Libby disclosure to explain Fleischer's knowledge. So, anyway, no evidence other than ONE person's testimony, with that testimony completely uncorroborated by anything else.)

Has the Two Witness Rule somehow been gutted into meaninglessness by the evolution of the law?

[Ralph]

What's next thing to happen, and when can we reasonably expect it?

Will we know, or, rather, is it likely we will know, by the end of the week of oral arguments will be presented?

[clarice]

Cathy, here's how Jeralyn described the rule:
"The Department of Justice recognizes the applicability of the two-witness rule to perjury prosecutions brought under Section 1621. See Department of Justice Manual, 1997 Supplement, at 9-69.265.

The "two witness" rule, derived from common law, governs the proof required for a perjury conviction under Section 1621. Weiler v. United States, 323 U.S. 606, 609 (1945). The rule means that a perjury conviction may not rest solely on the uncorroborated testimony of one witness. United States v. Hammer, 271 U.S. 620, 626 (1926). The two witness rule, however, does not require two witnesses to every perjurious statement. The falsity of the perjurious statement may be established either by the testimony of two independent witnesses or by one witness and independent corroborating evidence that is inconsistent with the innocence of the accused. Weiler, 323 U.S. at 610. Also, the second witness need not fully corroborate the first, but must substantiate the other's testimony concerning the defendant's perjurious statement. United States v. Chaplin, 25 F.3d 1373, 1381-82 (7th Cir. 1994). "

Fitz would argue that Libby could not have been surprised because in his view of the record testimony:
1. Russert never told him
2. Libby told Ari
3. Grenier et all told Libby

[clarice]

Ralph, the court must decide if it wants to hear oral arguments and, if so, to schedule them. If not, to decide.

(Per last night's discussion--go to the Signal Mt website ..at the very top is a picture of a bldg with a top floor apt and porch--that's where I'm staying.)

[Ralph]

Clarice,

What can I say but, "NOT too shabby!"

Looks like a marvelous way to "rough it!"

It is gorgeous country however you get to see it.

All the Best,

Ralph

[Carol_Herman]

Okay. I have a "question." Let's say the roof falls on Fitzgerald's case, ahead? Let's say it takes Scalia's pen, and reading his opinion from the bench, to do it.

Fitzgerald gets surprised? Would his mirror be the only witness? Mirror, mirror on the wall ...

Or would the witenesses to "that" show no surprise at all? How would Lewis Carroll handle it?

[cathyf]

You know, if I were the 3 applets, I would be pissed at Walton. The appeal itself is entirely different -- it is going to happen one way or another and will be decided on the merits by some other 3-judge panel which may or may not include one or more of these 3 judges. But the question of whether these are "close" questions is simply not a close question, and the only reason that these 3 judges are having to go through this process is Walton's childishness. The lawyers (on both sides, plus the amici), Judge Walton, and the 3 appeals judges should be doing something more constructive with their time (making groundbreaking contributions to the rule of law, rearranging their socks drawers, whatever). It looks to me like Walton is motivated by a desire to inflate Libby's legal fees, and he sees no problem with wasting the time and resources of the appeals court and the prosecutors to do it.

Is this really how the law works? Is it really a smart thing for a trial judge to waste the time of the appeals judges in his circuit?

[clarice]

Well, it was really important for Walton to show the drug dealers he has to sentence every day that no one is more special in his court than they are.

[cathyf]

I'd be more afraid that Walton just set it up so that every drug dealer that shows up in his court knows that you'll get somewhere by appealing Walton's rulings because the appeals court hates his guts.

[MikeS]

How would Lewis Carroll handle it?

At the end of the Clinton impeachment process, all the Dems assembled across the street and had a victory party.

In this case, if Libby is permitted to stay out of jail pending appeal, Lewis Carroll would have the President grant a pardon and give a speech that implied Libby had "proven his innocence."

[BobS]

Was the exclusion of Mitchell really all that technical? Wasn't Fitz depending on Russert's star power in front of a dem/lib jury and sought not let another "star" impeach his testimony. You could practically hear them all swoon when Russert took the stand. Walton, for reasons only known to him, agreed with a prsosecutor whom's motives my HS freshmen could have seen through.

[clarice]

The touchback amendment and Webb's amendment didn't make it thru.
Kaus says of Graham:"P.P.S.: According to WaPo, Sen. Lindsey Graham now insists he won't vote for an immigration bill that doesn't add a (phony) "touchback" provision forcing illegals to leave the country briefly in order to get their Z visas.** This is a hilariously fresh get-tough posture for Graham, whose precious Grand Bargain somehow failed to include this essential element. But it's also a sign of fear."

I think one of the best ideas to come out of this witless Senate exercise is Kaus'--he had people run up fake oppo ads on UTube against the Bill's proponents, and hot air did a doozy on Graham.

[MikeS]

So Libby put on a ‘deficient memory’ defense, but he wasn’t allowed to introduce any actual evidence or expert testimony to demonstrate that his memory could have been defective.

Indeed even Libby’s repeated declarations, during his GJ testimony, that he didn’t remember the details in question were ignored. That testimony was ignored by the prosecutor (of course) but also by the judge and even the jury instructions. The Libby statements quoted in the jury instructions omitted any of Libby’s repeated caveats regarding his memory and therefore were not representative of Libby’s testimony (just ask Cecil).

The jury may have inferred that they were being instructed to either ignore completely or give little import to Libby’s caveats.

[clarice]

I expect in a normal case involving deficient memory defense there is little evidence to sustain it, but here the evidence was overwhelming wasn't it? Let's see--20 hour days dealing with horrific threats--all documented--and he's supposed to remember some tidbit about Mrs. Ambassador Munchausen, a tidbit of little signficance in contrast to Munchausen's damaging lies and Tenet's refusal to clear the record.

