Libby Live: Mystery Witness

NOTES: (1) This is not a transcript — It's the blogger's approximation, and no one really knows what that is yet! But I do know you shouldn't quote anything not in quotation marks. (2) I'll timestamp the updates and will update about every 15 minutes, servers willing. The hamsters that run the servers will appreciate it if you don't refresh excessively in the meantime. (3) If you're not having enough fun just reading along the liveblog, consider buying my book on this case.

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Good morning Firedoglake. I've had a bracing week away from the liveblog, shivering through Michigan's 25 below windchills all last week. Thanks to Swopa for doing such a great job with the liveblogging so I could go home and freeze. I'm using this leftover question mark from Fitzgerald's unused mystery witness because … well, we have no idea what Libby is going to throw at us this morning. I've heard verying reports as to the first witness, including Cheney, Novak, Woodward, Sanger, Mitchell, Even Thomas, or Pincus (so I spent about 2 hours loading slugs up to ancitipate any possible witness; if I had to guess, it'll be some of the journalists). My best guess? We're going to spend the morning arguing motions and I'll have plenty of notice as to who is up first.

Walton up (jury not here) to deal with motions. We're going to start with the motion to quash Andrea Mitchell's subpoena.

Wells: We wish to call Ms. Mitchell, and elicit testimony at a minimum that would show how intensely she was working on the Wilson story. When this story started, Russert was on vacation. Gregory is on the record as knowing Plame's identity. We have the right to show how intensely NBC was covering this story from which one can infer that she learned Plame's identity. "We think this case presents a different factual model" than any of the cases the government has cited.

Wells: No, what I want, to the extent that I have a wish list, my extreme wish is that your honor would treat it as residual evidence. But I have also said that if it is not treated as substantive evidence, it still should come in as impeachment evidence with a limiting instruction.

Wells: Impeaching her on her testimony that she can rule out that Plame worked at the CIA.

Walton: Assuming you can ask that, then what are you planning on doing with that, just argue it for that purpose? You're not going to seek to do the other, which is to suggest that she would have had conversations with Russert about it?

Wells: I could not do that if your honor limits it. I've made it clear that I have a more extreme argument that you treat it as residual evidence.

Wells: I have every right to use it for impeachment. I want to start at that beginning, which makes it very unique from Johnson.

Walton: I don't buy the argument that it can be used for substantive purposes. But I'd like to hear what govt says about impeachment.

Bonamici: The question to be asked is what purpose would be served by impeaching their witness? Defense intends to ask about an unrelated subject–what Libby said to Mitchell, we presume that Defense would want her to be credible. This is a ruse to present the non-admissible testimony. They've got no reason to impeach, they're setting up a straw man so they can impeach.

Bonamici: The Buffalo case is an outlier. There's not much case law that says the defendant should be in a different position than govt. It's a completely different situation. As your honor pointed out earlier, the statement was corroborated by other evidence, it's hard to imagine a statement more untrustworthy than this one? [not sure which statement she's referring to] A statement that even if it were offered for the truth, it would only serve as source of speculation to the jury. They're just trying to pile speculation on top of speculation. We would say that even if this had not been denied by Mitchell, it would be inadmissable under 403.

Walton: 403 doesn't require evidence is substantive. If they only wanted it for impeachment purposes.

Bonamici: Even if this didn't pose the problem of Johnson, there's no reason to put this hearsay before the jury.

[unknown–maybe it's Mitchell's lawyer?] The Buffalo case is not the rule of this Circuit, even if you go to Buffalo,

Wells: Let's assume that if Russert and Mitchell worked at NBC but they were entertainment reporters. [Yeah, let's just say that, huh Wells?] If they said I didn't know about it bc I was covering the grammys, that would be plausible. NBC was one of the lead networks covering this story. They started with Mr. Wilson. The jury could conclude based on intensity of this story, that there was such a possibility.

Wells: the point I want to make is this. If she had never made the impeachment statement of 10/3, I could still call her.

Walton: To say that you're working on a subject and then to ask the jury to presume that you had heard about Mrs. Wilson,

Wells: If she's working on the story, covering the State Department, where Armitage worked [but of course he wasn't returning her calls].

Walton: In a roundabout way, you want to get before the jury this statement that maybe she knew using a roundabout basis.

Wells; She was the lead investigative reporter, she was out working on the case.

Walton: You want the jury to infer that because she was working on it, she would have heard about Mrs. Wilson. The only basis for assuming that is the inconsistent statement. You'd be asking the jury to speculate that just because she was working on this, he would have heard it.

