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Libby Live: Tedious Legal Arguments


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.

There's a rumored snowstorm hitting DC, so much of the Federal government is shutting down. Apparently, they're going to let the jury go home. But we're going to stay here and let Wells and Fitz wrestle out the CIA breifer testimony.

Walton: I wanted to get the jury out of here, the Federal government has shut down. Then we can go over any legal issues so we don't have any delays tomorrow. I assume that we're not going to need the jury on Thursday

Wells: Prior to lunch I indicated to the court that I would be making recommendations to Libby wrt the progress of his case. Over the lunch hour Mr Jeffress and I advised Cheney's lawyer. If we had called he would have been available on Thursday. We have released the VP as a witness. Jeffress and I recommended to Libby that subject to putting on the briefers and some documentary evidence, he should rest following that. After consulting with us and his wife, he indicated he would follow this advice.

Walton: asks how long it will take–wants to bring the jury in late.

Cline: Briefers no more than 15-20 minutes each, possibly less.

Wells; Certain readings, stipulations, newspaper articles, I wish to play a certain tapes to the jury to show that Russert gave in accurate testimony to the jury when he testified. If we get the legal arguments out of the way, in terms of what we have to do, it can be done in less than a half an hour–assume an hour and a half.

Walton, my inclination is to bring them in at 1:30.


Walton Closing arguments on Tuesday. 

Walton I believe I do have an obligation to inquire of Mr Libby about not testifying. [Libby stands] I'm sure you understand that you the absolute to testify in your defense. Is it your decision not to testify in this trial. 

Libby Yessir.

Fitz I think your honor said we'd submit something.

Walton If there are any modifications get them to me by tomorrow morning. We may be able to finish those discussions tomorrow. In any event, we won't do those arguments until Tuesday.

Fitz In terms of scheduling? Um. I'll tell you later.

Jury coming in.

A decision was made by Federal govt to shut down, so I don't want any of you to slip and fall and blame me for it. I want to make sure each of you gets home safely. We'll have to recess at this time. We'll stay around for a little while. They're saying that it will be icy in the morning, what I'll do is have you come in at 1:30 tomorrow. You'll need to talk to the Marshalls, I would expect that we'll be able to complete the evidence tomorrow afternoong. We'll come here on Tuesday and we'll have the closing arguments and instructions. Please continue to not have any contact with media coverage. See you at 1:30.


Walton We still have the issue on what could be brougt out from briefers. Did you have something else  you wanted to add.

Fitz The argument that this was just like the newspaper articles. They showed state of mind right before he testified. In this case, we've had extensive evidence from TYOI, one thing it's important to understand, in my view. THe difference between saying Libby was consumed by X and saying this issue was so much less important. If the elephant in the room  is before the jury without being discussed. If the jury does believe our case, on appeal they'll say they just couldn't phrase it. What is the relevance of the evidence. If the evidence is relevant, then letting it in, but not letting them say he was being consumed. It gets to no relevant point. If your honor doesn't think it's fair to say he was consumed with it. CIPA and Rule 403 are designed not to vet arguments but to vet evidence, the relevant evidence is already before them (from Hannah). TO put it before the jury, whether or not the words consumed are used. If it's not there, it should not be let in. I do think it will inject extremely unfair to the govt. I would simply say that we all did the level best in the fall, when the intell and briefing materials came up, they would get in, and they could argue what they wanted. Should put us in the same position otherwise. 

Walton I guess I have two questions. One, are we talking about anything different as it relates to the pertinent dates, as opposed to those interim times?  Is the govt correct that since Libby is not going to testify about how these things would affect him, what if anything can the jury do with that information beyond speculating that because he was briefed that that means he would have been focusing on these matters. Once you go into what he was briefed on, doesn't that engender speculation, the jury speculates that that was the case, bc Libby is not testifying to tell us.

