Libby Live: More Stuff from Libby’s 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.
Jeffress: Transcript of Condi's June 8 appearance on Stephanopoulous on ABC.
Fitz: No objection.
J To show why people may have acted as they did in that time.
Walton: That was all about Condi's June 8 appearance, Libby's state of mind in June 2003.
Wells: One final stipulation, then I intend to rest my case.
Former Inspector John Eckenrode,
1) Eckenrode was Special Agent in FBI in charge of the investigation concerning possible unauthorized disclosure of Plame's affiliation with CIA
2) On November 14 and 24, Eckenrode spoke by telephone with Russert
3) Eckenrode prepared an FD 302 report, November 24 report that recorded info that Russert provided. Eckenrode intended it to be accurate report.
4) November 24 report states that Russert was requested to refrain from reporting on FBI's questions and he agreed to request
5) Report describes Russert's account of Libby conversation. Russert advised he recalled at least one, possibly two conversations with Libby
6) Report states in part, "Russert does not recall stating to Libby anything about the wife of former ambassador Joe Wilson. Although he could not rule out the possibility that he had such an exchange. Russert was at a loss to remember it. He believes that this would have been something he would remember.
Wells; The defense rests
Fitz: Ms. Kedian will read one stipulation into the record.
Kedian: Introducing 402, a original of document already in evidence (this is Dick's op-ed)
The Counter-Proliferation Division, known as CPD, records of CIA reflect that Valerie Plame Wilson worked at CPD throughout 2003.
Kedian. The government rests.
Walton: Cautionary instructions. It's vitally important that you only consider evidence for a particular purpose. I do not know if you, but if you saw a stamp that said "treated as Top Secret/SCI" that stamp has been removed. You should disregard that stamp, including Addington's testimony about it. The stamp may not be considered for any purpose.
Walton: Newspaper articles admitted into evidence have not been admitted for truth contained in the articles. You may not assume it is true or establishes any facts. You may consider the articles for assessment on what effect they had on Libby's state of mind. You may consider them only if evidence establishes that Libby read articles.
Walton: When this trial started, I described the charges against Libby. I told you count one alleges that Libby falsely testified concerning conversations with 3 reporters. now, however, this trial has progressed to the point and one of those allegations, that being that Libby lied about conversation with Judy on June 12, 2003
Fitz July 12
Walton That allegation must be dismissed by you. This cannot influence your verdict regarding remaining charges. Count One is based solely on allegatoin that Libby falsely testified concerning 2 reporters, Russert and Cooper. You may consider evidence relating to July 12 Judy conversation to consider whether govt proved allegation beyond reasonable doubt.
Walton You've heard evidence about NIE. THere is no dispute that POTUS has power to declassify previously authorized classified materials and disclose it topress. At least by July 8, it was declassified. Govt does not contend he did improper concerning those conversations after July 8 when he leaked NIE.
Walton Anything else?
Walton We'll get a chance to go home a little early. Tomorrow I'll work on instructions. Hopefully by end of day, we'll have reached agreement on instructions. Friday, my clerk is not here so we cannot sit. No, that's not the reason. We don't sit on Friday. As you know, Monday a holiday. We'll need you back at same time. I hope we'll be prepared for closing arguments. On Wednesday, I'll give you instructions, then you may proceed with deliberations. Since this is long weekend, it is vitally important that you not have any contact with media coverage. Crucial you have no contact. I'm sure press does best to be accurate, there are times when press is not totally accurate. If you have contact with info, you will be disqualified. Don't listen to radio, don't watch TV, and other type of programs or concerns. And also, it's important that you avoid everybody associated with this case and no contact with newspapers. If you're like me that's hard. It's crucial that you not read newspapers and magazines. so you continue to be qualified to serve as juror. Have a nice weekend.
BTW, the laugh was that all the jurors wore red.
Wells up with something. Lots of discussion about CIPA hearings. Maybe I'm the best counsel to reply, since I was not at the hearings. In terms of representations that counsel made to court. Those representations were made before CIPA started. We thought there was a high likelihood Libby would testify. In December 20, 22, we for the first time received Jencks, before that time, we had no access, we did not know that witnesses like Grenier and Schmall had an utter lack of recollection. Once we got Jencks, our perception of case began to change, nonetheless we continued to think high probability that Libby would testify. We had no idea that that GJ material showed us. Nor did we know until cross Miller that it would be dismissed. Nor did we know until we examined Cooper where we think evidence shows that it's in the notes. We've proceeded at all times in good faith. To the extent there's concern on your honors part that counsel was playing fast and loose, that's not so. We spent hours working on preparing Vice President. We spent hours preparing to put Libby on the stand. We had to make decision based on our confidence that govt had proven their case beyond reasonable doubt. There's no box that says innocent or did you tell full story. I'm the one that makes the call, my recommendation along with Jeffress. I had the VP on hold right up until the last minute. We had him ready to testify on Thursday. He had his schedule open. I want to make clear we've been upfront at all time. We've got to make decisions that are in clients best interest. Once we saw Jencks, our view radically changed, based on what we felt was performance of witnesses.
