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Libby Live: Craig Schmall, for the Defense


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.

I'm going to make a wildarsed guess that we'll actually get to the CIA briefers this afternoon, or at least Criag Schmall. Craig Schmall, you might be asking. We already saw him!!!

Yes, we did (and I made a not-nice description of him in my notes, for which I would like to apologize to Schmall). Schmall testified that Libby mentioned the Wilsons on June 14, 2003. And that Libby and Cheney mentioned something to him about Novak's article on July 14, 2003.  But Libby's lawyers want him back so they can list every single detail from that day's briefing to show how unimportant the Wilsons are by comparison. I'm predicting a very smart cross on this ploy–we shall see. 

Also, we should learn Walton's rulings on some of the things we were arguing about before lunch: whether Russert is going to be hauled back here tomorrow so Wells can get another shot at him, wheter or not a tidbit that Fitzgerald mentioned as a favor to Russert's lawyer, Levine, can be used to impeach Russert, whether the two other CIA briefers who had shot a day and a half at this point waiting to testify will actually have to testify. Did I miss anything?

Walton: [to Levine, Russert's lawyer] Did you ever impart to Russert that the government would waive the FBI thing.

Levine: At the time this happened, we and Fitz were adversaries, we were filing a motion to quash. I called him to say, are you going to raise the argument that any communication Russert had with FBI constituted a waiver. He said no, and I said, okay, I'm not going to brief on it. That has nothing to do with the negotiations we had later. 

Walton: Thank you. Based upon those representations, it would be unfair to suggest that Russert was receiving a benefit that influenced his testimony based upon govt's decision that it did not need to raise waiver issues to argue its case against quashing subpoena. I don't think it would be appropriate to say that had an impact on Russert's testimony. It'd be unfair  to him.

Wells. If you want to predicate your ruling on something other than counsel's representation, to the extent counsel's representation is like filing an affadavit, I don't accept his representation.

Walton: He said he didn't think it was something he had to talk about with Russert.

Walton: I don't see how this can be construed against Russert.

Wells; The fact that they were not asserting waiver, the govt has taken a posture, that permitted him to be champion of First Amendment, that could influence his testimony, jury should hear it. If you're going to predicate a ruling on testimony of counsel. If this were a piece of civil litigation. People file affadvits all the time, affadvits get tested. Your honor relies on a representation. 

Walton All he's done is cooperate with Fitz' representation. In the same way that I respect you make accurate representations to me, I trust them.  We've got a rule, I understand the arguments, I don't think it's fair to permit Russert's integrity to be challenged based on govt representation. In reference to tapes, the law is clear wrt impeachment on proir inconsistent statement. Under circumstances, when it's collateral, extrinsic evidence can't be used for impeaching. The fact that Russert made the statement doesn't go to what he said about Libby.


Walton: the letter's in the record. That's fair game. I don't fault counsel for not finding that out earlier. The timing for Russert to be called in vacuum and be asked on collateral matter. It has minimum probative value.

Walton: In reference to briefers. The rulings I made during CIPA were clearly predicated on my understanding that Libby was going to testify. The level of detail was based on him testifying. That was why I let the level of detail and why I pushed as hard as I did to make govt to make concessions to provide the level of detail that I felt he needed to mount his defense. I don't think it appropriate for info to come to the jury that would put Libby's perception of the importance of the nat security information. The only way you can do that and to have the jury in a position where they can calibrate the difference in importance. Without Libby testifying, that cannot be before the jury. I do think the amount of work is important. If the jury is aprised of the fact that he's got a lot on his plate. Whether it's nat security info or something else, the jury has a right to know. The level of detail that I ultimately bought in on was based upon that being a substitution for his testimony. He's not testifying now. It can come before jury to give generic perspective of how busy he was. I hope we can have time to do that. There's so many documents I looked at. What he has to be able to do is to indicate through the briefers that he was briefered on matters related to terrorists, port security. I think I have to give him the ability to give those generic titles so the jury will have an appreciation of things that were on his plate. I think such a limitation, the govt's concern, which I think is justified. Without Libby's testimony he can't do that. I have to in effect make a, it's not a CIPA determination, I think the general title of the subject he was briefed on.

Fitz: Most of the info was provisionally declassified. I wonder if it would make sense if CLine and I would speak. Recognizing where we're at to see if we can come to an agreement. 

Cline: We can bring in June 14, right? Can I consult with

Fitz: We did go through it with June 14.  

10 minute break 


Looks like Cline is just about ready. I guess that was more than a 10 minute break, huh? And all this time I've been promising you Craig Schmall.

Hey, here we go!! THe longest 10 minutes in creation. We're waiting for the jury.

Cline: We're going to handle the briefers through a stipulation.

ARGH!! We waited for that? We waited for an hour for this!?!?!? We don't even get Schmall???

Wow. I hope the jurors had a safe drive to get to their undisclosed location to get to the courthouse to be read something rather than seeing the briefers. Because it looks like they drove through the icy roads for not much of anything.


Something happened funny. The whole court room was laughing.

Walton: Good afternoon, Happy Valentine's Day.

One of the jurors is saying something, but it's not celar what. Everyone seems to have a smily face on. One of the jurors was reading a poem, apparently.

