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Libby Live: David Sanger


graphic courtesy Monk at Inflatable Dartboard

NOTES: (1) This is not a transcript — It's the blogger's approximation, and no one really knows what that is yet! But I do know you shouldn't quote anything not in quotation marks. (2) I'll timestamp the updates and will update about every 15 minutes, servers willing. The hamsters that run the servers will appreciate it if you don't refresh excessively in the meantime. (3) If you're not having enough fun just reading along the liveblog, consider buying my book on this case.

Jeffress: Spell your name, What do you do for a living. [I'll use J and DS]

DS Chief Washington correspondant for Times.  For 20 years, just a few monts as Wash Correspondant, before that WH correspondant.

J June 2003,

DS I was one of the WH correspondants.

J Have you written on nonproliferation?

DS extensively. 

J Have you received a Pulitzer? And topics.

DS Two teams. Space Shuttle Challenger. Exports to China 

J Part of your job to gather info from WH?  Goes through agencies, background, deep background, OTR.  They're common terms?  Do you accept info from Admin officials on background? Off the record?

DS [to the last, off the record] As rarely as possible. 

J Why do you do that?

DS People will only speek off the record. The only way to obtain important info that we feel is needed to explain situation. We prefer it to be on the record.

J Late June, July 2003, story on intell. co-authors?

DS James Risen, Tom Shakar, Don Van Natta,

J Article dated July 20, is that the article you were working on?

J Was Scooter Libby one of the people you interviewed? Among how many?

DS Well more than a dozen, perhaps 2 dozen.

J Date of interview

DS Early July 2003.


J introduces notes so he can identify time, how long?

DS Under an hour?

J His request, or yours

DS Mine, I believe I had spoke to Cathie Martin.

J Did you give any indication of subjects you wanted to cover.  Did those subjects include 16 words controversy? Did you cover that subject?  What did he say to you about Wilson's wife.

DS Nothing. I don't believe her name came up.

J You're certain of that?  You also continued to write articles about VP.

New exhibit.

J You recognize that article? Does it refer to 16 words?  Was anything in this article based on what Libby said in interview on July 2.

DS Not to my recollection. This was a spot story that came out of revelations that come from WH the day before.  

J Do you recall that was a statement by George Tenet?

DS, that was a response to it.

J Did you mention anything about Wilson's wife?

DS I believe I probably did not know it at the time. Almost quite certain of that. 

Fitzgerald: I believe you're the third pulitzer prize winner to testify. Has Judy shared any pulitzers?

DS I believe she has

F Was the focus concerning the presentation of Powell to UN

DS I was trying to understand the sources of data that went into the presentation. As I understood it, Libby was one of the people who had provided info to Powell.

F What was the concern about the Powell presentation.

Bench conference


Fitz back. Is it fair to say that the discussion about the Powell presentation did not involve allegations by Joseph Wilson.

DS Fair to say

Fitz Interview occurred in OEOB, you walked into building, during total interview, Cathie Martin was present, During an interview in the present of Cathie Martin, Wilson's wife not mentioned?

DS Correct


Walton: Did there come a time when you learned of Wilson's wife.

DS With the publication of Novak's column.

Walton: that was how you found out.

DS Yes.


Walton: Memory defense, what the defense can say if Libby didn't testify. I misspoke when I said Defense couldn't put on anything. There's a misperception by defense that I was definitively saying that anything admissable would be admitted into evidence. Obviously I was making my rulings predicated on the basis for info going before jury. There has to be an appropriate foundation on the info I ruled on to be presented. Out of thin air, just because I ruled on it doesn't mean it can come in. There are going to be restrictions. For example, it seems to me, unless he testifies, it will be impossible to argue that these matters were of greater importance than this info regarding Wilson and that he would not remember the event that's the subject of this trial. I just don't see how that argument can be made. He would be the foundation for presenting this to the jury. Whether there are other things that won't be admissible unless he testifies.

Bonamici. One preliminary issue is whether these issues can be discussed in open court. If we're going to get into classified info, we shouldn't do in open court.

Walton. We're only talking about stuff that is presumptively admissible.

B We filed under seal because we referenced to intell. We don't think there's anything that's classified. We think there's plenty of unclassified info and general info that can reasonably go in through different sources. The real question is what matters can be talked about WRT particular issues he was engaged in. WRT those matters, there has not yet been a sufficient link between particulars and things that mattered to defendant.

Walton: Specifics?

B The parties have broken out types of info into categories. One is the testimony of former colleagues. One is admitting relevant facts. Your honor very expressly ruled that matters in Morning Intell Briefings–except for stuff that Libby asked for f-up–could not be introduced.

Walton: If he was briefed on something–why wouldn't that be relevant.  There will be restrictions on what is said about it.

B To read from 6A ruling, your honor said Morning briefings are not relevant, they merely represent what Intell Community thought was important.


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