(Photo by AP Photo/Pablo Martinez Monsivais via Yahoo.)

 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.

Okay, this picture is misleading–we'll actually have Jeffress after lunch. then Wells. You'll just have to imagine Jeffress.

The interesting tidbits during lunch: Jeffress made a nice smile when Ted said he was going to take Jeffress' time. But one of the associates made an "oh no!" look when he said it.

But the coolest insight came from Christy. The graphic Zeidenberg used–and he used it consistently–showed everyone that spoke to Libby about Plame–or that he spoke to. For most people, they showed the faces of the people–these are, after all, witnesses who took the stand. But with the two CIA witnesses, Grenier and Schmall, they used just the CIA logo. Christy thinks it underscored the importance of keeping CIA employees' identities secret. Nice touch, huh? Kudos to Christy for having caught it!

Other opinions from lunch: Jeralyn thinks Wells had great body language, Pach agrees, and thinks that Zeidenberg (who was apparently pacing in front of the jury) wasn't effective. (UPDATE from Pachacutec:  To clarify, I thought Zeidenberg's presentation was concise and effective, though I don't feel he uses his body well as a presenter.  That's a minor point from one rather familiar with the ins and outs of persuasive speech and presentation skills.)  Jane thinks Wells made a mistake in making this all about him, Wells, rather than Libby. And it appears that Wells has gotten his team into timing problems, because he took 20 minutes to respond to Zeidenberg, which he needed to present his case. 

Here we go, Walton's in, waiting for the jury. 


Walton asks if they fed them alright. Someone makes a half-hearted yes.

Jeffress. The most improtant thing I have to say to you. THe govt asks you to find that Libby lied, that'll mean the loss of his freedom. The govt wants you to find that he made up a story, that he told it to the FBI and the GJ. They want you to find that Libby made up as his source the most famous TV newsman. They ask you to find that, in making up this story, Libby would say he forgot the conversation with Cheney and no one else, when Libby knew that the FBI would go out and talk to all the govt officials. They ask you to find that Libby did all this to protect himself from a crime he did not commit, to protect him from losing his job or security clearance, that were never in jeopardy. These are the things that govt asks you to find. Your standard is beyond reasonable doubt. Common sense alone tells you they did not carry that burden. The witnesses taught you a lot more about fallibility of human memory. Remarkable thing from govt is a statement that we have no difficulty in remembering conversations. Let's talk about every day lives, someone brings you in and says, what did you say four months ago. We don't have a problem remembering that? That's not so. And the govt tells you this is not a case about memory, but of course it is.

[This is SO much more effective than Wells' statements. Reasonable, calm, common sensical]

I'm going to talk about journalists. Govt remember in opening statements, that Libby was leaker, set out to leak info on Wilson's wife. To combat story that Wilson was telling. You were told. Btw, I need notes. You were told that this investigation was about who may have broken the law by leaking classified information. This case isn't about this. Libby is not charged with leaking classified info. The anwers are relevant.  Let's look at who did and who didn't talk to reporters. We're in agreement that Libby first learned about Wilson's wife on June 11.

[Shows note from Libby-Cheney conversation.]

That's Libby's note of when he learned this information. Libby has absolutely no notes of any of these conversations. This is the one note that shows he was told back in June that Wilson's wife works in CIA. I guess if he were the dishonest person the govt thinks he is, he would have ditched that note, if he were that kind of person. As a matter of fact, he came into FBI and told them about it. You know, in opening, it was a little confused about when Libby spoke to people. Grenier, Grossman, Martin, all tell him that they learned about it back then. and he told a reporter about it. 

This note was about what he should say he said to Walter Pincus. Let me talk about Walter Pincus. He wrote a story published on June 12, about the former Ambassador. Later, both Walter Pincus and. Fitzgerald knows about this conversation. Later Pincus cowrote a story. And what Pincus said is that a govt reporter was told on July 12 about the wife. In this GJ, Fitz asks Libby about talking with Pincus.  


Spending 8 hours in the GJ is not like sitting here. You remember it took portions of three days to get through these tapes. At the end, you can barely hear Libby. [this is effective, bc it provides a reason for his questioning to be so damn suspicious] 

I'm going to show you timeline of reporters between time Libby learns info. First is Walter Pincus, on June 11. The next person you've heard is Bob Woodward. June 27. He told you he may have asked, bc he knew from Richard Armitage. He's quite certain Libby didn't say anything. Sanger. Yes, he was writing an article about the 16 words controversy. Libby didn't say a thing. Called in Novak. Mr Libby doesn't recall it being that week. Libby recalls that as being later. Novak recalls that as being that week. He may have asked bc he knew it from Armitage. But he asserted that Libby didn't talk.