Wells: Russert says there was a buzz. We've already got on the record. The 302 states, I cannot rule it out as a possibility.

Bonamici: That is a quote from the 302, but you recall that when he was questioned, immediately after that, he pointed to the passage that he believed this was after the Novak was published. He was standing there looking at the 302, "Well, Counsel, it also says right here" that it was after the Novak column. This is contradicted by every bit of evidence.

Wells: I'm going to call the Agent [Eckenrode] tomorrow. This is the one instance bc the notes cannot be found–there was a diligent search for the notes.

Walton: I agree, if there is a reason to show this in the first place. You want the inference to be drawn that because of the intensity that she was working the story, she would have heard of this.

Wells: Analytically we have a different perspective. It's a team. Russert and Mitchell and Gregory are a team.

Well: For the govt to put Russert on, they created a situation for the jury that he's out by himself, and Ms. Mitchell is the reporter working on the ground.

Walton: We have one other issue, then I'll come back and rule. Have you reached an agreement regarding GX###,

Walton: proposed instruction regarding dismissed instruction of obstruction count, it seems to be consistent with red book. We're talking about dismissal of a count,

Fitz That's what I think the appropriate distinction is that by separating out language from the indictment. There were 33 paragraphs or more form part one, the Judy Miller conversations are still an important part of the evidence in this case. It says that Libby misled and deceived the GJ as to the manner by which he acquired and disclosed, so the essential tenor of charge is about when he got it and gave it out. A juror hearing this that Miller was dismissed from the case would be highly inappropriate.

[As I suspected, Libby's team is trying to go after the July 12 conversation, and with it dismiss the importance of Judy as a witness that on July 8 that Libby knew Plame's ID]

Walton: Does anything that has happened at this point impact that statement (About Libby's lie). My only concern is if I said anything in my preliminary instruction if that's been left out.

[Yup–Wells is trying to hide the what was obstructed–that Libby was trying to hide his conversation to Judy. Clever move, utterly dishonest, but clever. I think they emphasized the third false statement charge (which there was none) so by dismissing it, they could dismiss the obstruction charge.]

Fitz: I'll briefly respond, The vice in taking language out, as opposed to a count is that you're asking them to rule beforehand. I think the jury could find that the description of July 12 was a lie, but not using the language in the count, the jury can use that evidence against Mr. Libby, they can also use that evidence that when he said the first time he told her on July 12, that that was a lie. This proposed instruction would focus on July 12–and the language in the indictment, even though they were never going to see the indictment–would lead them to focus inappropriately on July 12.

Wells; We're not going to address that conversation. It has been dismissed. The jurors should know that it has been dismissed.

Walton: I'm going to have to … I'll have to go back and re-evaluate the evidence to see whether… I don't want something before the jury that could be prejudicial. I need to go back and review the indictment.

Fitz is in his seersuckery grey suit again–probably wants to wear it before it starts to snow heavily here this week. Jane's upstairs with Sidney Blumenthal and Pachachutec. And Jeralyn is here blogging for Arianna.

To explain a little more a little more about what I think happened. Originally, there were two alleged lies: the lie about Russert, and the lie about Cooper. Somehow, Judy got put in there in a way she wasn't from the start. I think she testified differently than what the charge said. So Wells got that charge thrown out (not that there was a charge on it). But now he wants to say, effectively, the Judy charge has been thrown out, even though, as um, questionable a witness as she is, she is a central witness of Libby's obstruction. That is, Wells has manufactured a very clever way to suggest everything about Judy is irrelevant, even though he only got the July 12 conversation as a lie thrown out. Now if that doesn't make sense–better ask Christy if you've got questions.

Walton: [about Wells' ploy to call Mitchell] I've thought about the issue and went back and looked at Johnson It seems to be wrt how you want to dress it up, you only want to bring that out has no relevance. It doesn't help the defense case whatsoever, the only reason you want to bring it out, you're going to do exactly what Johnson says you cannot do. I think there's a lot of mischief that comes with that. If you were to do that, it doesn't add to your case, it seems to me once you do that and you throw that before the jury, the jury may draw the inference that she knew about it, Russert knew about it, I just don't think Johnson permits that. I can hear from her, so we have a record, you can ask the questions of her, I'll do that outside of the presence of the jury, I am prepared to live with the ruling. Maybe the circuit will find a distinction between this and Johnson. You can dress it up as much as you want, but all the rest of this is purely done to get that prior inconsistent statement in.

Wells: Tomorrow afternoon can we have a hearing, just so the record's clear, it is our position that the questions I would ask her about her involvement in the story would be relevant.