[Jane]

I'd be more afraid that Walton just set it up so that every drug dealer that shows up in his court knows that you'll get somewhere by appealing Walton's rulings because the appeals court hates his guts.

Given what seems to be going on in the judicial world these days, I worry more about the Appeals Court wanting somehow to get Walton off the hook. After all it is the Bush administration, and they are not long for Washington.

[cathyf]

Fitz would argue that Libby could not have been surprised because in his view of the record testimony:
1. Russert never told him
2. Libby told Ari
3. Grenier et all told Libby

Fair enough. So the argument is that you have one witness, plus circumstantial evidence, and it was the jury's rightful role to look at circumstantial evidence, make the determination that it wasn't too thin a gruel, and convict. As opposed to it being a question of law (must have more than the uncorroborated testimony of a single witness, and that's not here) and it should have never gone to the jury.

I suppose what is a question of law is whether the other pieces of "evidence"
1) Russert testifies that he didn't tell Libby;
2) Grenier, et al, testify that they kinda sorta think that they did tell Libby;
3) A bunch of journalists all agreed that Wilson was important and wrote newspaper stories;
really rise to the point of circumstantial evidence of anything, or are simply random vaguely-related opinions (of Russert, other journalists, Grenier, et al) only tangentially related to the question of whether Libby was, in fact, surprised as he testified. The problem I have with this "evidence" is that in the first two cases what you have are witnesses testifying that they kinda sorta remember having done or not done something, and kinds sorta inferred that Libby mighta had some reaction to it but it's not like they could read his mind or anything, and in the 3rd case there is no evidence either that Libby read any of the articles or that thinking Mr. Wilson was important was equivalent with making Mrs. Wilson unforgettable.

I suppose that's a legal question, too. When a jury reaches a conclusion because they believe that the evidence is true, are there TWO findings of fact -- the evidence is true, AND the evidence logically supports the conclusion? Or is it ONE finding of fact -- the evidence is true -- and the question of whether the evidence logically supports the conclusion is a matter of law and logic and subject to review by the appeals court?

I guess the shorter question is this -- if the prosecution says something is circumstantial evidence, and the defense says that it is a non sequitor, is this a question of law or fact?

[Rick Ballard]

"I guess the shorter question is this -- if the prosecution says something is circumstantial evidence, and the defense says that it is a non sequitor, is this a question of law or fact?"

C'mon Cathy - under Fitzlaw, the Frankenprosecutor (at his sole election) may use White Queen rules at any moment - remember Fitzlaw = Calvinball, with a little less structure.

[clarice]

Hmm, Cathy, did anyone ever tell you you are not easy?
I guess no one breaks it down that way so we won't know, but to my mind letting in "state of mind" evidence such as false articles there is no evidence Libby ever saw them and excluding circumstantial evidence such as the CIPA summaries, the CIA briefers' testimony which we know were accurate accounts of what he was doing at the time in question and keeping out Mitchell's admission would lead me were I on the court resolving the ultimate legal questions on appeal to conclude that the judge made clearly erroneous rulings and deprived the defendant of a fair trial.

It's hard to quantify--sometimes judges are lenient in allowing in circumstantial evidence and sometimes they are not, but when all the leniency was for the govt and involved dubious connections to his actual state of mind and all the restrictions for the defense when they were far more probative of the issue, something doesn't quite meet the test.

[clarice]

Here's what I mean when I say the federal obstruction law needs to be revised and that , aside from giving immunity to the actual perps to get them to lie for the govt, Fitz' second best trick is misusing the obstruction law(from Steyn on Black):
"Many observers reckon Conrad Black is most vulnerable on the "obstruction of justice" charge - ie, the security camera footage of the defendant removing boxes from 10 Toronto Street.
To "obstruct justice", you have to obstruct an "official proceeding". In her instructions to the jury, Judge St Eve told them that an "internal corporate document retention policy" does not constitute an "official proceeding". So if Bloggs Security say you can't take the stuff out of the building, that's no business of this jury. But nor does any "Canadian court proceeding" count as an "official proceeding" as far as a US district court is concerned.
That would appear to pose a high burden on the prosecution: their argument is that Conrad Black was obstructing an SEC investigation to which he'd already given over 100,000 documents (including all the ones at issue here) and that he was also obstructing a criminal case not yet charged or even imminent.
And yet, and yet... this charge is the easiest to grab if you're looking for something to convict on. As one of the security guards testified, he'd never seen his lordship carrying boxes before. He doesn't look like the chap who's used to carrying boxes. The jury's going to have to follow the judge's instructions very rigorously to overcome that central image."

[Other Tom]

Anybody wanna predict the outcome of the Senate Judiciary subpoenas of Cheney et al.?

[RichatUF]

Andrea Mitchell-dissembler

from the archives

From the "Tim Russert Show" Oct 25 2005, which was scripted by NBC lawyers [could this raise to the level of witness tampering?]

RUSSERT: I came back after that interview, after The New York Times piece, and there was a discussion about Joe Wilson and I didn't know very much. And then when I read Novak's column the following Monday, I said, `Oh, my God, that's it. Now I see. It's his wife, Valerie Plame, CIA, sent him on the trip. Now I understand what everybody was trying to figure out.'

[note: Figure what out? Was "Valerie Plame" confirming Joe Wilson's story of the VP sending Joe to Niger?]

MITCHELL: But you'd already talked to Libby, and you couldn't possibly have shared that name with Libby 'cause you didn't know it.

It's nice to know that Mitchell knew that Russert didn't know that name [Plame] but what about "Wilson's wife"...

