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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

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