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Libby Live: Craig Schmall, Two

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I'm bored with that darn scale of justice today, so I thought I'd use the most amusing piece of evidence admitted yesterday–Craig Schmall's notes on the Wilsons, Tom Cruise, and Penelope Cruz. Looked pretty stunning here in the media room; Christy says it looked more so blown up huge in the court room. Though I suspect we'll have Libby's lawyers suggesting this was done after the fact right out the box–Schmall returns for the morning.

After Schmall we get a person who, I think, is going to be one of the key witnesses in this case, the former Press Secretary for OVP, Cathie Martin. She was right in the thick of things during this period and even witnessed the Libby side of the Cooper call.  

Schmall is back in the chair. Leaning back with a frown. And an interesting colored tie (kind of wintergreen colored, I think).

9:28 

I forgot to thank John Amato for doing my photoshop for me. What kind of idiot liveblogger goes to cover the Scooter Libby trial without Photoshop on her computer? Thanks Amato!

Jury now coming in.

Walton asks if they fed the jurors well this morning. "Steak and eggs again," one juror responds.

Cline up to question Schmall. 

C When we left off, I was taking you through chronology of emails and interviews. I asked you about contacts with Eric Edelman. You sent a fax to him on May 14 2003. Introducing it as an exhibit.  

C Let's go back to the chronology. I was asking you about an April 23 email you had sent–you sent it after the second interview with the government. You sent it in response to the CIA lawyer. In that email you noted you found the July 14 2003 TOC, correct? I take it that was the first time you mentioned it right? You had just found it, correct? There was nothing in that email about Joe and Valerie note. That's because you hadn't found that note yet. After you wrote that email you continued as CIA lawyer requested. At some point between April 23 and April 28 2004 you found additional notes. May 14 2003 conversation with Mr. Edelman (TOC from briefing) and the June 14 2003 note that we've talked about in court. It was about three months from your first interview with the government. During that three months you were aware they were looking for notes.

S I was still doing the briefing job, sir. 

C Written statement, April 2004, that you had found the email. That statement is the first mention that you made of that June 14 note and the reason you made it then, you just found it.

S I have no independent memory of this.

C June 14 2003, Saturday briefing, right, at Mr. Libby's home. You'd sometimes encounter his wife and two kids. They would not, however, sit at the briefing. You testified yesterday about a statement about potential danger of revealing identity of covert agent. At the time, you had no actual knowledge of her status or of whether disclosure of her identity would cause any damage. You were not telling Libby and Cheney that Ms. Wilson was a covert agent, correct?

S Yes, but using Mrs. Wilson as an example.  

C There are no notes of the explanation you gave Libby and Cheney, no emails reporting at CIA, no briefing report. After the April 28 statement, you were interviewed again by the government. A couple of months after that you testified before the grand jury July 21 2004. When was the first time after the GJ testimony you had contact with the government about this case.

S I couldn't tell you.

C You have met with the government to prepare for your appearance here today. In those sessions there were CIA lawyers and prosecutors present. They would go through with you what answers you might give. Did you see FBI and GJ transcripts. Reviewed emails. Reviewed statement.

S I don't know that I actually read the (April 28) statement. 

C Libby's team asked to interview. But you turned us down.

S Correct.

Fitz back up:

F you recall being briefed, during the first time you discussed this trip to Niger was about the time of the Novak article. Do you know if you told the FBI during your first interview about any conversations with Cheney and Libby about Kristof and Pincus articles.

S I have no independent memory. 

F Let me show you Defense 421.2 which you were shown yesterday. Do you recall being asked questions about a paragraph about this. You felt your memory was fuzzy. Reading that does that refresh your recollection of any questions you were asked by the FBI about Pincus and Kristof articles. 

[Cline is objecting, Sustained twice–I think Fitz is leading him too much]

F were you excluding anything about those articles.

S No. 

Sidebar

9:45 

Here's someone's [name removed at request–I fucked up the rules of the media room] take on what they're arguing over. Defense requested the briefings. And the CIA submitted a LONG affadavit saying they couldn't get them without moving heaven and earth (and note, Schmall says they go in a burn bag). But Schmall is up there saying, "oh yeah, they're in my binder." I think Libby's team rightly wanted to argue that unless they can see the handwritten TOC, it is possible CIA altered it after the fact. But I also suspect that Fitz may have won some wars within CIA about what he could get, and that may be why it suddenly became available. But that's just a guess. [I think I'm going to start calling this case "The Binder War" since everyone involved in it has at least 11 huge binders of crap.]

