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Libby Live: Wells’ Defense Summation One

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(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.


Folks are pretty impressed here–Jeralyn definitely impressed, though she'd remind you that there are two sides to every pancake. Now we'll get to see the other pancake. 

Walton: Govt took a little less than 1 hour 18 minutes.

Fitz, I think we took more time than you think we took, but I think we have more than you think we have left.

Walton Hour 50 minutes.

Fitz Hour 25 left, is that right?

Walton We'll go until 12:30, then we'll pick up at 1:30, I'll ask everyone to be ready before to get started.  

Now we wait for jury. We've got a slightly different view. We can see prosecution and defense table (we got the defense table instead of witness). And we get a bit of angular view of Well's stand. Here comes the jury.

Get ready for showtime, folks! 

Wells up.

Walton, members of proscution, members of jury. I was sitting listening to prosecution listen to what I said, after a few minutes I said, maybe I was drunk, it sure sounded like I said a lot of things I could no deliver on. Prosecution said, there were a very few words. I heard that true. Prosecution said Wells said that but then he played you GJ, the rest of the conversation. You are going to get instructions exactly what the charges are.

[Wells has a weird tone–it's a higher pitched indignant than before. He's not breathing enough, IMO. I think it's supposed to be false indignation.]

Let's show you what the charge is. Let's just show you if what was charged what I said in my opening. Count 3 alleges that Libby falsely told FBI that Libby falsely told that during conversation with Cooper Mr Libby told Cooper that reporters telling admin that Wilson's wife worked for CIA. But that LIbby did not know if this was true. That's what the charge is.   

What Zeidenberg did, is something that I won't characterize, bc I don't want to be personal. He read from Count 5. Count 3 what Libby said went to GJ [meant FBI, now corrected it] in October and November. In GJ they start beating on him, asking the same question TIME AFTER TIME AFTER TIME, Libby reconstructed, he then says, for the first time, maybe he doesn't have a wife. So he reads you that longer piece and suggests that when I said about a few words, what I said in opening, just what you're going to get. 

[Wells is facing jury]

11:30

Then Zeidenberg said I said there was a WH conspiracy. That I had no evidence. In this case, the key quesiton is perjury. THe key question is Libby's state of mind, before he went before FBI. That meat grinder note, that Zeidenberg says I didn't show evidence about. It's one of the most improtant, important pieces of evidence in this case. I'm going to talk about it in detail. He has suggested that I promised putting on a whole case, of evidence about what Andrew Card or Scott McC did, I made no such promise, I said I'd show you a note, introduce a note, show that VP Of this country, wrote a note in his own hand, in old pen, that it was not fair to protect Karl Rove and proetc libby. Ted WElls did not make those owrds up, I did not get into time machine and go into WH and write that note. VP wrote not fair to prorect rove and sacrifice Libby. [Um, Ted, the note says NOTHING about Rove!!! You're lying here!!!]

Libby had to fight to get clear. That note shows his state of mind. He was mad, He thougt he was being left out to dry by himself. It's all in the GJ, it's all in evidence, and I'm going to read some of it to you. He went to COS of Bush, Card, you should clear me too, Andy Card BLEW HIM OFF. Libby went to McC, McC said, nope, I'm not going down a list. Karl Rove, not you. 

LIbby did something only an innocent person would do , got to VP, I didn't do anything. Clear suggestion once they cleared Rove, He goes to VP, only an innocent person would do this, VP writes in his own handwriting, It's not right to clear Rove and sacrifice Libby. It was written and it exists. [Damn Wells is setting himself to get REAMED since the note says nothing about Rove.]

I'm going to start the way I intended to start before some of Zeidenberg's personal comments.

I opened to you about a month ago, now that we've had a month of testimony, I submit that nothing has changed from opening statement. Libby innocent, totally innocent, Did not commit perjury, obstruction of justice, did not make false statements. innocent man, wrongly charged. I also told you this was a case about he said she said. Case about different recollections between Libby and some reporters. There is no charge in this indictment about Libby's conversation with Grossman, Fleischer, Martin that's all background evidence. In terms of what you have to decide as jurors, it relates to Libby's conversations with reporters, Set forth in detail in the jury instructions. [breathes] those are the charges.