Walton: What relevance would that have unless you trying to impute something to Russert?

Walton: I appreciate your candor. The only way you can have that imputed is if there's truth given to her statement. If she's just impeached on it, you can't use it.

Wells: The issue is, bc of the intensity, could the jury decide, doggonit, they're working on it so hard, maybe it's not sure.

Walton: You have a chance, with the FBI agent, you have a chance arguing it from the FBI witness.

Wells: Where we do differ is on relevancy. If Russert had said, that particular week I was in Russia on vacation.

Wells: The intensity with which she's working on the story, is independent evidentiary that she may have learned.

Fitz: Three small things. I assume Pincus is the next witness. Pincus co-author on article about Mitchell possibly knowing, I assume there won't be any question about Pincus.

Jeffress: that article was put in evidence by the government over my objections and certainly there will be questions on it.

Fitz: Is he going to ask Pincus about it. WRT Woodward, we have an issue to discuss, but I don't want to hold the jury any long. And we need to flip the flip chart.

Not anymore, thanks. STARWISE emailed it to me.

MORE TESTIMONY:

Fitz back. Is it fair to say that the discussion about the Powell presentation did not involve allegations by Joseph Wilson.

DS Fair to say

Fitz Interview occurred in OEOB, you walked into building, during total interview, Cathie Martin was present, During an interview in the present of Cathie Martin, Wilson's wife not mentioned?

DS Correct

Sidebar

Walton: Did there come a time when you learned of Wilson's wife.

DS With the publication of Novak's column.

Walton: that was how you found out.

DS Yes.

Sidebar

Walton: Memory defense, what the defense can say if Libby didn't testify. I misspoke when I said Defense couldn't put on anything. There's a misperception by defense that I was definitively saying that anything admissable would be admitted into evidence. Obviously I was making my rulings predicated on the basis for info going before jury. There has to be an appropriate foundation on the info I ruled on to be presented. Out of thin air, just because I ruled on it doesn't mean it can come in. There are going to be restrictions. For example, it seems to me, unless he testifies, it will be impossible to argue that these matters were of greater importance than this info regarding Wilson and that he would not remember the event that's the subject of this trial. I just don't see how that argument can be made. He would be the foundation for presenting this to the jury. Whether there are other things that won't be admissible unless he testifies.

Bonamici. One preliminary issue is whether these issues can be discussed in open court. If we're going to get into classified info, we shouldn't do in open court.

Walton. We're only talking about stuff that is presumptively admissible.

B We filed under seal because we referenced to intell. We don't think there's anything that's classified. We think there's plenty of unclassified info and general info that can reasonably go in through different sources. The real question is what matters can be talked about WRT particular issues he was engaged in. WRT those matters, there has not yet been a sufficient link between particulars and things that mattered to defendant.

Walton: Specifics?

B The parties have broken out types of info into categories. One is the testimony of former colleagues. One is admitting relevant facts. Your honor very expressly ruled that matters in Morning Intell Briefings–except for stuff that Libby asked for f-up–could not be introduced.

Walton: If he was briefed on something–why wouldn't that be relevant. There will be restrictions on what is said about it.

B To read from 6A ruling, your honor said Morning briefings are not relevant, they merely represent what Intell Community thought was important.

12:15

MORNING BUSINESS CONCLUDES WITH A LITTLE ARGUMENT BETWEEN ATTORNEY'S AND JUDGE:

B According to your ruling, they'd be inadmissable.

Walton: It was my understanding that these were so significant they would have dwarfed the Wilson matter. If he's not going to testify, there's a different theory, that he had overload, and so didn't remember this event.

B That's fine, but that would not make the individual items including the details included in MIB relevant. What that theory would make relevant is that he received MIBs, that it lasted half an hour, that he received a book of materials that he often kept overnight.

Walton: They would be able to infer that if was briefed on Iraq war, they wouldn't be able to suggest it has greater significance than this matter.

B If the evidence that we're talking about is that he was assigned that he was supposed to be in charge of the Iraq war. We went through 2.5 months of CIPA hearings and the details went FAR beyond that level of detail. The indiv details were expressly admitted on the condition that there would be a link made between focus of defendant and the matter itself. Time and time again, your honor ruled that if he is going to testify that these things consumed him, you said it was only relevant if he testified.

Walton I didn't argue that those decisions were exclusive of any other theory. I was made to understand that Libby would testify. I did not mean to suggest that my rulings were the exclusive predicate for how this was presented and established.