RichatUF

[Barry]

"the judge made clearly erroneous rulings and deprived the defendant of a fair trial."

Exactly. The only entity standing between overzealous prosecutors and fairness is the judge. Not the jury, they can be swayed by the prosecutor. The judge. And when the judge has pre-ordained the outcome in cahoots with the prosecutor, we are left with appeals court enforcing fairness.

[cathyf]

Well, as to my question... At least in Walton's court, the question of the logical relationship of testimony to charges is properly a question of law. That's quite explicit in his Mitchell ruling (the only possible use that they jury would put the testimony to is ____)

(And I can already envision an appellate or scotus decision with a sentence that begins: "Judge Walton, in the course of proving that he does not possess the irony gene, ..." The only question is whether one of the other judges will get there before Scalia!)

[clarice]

I agree with Imus' assessment of the entire NBC trio"You're all a bunch of liars"..or words to that effect.

[Ilgracean]

I don't buy the argument that Libby could have been lying about his surprise and is therefore guilty of perjury.

Consider the following two statements:
1) Joe Wilson's wife works at the CIA.
2) Joe Wilson's wife was directly involved in arrangeing Wilson's trip to Niger.

To my mind these are materially different, albeit related, facts.

Virtually all of the avenues by which Russert could have learned about Plame prior to the Libby conversation involve #2 being conveyed. (Not sure about what exactly Fleischer claims he leaked to Gregory and Dickerson.)

From what I've been able to determine, Libby was only ever told #1. Does anybody seriously doubt that if Libby had only ever heard #1, and suddenly Russert had dropped #2 on his head that Libby would be surprised?

[cathyf]

Ilgracean, there's a bit more to it. Your #2 is the INR version of events; while #1 is the Cheney, Grenier, et al version of events. According to Fleischer's testimony, Libby told him the #2 version at the breakfast meeting. There is no evidence that Libby had any access to the #2 version before the breakfast, but ample evidence that Fleischer saw the INR later that day.

What I am afraid of is that the defense lawyers had the opportunity to argue this at the trial, and they didn't. Unless they can show that something that the judge or prosecutor did materially interfered with them making the argument, I don't think that they get to complain about it now.

[topsecretk9]

[note: Figure what out? Was "Valerie Plame" confirming Joe Wilson's story of the VP sending Joe to Niger?]

Most excellent - and the only detail Russert didn't know was that is was really the CIA who had concocted a boondoggle trip

[RichatUF]

OT-

Anybody wanna predict the outcome of the Senate Judiciary subpoenas of Cheney et al.?

This article by way of Drudge

graf-

The Senate Judiciary Committee subpoenaed the White House and Vice President Dick Cheney's office Wednesday for documents relating to President Bush's controversial eavesdropping program

The democrats and their media allies just can't let this go. It almost makes me wonder if they are worried that the NSA program will show how closely tied they are to foreign interests.

The committee wants documents that might shed light on internal disputes within the administration over the legality of the program, which Bush put under court review earlier this year

Maybe some of the lawyers can comment on this, but I would think that this would fall under "work product" and "client confidentiality"

Leahy said in his cover letters for the subpoenas. "There is no legitimate argument for withholding the requested materials from this committee."

I'm sure this is going to get fought out in the courts: sealed v. sealed

RichatUF

[RichatUF]

Ilgracean-

You are also forgetting the hide-the-ball that Fitz and NBC lawyers are playing:

"Joe Wilson's wife"/="Plame"

It is very clear from the "Tim Russert Show" transcript and Tim "I did not name her" Russsert from his testimony that this is one of the games they are trying to play.

RichatUF

[topsecretk9]

Rich

If as you say:

The democrats and their media allies just can't let this go. It almost makes me wonder if they are worried that the NSA program will show how closely tied they are to foreign interests.

Then:

I'm sure this is going to get fought out in the courts: sealed v. sealed

might just be the point.

[clarice]

Maybe,ts. I always assumed that with their friends in the press they were trying to create the impression that Bush wss using the program as people like Hillary! would to listen in on their opponents. I think they may once have had some traction with this, but by now most people who've paid any attention to it at all know that is not the case .

I credit the program with having achieved a 6 year miracle.

[PeterUK.]

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[Walter]

CathyF,

You had asked what effect the jury verdict has in interpreting the facts.

As luck would have it, I just came across a description of the law in the DC Circuit:

On appeal from a conviction, we must view the evidence in the light most favorable to the government, allowing it the benefit of all reasonable inferences that may be drawn from the evidence and permitting the jury to determine the weight and credibility of the evidence. United States v. Smith, 964 F.2d 1221, 1222 (D.C. Cir. 1992); United States v. Butler, 924 F.2d 1124, 1126 (D.C. Cir.), cert. denied, 502 U.S. 871 (1991).

From US v. Boyd (DC Cir. 1995), written by Circuit Judge Karen Henderson.

[clarice]

More from the Black trial--doesn't this sound like Fitz' closing remarks on Russert?
"In its final statement to the jury Tuesday, the government's lead attorney in the fraud trial of Conrad Black made an unexpected admission: "Our star witness is not David Radler."

Assistant U.S. Atty. Eric Sussman even went as far as telling jurors they don't have to rely on the testimony of Radler, Black's longtime partner and the highest-ranking insider at Hollinger International Inc. to take the witness stand.

"You do not need to believe a single word David Radler told you to convict each and everyone of these defendants," Sussman said.

The government's apparent about-face on Radler was a bizarre twist in the final days of the case against Black, an international media baron accused of looting the company he built from scratch almost 40 years ago, and three co-defendants. The jury is expected to begin deliberations on Wednesday, after Sussman finishes the government's rebuttal and the judge instructs jurors on the law's application in the case.