Something changed in material way. I told you case was about 3 reporters, 3 telephone calls, recollections abotu what took place 3 months previously. Walton DISMISSED charges WRT Ms Miller's July 12 conversation. let me read to you again what will be in Walton's instrutcions. Take verbatim from Walton's instructions. As I told you earlier, one of those allegations that Libby lied about conversation, one has been dismissed.  Count one, the obstruction of justice count based solely on allegations that Libby falsely testified to GJ, concerning conversation with two reporters.

So we are making some progress, some progress is being made, 3-3-3 is not 2-2-3 [shows graphic with three crossed of, replaced with two in red ink] 

We are now left with conversations with Russert and Cooper. Let me talk about Cooper.

Facts almost undisputable in terms of background. Libby gets up, takes wife and two children, birthday of oldest child, his tenth birthday. Libby family on that Saturday go to Edwards AFB, get on AF2, going to Norfolk to watch commemoration of Reagan, like a holiday, a birthday present to kid, AF2, VP, a great birthday present. Ms Martin told you that Libby didn't have his mind on talking to any reporters. She said, Reporters have been calling, including Cooper,  Are we going to talk to them, or not? You don't have to guess about what he said, there are notes.

11:41 

No one would have thought there'd be a criminal case. Those notes don't say anything about Valerie Wilson. The plane lands, Libby goes into small room with Ms Martin, Jenny Mayfield's in the room, they call Matt Cooper, Ms Libby and two children in next room, those kids have been up since 6 in the morning, want to get home and PUT those kids to be. Libby didn't want to be on the calls. He had never talked to Cooper in his life. He gets on phone talks to Cooper. Cooper testified, SCOOTER Libby wasn't running around, trying to leak. Cooper wanted to keep him on phone. Have you heard about the wife. I heard that to. I heard that too,but I don't know if it's even true. And it is about a few words, regardless of what he said. We saw what was in essence a Perry Mason moment when my partner Bill Jeffress, one of the best lawyers in the country. put up on the screen the notes that clearly show I don't even know, and the guy stops, It shows what LIbby said was accurate, what happened.  It was clear, that was up there, Cooper said, I can't explain it. Scooter Libby's innocent. He didn't do it. He didn't leak to anyone. He is being charged iwth a conversation with a reporter he never met in his life, trying to get home, in the notes, if you want to be fairminded, the notes support Mr Libby. ANd you're going to charge him for perjury, false statements, Some craziness to this case. 

Let me talk abotu Mr RUssert. I'm going to talk a lot about Mr Russert. Russert took the stand and said, it was impossible for me to have asked Libby a conversation on July 11, because I did not know, then, that Mrs. Wilson worked at CIA, so i could not have asked Libby the question. Russert said I didn't read it until July 14, and I said wow.

I then introduced an affadavit, a stipulation, as to what Case Agent Eckenrode, he was the top guy, he was the one who called Tim Russert. It is stipulated as true. The stipulation says the November 24 report states, Russert does not recall stating to Libby anything about wife of former Ambassador Wilson, although he could not rule out possibility. That's what Eckenrode would have testified to. He could not rule out possibility.

Russert was at a loss to remember it. He believes this was a type of conversation that he would or should remember. Russert talks to many people on daily basis, it is difficult to reconstruct one several months ago.

That statement that he could not rule it out is totally contrary to what he told you on witness stand. Those counts rely almost exclusive on Russert's testimony. [This is total BS–there's one charge that relates entirely to Libby's knowledge. Fitz is going to have a field day]

That stipulation in and of itself is reasonable doubt. I don't have to talk about Buffalo news, Russert's affadavit before court, how he was forgetful on stand the morning of indictment [wow, that relates to evidence that was ruled inadmissible] He made a statement that is different from an earlier statemen. This is an impeachment statement. THe mere fact that he made an earlier statement, where the stakes are a man's reputation, a man's life, that's reasonable doubt in and of itself. 

Russert says, it was impossible because I didn't know about it until I read it in the newspaper.

I'm going to talk you through this, most important testimony in the whole case. THe govt's timeline is wrong. Came out on AP wire, by 2:00 on July 11, if you lived in teh world of media, you could get access to it, people could call you, talk about it. maybe for those of us who are non-reporters, if you live in Russert's world, it was on AP wire, even though it was embargoed, Reporters could read, talk about it.