Walton I assume these are based on AP article entitled Judge: Libby misleads Judge. I did not intend to suggest there had been intentional misleading on that matter. It was indicated by Cline that there was a qualification. I assume based on what you're saying now, that it was not an indication. I accept that as an accurate statement. To extent that changes can be made in newspaper articles that have already been out.
Wells: Thank you.
J I would move to strike govt's exhibit newspaper articles taken from Libby's files, during July 2003, offered by Fitz to show heavy focus by Libby on press issues concerning controversy. Defense has been limited to show what else was in Libby's files.
Walton: You said something I hadn't heard before–that there was a limitation on ability to present info in his files. Info in his files, I've never said that info was not fair game. As far as any one has submitted to me. Briefing documents are different.
J All those exhibits where you said it could not come in, Libby's notes, it was our understanding that those would now be inadmissible bc he is not testifying.
Walton That precise issue has not been raised. Stipulation of fact. Briefings, 3 items.
Fitz There wasnt an offer of Libby's notes. We've not kept out state of mind stuff. I don't understand how they've offered those articles into evidence, and then after we both rested, they try to take those out. The notion that there's been an inconsistency. We put in articles they put in articles. Now they want to take our articles out.
Walton any evidence that suggested that Libby would have given greater consideration to these nat security matters and therefore would have focused on them to greater extent, and therefore jury could conclude. That's the only thing that was presented that I ruled on. Anything else I didn't have any opportunity to rule.
Fitz One thing I would mention. Hannah provided unclassified testimony. Much of what Hannah testified to would not have been possible a year ago. While Hannah's testimony is unclassified as it is now. Now we're getting a revisiting on them.
Walton I had offered to redact. Those related specifically to the subject matters of this case.
Fitz If you look at 412, there are just two paragraphs in it. Then jury goes home and they want to pull our articles out. I find that bizzare.
Jeffress We did not have discovery of his files and govt is now introducing articles taken from his files.
Walton I don't recall an issue having been brought to my attention regarding not having access to info in his files. I'm sure I'd have granted that.
Fitz. We gave them everything we have. We had open file discovery on materials from OVP
Walton This subject never presented to me.
Jeffress, I specifically recall briefing materials from various meetings.
Fitz If counsel wants to put a record in as to what's missing. I don't want the appelate record to be all messed up. We put articles in, they put articles in, I suggest there be a record made to show that we gave over the materials.
Jeffress we should have been allowed to put in anything and everything. I shouldn't be standning here regarding requests we made and what we made. Second thing, if you recall before playing of GJ tape, defense had objectoin to discussions at WH and NSC, Hadley, Condi, GJ transcript Marhch 24, up to page 54 line 21. They had already questioned him about NIE. On these pages govt questioned why Tenet wasn't told. We would move to strike. We did object to that.
Fitz you ruled on it. I've never seen a case where both sides rest and there's a round of evidentiary requests
Walton Maybe I'm getting old, I don't remember that ruling.
Fitz I believe it might have been over a weekend. Your honor looked at this, your honor ruled. We can't revisit rulings when case is over.
Bonamici Reviews history of GJ, they wanted all of it out, when we filed a motion, then they asked for exclusions, you ruled in their favor a few times, wrt disclosures of NIE to David Sanger, you ruled that we should exclude that, we redacted that from tape and transcript.
Jeffress; Govt never offered any evidence that would make that relevant.
Fitz We didn't represent we were putting in additional evidence. The GJ transcript was evidence.
Jeffress March 24 transcript page 50 line 20 through 54 line 21.
Fitz one of the reasons we thought it was important was to show how unique this event was, that it was singular, that only 3 people knew it had been declassified. Now we've had a parade of witnesses. The ruling has a stronger basis after the defense case.
Walton I recall the ruling.
Fitz. If we're going to revisit I would ask that we revisit Sanger, they put the guy on.
Walton takes a break to read it.
Walton I thought I was getting senile because I thought you said that it was trial ruling, but this was pretrial. Your defense is that he doesn't forget. that same info, info to NIE was disclosed to Ms Miller it was my view thta the combination was sufficiently linked considering info contained in NIE that govt would be able to use that. That was my feeling at the time and I don't know what's happened to change that.
Jeffress When I was cross-examining Grenier, I failed to proffer Grenier email that shows he knew of Plame before Libby asked about it.
Cline I'd like to proffer the particular MIB items, that we proffered and this item.
Walton in reference to GJ testimony, I've given the limiting instruction that there's no claim that Libby disclosed info illegally. I think that's an appropriate instruction. I do believe it was a unique enough situation that it was of such a nature that the jury could conclude that it was an event he would not forget.
Walton I assume you all have given me everything I need to have regarding instructions.