We're still in sidebar. Nothing to add. 

10:12 

Here's what's going on–Libby's team is taking another bite at the graymail purpose. 

It appears that Libby's team wanted to introduce the whole briefing from the day. Walton is saying the TOC is relevant, but the briefing doesn't have any relevance bc he doesn't remember the briefing. He could verify that the briefing was the briefing he gave that day, but if the info isn't going to refresh his info, then not relevant. Walton suggests he should be able to introduce the briefing to prove to the jury that the briefing is what Cline said it was. 

Fitz is saying that the memory defense relates to Libby, not to the witness. He's trying to say that since Schmall doesn't recall the briefing, it should not be introduced.  He points out the Walton said it was only admissible in case of Libby testifying.

Walton: I was not considering globally everything that would arise over the course of the trial. 

It seems like they're going to come to some agreement that this was in the briefing–but Fitz is arguing that Cline is basically testifying.

10:36 

Walton just said that if Libby didn't testify it'd be suicide.

Fitz is concerned that Libby will try to get into defense through CIPA and not testify. [Hey! That was what I thought they were doing–thanks Fitz, for the validation!! ] 

Okay. This is really exciting.

Fitzgerald believes that Libby's team pulled a fast one. They got all these substitutions in based on the assumption that Libby will testify. But he points out that Libby's team has not said anything about Libby testifying. So he's worried that Libby's team will introduce everything through Schmall, and thereby avoid having Libby take the stand.

F Cline's questions were proper questions. He's arguing that should end the question. We're swallowing a question we thought was improper. We're not going to address the substance of the question. 

Wells We'd respectfully object, this goes to the credibility of the defense team.

Wells is saying he'd introduce the document.

Walton is asking what his right is to go through the individual items, when he looks at the document, and it doesn't refresh his memory.

Wells is arguing it goes to the weight of Schmall's testimony.

Walton: You're saying he remembers his briefing and he's lying about it?

Wells: No the jury is being asked to give credence to his pattern and practice about his handwritten notes. That's the core point. We want you the jury to accept Mr. Schmall's pattern and practice that if he wrote it in that corner it came from Libby.

Walton So how would bringing out the specific items go to the question?

Wells, Witness refusing to meet with us, with the tension between CIA and OVP, if a witness sits down and says something, I don't remember this, I don't remember that. If we had been permitted to take him through an actual document, some people would think he wouldn't be credible.

Walton I beg to differ. I bet if we go back three four years and ask if you did something, most of us would say no. I don't think you'd get anywhere with this.

Wells Jurors are asking that. If you were in that juror box. If I took him through each one. And he said I'm a no-nothing, a see-nothing. It would go to his credibility about the notes in the corner. It impacts the credibility that it might give to him. The more important items on the document are. I think I have the right to call his credibility into question. This is his document from the CIA files. I have every right on Cross to call his credibility into question. When he is saying he remembers absolutely nothing.

Walton. What I'm grappling with is the procedure by which you'd be able to do what you're doing. I doubt it'll impugn his memory about a specific date. He would say this is the type of stuff I briefed him on. I just think if he were questioned about the actual document. 

Wells. The only empirical note we have whether it would be relevant is that note in your hand.

Walton. Good faith basis for the jury to know the questions. I will tell the jury that that having been said, the questions are not evidence. It is the responses he gave that counts as evidence.

Fitz. I think it was improper to put memory defense in without making Libby testify. We've now perfected getting around the court's ruling of only introducing the CIPA stuff if Libby testifies.  I think we shouldn't stick in their mind and then tell them to forget about it.

Walton. My understanding of refreshing recollection is that the lawyer does not have a right to identify the document. I've always taken the position that a party is permitted to show a document to a witness to see if it refreshes their recollection. If there's some legitimate reason to introduce it, then they can attach that info to that document. I don't buy the proposition that if he was shown the document … we don't know whether if he is shown the unclassified briefing document that it would refresh his recollection. 

Fitz. We do know.

Wells. We would not stop at refreshing recollection. He would say this is my briefing document. I agree with the rules regarding recollection if it was a document prepared by someone else. If we gave him the document, he would say this was his document. 

10:53

Walton: You wouldn't have a right to tell the juror what it said.

Wells: I'm beyond recollection.  So long as I don't say it is the truth. I'm trying to call his credibility into question. Including his credibility when he says that he doesn't remember anything. Then he may have no credibility about the note in the corner. We want to say that given their biases they cannot be believed. Once we say this is my document, we would have been able to move the document in. We will argue that he should not be believed, period. It's beyond past recollection recorded. As long as he said it was his document, we would have a right to paint a picture of what took place in that room that day.