Cline: We're talking about June 9, 10, 11, 12, 13, 14 and maybe June 23. And July 7, 8, 9, 10, 11, and 12. We're looking at the nine things Hannah has said was a focus for Libby. Govt has introduced circumstantial evidence, all of that requires jury to speculate, 412 and 413, a series of newspaper articles that dealt with 16 words. Govts theory is that bc they were found in Libby's files, one can infer he read them, from that one can infer he was concerned about Wilson's wife and focused on it.  We want to introduce evidence that involves a shorter chain of evidence. He was actually briefed on them, we know he read it. We also know this was significant national security intell that he was reading. We know from Hannah, they were areas of particular concern for Mr Libby. We want to be able to argue the legitimate inferences from this. Libby had an enormous flow. We want to show some particulars. To give them a sense of what he was dealing with. This was a man with an extraordinarily plate of pressing significant issues. Fitz can argue maybe he didn't pay attention [you think?]. We need the evidence in the record from which we can draw our inferences. 3 briefers, 15-20 minutes apiece. It's important to put that to complement the evidence from Hannah. The briefers are significant to show particulars. 

Fitz I can respond wrt Cline's points. The fact there are limited dates distorts it, that doesn't allow us to show there's a continuum, it's just left as an inference. We can't ask him what he did the rest of the day. There's a huge gap of the analysis. We put in one nondisclosure, not six. Hannah has testified about all the things going on, the hours, the volume, the flow. The distinction between the articles and this are different–these are articles that Libby marked up. We agree that if he asked a briefer about it.

Walton The October 4 article wasn't introduced.

Fitz And they're putting 3 articles in in response. They spent a few minutes on the terrorist threat and more time on the other elements. The fact that Libby is receiving a briefing, the only reason to have the jury draw the inference that Libby was consumed by it. That's precisely the logical foundation your honor required it have. Basically the bar was lowered. 

Walton I will think about it over night. I'll have counsel come back at 11:30. I understand the govt's concerns, but I also appreciate the defense perspective. The question is whether a reasonable inference could be formed, if they know he was briefed on these matters. There are going to be restrictions on what they say. If defense suggests, govt would have a reasonable ability to respond. It's sometime a fine line between what is fair inference. It seems to me if you're NSA for VP, and you're getting NS info on briefings, that you'll give some level of thought to it. I don't know if I can totally cut it off.

Cline One other element–statement admitting relevant facts. The govt wants to redact it in a certain fashion.


Walton, I have less problems with this. The last three says he was very concerned, I don't know how the jury could conclude he was very concerned, just based on the stipulation. I think it's quite another than a statement of fact to tell the jury that he was very concerned without there being something in the record to prove it. As far as those last three paragraphs it's inappropriate to put before the jury regarding his state of mind without him testifying to it. Regarding the second paragraph, I don't see anything there that talks about state of mind. I would conclude second paragraph in its entirety can be submitted.

Fitz Two comments. Now that we've had testimony, I don't understand why they can buttress that testimony. He had a person testify as a surrogate, on top of that he gets briefing materials. Now we're saying go through CIPA, say you're going to testify, then not testify. This becomes defendant gets to say, assume I'm going to testify. And the govt is stuck with everything that happens as a result. 

Walton It's the same thing. To the effect that it's cumulative, I'll give further consideration. 

Fitz If this is coming in, that's an argument why there should be no briefers in addition.  Thank you.

Fitz I believe there's a matter that Bonamici will address with Wells about extrinsic proof regarding Russert.

Wells, Three pieces of impeachment evidence, WRT Russert. First, admission by govt date 2/3/2007 concerning concessions regarding Russert. THere was a letter, the govt then produced this letter, which added additional accommodations wrt how they would treat statements Russert made to FBI in November 2004. Govt took the position that that would not consider that a waiver. We want to put this in so jury knows everything Russert received.


Wells Russert said he did not know the benefit, but I believe jury should know the full scope of the benefits given to Russert.

Fitz It's absolutely irrelevant. Russert wasn't aware of the details. The only relevance here is if it affected the credibility of Russert. This was worked out between lawyers.

Walton These can be perceived of some type of benefit. The problem is attorney client privilege, may impede ability to assess whether he was aware of it. Counsel would advise client about concessions govt is making. 

Fitz This was handled by lawyers. Can you put in writing what your proffer is. I do not believe that Russert ws not in the weeds. The only relevance is if he was aware of the deal.

Walton. If there was some type of concession, the jury should know.

