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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.

Good morning. It's a ugly day out there in DC [egregious–apologies for not calling you back–I got on a phone call and forgot], but we made it into the court house. We're going to argue over whether they bring Russert back to beat him up some more (why not–it was their best moment). We're also going to argue about how much the CIA briefers will get to say (we're getting Craig Schmall back, as well as Libby's two other briefers, later this afternoon).

Walton: On issue of whether govt can say that Plame was CPD. Evidence already in record indicating that Plame was CPD.

Fitz: Defense is challenging that, bc Grenier first didn't remember learning that. If they want to stipulate that Grenier's testimony is accurate [yeah, really], but since they're going to argue that the conversation never happened.

Jeffress: We're challenging Grenier generally, I don't want to say we're not. Govt had opportunity to introduce evidence about where she worked. It would be improper to now corroborate a witness that they didn't put in their case.

[bs–they couldn't do it because you told them they couldn't]

Fitz: We thought that was off the table when we had the govt case.

Walton: They've only done that for the purpose of impeaching Ms Miller.

F: When your honor ruled, I understand you may have thought different, but we thought if WINPAC came in, we could put CPD in. They want us to point to a piece of transcript that they're going to challenge. Why can defense take CIA status off for their case, but not let us to present it. It's unfair for the defense to use CIA status as a shield and a sword. It's unfair.

J: Please, I don't think the rule of a rebuttal case only going to evidence raised in defense has been changed. We did not say anything about her status. There is no testimony in defense case as to where she worked. It would be improper under rules of evidence.


F We had a hearing in there, we had a ruling, we ought to have been able to rely on the ruling. Your honor said, if they bring out WINPAC, you can bring out CPD, and now we're told that we've waived our right.

J I'm asking that the rules of evidence be applied. Nothing unfair was done here. We put on no evidence as to where she worked.

F If we rely upon a court ruling, I don't think we're precluded from offering evidence. We understood the ruling to say that if one came in, the other would come in, we frankly thought they'd come in at the same time.

Walton: admittedly the statement I made was made in different context, I did not anticipate how this would come out, it has come out for the purpose of impeaching Ms Miller. The difficulty that I'm having is that I don't want to be unfair to the govt. I think it was appropriate to bring it out for purpose of impeaching Ms Miller. If Libby indicated that Plame worked at WINPAC. The problem I'm having is if I had known that was going to happen, them I'm sure I would have permitted govt to ask witnesses about where she worked. It would only have been fair for govt to establish that he was on the mark as far as where she worked, or in the ballpark. It's unfair for the defense to use WINPAC against Miller but then for the govt not be able to show where she worked, to support credibility of other witnesses. That's the problem I have. I may not fit neatly in what is appropriate rebuttal. Having indicated what I said at prior hearing. It would be unfair to stop govt from doing what they would have done. Over objection, I will allow this information to come in.

Walton: Regarding Russert, I understand his lawyer's here. It's a tough issue. The impeachment doesn't go directly to testimony he provided. It does go to his credibility. His credibility is so crucial to this state, he's probably, if not the, one of the most important witnesses. If this had occurred, I assume I would have let it in. The timing is problematic. I don't know if the timing should override the ability to bring this in.

Fitz: As I walked in the court I was handed a case, which I think is on point. DC Circuit 2004, Judge Solomon overseeing case. Cooperating witness, cross-examined on whether he received money. He was shown a check, had ID info on check, denied recollection of receiving check. After cross, defense sought to offer in a copy of the back of the check, which proved he received the funds. DC Circuit decided, The Court also refused to admit check into evidence, whether Sweeny received check was collatoral, while check allowed cross, properly excluded the check. When someone denies receiving a check, that goes right to credibility. They confront him with decade-old video having to do with Ms Lewinsky. I will also point out that Defense already has in evidence, he'll accept that lawyers aren't in GJ, they have his agreement, they did have oppty to cross, it says "deposition will be conducted as if GJ, with exception that lawyer will be in the room." The fact that lawyers not in GJ already before jury. When you have a 12 minute direct and a 5 hour cross, you don't get to ask for a do-over. It is entirely collatoral. It seems the Hayes case controls.