For the prosecution at the end of the trial to distance itself from Radler puzzled observers.

"The conspiracy rises and falls on whether you believe Radler," said Hugh Totten, a Chicago lawyer who has attended the trial. "There's no document that shows the conspiracy. It's oral testimony of Radler pointing the finger at Conrad Black."

http://www.chicagotribune.com/business/chi-wed_blackjun27,0,2020236.story?coll=chi-bizfront-hed>Immunize the perp, get him before the jury, when it's proven he's a liar say we don't need his testimony

[glasater]

I agree with Imus' assessment of the entire NBC trio"You're all a bunch of liars"..or words to that effect.

Posted by: clarice | June 27, 2007 at 03:27 PM

Have wondered if this comment by Imus led to his downfall over saying "nappy" things and the media dumping all over him.
The tinfoil is close by.

[Charlie (Colorado)]

Maybe some of the lawyers can comment on this, but I would think that this would fall under "work product" and "client confidentiality"

IANAL and all, but I think this is purely a political show --- they tried pretty much exactly the same thing on the energy bill stuff and lost on that too. But it will get them on the MSM again.

[cathyf]

On appeal from a conviction, we must view the evidence in the light most favorable to the government, allowing it the benefit of all reasonable inferences that may be drawn from the evidence and permitting the jury to determine the weight and credibility of the evidence.

Yes, but that rather begs the question. If the trial court excluded all the exculpatory facts in violation of the 5th and 6th amendments, you don't get to just proclaim that the remaining inculpatory facts are to be interpreted in the way most favorable to the government.

That's why the remedy on the Mitchell, memory expert and CIPA decisions would be a new trial allowing some or all of that evidence, right? Because on those issues, the defense is claiming that some material and significant facts have been improperly excluded from the evidence.

[topsecretk9]

Clarice

I don't know if you remember this but there is a policeman in some Fitzgerald case that filed something saying his pleading and confession was coerced - that they bullied and scared him- saying he an his family would suffer if he didn't admit to something policeman contends is not true so that they could go after a bigger fish.

And ALSO a case against some agent Saddam or terror suspect fell apart because the informant he paid and used turned out to be a fibber of sorts AND THEN Fitz went after the informant and then that suddenly fell apart.

[Pal2Pal (Sara)]

I think either I or someone has asked this, but I'm having a Senior Moment and can't remember the answer.

QUESTION: How common is it in the DC Circuit, or any other, for that matter, for a trial judge to submit a brief in support of the prosecution to the Appeals Court?

This seems so unseemly to me. Is it standard operating procedure or close to an unique event in the Libby appeal?

[Tom Maguire]

For the record, I am fully convinced that the "appointment issue" is a close question. I continue to maintain that it is not, ultimately, going to be resolved in Libby's favor.

I need to start a list -

Walter - Appointments: close, no reversal

TM - Appointments, Mitchell - close; reversal on Appointments (Subject to, what do I know?

Re the question of whether Libby could be convicted even if Mitchell testified that she told Russert about Plame - logically, yes, and the prosecution noted this in their close; Libby could have been telling the truth about the Russert conversation itself but lying about his surprise, and lying about subsequent sourcing to other reporters.

However - if Mitchell had cracked Russert open, the defense would have hammered a key point:

(1) if Russert was willing to get up here and lie (or misremember), who else was, and why did they get a pass? Does anyone really want to trust any of the rest of these reporters at this point? And does anyone want to trust the prosecutor, who never probed and pinned down the testimony of his star witness?

[glasater]

From Steyn's blog--just too funny--

The hill villages of Attornistan

Mark Steyn | June 27, 2007 | 12:11:11 | Permalink

Mr Sussman: "Mark Kipnis was not just a simple lawyer."

Indeed. Is there such a thing? Are there remote tribes of simple lawyers deep in the Papuan jungles who've been drafting asset transfer agreements back and forth for centuries unsullied by contact with the outside world?

If so, is that where Patrick Fitzgerald's gone this morning?

[hoosierhoops]

Maybe some of the lawyers can comment on this, but I would think that this would fall under "work product" and "client confidentiality"

IANAL and all, but I think this is purely a political show --- they tried pretty much exactly the same thing on the energy bill stuff and lost on that too. But it will get them on the MSM again.

But it did work for the Nixon tapes didn't it? or was that different?

[Pal2Pal (Sara)]

OT - Via Gateway Pundit:

The citizens of Halabja, Kurdistan want Chemical Ali brought to town for his hanging. The Iraqi court agreed in a ruling today.
ADN Kronos reported:

A judge in northern Iraq's autonomous Kurdistan region has said there are no legal reasons preventing a cousin and former close aide of Saddam Hussein from being executed in Kurdistan. Judge Razkar Muhammad Amin was referring to the former Iraqi defence minister and military commander, Ali Hasan al-Majid, also known as "Chemical Ali", who has been sentenced to death for his role in the killings of ethnic Kurd villagers in Iraq during the 1980s.

"There isn't a single juridical text that prevents the carrying out of a death sentence anywhere within the borders of Iraq, including the Kurdish city of Halabja," he told Adnkronos International (AKI).

Halabja was where thousands of Kurdish civilians were killed with poisonous gas and other chemical weapons, an event which gave al-Majid his nickname.

"Iraqi penal law does not specifiy the location of where an execution should take place because this is a government responsibility. A magistrates' role ends with the sentencing," Amin told AKI.

Halabja has launched a citizens' campaign to have al-Majid hanged in the city, which they believe would be a symbolic gesture to highlight the suffering of Iraq's ethnic Kurds under Saddam's regime.

[Other Tom]

On the question of the subpoenas, my rough guess is that neither the work product doctrine nor the attorney-client privilege will apply. I think a very sound basis for non-compliance is that of executive privilege.