B What we would say, having sat through the proceedings for 2.5 months, that that was brought to bear. That's where the line was drawn. There wasn't a whole lot of discussion that defendant would be able to put before jury.

Walton: I don't want to talk about hypothetical. But if he's not going to testify we have to revisit what he can present. I don't think my prior rulings can be use to say they required him to testify. That's something we'll have to revisit.

B That' was the foundation on which we all relyed. If we need to revist, we need to revisit. One thing that should not happen is that the defense can enter all this information based on the specific theory that was advanced to you.

Cline: Let me address the three ways we want to put this in. We have made no decision whether he will testify. Statement admitting relevant facts. To some degree it serves as substitute, we relied on it as unconditional admission. This would be the first step that we would take.

Walton: I don't agree that if the govt admitted this based on expectation he wouldn't testify.

Cline: This was never conditioned on his testimony.

Walton: That was not my understanding.

Cline: there was never any condition on this whatsoever. Three principle issues on which govt objects. Each of those three paragraphs admits that Libby was concerned or very concerned with those issues. We have a predicate that govt admits it. This admission right here. If you look at final three paragraphs, the first paragraph discussing AQ and Ansar el Islam.

Walton: How are you going to establish predicate for that. Was the govt agreeing to this based on understanding that Libby would testify.

Fitz I remember losing a number of arguments on level of detail,

Walton: I'm not going to hold govt to this statement. The only way jury would know is if he testified. There has to be a factual basis, otherwise, you're telling the govt they've got to agree to something that only could be established through some predicate. I'm not going to do it, counselor, I'm just not going to do it.

Cline: For the record, from the very beginning there was this possiblity that Libby would testify. We raised it on Jan 10 at CIPA hearing. Put it on the record. Nothing was said about it conditional on Libby testifying. During voir dire, your honor,

Walton: I do that as a formality. I anticipated, none of my rulings were predicated on open-ended situation. I assume you're saying that if you decided to present no evidence you would be able to come in and read it. If the C of Appeals wants to tell me that's the law, that's their job. That's fundamentally unfair to govt for you to be able to establish facts that you haven't proven.

Cline: That's where we disagree. This admission by the govt establishes Libby's concern.

Walton: I think you should have made it perfectly clear to me and the govt that these were based on Libby not testifying, that would have made an impact on how I would have ruled on this. Did the govt have the impression that you were entering into this unconditionally.

Fitz: No. Your rulings were predicated on it.

Cline: First of all, 9.27, page 7 of CIPA transcript, we plan to present primarily through Libby's direct testimony.

Walton: I don't dispute that you said that, my mindset was that Libby was going to testify. I'm not going to hold the govt to this, if C of Appeals wants to reverse me, and allow defense to present a defense without any evidence to support based upon agreement that govt entered into, then I guess they'll tell me that's the case. Unless there's express indication by govt, that regardless of whether he testifies or not, we're agreeing that these are facts.

Cline: We have relied upon.

Walton: Should have gotten clarification counsel. I don't think we can deal in a nebulous way on this. I'm perfectly sure that if you felt the govt was doing this without them proving it, you would say that this agreement is unfair. And I think it is unfair. If it was going to be this issue, I should have been and the govt should have been put on notice. I don't think your statement was sufficiently succinct and clear. I'm just not going to buy that.

Cline: The other evidence will provide foundation for govt.

Walton I think we're scheduled to have further discussions at 4:30–see you at 1:30

12:31

Ping.

Yup, Mitchell - Gregory - Russert, and Mitchell - Harlow - Novak dots are asked by defense to be connected to impeach the witness testimony ;-) wants Eckenrode on the stand...

Walton up (jury not here) to deal with motions. We're going to start with the motion to quash Andrea Mitchell's subpoena.

Wells: We wish to call Ms. Mitchell, and elicit testimony at a minimum that would show how intensely she was working on the Wilson story. When this story started, Russert was on vacation. Gregory is on the record as knowing Plame's identity. We have the right to show how intensely NBC was covering this story from which one can infer that she learned Plame's identity. "We think this case presents a different factual model" than any of the cases the government has cited.

Walton: But you want this to go to the truth.

Wells: No, what I want, to the extent that I have a wish list, my extreme wish is that your honor would treat it as residual evidence. But I have also said that if it is not treated as substantive evidence, it still should come in as impeachment evidence with a limiting instruction.

Walton: Impeaching her on what?

Wells: Impeaching her on her testimony that she can rule out that Plame worked at the CIA.

Walton: But you couldn't argue from that she would have heard it.