Fitz we didn't put it into writing. It was related orally to Russert's lawyers. End of day to argue that something we didn't put into writing, but we saw it on an ex parte filing.

Walton Maybe I don't admit the writing. Bu tthe defense can read in a statement that this info was orally provided to Russert.

Fitz THere's no showing that this was shown to Russert. They asked him about it.  We gave them the correspondance, we didn't think they were entitled to it. To claim Russert was aware of every "jot and tittle" it seems like we're way far afield.

Walton I feel like Defense is entitled to something.

Wells. Second piece of evidence relates also to benefits received by Russert and would be form of impeachment testimony. Being able to testify in setting where lawyer was present. On cross, in attempt to explore Russert's understanding if he went before GJ, to my complete shock, Russert said he had no knowledge.

Walton There's no evidence he's ever done criminal law.

Wells. I'm going to show you three video tapes where it's clear he's aware of it. "So you understand that normal procedure, they're not permitted to have lawyers in room." I've given govt transcripts of three different appearances where he acknowledges that witnesses before GJ don't have their lawyer. Discussing GJ testimony of Clinton. [why am I not surprised we were going to Clinton?] He askes why he doesn't go before GJ.Resisting a subpoena are words he can understand better. Clinton is saying "can we not testify on video" rather than having to march before GJ without his lawyers. In other portions of the interview, why she won't answer that question. She says it's one of may questions because it's before a GJ w/o a lawyer. These go right to the heart of a benefit. 

Walton I would agree that the second and third make the point. the first one, it doesn't necessarily say what you're suggesting.  What's the govt's position.

B Law is clear that it is impermissible to do nothing but impeach something on collatoral matter and that is after you make the determination that there is an inconsistency.  Those are television appearances for which he was briefed in 1998. A single television appearance 9 years earlier is not something that reflects a witness knowledge as he sits on the stand. He was asked "do you know what the law is." He said no, he was unaware of this.

Walton I'm assuming it's not collatoral, you have to be confronted with it.

B Every aspect of the rule has been broken if this testimony will be allowed in. Witness not confronted with it. Witness did not testify. Plus, all three refer to investigations being done by Ken Starr, we all know that's done under a separate statute.

Walton I don't know–does somebody know that there is no difference between a suspect and a target. That's the problem as to why it's important if you're going to impeach. He may well have said. Clinton was a target. But I wasn't sure.

B In fairness, the other one They were all potentially targets.

Walton Rule does say extrinsic evidence not admissible unless witness is given oppty to respond.


B Concessions to a witness are different than concessions to a potential target. This witness admitted to receiving the benefit. All we're trying to do now is trying to prove that he lied when he said he didn't know. It's purely collatoral.

Walton The bigger problem is that he wasn't given oppty to be confronted with it.

B We object on all those grounds.

Wells You have never known in course of your reporting. I went beyond lawyer.

Walton I don't have a problem that he was confronted with something that would otherwise be appropriate. I think the govt's argument about it being collatoral. It doesn't go to heart of his testimony. Therefore the interest of justice argument would not support it. Otherwise, he has a right to be confronted. 

Wells I had no idea that a reporter would ever say that he didn't know about GJ.  I'd ask Russert to be called back and Jury can assess his statement. He took the stand and took the oath. There are multiple statements, I asked multiple questions. Jury has right to know that the testimony he gave is contradicted by statements he made on multiple occasions. Fourth trancript.  To extent confrontation, I'd ask he be brought back tomorrow at 1:30.

B We object to that notion. Russert was on direct for 12 minutes. He was on cross for 5 hours. He was grilled in every way by one of the best lawyers in the country. There is no basis to reopen his testimony.

Wells, Another transcript, 7/28/1998.


Wells Final point, admissions to the effect that "we further advise you that reporter Andrea Mitchell and David Gregory has not been interviewed or subpoenaed."  

Walton And you want???  They refused to be interviewed by govt. Neither side had a chance to be interviewed.

Wells I want it in to show that during investigation, the govt already had been told in GJ that Ari Fleischer had told Gregory. They had that info in hand. Gregory, had refused to be interviewed. 

Walton What inference are you asking to be drawn?