My experience is in civil cases, where when you receive a subpoena that you believe should not be enforced you bring on a motion in the issuing court, asking it to quash the subpoena. I don't know how the process works when there is a congressional subpoena, particularly one against officials in the executive branch. My guess is that those who have received the subpoenas will simply ignore them, leaving it up to the Judiciary Committee to persuade a court to enforce them. But I don't know...

[clarice]

ts, YOU are asking ME for details? I remember you citing to this a long time ago but not much of the details.
**********
TM, that's my guess, too, and the matter might possibly be briefed and ready for the appellate court in Feb 2009.

[MJW]

I'm not sure how this affects the decision in the case (U.S. v. Boyd) that Walter mentioned, but in that case, the defense didn't state a specific reason for their objection, so the review standard was "plain error" -- the same standard that would be applied if the defense hadn't objected at all. In the Libby case, I believe, the defense stated detailed reasons, so the standard would probably be at least (at most?) "abuse of discretion."

[boris]

Tom Maguire:

Libby could have been telling the truth about the Russert conversation itself but lying about his surprise, and lying about subsequent sourcing to other reporters.

If Russert lied about the conversation then he OBSTRUCTED the investigation into whether Libby seemed surprised at the information.

If Russert confirms that Libby says "Wow, what a wurpirse" then the Ari testimony is far more vulnerable.

[boris]

"wurpirse" WTF ???

*** "Wow, what a surprise!" ***

[Walter]

I had earlier remarked that I was surprised to find that a three-judge panel was assigned to review the bail decision.

I'm not so surprised after actually reading J. Walton's memorandum opinion denying bail (D.DC 2007) and comparing it with J. Bates' opinion in US v. Quinn (D.DC 2006). It's quite possible that a full opinion might well result from the conflict between these judges over how to apply US v. Perholtz (DC Cir 1988)(anyone gotta free link?). Both are published opinions in the same District evaluating the same (binding) language from the same case. J. Walton goes out of his way in fn. 4 to belittle J. Bates. ("The Quinn court provides no support for its particular interpretation of the Perholtz standard.")

J. Walton seems to be trying to get the DC Circuit to slap down another judge--one whom he deems to be entirely too coddling of convicts. He pointedly notes that only the 3rd and 9th circuits adopt the lenient interpretation he ascribes to Team Libby and J. Bates. But J. Bates also notes that same split and purports to follow the DC (and majority rule). In fact, the two cases he cites in aid of his interpretation come from the Second Circuit (both are 2005 decisions from SD NY).

So, I'm thinking that the panel might well want to clarify that one or the other interpretation is the right way to go. Either they do it now, or another panel will have to do it soon.

FWIW, I had assumed that the Quinn standard (novel issue, authority supports both sides) was the proper approach. J. Walton's observed that it would be "easy" for him to imagine novel questions of law with authority for either outcome for which there was only one clear answer.* OK as far as it goes. But to say that such questions are not "close" seems odd in a world where unanimous Circuit Court rulings are overturned by unanimous Supreme Court rulings.

But it wouldn't surprise me to find that the DC Circuit agrees with him rather than me. Doesn't much matter anyway, as I see Libby prevailing under either formulation.

____________
* Well...You just said that Libby's case presented three of 'em. Doesn't take much imagination, eh?

[clarice]

Told you it was catching,Boris--And Look at Dick! Wondered where he was--at a new Hillary! think tank. Hope he serves her with the same degree of loyalty that perfidious bastard served this President.

http://thecaucus.blogs.nytimes.com/2007/06/27/new-center-has-lots-of-clinton-ties/>Dick!

**
I agree MJW..Different question than this one.

[MJW]

sara, even thought the latest document out of Walton's chambers looks like a brief, and has the same purpose as a brief, it's actually an opinion. I hope the appeals court views it as a little over the top. Walton adds little to his original opinion on the appointments issue, beyond stressing how absolutely, positively easy it was to reach his conclusion. The intent is less to explain his reasoning than to persuade the appeals court to put Libby in prison as soon as possible.

Also, filing two separate opinions on an issue that will be addressed de novo in the actual appeal seems excessive.

[clarice]

Walter, in Safavian in the D.C. Circuit, J Friedman applied the very same bond test that Libby argued was the correct one.Safavian was convicted of the very same offenses as Libby and remains free on bond pending appeal. And that was decided just months ago.

[Walter]

[Y]ou don't get to just proclaim that the remaining inculpatory facts are to be interpreted in the way most favorable to the government.

I've always interpreted the "harmless error" standard that way.

I've dowdified your quote to highlight what I feel is the harshness of that doctrine. To be more accurate, violations of certain rights are not subject to harmless error analysis. Most constitutional errors (such as a violation of the appointment clause) call for instant reversal.

The question the reviewing court must decide when evaluating evidentiary rulings for harmless error is whether the jury would have come to the same conclusion if the evidence were excluded (or included).

Excluded evidence is easier--just look at the facts in the light most favorable to the government and determine whether the elements are met without the excludible evidence. For evidence that was improperly excluded, the court must evaluate its importance on its own--does it think that the excluded evidence would have changed the jury's verdict?

So you see Team Libby saying "But of course, Russert's credibility would be so impugned that the jury would have believed the opposite of what he testified. Thus, Libby would walk were a fair trial held." And Walton and Fitzgerald say "The evidence was overwhelming. It was days and days of cumulative circumstantial evidence, not Russert's testimony, that convinced the jury (and us!) that Libby Lied™."

Oddly enough, reasonable people disagree as to whether a particular error is harmless or necessitates a new trial. FWIW, people in Texas make fewer harmful errors than people in Massachusetts; people in the Ninth circuit make fewer harmless errors than those in the Fourth Circuit.