Novak testified at trial, that he wrote Mission to Niger before Noon, on July 11, before noon. And that it was edited by 1 PM, ET. COlumn out on AP wire shortly thereafter. Let me read you from testimony.

"In this case, my recollection is that since I had a really busy afternoon, I wanted to finish teh column by noon."

11:52

Edited by noon, it is given to AP, It's on the wires on July 11.

Are people in newsrooms permitted to read it.

Anybody who subscribes to that column, it becomes general information. 

Maybe all taht happened in this case, is that on July 11, Tim Russert read the column, talked to him about the column, only thing is that Russert has misrecollected the date on which he heard about it. Maybe he's confused to think he heard about in the Post on the 14. And he asked Libb ya question. Do you know about Wilson's wife working at CIA. Russert says, all the reporters know. Natural response, if Russert knew it was on the wire. Maybe all that's happened is that Russert has forgotten he heard about it on the 14th. It may be as simple as that. A simple piece of misrecollection. But think about the statement. The statement all the reporters know. By the 11th, it is a true statement.  That article is in newsrooms in over 100 media outlets. Russert remembers there is a buzz. He puts the buzz on MOnday. By Friday, at 2PM, all the reporters did know. It was put out on the AP wire.

Let me tell you how we'll proceed. I'm going to speak for an hour. Jeffress is going to speak for an hour. I'll use the time left.

Walton: You actually have 3:15 hours.

Wells Fitzgerald goes last. But I will tell you, and say to you now, there's an extreme disadvantage to Defense, bc you're not able to respond to something that will come up. I don't get to respond, but this is an important trial, and I represent an important person, so I want you to think about how I would respond. I want you to be critical thinkers. If you hear something that is new, I want you think, what would Wells and Jeffress say that is new.

I'm going to talk about some of the jury instructions, bedrock principles of American justice system. Proof beyond reasonable doubt and innocent until proven guilty.

Presumed innocent. Presumed innocent, remains with defendant, unless and until he is proven guilty, beyond reasonable doubt. Burden of proof never shifts during trial. Law does not require defendant to produce any evidence. Let me repeat that. That is why Libby doesn't have to testify, doesn't have to do anything. The sole question is whether govt proves guilt beyond reasonable doubt. Jurors not to ask the question, is he innocent. What is innocent is proven. We start as a bedrock principle. Innocence is presumed. Sole question is whether you've been given evidence that cloak of innocence has been ripped away. Please follow instructions, don't get it backwards. Sole question for you is whether govt proved he deliberately lied.

In some European countries, they have three boxes, innocent, guilty, not proven. 

Other bedrock principle is reasonable doubt. Walton will tell you that govt has burden of proving defendant guilty beyond reasonable doubt. Civil cases, only need to prove that it is more likely than not [hey, then I look forward to the Wilson's case]. Think about how reasonable doubt resonates. If after careful, honest consideration of all the evidence you cannot say you are firmly convinced, then you have reasonable doubt. You are only to check the guilty box if you are convinced of Libby's guilt. 

It is an extraordinarily high standard, system sets high, to make sure no one who is innocent is by mistake branded a criminal, a felon, it is to protect people as charged. It is also to make sure you don't have to declare someone guilty unless govt has given you powerful evidence. Our system recognizes we are not judgmental people, system says you as jurors have to take on difficult task of pronouncing another human guilty. You have to be confident that that person is guilty. It's to give you a comfort level. There is a permanence to a guilty verdict. [Unless you're the fall guy for the President and the VP] There are no erasers on the pencils of jurors. There to protect him, but also to protect you, so that a year later, you don't think  you made a mistake. They've got meet a very high standard.

Let me talk about Libby's defense. 5 counts. You're going to get a verdict sheet, 5 counts. elements will be discussed.

Count 1 Obstruction, based on Russert and Cooper [geez, at least Ted is predictable in his dishonesty]

Count 2 Tim Russert

Count 3 Cooper

Count 4 Russert

Count 5 Cooper

[In red] Libby had not been charge with leaking classified information.

As I said, wrt the conversations with Russert and Cooper, they're he said she said, there's no recording. Analogizing as if you're laying on beach, you couldn't remember conversation four months later.