Two reporters we didn't call: Andrea Mitchell and David Martin. You know about that conversation on July 8. Martin was upset bc Hadley was accusing her of saying uncomplimentary things. L&G Where have you seen any evidence that Libby said anything to thse reporters?

Kessler: Libby said nothing. Evan Thomas, he doesn't remember conversation. he's not going to make something up. One thing he's sure, Libby did not mention Wilson's wife. During this time, when govt said Libby remembered that Wilson's wife worked at CIA, he says nothing, with all of these reporters, about Plame.

There were a lot of reporters who were hearing from govt people about Plame.

Armitage. Woodward, Novak. 

Rove and Novak. Fleischer and Gregory. Fleischer and Dickerson. Rove and Cooper. And a conversation I'm going to return to later, Fleischer and Pincus.  

Michael Duffy, Adi Ignatius, all of them know by now. Maybe we haven't proven that ALL of the reporters knew by this point, but they've come awfully close.

Govt called three reporters, Miller, Russert, Cooper. To tell you about conversations they had with Libby. Each one of those, Wells talked about Russert. I'm going to cover conversations with Judy and Cooper. 

First I want to deal with another subject. Govt says Libby not just putting this story out through reporters. I'm counting 11 reporters, there is one, that is Judy Miller, who claims that Libby volunteered something about Plame.

Govt wants you to believe that Libby took another route getting this info out. told it to WH PS, Ari Fleischer. he's the man who told two reporters, Dickerson and Gregory. Told Pincus, where Wilson's wife worked. He was WH PS. Told three different reporters the info about Wilsons' wife. Investigation into who disclosed classified info to reporters. What happened to Ari? He was givne immunity. The date of that order is interesting, February 16. He testified one week before Libby scheduled to testify. Flesicher comes in and says he had conversation with Libby and says that Wilson's wife works in CPD. Libby says that didn't happen. What Libby actually said according to notes of FBI, "I don't remember" then they type up memo and it says he adamantaly denied. With Ari he gets another building block to perjury.

Judge will give you an instruction, has to do with immunized witnesses. Ari is the only immunized witness. Testimony of witness should be received with caution and scrutinized with care. You know Fleischer had 2.5 years as PS, with hostile questions.


Fitz says Libby seeded a leak with Fleishcer. But when he told that, he got on a plane to Africa. And Ari doesn't say anything to these reporters. He's spending his time with reporters. Does he say anything on July 7, July 8, July 9, July 10? Then what happens on July 11. He said he was sitting on AF1, reading a document, that document happens to be a cable. It includes a report on what Wilson found in Niger. Ari sitting there reading. In walks boss, Bartlett, he announces, I can't believe they're sending VP, he works there. Within two hours, anyway, Ari sees two reporters on side of the road, and tells them exactly. Is he telling them something he learned from Libby? Or from Bartlett.

One of the  oddest things Ari said is that Bartlett was venting. I asked on cross, did you tell Bartlett that you knew that? I was too busy reading my documents. His boss walks in venting, and he, leave me alone, I'm reading my document. Does that sound credible? Picture that.

And then Fleischer tells you, I ask him, did you tell Pincus. I asked him, do you remember telling Pincus? And I asked im, I said, did you tell Pincus. He says no. 

[puts up testimony.]

Govt has 3 possibilities. Pincus is lying. I don't believe that, you saw Pincus. Other is that Ari is lying, govt doesn't want you to believe that. But they tell you that we all remember conversations, they tell you that he forgot Pincus, but not Libby.

That doesn't cut it, that just doesn't cut it. When you've heard about the fallibility, that doesn't cut it, beyond a reasonable doubt. 

One more thing. Remember what he told Pincus. What Fleischer told you that Libby told you about Wilson's wife is that she works in CPD. What did Pincus tell you? He had notes, remember, He told Fleischer that she was a WMD analyst. Pincus was quite certain that what Fleischer told him was an analyst on WMD. Not what Libby told him. So if Fleischer telling something he learned from Libby, or Bartlett?

Let me go to Allen and Pincus article, they said WaPo reporter had learned from an SAO, that Wilson's wife was involved in sending him on the trip. There was a theory that Kessler was the reporter who was telephoned that day.

[Puts up GJ testimony]


[Fitz hammers Libby pretty hard here, and finally gets him to say he may have told Kessler]

Now look, it goes on for four pages, the reason I put it there is because it's not easy, to go under GJ testimony. He didn't get the basic facts wrong, he had a clear memory, which witness came here that didn't get something wrong? What witness?