[Walter]

TM,

With regard to your list...

I'm for reversal and retrial on the merits, but on evidentiary grounds (including CIPA) rather than the appointment issue.

[clarice]

Walter--In your equation re harmless error--do not forget that the judge said earlier that the summaries and the briefers' testimony was relevant and admissible and that the only reason he was keeping them out was that Libby had decided not to testify.

[Walter]

Clarice,

I read US v. Safavian as avoiding the whole question. It merely states that the question is "close" without evaluating whether, despite a novel question of law, there is a single clear answer [Walton] or whether the judge believes that there are good, substantial arguments on both sides but no binding authority on the precise question [Bates].

In other words, Walton's opinion seems to read as if a decision he makes is "close" only if he evaluates the arguments and determines that he has some (undetermined, but substantial) likelihood of being reversed on appeal. That is, he must think he likely (rather than possibly) made the wrong decision in order to grant bail pending appeal. Not bloody likely.

Given that only white-collar defendants are unlikely to be determined threats to the community, flight risks, convicted of crimes permitting bail, or properly preserving and defining novel questions of law, his comments about the disparate treatment afforded them under the bail statue verge on the non-sensical.

[Walter]

... the only reason he was keeping them out was that Libby had decided not to testify.

Yep. That impinges on the Fifth amendment right to decide to testify (no harmless error analysis), the Sixth amendment right to a fair trial (circumstantial evidence to show defendant's state of mind admissible for prosecution but not defense)(I think no harmless error analysis) and the Fed Rules of Evidence (abuse of discretion analysis to find errors; harmless error analysis to determine whether retrial is appropriate).

I'm not pretending to give a definitive description of harmless error applicability or analysis--OK, maybe I did but I really should not have. I just wanted to point out that it applies wrt Mitchell's testimony, and people apply it differently.

[Elliott]

Thank you for all the information and analysis, Walter.

[Carol_Herman]

NOpe, Miks S. At 1:58 PM. Upstairs. I don't think Lewis Carroll would have looked at the "party" following Clinton's NOT being impeached by the senate. It was the HOUSE that miss-read the tea leaves. And, Tom DeLay, in his new book, just said so. He said he didn't expect to see GOP keister's flung out of their seats. But away they went. in 1998.

It's a good idea for politians to think about the public mood more often than when they're re-running for elections.

And, since Alice In Wonderland is a wonderful spoof; what could be ahead? And, you "could" title it "How Sunshine scares da' judges" ... is to realize that Walton didn't have to do this rediculous "NO BAIL FOR YOU," dance. He'd have been in better shape just to let Libby appeal.

Instead? It looks like the 12-amigos, plus one. Mark Levin. Are well equipped with writing contracts, that they can make books appear, down the line. If Dershowitz is right? All the writers will produce different elements of this puzzle. Making more than one of them quite readible.

I'd even bet that Robert Bennett (who is also still milking the dimes out of Pinchie). That "making money" is the one thing Walton, himself, can't do. So his rage will just keep on building. Not that I care.

But this issue? He didn't have to do it! Like any house of cards; when your structure hasn't toppled over yet; you don't ask to go again, before your opponent's turn comes up.

NOw, Clinton's impeachment was about the man's penis. The "lying" is hokum. If men didn't lie about the sex they have outside their marriages? You'd have to build more jail cells to house the wives that kill them.

People know the score.

You don't even have to go to law school to know what's right.

[Carol_Herman]

Wells let Russert off the stand. For some reason, remembering back to that time; it seems he should have kept Russert ON. He then tried to argue to "bring him back." And, that's why the NBC lawyers were in the back of Walton's courtroom, blackberrying away like mad. (And, untouched by the court officer.)

If this trial were turned into a CAKE WALK (which is what the slaves immitated, when they looked through the Southern mansion windows, at the couples, waltzing); we'd get a whole new American genre. Who knows where the stagecraft would lead?

But Walton, as crazy as this sounds, by going overboard, actually gave Wells recoup room.

[Other Tom]

For the record, I predict (a) reversal of the order denying bond, with so little comment that we won't really know the reasoning; and (b) reversal on the merits, down the road, on the appointments issue.

Note, on a different subject, that the Judge Bates with whom Walton purports to disagree is the guy who is hearing the Wilson civil suit.

[clarice]

I agree sompletely,OT.
And that is very interesting about Bates.

[Sue]

There is so much going on I can't keep up with it all.

[maryrose]

Other Tom:
I also agree with your assessment. Fitz overstepped his authority and ignored the real leaker and had no supervision. Mitchell should have testified as well as a memory expert. All documents should have been in regardless of Libby testifying or not.

[maryrose]

Jackson Hole and the Grand Tetons are beautiful sites and Colorado and Wyoming are 2 of my favorite states to visit!

[Elliott]

That seems like a sound prediction, Other Tom, and I intend to adopt it as my own.

[chch16]

Wells didn't let Libby testify because he knew Fitz would tie him in knots as he already had for the indictment and secure a conviction.

Senate Judiciary has opened an investigation into the previous testimony of White House deputy counsel and now D.C. Circuit Judge Brett Kavanaugh because new documents suggest Kavanaugh lied to them on warrantless wire tapping.

They plan to refer to "DOJ" for further investigation.

The Senate subpoenaed the White House and Vice President Dick Cheney's office Wednesday, demanding documents and elevating the confrontation with President Bush over the administration's warrant-free eavesdropping on Americans.

Warantless wiretapping of all your phone calls kuell with JOM?

[chch16]

Carol Herman singing that ole sweet song, dishing about Clinton's penis. What could be more relevant in the scheme of things?

