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Libby Live: Assorted Legal Jousting

Gimme some truth!

"Oh, you're going to the big courthouse… the one where they tried to get Mr. Clinton."

That's what the cab driver said to Jane and I as we took our seats for the journey to the E. Barrett Prettyman Courthouse.  Jane said, "We're going to get 'em back."  She only meant that rhetorically, of course, as we very responsibly demonstrated when we arrived at the security checkpoint right behind Lewis "Scooter" Libby, his wife, and attorney William Jeffress.  No insults or sharp objects were hurled, although it did seem to me that Scooter was looking quizzically at Jane and wondering where he'd seen her face before.  (Probably just my imagination.)

My name's Swopa, and I'll be your host for this week's live-blogging.  Please bear with me, since I'm new at this, and I have a sinking feeling that I don't type nearly as fast as emptywheel (or Jane, for that matter — she'll be in the courtroom today, along with Pach).  So I'll be feeling my way until my brain and fingers find a groove they're both comfortable with, in terms of how much I can absorb and pass along in real time.

The media room is about half full starting to fill up right now — we've been told that Judge Walton is attending to another matter, and we'll get an update soon.  When things get rolling (the word is we'll spend today hearing tapes of Scooter's grand jury testimony), I'll start live-blogging.  Commence chatting in the meantime.

It's 9:25 now. 

NOTES:  (1) This is not an official transcript — just a very loose paraphrase, at best — so don't treat it as one.  (2) I'll tell you the time at the end of each update; expect about 15-20 minutes before the next one.  The hamsters that run the servers will appreciate it if you don't refresh excessively in the meantime.  (3) I didn't write the book on the Valerie Plame outing — but you should buy it, if you haven't already.  My own previous writings on Plamemania can be found here.  (4) My own notes will be in parentheses and italics.

The closed-circuit feed to the media room just got turned on, so that may be a sign of imminent activity.

It's 9:41. 

Judge Walton:  The first matter is press access to the grand jury tapes… it would appear to me that this circuit has given a level of importance to the public's right of access to exhibits. Considering the importance that our circuit has given to this right, [legalese for saying he's going to give press copies].

Jeffress objects, saying that the precedents don't really justify this step, and that the jury will find it impossible to avoid the publicity resulting from the release of tapes. (You mean they won't be able to avoid re-hearing the testimony they already heard in court??)

Walton doesn't see the difference between overhearing commentary on the tapes versus overhearing commentary on the transcripts.

Jeffress says that the intense media desire to get the tapes shows the greater play that they will receive.  (He's got a point there.)

Fitz:  We've stayed on the sidelines, letting Mr. Libby's attorneys and the press argue this… we take no position. 

Walton says that the potential for greater media coverage is a concern — is he reconsidering?

Now a prosecutor is saying that the media coverage is unavoidable, but the context of having the whole tapes will be helpful.  The press here in the media room, having a proverbial dog in this fight, occasionally bursts into kibitzing and brief arguments back at the screen. 

The prosecutor now repeats my point about the jurors being exposed to the exact same material they've already heard. 🙂 

It's 9:56. 

Jeffress is now back up, reiterating that the higher level of discussion in general will result in accidental jury contamination.

Walton:  I do have my concerns about the use of these tapes by the media… it's an awesome task to ensure that media coverage does not interfere with a fair trial, which is my paramount responsibility… but based on my reading of previous cases, I think the circuit (e.g., in an appeal) would rule that the tapes should be released, and it's not my job to speculate otherwise. 

(I guess he wasn't really reconsidering; the exchange above was just a Socratic exercise of some sort.  Let the record show that it took less than half an hour for me to become totally confused by what was going on in the courtroom.) 

W:  "The next matter…" Ooops, no, there's a break to address unspecified other matters.  The reason for taking the break now has to do with a specific court reporter being available to handle the matter, whatever it is.

It's 10:06. 