Walton: To say that you're working on a subject and then to ask the jury to presume that you had heard about Mrs. Wilson,

Wells: If she's working on the story, covering the State Department, where Armitage worked [but of course he wasn't returning her calls].

Walton: I don't think it's logical to assume that Harlow told her.

Wells: Harlow told Novak, he confirms it. [he says he'll call Harlow]

Walton: In a roundabout way, you want to get before the jury this statement that maybe she knew using a roundabout basis.

Wells; She was the lead investigative reporter, she was out working on the case.

Walton: You want the jury to infer that because she was working on it, she would have heard about Mrs. Wilson. The only basis for assuming that is the inconsistent statement. You'd be asking the jury to speculate that just because she was working on this, he would have heard it.

Wells: Russert says there was a buzz. We've already got on the record. The 302 states, I cannot rule it out as a possibility.

Wells: I'm going to call the Agent [Eckenrode] tomorrow. This is the one instance bc the notes cannot be found–there was a diligent search for the notes.

Walton: but you're still trying to ask the jury to speculate.

Wells: I am allowed to present this with an instruction.

Walton: I agree, if there is a reason to show this in the first place. You want the inference to be drawn that because of the intensity that she was working the story, she would have heard of this.

Wells: Analytically we have a different perspective. It's a team. Russert and Mitchell and Gregory are a team.

Walton: I've heard all that, counselor, and I just don't buy it.

Well: For the govt to put Russert on, they created a situation for the jury that he's out by himself, and Ms. Mitchell is the reporter working on the ground.

Wells: I strongly disagree with Fitz' characterization of what took place. The obstruction count was based on three false statements. We wanted it clear that on terms of the obstruction that there was nothing wih Grossman and Miller, What the obstruction count was predicated on was that obstruction was based on three-prong statement. I opened on it. The Jury can consider June 23 and July 8 in terms of what Libby knew.

Fitz: I'll briefly respond, The vice in taking language out, as opposed to a count is that you're asking them to rule beforehand. I think the jury could find that the description of July 12 was a lie, but not using the language in the count, the jury can use that evidence against Mr. Libby, they can also use that evidence that when he said the first time he told her on July 12, that that was a lie. This proposed instruction would focus on July 12–and the language in the indictment, even though they were never going to see the indictment–would lead them to focus inappropriately on July 12.

Wells; We're not going to address that conversation. It has been dismissed. The jurors should know that it has been dismissed.

Walton: I'm going to have to … I'll have to go back and re-evaluate the evidence to see whether… I don't want something before the jury that could be prejudicial. I need to go back and review the indictment.

THEY'RE BACK AND IT'S NOVAK TIME:

Well,I guess Libby's team thought we'd be tired after lunch. Or perhaps they want us to lose our lunch. Becuase we're getting Novak.

Novak sitting there looking shiftily from right to left, kind of sitting back in the seat. He's got a three piece suit (like the one in the picture, but a yellow tie or some such thing. And he's wearing glasses. Maybe he noticed earlier that losing one's glasses is a good way to stall for time?!?!

Fitzgerald and Wells chatting about something–bench conference on something relating to Novak.

Libby is very animated right now, laughing with Jeffress. Whatever he said, they're both cracking up.

Novak has one cup of water to the side and one in front of him. He looks more comfortable than Judy, but not all that much more. But maybe that's because he looks shifty by his very nature? That took abotu 5 minutes or so. Jury now coming in.

I think Walton is getting tired–he's not as chatty as he was with the jury week before last.

[Wells up, I'll use W and RN]

RN: I'm a journalist, staffer for Sun Times, syndicated columnist, also a (clears throat) contributor for Fox, Bloomberg, editor in chief for Evans-Novak.

W: In 2003 who did you work for?

RN Sun Times, CNN. Exec producer for Capital game [His voice sounds A LOT more nasaly than normal], been political commentator since 1963.

Wells: Work history.

RN: goes through military service, AP, Evans, since Evans retirement.

Now Novak is sitting up on edge of seat.

W: Week of July 7 2003.

RN: Change of coutnerterrorism aide, Ms. Townsend, and several small stories ran in item, working on Amb Joe Wilson's mission to Niger which he had written about.

W How did you come to be working on Wilson column

RN: Previous Sunday, alleged attempt by Iraq to buy yellowcake from Niger, he had written op-ed, he was on MTP, I happened to be on roundtable and came in contact with him, had been interested in story, became more interested in it, and whether Pres had ignored report in opting for invasion of Iraq.

Wells, itnroduces the column.

1:41

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