Did Clinton warantless wiretap anyone with that penis?

[hoosierhoops]

NOw, Clinton's impeachment was about the man's penis. The "lying" is hokum. If men didn't lie about the sex they have outside their marriages? You'd have to build more jail cells to house the wives that kill them.

People know the score.

You don't even have to go to law school to know what's right.
-Carol H.
well i laughed for about 10 minutes..isn't that the truth? if you mix politics and personal responsibility what a mix you will have.. My wife and i have 6 kids, I would be more worried about a shotgun than impeachment if I cheated on her...
We treat politics from our perch in the cornfield like 'a simple life' with paris hilton..out of touch with america to say the least..Poor Libby.. a great man brought down

[hoosierhoops]

NOw, Clinton's impeachment was about the man's penis. The "lying" is hokum. If men didn't lie about the sex they have outside their marriages? You'd have to build more jail cells to house the wives that kill them.

People know the score.

You don't even have to go to law school to know what's right.
-Carol H.
well i laughed for about 10 minutes..isn't that the truth? if you mix politics and personal responsibility what a mix you will have.. My wife and i have 6 kids, I would be more worried about a shotgun than impeachment if I cheated on her...
We treat politics from our perch in the cornfield like 'a simple life' with paris hilton..out of touch with america to say the least..Poor Libby.. a great man brought down

[hoosierhoops]

NOw, Clinton's impeachment was about the man's penis. The "lying" is hokum. If men didn't lie about the sex they have outside their marriages? You'd have to build more jail cells to house the wives that kill them.

People know the score.

You don't even have to go to law school to know what's right.
-Carol H.
well i laughed for about 10 minutes..isn't that the truth? if you mix politics and personal responsibility what a mix you will have.. My wife and i have 6 kids, I would be more worried about a shotgun than impeachment if I cheated on her...
We treat politics from our perch in the cornfield like 'a simple life' with paris hilton..out of touch with america to say the least..Poor Libby.. a great man brought down

[hoosierhoops]

NOw, Clinton's impeachment was about the man's penis. The "lying" is hokum. If men didn't lie about the sex they have outside their marriages? You'd have to build more jail cells to house the wives that kill them.

People know the score.

You don't even have to go to law school to know what's right.
-Carol H.
well i laughed for about 10 minutes..isn't that the truth? if you mix politics and personal responsibility what a mix you will have.. My wife and i have 6 kids, I would be more worried about a shotgun than impeachment if I cheated on her...
We treat politics from our perch in the cornfield like 'a simple life' with paris hilton..out of touch with america to say the least..Poor Libby.. a great man brought down

[hoosierhoops]

what's up? i didn't even click submit and hadn't even finished..thanks typepad..
I don't need much help looking like an idiot..sorry and goodnight

[JM Hanes]

WARNING! I TRIED TO EDIT THE FOLLOWING DOWN TO SIZE, BUT JUST COULDN'T FACE THE PROSPECT OF HAVING TO READ IT ALL AGAIN MYSELF.

OtherTom:

I meant to leave a comment on your post this morning:

"I thought the prosecution did a pretty good job of showing that Russert was in no way essential to a conviction. Am I remembering this wrong?"

I remember thinking that's what was so insidious about how the indictment itself was structured from the start. With regard to Russert, Libby was charged with two "materially false and intentionally misleading statements and representations," to whit:

i. Russert asked LIBBY if LIBBY knew that Wilson’s wife worked for the CIA, and told LIBBY that all the reporters knew it; and

ii. At the time of this conversation, LIBBY was surprised to hear that Wilson’s wife worked for the CIA;

Essentially, Fitzgerald argued that even if Russert did, in fact, tell Libby about Plame, Libby could not have been surprised because he already knew.

Fitzgerald could have argued (ii) without without any assist from Russert, but that's pretty thin gruel for an obstruction charge on it's own. Calling a witness like Tim Russert to the stand was a no-brainer. You couldn't ask for a better vehicle than Mr. Meet the Press himself, if you don't want anyone to notice how weak on substance (& how mundane) you case really is.

The genius of the charging decisions made it a low risk win-win. With the F.B.I. notes nowhere to be found, and the potential self-serving "collusion" between witness & prosecution out of bounds, the only risk at all was Andrea Mitchell. When Fitzgerald asserts that the jury's conclusions as to statement (i) were irrelevant to the outcome, it comes close to being an admission that Russert's influence wildly exceeded his actual probative value in a real, if not strictly legal sense.

Wihout Libby's "surpise", however, Fitzgerald basically had almost no case at all, and without Russert's powerful presence, the only thing overwhelming about Fitzgerald's "evidence" on that was its inferential nature. Why couldn't Libby be surprised if he already knew? Because it was so important to him that he could not have forgotten. How do we know it was important? Because the subject kept popping up everywhere he went.

The inferences used to "prove" that Libby must have lied then begin flow in the opposite direction. If Libby lied about his surprise, then, by definition he couldn't be telling the (whole) truth about his conversation with Russert. When he had every reason to believe that reporters would go to jail rather than testify (and he was right, till he was practically compelled to grant a second Miller waiver -- after he had testified; the timing of which merits a queston!), there was only one reason for his false claim: He was trying to make his Russert "story" more convincing to investigators and grand jury. We know why Libby needed his own story to work, but he made sure we'll never know the real story that he was trying to cover up. Ta Da!

That's the pretty much it for the prosecution's case sans Russert, and the defense could probably have blown it out of the water. The beauty of the argument and the strategy behind the double charge is that Fitzgerald never had to prove that Russert was telling the truth, as long as the jury thought he probably was or didn't actively disbelieve him. While Fitzgerald didn't need a finding on item (i) for a conviction, what he did need was a powerful lens to shape and focus the jurors' view of an otherwise tenuous prosecution. He needed the jury to think Libby lied about the Russert conversation, even if they didn't convict him of it. And he needed Russert big time for that, because no ordinary, low profile witness could do the trick.