Still on break.  But, um, I'm here just in case anything happens.

It's 10:32. 

Folks begin filing back in at 10:35.  On the closed-circuit feed, Fitzgerald really does look like he's wearing a white yarmulke.

Walton:  The next matter is Exhibits 422 and 423 (the WaPo articles on Oct. 4 and Oct. 12, 2003).  Regarding Exhibit 423, how are you going to show that Libby actually read the article?  (Exhibit 422, the 10/12 article, had passages underlined by Libby, so defense concedes he may have read it.)

Fitz:  It was produced from his files.

W: I thought it was produced by his assistant.

F:  She gave it to him, and he filed it.

W: Oh, I see.  (Remember, the above three lines are just paraphrase, even if they sound like quotes.)

Walton says this article seems admissable as relevant to Libby's state of mind at the time he was questioned by the FBI (on Oct. 14th, just a few days later).  But he's willing to strike passages that are unfairly prejudicial.

Jeffress: I thought the court felt Libby's GJ testimony would be sufficient to determine his state of mind, since he's asked about the topics in the article… [goes on awhile, then says he'd like to list passages that should be deleted as prejudicial.]

W: You mean unduly prejudicial. (some laughter)  Everything the government presents is going to be prejudicial. 

Jeffress takes this in stride, and goes on to start disputing passages.  He wants to redact the specific 1x2x6 quotes:

That same week, two top White House officials disclosed Plame's identity to least six Washington journalists, an administration official told The Post for an article published Sept. 28. The source elaborated on the conversations last week, saying that officials brought up Plame as part of their broader case against Wilson.

"It was unsolicited," the source said. "They were pushing back. They used everything they had."

Fitzgerald wants it kept in, because it shows the case goes beyond Novak, so Libby had legitimate cause to worry.

Jeffress says that the passage is completely false. Fitzgerald disagrees, he says the two top White House officials is true.  Walton asks Fitzgerald to explain.

LONG pause. 

I'm racing to catch up here.  It's 10:55. 

At length, Fitz says, we've heard about Rove already, we've heard about Fleischer, and there's also Libby.  Then he lists all of the reporters who were known to be leaked to (Novak, Miller, Cooper, Pincus, etc.).  He's clearly improvising(!). Fortunately, the defense doesn't press him about how one source could know about all this in October 2003.

Now they're debating the Oct 4th WaPo article, about destroying the Brewster-Jennings front the CIA had used with Plame.  The defense considers this hearsay evidence that Plame was covert, and the very subject of the article is unfairly prejudicial.  Fitzgerald argues that it's nevertheless relevant to Libby's state of mind, and therefore fair to submit.

Jeffress says that this article was not mentioned by the government in an earlier phase when they were supposed to identify articles to be used at trial — if they had mentioned it before, Jeffress says, Libby would have been justified in engaging in graymail discovery regarding Plame's actual status.

Walton and Jeffress are starting to get a little testy — Walton is saying that the government has a right to argue motive based on articles that were in Libby's possession without implying that the information in the articles is true.  Jeffress is openly dismissive of Walton saying he'll give the jury instructions not to consider the truth of the article ("We know, you're going to give an instruction," he says in a so-what voice.  I didn't look up to see if he rolled his eyes.)

Walton is trying to calm things down, but he's not conceding the argument.  

Now there's an issue about Russert, and something about quashing a subpoena.  Fitz says the government will be filing something — if I'm not mistaken, he just said, "We had a couple of typos, and our computers went down."  Since no one laughed, I assume he meant that the computers being down kept him from fixing the typos.

It's 11:09.  Time for a new thread… and I'm going to have to rename this one, since we never did hear any testimony.

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Swopa has been sharing prescient, if somewhat anal-retentive, analysis and garden-variety mockery with Internet readers since 1995 or so, when he began debunking the fantasies of Clinton-scandal aficionados on Usenet. He is currently esconced as the primary poster at Needlenose (