Good morning, my friends, and welcome back to the cross-examination that never ends … we're due to see more of NBC's Tim Russert being raked over the coals by Scooter Libby's attorney, Ted Wells. Yesterday afternoon's grilling raised several questions that Jane Hamsher, Arianna Huffington, and I kicked around after the court session. The main question from a media standpoint, even if some supposed media critics missed it (hat tip to commenter Thegris at Hullabaloo) is how Russert's loudly proclaimed First Amendment journalistic principles square with his unhesitating spilling of the beans to FBI agent John Eckenrode when he was first questioned about his phone call from Libby in July 2003.
And speak of the devil — as the judge and attorneys file into the courtroom, Judge Walton announces a problem with some of the jurors? There was an oversight in the redaction of newspapers, and the photo of Tim Russert and headline ("Tim Russert on the Uncomfortable Side of a Question") accompanying Howard Kurtz's article in the WaPo style section (which is linked above) was seen by some of the jurors. The jury is brought in, and no one 'fesses up to reading the article; a juror who saw the headline and photo immediately called it to marshals' attention. Mistrial averted, we hope.
NOTES: (1) This is not an official transcript — just a very loose paraphrase, at best — so don't treat it as one. Even exchanges that look like verbatim dialogue are just the gist of each question and each answer, with any key phrases or pauses included as best I can. (2) My own notes will be in parentheses and/or italics. (3) 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. (4) I didn't write the book on the Valerie Plame outing — but you should buy it, if you haven't already. If you're wondering who this "Swopa" character is, my previous writings on Plamemania can be found here.
Russert takes his place on the stand. Wells tries to pick up where he left off, asking why if (as Tim said yesterday) that his chat with Libby was not something he considered confidential, why did he fight the subpoena and file an affidavit saying it was confidential? Did he make a false statement to a federal judge?
Wells notes that Russert refers to Libby as a "source" in the 2004 affidavit, but said yesterday that Libby had not called as a source (which Wells melodramatically wrote on the board for this purpose).
Russert explains that Libby was assumed to be a source until it became clear he was making a viewer complaint. Wells says, but he complained in the very first sentence! They go back and forth on this until Walton tells Wells to move on.
W: You said in the affidavit that you couldn't even confirm that you and a source had communicated at all. But you told the jury yesterdaj
T: In my mind there are two different situations. The FBI gave me information, I did not divulge information. When the FBI said how Libby had described the call, I felt compelled to correct information that was incorrect.
W: Did you think it was misleading to file an affidavit with Judge Hogan that did not mention those facts?
T: A subpoena was a much different situation, I would be asked to go before a jury and provide information, with open-ended questioning. I could not agree to that.
W: But Fitz agreed to limit questioning.
(Tim begs to differ. He pours some water as Wells puts a letter on the screen.)
W: (quotes the letter in which Fitz promises to limit questioning) He was limiting the questioning, right?
T: I was not familiar with exact letter, but as I read it now, I understand it.
W: You told me yesterday that you did understand the questioning was limited
T: I was not familiar with specific letter.
W: But you understood limitations. You knew that before you signed the affidavit, right?
T: Now that you read it to me, I understand it. I signed the affidavit because I believed that to be subpoenaed in open court would put me in a position to be asked about sources (cites chilling effect of having to answer any question)
Wells starts to repeat himself, Judge Walton notes that Russert said he didn't read letter and says to move on.
W: You understood questioning would be limited, and would
Tim doesn't answer. Walton says, answer yes or no.
T: I understood there would be some limitations.
W: Let's go back to the affidavit. You said you talked to Eckenrode, you described both sides of the conversation.
T: I did not volunteer infomratioin about what Libby had said.
W: (shows Russert testimony from yesterday — "in order to respond to what I had said, I has to say exactly what he had said:) Was that true when you siad it yesterday/
T: Yes, sir.
T: Did you disclose to the FBI that you had a conversation with Libby?
T: I did not volunteer any information.
W: Did you disclose to the court in the affidavit that you had confirmed to the FBI the conversation with Libby?
T: I did not volunteer any information.
W: That's a different matter. (repeats the question — they go around this three or four times)
Walton: I think its the way you're asking the question that's confusing.
W: Does anything in the affidavit say you had a conversation with Eckenrode?
W: Let's go to a different matter
W: Do you know that you and government worked out a deal without it being considered a waiver? (?? by Libby, I guess)
T: I don't know
W: You never heard that before? Do you know what was communicated between Fitz and judge regarding your testimony?