Wells, govt admitted into record DOJ guidelines concerning limitations on govt how they couldn't do everything. They'v talked about search for truth.

Walton You're suggesting that the fact that they didn't subpoena these witnesses. As I understand the rule, you've got to show that the witnesses are peculiarly available to one side.

Wells It has to do with GJ investigation.

Walton. You move to dismiss the GJ, you don't present the govt's failure to present evidence to GJ.

Wells govt said we were going to get all the facts. They admitted them so they could say they complied. 

Walton They only presented it WRT the witnesses they called. 

Wells My opening was a response to their evidence.

Walton "Whatever face you want to put on that pig" you're arguing that they jury should assign something negative.  What are you going to argue to the GJ, if these people were called, they would provide something that is different from what it said.

Wells Govt shouldn't be allowed to say they were involved in search for truth. They want to put the integrity of their search for the truth in play, I should be permitted to say to the jury that they didn't ask Russert about Gregory. They asked Gregory to be interviewed, he refused, they let it go. Let's say you had a case where DC Police decided not to engage in most basic fingerprint analysis of gun.  If they weren't going to pound their chest, I don't have a problem with it.

Walton David Gregory was allegedly told that in Africa. That wouldn't tell us anything. How would that have in some way potentially exonerated Libby?

Fitz What we said is that we charged him with obstruction of justice. Wells keeps arguing that obstruction is improper. Do we want to start trying Dickerson for saying he wasn't leaked. Defense doesn't want to call Dickerson. They're trying to not call witnesses themselves and fault the govt.

Walton Did you say something about purity.

Fitz What I do recall saying is that GJ had to get to the truth and that by lying Libby obstructed justice. We didn't say "we turned over every rock, every gift shop on the island." Wells said guy in the cowboy hat asked the hard questions. Now we're going to get into the question of what did the defense do.

Wells What Fitz said. An important but tough job. Had to figure out a lot. Who were those officals who knew, how did they learn it, what did they understand about it? To make it simple they had to find the truth.

Walton How would that relate to what Fitz was saying. Libby is not charged with the leak. He's charged with allegedly lying. Even if I let this out, it would relate to a matter he's not charged with. This information in no way relates to whether your client lied to the FBI.

Wells, if he's going to say that they tried really hard. They didn't press Russert, they didn't interview Mitchell.

Walton It was merely background info. I don't see that as adding anything to the weight of the govt's case. Regardless of why they were doing the investigation. Did he talk to FBI. Did he lie.

Wells, I only offer it to defend my client and again start to pound their chest. They want to say Mr Libby lied and we're going to show you have they've given proof beyond a reasonable doubt. THey can't bootstrap it of creating a picture of this great investigation.

Walton. I don't see how this any bearing on whether your client lied.

Walton I didn't perceive them as saying they were going to say they were the best investigation.

Fitz Zeidenberg is doing the summation, I'll do rebuttal. Wells said the only way they'd lose this is if they didn't follow their oath. We said justice was instructed.

Walton  Zeidenberg–do you intend to comment on quality of investigation?

Z I wouldn't think my vouching for the investigation would be beneficial in any way.

F Do I take it that Wells won't be commenting on it. THe only problem I had is if Mr Wells said the only way they lose. I have a problem if Wells gets up and does his schtick.  

Walton To suggest that if gregory was called he would be able to prove some basis. He is equally available to both sides. There cannot be a suggestion taht if he was called he would refute govt case.

Fitz Jeffress is going to introduce three articles. We don't object.  THe only other one is the CPD issue.

Jeffress. We didn't prove anything about where she worked. For them to come back to try to corroborate Grenier in rebuttal.

Fitz we worked out with defense, redacting exhibit with stamp treat as secret, declassified. Second exhibit that has a stamp. Cline has proposed an instruction, want to do switch of exhibits. Govt has exhibit in evidence, Wilson op-ed annotated. We had it marked, we'd like to offer it as 402. [Hey we finally learn what 402 is] 

Cline It's going to be off all exhibits of that note.  

Walton: get any changes to instructions. Difference in unanimity.  

Beer thirty–Murray Waas is taking us out for dinner! See you tomorrow at 11:30. 

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