One more thing I want to say, remember I put up public officials. We don't contend that those people did anything was wrong. They didn't know she was covert, any more than Libby did. You heard the tape, did he sound like somebody who was leaking a covert agent's identity. We do not contend that those people did anything wrong.

Let me deal with motive. What govt says is that Libby thought he could be prosecuted for a crime in exposing identity of covert agent. But you know he didn't do that. I put into evidence the statute of the law that punishes the people who disclose agent's identity. That only punishes you if CIA takign active measures to protect identity of agent.

L&G What do you know if CIA was taking active measures? The fact of the matters it that all of these conversations, people will come in and testify, not a one of them has come in here and said to you, I knew she was covert. [How about Libby and the "hush hus"?]

Now the govt [laughs] You heard Libby say what he thought about whether Mrs Wilson was covert. He was asked if he had any sense that he might compromise identity of covert agent. [goes through a few incidences where Libby says a lot of people work at CIA, and they don't tell anyone that they're covert]

Where's the evidence to say that this person couldnt be someone he could play softball with or football. Oh, well softball.

It's a newspaper article, Zeidenberg put it up here and was reading it as if it were true. You can't take anything that's in these newspaper articles and assume it's true. Some journalists maybe think you could. We put up at least three articles.  This one says, Novak's disclosure hardly a secret, Wilson not an agent in field,

It remains far from clear that a law was violated. [goes through Nat Review article]

Could you bring up Novak's article? Novak's article itself. Novak reports that CIA says its CPD people selected Wilson and asked wife to contact him. It's a very important thing, I don't mean to demean it at all. When we have a true covert agent who risks their life by doing clandestine stuff overseas. But that's not what Ms Wilson was [pause] as far as Mr Libby knows.

They're saying Libby would lose his job. Have you heard any evidence that anyone lost his job? Rove? Armitage? L&G, that's a theory searching for evidence. You didn't hear one word, not from anybody in the case, that Libby had any concern about security clearance. [I believe that's not true] He certainly wasn't going to lose a clearance for anything that he did.

Let me turn to the reporters, I'm going to start with Judy Miller [I'm sure you are]

Libby says he did say something to Miller, but he said it came up on July 12. He did not recall saying anything on July 8. He wasn't asked about June 23 meeting.


Libby said he recollected a meeting several weeks early, He was simply not asked. But Ms MIller, after spending 85 days in jail, having plenty of time to think about it, having plenty of time to think about it. She comes to GJ, and says, she has no memory of meeting with Libby concerning 16 words prior to July 8. She says that under oath.

This a case about memory.

Miller then comes in, to testify to you, three weeks ago. She had an AMAZING recovery. She told you she not only remembers meeting. She says she remembers in detail.

[goes through testimony]

All of a sudden, she looks and notes and she can tell you that Libby was pissed about a war of leaks. Pretty amazing, a person testifying about this after not remembering for two years.

Libby has no notes. He has exactly one note. The one he brought to FBI. He's got no notes about the July 8 conversation or anything else. Miller says he did mention wife, because she's got this comment in parentheses, she says she took it to be nonproliferation, I showed here there's not one at CIA. Miller told you that she uses parens to mean something the source said, or that she wanted to ask someone about. Before she every met with Scooter Libby, she had Wilson's phone number. [Jeffress gets close to misrepresentation here, saying she talked to a lot of people, pause, before she ever talked to Libby] Where'd she get this extension, and what does she learn. Well, she's got a bit of a memory problem.  

L&G, she doesn't know. She's reconstructing.

Let's go to the meeting on July 8. Zeidenberg points out correctly that this is a 2 hour meeting, that LIbby, busy as he is, things of enormous importance to the country, of enormous importance to him.

Well, yes he does, bc his boss told him to do it. [doesn't that make it important?]

He had to go and defend his boss, defend the credibility of the Pres and VP. L&G I 'm sure I don't have to point this out again, Libby had a job to do, and he did it. He's an honest man, not a dishonest man.

I told you Miller has a bit of a memory problem. I played a clip, she was just speaking natureally about her memory.

[no sound for anyone.]


[Clip of Judy being Judy, which actually works well to slam her credibility] 

I played another video in which she said she had a conversation with senior and not so senior officials.

I don't remember whether senior or not so senior, no reference in notebooks, no independent memory of them. She told you memory of a lot of other officials. 

[Jeffress picks up one of the funniest quotes from Judy from her testimony, where she stops mid-line to say she can't remember when she started to talk to people]

She says she's pretty certain Libby not a source [also not quite true]

She either can't or won't say the name of any other source.

She won't tell you names of the other people.