Wells:  Hayes lawyer had had opportunity to cross on check, witness had already admitted he was engaged in fraud in the first place, and there had been oppty to cross about part of the check. Russert is over 50% of the indictment. I believe he is the most important witness on this case. It goes to bias, these areas can never be collatoral. Russert may be called back if govt wants in rebuttal case. Advisory case notes that so long as other side has opportunity to call back. I called counsel for Russert last night. If you want me to put him on the stand, counsel is here, I understand that Russert is in Boston, if govt wanted to put him on, given advisory committee note, impeachment materials should be admitted in front of the jury. Or if you want me to do it as one ball of wax. The Hayes case is not on point at all.

Walton: I'll have to look at Hayes.

Fitz: If I can hand up a copy of defense exhibit, right on the letter it says presence of lawyer is different for grand jury rules. Hayes doesn't get to whether witness is available or not.

Walton: He could have been questioned in reference to that letter. That letter could have been used to show that lawyers before GJ was different.

Wells; He testified he had not seen the letter. This court has discretion in this matter. I was incredulous when he said what he said. It goes to the heart of how this jury will judge hi scredibility. 

Walton: I'll look at the case. I would require that he be on the stand, to explain it. He'd have to be called back. I'll give you a ruling. When would Russert be available. Probably tomorrow morning, I'd like to get jury in and out, if we're going to do that.

Fitz: May I make one point on important of Russert.

Walton got a call.

Fitz: If you look at Hayes case, witness was one of two cooperating witnesses. This case is not about Russert, it's about things Libby said.  The testimony of Grossman, Grenier, Miller, Cooper, Russert, perhaps the most important witness is Libby's GJ testimony for 8 hours. Russert doesn't dwarf import of cooperating witness in Hayes.


Walton: regarding the letter, the question is whether he would know.

Fitz: In defense filing, they said this accommodation was part of the final effort to get his testimony. First, NBC tries to avoid subpoena. Then Hogan denying effort to quash. Then discussion about how he would testify. The discussion occurred in the motion to quash. We never thought we'd walk into court that we'd make a technical argument that conversation between FBI and Russert constituted a waiver. We had oral discussions outlining scope of testimony. We sent letter so he had something to shoot at for motion to quash. We had an oral understanding that that wasn't going to be an issue in our brief. When it came time to file ex parte record, we didn't want him to think that we wanted to hide that, I made sure I was on good paper with Mr Levine. That was the circumstance of how it came up. Russert then, then we put the terms in that letter. It did not merit putting in writing except that I wanted to make sure Hogan didn't think Levine was misled. Russert wasn't a lawyer, he was a client. In abundance of caution, though we don't think it's discoverable, we included it. To lead a brief saying this is the deal that Russert struck to testify is a complete fiction. To throw this before jury, this is way beyond collatoral, in addition to fact that govt's letter is hearsay. 

Walton Does he avoid the info coming merely because he says he wasn't aware of it.

Fitz is it relevant if there's no belief that he knows it. Our letter doesn't say it. We shouldn't be taking evidence and say, unless we can prove that a witness didn't know something, it is relevant.

Walton: you introduced articles, asking jury to infer that he read it. But this letter, they should believe he knew about it. 

Fitz: How does a jury know without asking attorney that he saw it.  Those articles were in his personal file. They were great importance compared to this letter.  If Mr Levine are dealing with how to argue a brief, that wasn't important enough to write in letter back and forth. The notion that he would be calling up to say we're going to make this page two. There's a world of difference.

Wells: I could not agree more.

Walton: Agree or disagree.

Wells Disagree. It's been a long trial. First. This is an accommodation. I've got a right to before

Walton: I'm not arguing this. I'm struggling with whether jury can infer that this impacted on his testimony.

Wells; If there's ever a situation where judgment call has to go for the defendant. If rule becomes that witness has received an accomodation.

Walton: If he doesn't know about it, how can it have affected his testimony.

Wells: If the defendant can get off by saying that was between the lawyers [hey, I thought Libby was the defendant, not Russert.] Ruling by 4th Circuit, a witness knows there's an arrangement, but doesn't know all the details, that can't be used to keep the details of it. Tentative promise of leniancy, would make it even more incentive for witness to make testimony pleasing to prosecution. [Jeebus, Wells is treating Russert as a defendant!!] What happens in this case is that the waiver was of great value to Russert. It was not in any of the papers, Russert was able to go around, saying he was a great protector of the first amendment, when in fact he had talked to the FBI. Perhaps this waiver, I believe had more value than any other part of this agreement. That permitted Russert to go on TV to talk about how he protected the First Amendment. I'd rank this Number One, the fact that they would say this wasn't a waiver, they kept it out of the public record.