Walton. There was a good faith basis for the questions that Cline asked. However, you must understand that the questions asked by Cline are not evidence. 

Fitz. I would object to the "based on the briefing"–we're introducing memory defense without Libby.

Walton. I am somewhat convinced that if the defense position is that it is illogical. Maybe the defense is taking the position that it would be illogical that this witness does not remember any of this information the jury could consider that in bearing on his credibility as a witness.  Wells is saying it's inconceivable that he would not have a memory of that.

Walton. There will be no memory defense if Libby doesn't testify.

Fitz. Now they're saying he's lying when he doesn't remember that? Why should we bolster the defense by saying that that came from something that is not in evidence and may never be in evidence. If the judge tells a jury that a question was properly based. 

Walton. I don't think it has any significant impact on the government's case. I assume they'll infer that it came from something that existed. If Mr. Libby doesn't testify there'll be no memory defense. I don't see how a memory defense exists.

Fitz. I don't want this to be a precedent. I don't want jurors to always ask there is a basis for questions.

Walton. I don't think it'll have a significant impact on the government's case.

Fitz. Going forward…

Walton. You can object and I'll rule.

Wells. Miss Martin is the next witness. Miss Martin took a number of notes. We have been asking since Saturday. They brought the notes at about 8:30 (this morning). I have not had adequate time to review… what I would ask.

Walton. I don't want to lose half of a day. You have a right to review the notes.  Do we have another witness we can call.

Fitz. So we're clear they've had copies of this for a year. "When you have three firms and eleven lawyers on the other side, Paper comes flying at us."  

Wells. We asked for the originals bc you can't read the copies.

Walton. Are the originals more legible.

Wells. Oh YEAH!!

Fitz. That's a bit of spin. The notion that they were sitting around for a year with illegible copies.

Walton. He's saying as an officer of the court that he cannot read. If he's lying I'll punish him for it. If it's a lie, I'll punish him for it.

Wells. We started asking Saturday. There are multiple emails.

Walton. All I can say is to look at the originals and the copies to see who is right.  If he's going to say he couldn't read them, I won't question that. You have been one of the most scrupulous prosecutors before me. 

Fitz If they're illegible I don't have a problem giving him time. I just don't want the record to reflect that we've been sitting on these.

Walton Did you make a requestion at that time.

Wells Ms. Casey started asking on Saturday. I think some documents are not complete. I don't want to sit here and make any kind of allegation. To make sure that something that was on the back side of the page. I need the originals.

Fitz Just to be practical, we're putting in 10-12 exhibits, only a handful of them

Walton He's entitled

Fitz we're not going to be done with diret before lunch. It's not a volume of documents.

Walton I don't want to lose any time. If there's gonna be any delay.

Fitz there's no other witness available RIGHT NOW.

Fitz brings up a handful of documents. 

Wells no–the box.  

Fitz four pages, one single-sided, a second single-sided. the next one two pages, double sided. I can tell you that there were copies provided before..

Walton I thought we were talking about reams and reams of documents. With all the lawyer power you got over there I don't think you'll have a problem.

11:15

Oops. I screwed up. We've got one more question for Schmall. and then Cathie.

Walton. There were questions asked about this witness about the briefing on June 14. You are instructed that there was a good faith basis for the questions based on what was on the briefing papers. But you must understand that the questions asked by Mr. Cline are not evidence. It was the responses that was evidence.

Walton (juror question). What do you mean "independent recollection." what's your understanding of what you say. A recollection w/o the benefit of looking at notes I may have written.

Walton. TOC June 2003–who would have written it?

Schmall That was my handwriting.

Walton June 14 2003–there was no T on it. What does the T represent?

S to represent a tasking.

Walton You did not put a T on it

S Not in reference to that–it referred to something that was redacted.

Walton Does the absence of a T have significance? 

S there are a lot of questions asked that I don't put into a formal tasking.

Walton that entry why did you put that there.

S I would have written a question down of something I didn't have an answer to.  If I get a question I don't know the answer to, I'll write it down. I wasn't able to answer it, but we didn't consider it a formal tasking.

Walton You indicated in ref to Libby having concerns about CIA people revealing info on briefing. You said he was irritated.

S Annoyed

Walton What's the basis for your belief  he was annoyed?

S Tone of voice, body language. 

Next Witness. 

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