T: I have no recollection of that.
W: Are you aware that your lawyers worked out arrangement with govt. regarding scope of your testimony?
W: (displays letter dated July 27, 2004) Have you ever seen this letter?
T: Don't believe so, could I read it?
W: (reads it) "This will confirm the understandings pursuant to which we intend to resolve the subpoena issued to your client, Tim Russert…" (etc.) You understand that an arrangement had been worked out where you would not have to appear before the grand jury?
T: I had not seen this letter. I knew I would be under oath.
W: Grand jury would not be able to assess your demeanor, ask you questions
W: And you would only be asked about Libby conversation.
T: I hoped so
W: And that was just a viewer complaint
T: As it turned out
W: So it wasn't a confidential source conversation
T: Yes but you never know what you might be asked, so thats why we fought so vigorously
W: (reads more of letter, saying testimony would be with lawyers in room) You know that in a grand jury, lawyers are not in the room?
T: Didn't know that
W: You are an attorney?
T: Non-practicing…. the most important thing is —
W: Please. I'm asking questions. (reads next paragraph, that while govt. wants Russert to keep testimony confidential, he had right to talk about it) You did go on TV afterward and discuss your recollection, right?
W: At no time in these appearances did you talk about your interview with the FBI, did you?
T: That was a confidential conversation.
W: Which conversation?
T: The one you mentioned.
W: Oh, with Eckenrode?
W: That was confidential?
T: He asked for it to be.
W: So you never talked about it, because he asked to keep it confidential?
T: And because he was transmitting information to me.
W: But you said both sides of conversation were discussed.
T: I said that what he told me Libby had said was incorrect.
W: (asks to explain)
T: He said Libby had called about
W: And all the rest about who to call about Hardball was discussed
T: I didn't discuss it, I confirmed it.
W: There's nothing in letter about agreement not to use your disclosures to the FBI as an argument that you had already waived your confidentiality, correct?
Fitz objects. Sidebar. Walton sustains the objection.
W: (puts up a letter dated June 2, 2004, the first letter from Fitz to Russert's lawyer) Is there any reference in this letter to that it would not view your disclosures to the FBI as a waiver of confidentiality (Ahh, that's what the "waiver" thing up above was about.)
T: (asks to read letter) No, sir.
W: When you were deposed, the questions were limited to Libby conversation on July 10, right?
T: I was asked about any conversation iwth my colleagues or anyone else about Valerie Plame.
W: Deposition was about 22 minutes, right?
T: About that, yes.
W: You were asked, "At that time, did you have any understanding that Wilson's wife worked at CIA?" Just one question, right?
W: you were not asked specifically about Dav
T: I believe I referred to my colleagues in one of m
W: Were you asked any specific questions on what information D Gregory might have had?
T: Don't think his name came up
W: Or what information Andrea Mitchell migth have had?
T: Not her specific name, no.
W: In terms of NBC news reporting of Wilson — anumber of reporters on that story, right? Andrea Mitchell and David Gregory among them, right?
W: Mitchell was with Wilson on MTP on July 6, right?
W: During the week of July 6, Mitchell was on TV and reporting on Wilson, rigth?
W: And Gregory was in Africa with President Bush, right?
W: No question in deposition about Gregory talking to Ari Fleischer
Objection. Sustained — hearsay.
W: Were you asked any question —
Walton: He's already said.
W: You said if you had known about Wilson's wife, you would have called colleagues together, right, and discussed what to do, right?
W: Same thing if Andrea Mitchell had information, right?
W: Was it the expected practice that if a key reporter got important information, they would report it to the group?
W: And Gregory and Mitchell were key reporters?
T: Yes, and they never came forward.
W: Were you aware that Mitchell refused to be interviewed —
W: Right after Libby was indicted, do you remember having a roundtable discussion on TV?
W: Do you remember roundtable disussion on Libby indictment?
T: Probably two of those — on MTP, and on CNBC
W: And on CNBC, roundtable was you, Gregory, Mitchell, and Pete Williams. Correct?
W: You have never divulged on TV your conversation with Eckenrode, right?
T: Was a confidential conversation I did not report on.
W: Do you recall a statement by NBC News that NBC had done its best not to hide anything about its involvement or Tim Russert's involvement in leak investigation?
Objection. Sidebar (after Fitz shrugs, a little frustrated, and says, "May be approach?"). Sustained.
It's 10:43. New thread coming up.