In 2004, you heard Miller tell you, she and her lawyers had made a deal with Fitzgerald. Then she goes to jail, there was an agreement, Defense didn't agree to that. We did ask her, who else did you talk to. "She spent 85 days in jail to avoid saying she doesn't remember. That's amazing."

Judith Miller, although none of the counts that remain, the allegations concern Russert and Cooper, Miller is somebody that is still reliable to try to prove that story that Libby told. L&G In a case that requires proof beyond a reasonable doubt, Miller is not a reliable witness for that fact.

Let me digress before I talk about Cooper. Let me talk about when he claimed that Libby and others were disparaging Wilson. Where have we hard, anywhere, where have we heard that Libby disparaged Wilson. You'll remember that Wilson source for Kristof. June 13, a second article. Here's what Wilson was saying.

[going through what Wilson "said" in the Kristof articles. some impatience in the media room]

[Jeffress is running out of time] 

You've seen talking points where Libby trying to get the facts out about what Wilson says. Not a one, not a one, mentions anything about Wilson's wife. These are the facts. That's disparagement of Wilson? But that's what Cooper says.

Let's turn to this conversation on July 12. This is the first chance Libby gets to call Cooper back. Cooper sprawled on bed. Taking notes on laptop. When Libby iasked about conversatoin 3 months after it occured. He says he did say something. He says he volunteered info. Cooper says he asked Libby. That sounds very much like what LIbby recalls Russert saying. Could he have been recollecting Russert? That's not how he could be wrong. L&G Here's why the govt asked. To convict Libby of three different crimes, perjury, false statements, and part of obstruction charge.

Has slide up, comparing the narrow line of the question.  


It's the difference between the red and the blue [the two statements] that the govt wants you to convict on three charges.  

This wasn't considered important by Mr Cooper, the reason you know is bc Cooper didn't include it in his submission. There's not one single word about Wilson's wife. This is something he wrote within minutes Compare this with what he wrote the day before about the Rove conversation. This was a big deal. They were discussing how to source this info. They thought they had something really newsworthy. The reason he didn't report it is that Libby didn't tell him anything that would be confirmation of the story that he was writing. 

Concerning Cooper's notes. Do you you remember, that's one of the entries in his notes. He's sitting there sprawling on the bed. He testified that he doesn't know what that means. Apparently no one ever seriously looked at those notes. There's a reason for that. Anyone wanted to give Scooter LIbby reasonable doubt, They might take a close look and see if those notes might just support what Libby is saying.

[Jeffress leaning against witness stand.] Wells is kind, he says something about Perry Mason moment, it doesn't take a Perry Mason moment. We looked at all kinds of notes we found he typed Rs instead of Ns, I guessit's particularly hard when you're sprawled out on the bed. What that sentence may well have said, if he recorded it accurately is this. 

[Jeffress types up the Libby line., then highlights it in the Libby testimony]

[Lots of "ooohhhs" in the media room]

Govt says you can rely on Cathie Martin. Because she was there. She testified she doesn't remember Libby saying anything about reporters. There are three possibilities. She could have been there during whole conversation. That's a possibility, Possibilities don't cut it, in criminal prosecution. She said she took a phone call from Millerwise. Libby was still reading from card. She came back and she heard him wind up conversation. That was her recollection. If you look at telephone record from Edwards. Not just one conversation. There were two. Martin apparently only heard first conversation. [references the exhibit] One 14 minute call, another 4 minute phone call. One possibility is that she simply didn't hear second part of phone call.

Was listening to Libby's side of conversation. Only heard LIbby's end of the call. When she's asked about this, asked to recall phone call, when she's asked months later, it's possible she forgot. I'd submit that based on the evidence, L&G, Mr Libby got it right, and the testimony of Matt Cooper and Martin, such as it is, does not life mantle of presumption of innocence. Govt takes count 5 and says that there are four different statements. There are also 3 elements of Obstruction case, 2 parts of count 2. It's not fair to flyspeck Libby's GJ testimony. Libby's not trying to hide anything. The charge in this case, fundamentally, I don't care whether you're talking about perjury, obstruction, or false statements. Either he did or he didn't. It wouldn't be fair to pick some statement from GJ. This is a serious case. It's a charge that he's a dishonest man. L&G, You're the first people who've ever looked at this case, thorugh lens of presumption of innocence, you're not journalists, prosecutors, you're an American jury, sworn to enter "not guilty" unless you conclude that the govt has proven beyond a resonable doubt. And they haven't. It's not even close.

[Wells spinning in his chair looking up, he's got his notes in hand. He realizes he doesn't have time now.] 

Going to a new thread. Taking a break, come back at 3.





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