Walton: Thank you very much, you've been a very attentive jury and everyone appreciates it.

Cline: We'd like to read a stipulation.

If called as witnesses Mr Libby's MIB's would testify as follows.

1) During MIB on June 14 Libby was presented with info concern

bomb diffused

police arrest indiv


E African extremist network

Info on possible AQ attack in US

COncern about specific vulnerability to terrorist attack

Proposed ME plan, Israeli military action

Country's security affecting AQ

International org's position concerning country's nuke program

Leader of country enhances position through reform

Iraq's porous borders present security threat

Demonstrations in Iran turn violent

13 I'll turn to in a moment

Israeli offer of cease fire to Palestineans

Memorandum assessing Iranian' pres' view on terrorism

Problems in leadership in PLO

Foreign media analysis concerning Egyptian treatment on Paletinian conflict

Media, opposition of Isreali public to attacks

Info on Egypt process ME peace process 

Palestinian groups and Israel

Measure for overcoming challenges in last item

Constraints on Israeli military

Saddam HUssein published on website

Memo in Iraqi WMD

Housing shortage in IRaq

Info on 1920 Mesopotamia and insurgency on moden-day Iraq

POtential effect of improved governance in IRaq

Libby requested several items be returned on 16 June

Libby requested additional info on 7 and 14, both with related to ME.

Turning to terror threat list:

1) Concern over possible suicide info to hujack airplane by AQ linked group

2) Concern about terrorists providing support for business transaction by AQ

3) Potential suicide attacks against US forces in IRaq

4) Potential terrorist attacks against Americans in Karbala by unspecified means

5) Potential attack in Ethiopia

6) Potential attack in Nairobi

7) Potential attack in Kabul Afghanistan and Pakistan [sorry, lost the countiing here]

7) Concern over surveillance in Beirut and attack against embassy vehicles

7b) Unspecified terror attack against unspecified

8) Potential attack in Budapest

8b) Potential attacks in Kabul by unspecified group

9) Video taping in US university

10) Turkish and Pakistani extremists.

Cline If called briefers would also testify that between May 2003 and March 2004 Libby's intell briefings included:

Info concerning terrorist threats including AQ and HEzbollah

Homeland security preparedness

Info on foreign countries getting nukes, including IRan and NK

Monitoring individuals, including AQ Khan

Progress of war on Iraq, specifically incl troop strength and new govt in Iraq

volatile situation in ME

Intense disagreement between Turkey and US when Turkish soldiers taken prisoner

Security issues in Liberia when president deposed in early July 2003

If called as witnesses, they woudl further testify that they did not know what LIbby did with the info, what he did with the rest of the day, and it was not part of his job responsibilities to know this info. 


Wells up to read stipulation on FBI Chief Fuhrman,

FBI section chief, if called to testify would testify

1) Fuhrman section chief in FBI. ON Feb 12, 2004, together with attorneys with S interviewed David Addington

2) Fuhrman prepared report, Feb 26 report, recorded info that Addington provided

3) Feb 26 report describes account of conversation, Addington advised that it took place in anteroom in WH, Addington did not remember exact date, between 7/6 and 7/12 2003. During conversation, Addington asked about CIA contract issue and declassification

4) Addington advised that Libby made general inquiry about CIA's relationship. Does not reflect that Libby made any reference to spouse or wife, either when Libby asked question or at other time.


Jeffress, 3 newspaper articles, produced from files of Jenny Mayfield.  Hey, looks like we'll finally get to see Cliff May!!

Fitz; Don't object to any of them

J I stand corrected, they were produced under Libby's own certification.

Clifford May article, September 29, [This is May's article saying that he always knew this.] I had been told about Plame. From someone who formerly worked in govt. [Is this that lobbyist who talks to Novak on a daily basis]

J Puts up another article

WSJ [we're hitting all the conservative specials, aren't we??]

We've been knocking our heads to figure out how alleged outing suddently blossomed into scandal.

The political goals must be paramount here bc substance so flimsy. Passed in 1982 as reaction against Agee and other hard-left types. All a policy dispute over Iraq. First outing, Mr Wilson did to himself.

This is the context in which Novak told. This is something public had right to know. When an intell operative claims President sent soldiers to die for a lie. Wilson not an agent in field but ensconced at Langley HQ. It remains far from clear that lie violated.

j Puts up another article

National Review, Leak Proof. October 27, 2003.

DC obsessed with 16 words

Threatened to bring down presidency.

British intell believes it still. BC Wilson concluded that no uranium had been acquired. Admin handled flap badly. 

Nor did the CIA take many steps to concel her identity when columnist Robert Novak contacted the CIA about the leak, it confirmed her employment while asking him, mildly, not to report her name. [this is underlined]

THe CIA's nonchalance about the leak back in July is relevant to that evaluation. If keeping Mrs Wilson's wife out of newspapers, maybe someone should have told Wilson not to publish op-ed.

Walton: I'm going to give this instruction apply these limiting instructions. These articles have been admitted have not been admitted for truth. You may not assume that anything said in articles is true or consider anything as establishing facts.

I'm going to start a new thread. 

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