Fitz Filings were under seal. A brief that it was argued under seal. To construct this notion that something Russert never heard about is just fiction. The fact is that he wants to use Russert's attorney client privilege a shield. When something that didn't merit a letter. The caselaw Wells cites has to do with plea agreements. If we had caught Russert with a kilo of cocaine, I wouldn't be here making this argument.

Walton: It may be just important to Russert as a plea agreement would be to someone.

Fitz to make this logical leap that this is what was keeping Russert up at night. What the understandings were, not just the agreement, that's in the record. This is a stretch to grab something from the moon and argue that it's pivotal,

Walton How would the defense ever be in a situation to establish that witness was aware of agreement. I would guess that something of this nature would be important to Russert.

Fitz Take this in proportion. If people strike agreements, those are putting in writing. Those were given over to the defense. This was something that didn't merit being put into writing.


Wells: that has great value because that kept out of the record the fact that Russert talked to the FBI. I'm going to end my case with the stipulation of the Eckenrode conversation, that Russert could not rule out talking about this with Libby.

Walton: I think it does go to potential bias.

F It wasn't an agreement. It was never in writing to counsel.  It was a footnote in ex parte affadavit to Hogan. We didn't put it in writing with defense counsel.  It was an oral conversation about whether we were going to argue waiver. We thought we had a stronger argument in Branzburg. They wanted to know what we going to argue. They asked us if we were making a waiver argument, we said no. This didn't take very long and it wasn't very significant.

Walton: It is a concession that a reporter might want to have.

F How, this is so far removed from the reality of what happeend. It's styling a brief. After the brief was filed, we reached an accommodation which was given to the jury. It's no different than if you're sitting here working on a brief and we're saying "no, we're not going to argue that, you don't have to deal with in the brief."

Wells Mr Russert testified that he had been going on TV telling everybody about how he fought the subpoena. The truth of the matter is that because the govt decided not to say what happened.

Walton The issue we're talking about is whether he waived when he talked to FBI.

Wells if you look at public filings, no one would have any idea that Russert talked to FBI. Whenever we got the Jencks material is the first time we learned he talked to the FBI, We were shocked. He went around the whole country talking about how he was a great protector of the First Amendment.

Walton: I didn't understand the full scope of what we're talking about. I think that's significant. I'll make a ruling right after lunch.

Wells, It's our position it was of great value.

Fitz Russert has already testified that he told no one about fact that he had talked to FBI, the fact he talked to FBI was disclosed.

Walton I assume a reporter would not want their discussions they had with law enforcement construed as waiver.  I can see how that would be a significant issue. They can't call the lawyer. They're only stuck with Russert's denial. Is it reasonable to infer that something of this significance would not be told to journalist.

Fitz One moment. I would ask to inquire of Mr Levine what he discussed with Russert. This is being made into something so different than what happened.

Walton If Levine is prepared to provide testimony on that point. If somebody doesn't know anything about it, then it seems to me this would be a fiction that this had anything to do with it.

Wells Russert testified that FBI asked him to keep this secret. That is not the fact.

Walton it would be unfair to lie to jury and ask them to believe it.

Wells The fact that people say things, they don't have to believe it. Let me cross him. They can't short-circuit the process. The jury is the fact-finder here. It is relevant, if the jury decides that Levine's testimony is relevant. I'm going to say it shouldn't be believed. He's got to give me the file, first. He's got to show me his notes of every discussion.

Walton If he's gonna testify, defense should have access to whatever info he has. I don't know about in front of the jury.

Fitz We're now in Alice in Wonderland. We're going to call a lawyer to impeach him. If an officer of the court says he didn't tell him, now we're going to have witnesses testify under cross. We've made up a tale of great significance. We've had Wells speak about an event that happened when he wasn't around.


Walton I'll think about it over lunch. Statement admitting facts, the problem I have with it in its entirety. What that entire statement tries to do is get his testimony in through the back door, otherwise now, he gets this evidence before the jury. It's cumulative, because we've also heard from the witness who testified yesterday. 

Cline You're correct that it's a substitute

Walton I just don't buy that counselor. If you want an admission from the govt, you should have said, we want you to enter into this whether or not he testifies. You can't suggest he's going to testify, then hear Libby's testimony without hearing from him [voice raising]

Cline We believe govt was on notice. We relied on being able to use this. Wells read it in opening.  