Russert's particular prominence made it "reasonable" to believe him before he even opened his mouth, and it allowed Fitzgerald to do a pretty remarkable piece of burden shifting. There was really no way the Defense could realistically hope for a not guilty verdict without proving, beyond a reasonable doubt, that Russert was a liar. Since Fitzgerald never needed to prove the opposite, or even bolster his witness' credibility, he got away with giving the Defense almost nothing of consequence to work with either at trial or on appeal, regardless of jusidical obtuseness on Walton's part.

All of which is to say (at long last!) that it seems to me that the Defense appeal has got to push the Mitchell decision to the level of constitutional error, before it could possibly be consequential to the outcome.

[clarice]

JMH, that is a brilliant analysis. Breathtakingly good and well worth reading.

[chch16]

Libby was one of the real leakers and Fitz nailed his ass. He also lied about the orchestration Cheney, Rove, Bush, Kelly, Miers, Gonzales.

Libby is gambling that Bush pardons him for protecting them. It's not going to work.

[chch16]

Libby was never surprised to hear Valerie Wilson was a covert agent. Cheney and several other people told him to leak it early on.

[Other Tom]

"Ground control to Major Chch:
"Your circuit's dead, there's something wrong.
"Can you hear me Major Chch?
"Can you hear me Major Chch?
"Can you hear me Major Chch? Can you ...

"Here am I floating round my tin can, far above the moon
"Planet Earth is blue and there's nothing I can do..."

[Elliott]

From the Jury Instructions, here is the excerpt from Libby's grand jury testimony cited in count four (the Russert perjury count), almost all of it is alleged as false:

. . . And then he said, you know, did you know that this—excuse me, did you know that Ambassador
Wilson’s wife works at the CIA? And I was a little taken aback by that. I remember being taken aback by it. And I said—he may have said a little more but that was—he said that. And I said, no, I don’t know that. And I said, no, I don’t know that
intentionally because I didn’t want him to take anything I was saying as in any way confirming what he said because at that point in time I did not recall that I had ever known, and I thought this is something that he was telling me that I was first learning. And so I said, no, I don’t know that because I want to be very careful not to confirm it for him, so that he didn’t take my statement as confirmation for him.

Now, I had said earlier in the conversation, which I omitted to tell you, that this—you know, as always, Tim, our discussion is off- the-record if that’s okay with you, and he said, that’s fine.

So then he said—I said—he said, sorry—he, Mr. Russert said to me, did you know that Ambassador Wilson’s wife, or his wife, works at the CIA? And I said, no, I don’t know that. And then he said, yeah—yes, all the reporters know it. And I said, again, I don’t know that. I just wanted to be clear that I wasn’t confirming anything for him on this. And you know, I was struck by what he was saying in that he thought it was an important fact, but I didn’t ask him anymore about it because I didn’t want
to be digging in on him, and he then moved on and finished the conversation, something like that.

[Carol_Herman]

I have not trouble with Libby' "surprise" as an outcome with his phone call to Russert. Too bad Eckenrode was allowed to lose original notes.

Because I gotta tell ya: TIM RUSSERT having HATS that he can put on and take off at will, is almost as memorable, and full of surprises, as Monica's reaction to Bill's bent willy.

I, too, once saw one; that when fully erect CURVED off to one side. You almost don't believe that curved, it could fit into a straight vagina.

But with nature; and I'm presuming our laws; weird things can give ya lots of surprises. To go along with HATS. That come on. And, come off.

While LIbby probably got very surprised at Russert's "detour." I mean, the call went IN, because Chris Matthews' show was very biased.

Imagine my surprise that Tim Russert is full of hats. And, he could blow off the veep's concerns with the excuses he used!

Not quite up to par, as the truth goes, though. I think Russert was lying through his teeth.

He impressed the jurors?

Goes to show ya how the 12 are picked by lawyers, for their stupidity. Too bad the process is like it is.

Jurors, and members of the special olympics, share disabilities, in common.

I've got five dollars riding on Libby staying out of jail this summer. Bet'cha, I'm not the only one with dough on the table.

And, just like I think Libby's really innocent, I think Conrad Black is, too.

Gosh, you're asking a lot of jurors to fix what's broken about this system.

While Martha Stewart's a fantastic woman! She just snapped her purse shut. A Brilliant move, when we have clowns for jurists.

Whle going to jail? I hope it provides a boost to Paris Hilton's career. And, other than the fact that pinchie has to pay for Robert Bennett, still; I hope Judith Miller gives Fitz' reputation a run for its money. Which can't happen, until he shuts Comey's paperwork down. Or the Supreme-O's do it for him.

The books will come.

[Pal2Pal (Sara)]

Libby was never surprised to hear Valerie Wilson was a covert agent.

You sure about this? I'm sure he would be surprised to hear Val upgraded from generic CIA to "covert agent."

But that aside, I'm damn sure he was surprised to hear it coming out of Russert's mouth, in either of its forms. Or under either of her name forms, Plame/Wilson

[chch16]

Carol is right. Russert has been dishonest and disingenuous, plus he has the inexcusable habit of gushing anytime he gets someone from the administration as do all TV infotainment personalities.

But Russert isn't/wasn't needed to convict Libby and Libby got Plame info and leak instructions from Addington, Cheney, Rove, some at state, some at WH Counsel, and National Security Counsel executive director V. Philip Lago, Hadley, several who work for Hadley and several at State.