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Libby Live: FBI Agent Bond Two


This snake, btw, is in honor of Mary Matalin. Well, maybe "honor" isn't the right word. 

A reminder of the housekeeping rules. I'll timestamp the updates, so you know when to expect one–don't go crazy with updates in the interim. Please treat this as a rough approximation; I'm no court reporter, but am sure developing an appreciation for the difficulty of their job (Slow DOWN, Fitz). And buy Anatomy of Deceit.

Some discussion of who the mystery witness is–apparently someone from DOJ who will be very boring. Sorry. And we thought we'd have fun.

Walton: I have a problem doing the video analysis, with all the unknowns with what was transpiring at WH, that I have a sufficient basis to conclude that there was an agency basis between Libby and McC. But I don't think I need to do that analysis. What is his state of mind when he goes to the GJ. He believes he's got to walk lockstep with what the WH has said. I think that analysis doesn't required 8012b analysis. I think to decide whether that info comes before GJ. Whether the statement was made, it's clear that statement was made. And then whether Libby knew. The jury can reasonably infer that statement was made before he went before GJ. I think it's reasonable for the jury to infer that subsequently McC did make statement. I think that's relevant to state of mind. So I will require that tape be modified so the only thing presented … none of the questions, because I think that is potentially prejudicial, but as far as just the statement McC says saying he had spoken to Libby, doesn't come in for the truth, but it does come in for purpose of showing Libby state of mind. It's reasonable to infer that he's going to distance himself from that information. I will permit those limited portions of the tape.

Fitz I think we've identifed 3 snippets. The only problem is that none of the snippets names Mr. Libby.

Walton. I think what you'll have to do is read the question that preceded the question.

Fitz Okay, we'll read the question flat and then play the video.

Wells. I don't understand why we've done the first one, why we have to do any more. Why do we have to say it twice. I think the first one makes it clear.

Walton: How does the cooperation issue come into play? It seems to me what is important is that Libby knew that McC speaking on behalf of the President was saying that Libby had nothing to do with the situation.  

Fitz last one would be page 8. One paragraph, if someone's involved they won't work here. 

Wells. This is just repetitive of the first one.

Fitz. We went through how we used the "leaking of classified information" from the note. That goes to the issue we just discussed that he used the term "leaking of classified information."

Wells. As long as it's framed so the jury gets the understanding. 

Libby shifts noticeably here.  

Fitz. And I went through that before. It's the language he used in the note. He wanted McC to use the same thing he said about Rove. He's asking for the same statement in writing.

Wells. I'm not concerned about the "not involved" in this, I'm concerned about the reporter. I don't know what the "this" is. [Note, the "this" question is when Libby shifted.] If they want to introduce this without defining what the "this" is, I'm okay about that.  

Fitz: This goes right to how he has to hew the line that the WH has with the FBI. 

Wells. He wrote he was not involved with classified info, and I think that's fair. Whether he said anything about a reporter, that's the part I'm concerned about. The govt has made a decision not to call McC. As I understand there was nothing beyond "were you involved." I do have real problems with this reporter question.

Fitz. It goes right to one, what the heart of the question is. He has every reason of motive.  We're talking about talking to reporters. 

Walton. Is there anything to indicate Libby said this?

Fitz. He wanted to get a statement out there and he got it.

Walton. The concern I have, is as I said earlier, he qualifies what he said. I don't know if when he says that, well, he may have related info about the wife, but he wasn't leaking classified info.

Wells. What I suggest be done, take out the "what." 

[Argh! Walton is reverting to a different justification for entering this. He just admitted this on state of mind, not on Libby's agent!!!] 


Walton: Concern I have, maybe that was taking off the table. I'll permit reference to classified info. I won't permit the reference to Valerie Plame working at CIA.

Walton: are we ready?

Fitz: our tech people are good, but they're not that good.

Walton. I'm going to have jury start their lunch. Regarding nondisclosure agreements. I read pleadings last night.

Bonamici up to defend the entry of nondisclosure agreements. That's the backdrop for everything in this case. Govt's contention that he had a serious motive to lie.

Walton: your position is that whether he disclosed classified info or not, there is sufficient evidence that he may have and that he therefore not knowing whether he had.

Bonamici: I would say there is sufficient evidence in the record that Libby had concerns. Addington testified recently that Libby had conversation with Addington that Libby had not done "it." He was making statements to VP and McC through VP that he had not disclosed classified info. What that establishes in part is that Libby was concerned about that nugget. Libby got info from a channel as high as potentially Tenet. Libby tailored his statements so he got the info through non-official channels. if you look at how he tailored his testimony. Schmall raised this issue. Libby's GJ testimony made clear that he was well-aware that it was being asserted that classified info had been disclosed. The non-disclosure agreements make it clear that he was under obligation not to disclose classified info. It was his obligation to check that before disclosing it to people who were not entitled to receive.


Jeffress; is trying to say there is stuff that would be misleading, including the rule that Libby has to check with classifying authority before declassifying, says it was shown that President can declassify. Arguing that it would make jury think Libby did something wrong.

Walton: couldn't that be done with a limiting instruction.

Jeffress. I don't think that is a sufficient thing to remove prejudice by suggesting through introduction of these agreements, that he failed to ask questions as to whether Ms. Wilson's identity or occupation was classified. They're going to make those arguments that he did something wrong.

Walton. I don't think they're going to argue that he did something wrong. THey're going to argue that he had reason to believe he may have done something wrong.

Jeffress. That's a really fine distinction for a jury to make. We're talking to jurors here.  It's a crime, it's a crime, to disclose information that may be helpful to our enemies. 

Walton: Would you agree to an instruction that he had signed a nondisclosure.

Bonamici: The agreement specifically provides the duties he was under, the consequences,

Walton: the duties are right. What are some of those duties. I agree you have a right to put something before the jury. I don't want the jury to misuse these documents.

B: We agreed in our motion to a cautionary instruction. The govt has agreed repeatedly to admit evidence regarding classified nature of Ms Wilson's employ. I think it's ridiculous for the defense to think we'll get up to argue that he actually did something wrong. The defendant has taken the position in this case that defendant had not motive to lie. He opened and said Libby had no motive to lie.

Walton: I think that does add to the equation. If there's something specific in agreement that should be admitted.

B Agreement specifically state that he has been debriefed wrt his obligations.

Walton: You're winning. I'm asking whether defense is saying something specific in there that would be prejudicial. I agree they can introduce at least some of this.

Jeffress; agreement they want to introduce has to do with classified info. They also want to enter SCI, there's been no suggestion that Plame's employment was in any of these compartments.

B Your honor, he stamped a number of his documents with SCI and Top Secret, including the note from Cheney. Whether or not he would believe this would fall into the other areas. [Brilliant!!!! She's using their classification overstretch back on them!!!] 

Walton. We'll discuss it when we come back. I agree that at least a substantial portion of that should go to jury. I'd ask you all to think about it. see if we can work out something.

Lunch time. I'll start a new post after lunch. 1:30.

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Marcy Wheeler aka Emptywheel is an American journalist whose reporting specializes in security and civil liberties.