Walton DUring the entire course of hearings, it was my absolute understanding that Liby was going to testify. The basis for my rulings was predicated on him testifying.

Cline The question is, where are we,

Walton To the extent that that statement puts before Libby's testimony, that was a substitute for Libby's testimony because of classified info.  How can you susbtitute anything.

Cline you don't get to question an admission.

Walton if the Appeals court wants to tell me, I think we turn this whole process into a game, This is supposed to be about finding the truth. When we play games with the process–there are already too many games as there are.

Fitz We proceeded based on Libby testifying. We were offering that as a substitution that Libby wanted to offer through his testimony. It was not my understanding that it would happen without his testimony. We've already had Hannah's testimony as a surrogate.

Cline As recently as this weekend, the govt was willing to have the first two paragraphs admitted. I'd like to be able to read at least those two.

Walton I don't think I can hold the govt to something they decided to when they thought Libby was going to testify. It's just not fair. I won't permit it.

Walton Regarding briefers: What is intended to be argued in reference to the briefers? What does the defense intend to ask jury

Cline On statement, we'll proffer it for the record. I want to make sure on terms of constitution. Impermissible burden on 5th Amendment. We believe it violates 5 and 6th rights, in middle of trial to wihdraw it.

Walton I believed all along throughout these statements that iw as understaood that Libby was going to be testifying. All of these processes would only come in as substitute for his ability not to be able to testify. That was always understood. Now, to suggest that an agreement entered into in that environment. If that's what SCOTUS is going to require, we're going to say govt isn't entitled to fair trial,but defense is. If I get reversed on that one, maybe I need to hang up my spurs. I think you should have been clear that Libby wanted this even if he didn't testify.


BTW, Walton's cold seems much better than yesterday. Perhaps that's why he's getting riled up. 

Walton: Libby doesn't get to introduce state of mind. It's one thing to try to get state of mind through briefers. It's another thing to say what was occpying at time of being briefed.

Cline Let me draw one line, June 14, a particular briefing that Schmall testified about.

Walton When Plame's name was revealed. On that day it'd be totally appropriate to suggest that the info being provided would take precedence.

Cline Let's put that aside then. What we want to show is that on those days, at that point o fthe day, these were matters that were on his mind. This was part of the flow of information he was getting. All of this falls within topics that Hannah testified about. Hannah testified about them generally. Each of the items fall within one of those nine areas that Hannah testified about. There's plenty of evidence in record that jury can infer that those were key pieces of information. 

Walton You're not asking jury to infer he would have given more attention to these items

Cline I'm going going to be doing the closing arguments.

Wells gets up, standing away from the mike. This is the stuff that was coming in. I intend to make the full plate argument.

Walton Why isnt' that fair?

Fitz THis is going to be semantics. I have zero hope that we're going to be able to police how it's said to the jury. The jury has to understand, how would I react if I heard about a plot to blow up an airport. They're not going to give them the context to how Libby would understand it. They're just hoping jury will come to conclusion that this was more important. Whether they say he had a full plate, or bad memory, the rules of evidence, CIPA, goes to letting in. If the specifics can go in, CIPA was based on him talking about what was on his mind. We pointed out that is has prejudicial value. How it hits a juror is different than how it hits Libby. To say that this specific thought was on his mind.

Walton He can't be put in significantly different posture because we're talking about classified info. It was non-classified info, he would be able to throw it at the jury. Just because it's classified it's going to have this impact, and as a result of it. 

Fitz Its a 403 article. If he were an accountant, you would draw a line on the complex accountant stuff in.  The foundation for what made the probative value, you struck the balance assuming there would be testimony tying these to his thought processes. The defense wants to set the bar, and we'll leave it in anyway. The remedy is not to say let it in to the same extent. And make your argument indirectly. The remedy for evidence is we keep it out if it doesn't have significant probative value. The only probative value is to talk about what was on Libby's mind. Why should they get the benefit of what as on tehir mind. 

Walton I'm going to go to lunch and

Cline we let in newspaper articles, but your honor acccepted that it may have had bearing.

Walton That was motive evidence, whether he had motive to lie, because he thought he may have committed a crime.

Cline some articles from July, Fitz' article was if he read them, he was focused on Amb Wilson. We want to put evidence that requires a lot fewer pieces of evidence.

Fitz Those were notes he wrote that he references, the difference is we showed that Libby did something with it. We laid the logical predicate and they did not.

Walton Come back at 2:15 and I'll make the decision.


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