Libby didn't get to lay on the beach, he didn't get to see his wife and family. He deals with important issues. No one disputes that he worked long hours or dealt with important issues.

There's a madness, even putting the question, the notion that someone woudl get charged with this.

Same defense to every count, government hasn't established beyond reasonable doubt, they've got to prove intentional lie. They have not proved he acted with criminal intent. Not that you made a mistake, not that you were confused. 

12:09 

Good faith. One of the most important instructions.

A person who makes a statement based on a belief or opinion that is inaccurate, making an honest statement that turns out to be inaccurate.  An honest belief is one of the most complete defenses because such an honest belief is inconsistent with the intent to commit the alleged offenses.

In this case, it is a deliberate, purposeful, intent to lie.

I'm just going to review chart I used in opening statement. Walk through quickly.

  • Gave best good faith recollection
  • Innocent mistakes
  • No knowledge that Plame was classified [whether or not she was classified is out of bounds]
  • Did not push reporters to write about Valerie Wilson
  • Did not leak to Robert Novak, Armitage did [brings up Ari, leaking to Pincus], when Judy says, he worked at WINPAC Libby's not a nut, he wouldn't go out and leak false info 
  • Libby is innocent and had no motive to lie

[Wow, I wish I could do the cross on this, Wells is throwing up so many softballs for Fitz to just slam outside of the park]

Let me talk about Russert. Russert is involved in three counts. Obstruction, False statement, perjury. No one is sure if the conversation is 10 or 11 or 12 [ha! he's never even said 12 before, but now they have to get to 12 because of their stupid Novak article change in argument, geez this is pathetic, laughs all around in media room] 

1) Russert asked libby if Libby knew that Wilson's wife worked at CIA, Russert told Libby all the reporters knew it

2) Libby was surprised

1 is what Russert said, 2 is Libby's state of mind [which is why those 9 govt witnesses are so important, Ted]

I'm going to focus on number 1, surprise I'll do my second.

How long do I have?

Walton: You've got 15 minutes before lunch. You've gone 46. 

Wells: Bill's given me the extra 15 minutes.

[Laughs all around]

First charge is just based on Russert's word. Based on credibility of Russert, Libby is facing 3 felony counts, his whole life. I said in opening you don't have to find Russert is a liar. You don't have to find that he took stand and intentionally lied. You have to find that Russert, based on testimony is not sufficiently reliable that any reliable jury can convict a person beyond reliable doubt. You don't have to decide he lied. What Russert is saying is it's impossible. I would submit that he just doesn't recall.  

12:19 

Why would Libby make up a lie and rely on Russert. They're not friends. It doesn't make sense for him to use Russert.

Was the Russert conversation something that would be protected by first amedment. It wasn't that kind of conversation. It was just a viewer complaint. Has nothing to do with first amendment, reporters privilege. NBC not friendly network, wrt Libby. NBC where Matthews on all the time, badmouthing the VP, NBC was where Wilson made his debut, when he first came public, he went on NBC, that was his home network, sitting there with Andrea Mitchell. There's no reason why you'd ever pick Russert. 

Libby says conversation with Russert happened bc that's his recollection. There's powerful evidence that Russert was wrong when he says it was impossible. I haven't gotten to discussion by Gregory.

Slide: Reasons to doubt Russerts trial testimony:

You cannot rely on his testimony to convict another person.

First, he has no notes,

Second his trial testimony is inconsistent

Evidence shows Russert could have known about Wilson's wife, you know Gregory was told by Fleischer. Stipulation in evidence that time difference is such that Gregory is told at 8 in morning on 11th. And also you know that a lot other reporters knew. When reporters already knew, Cooper knews, Woodward knows. Novak knows. THey don't just sit on information, that info gets out.

In terms of Russert's credibility, we know he filed misleading affadavit with Hogan when he said he was protecting first amendment. He filed misleading affadavit. Ask yourselves, does that comport with what happened in November.

Russert gave misleading account to public. He never tells the public I had been called by FBI and discussed whole conversation freely. 

Finally, Russert has memory problems. He forgot a very important telephone call that involved himself involving the Buffalo news. He had to write public letter of apology, where he had to regret for not recollecting something. He was candid at the time, the only thing that shook that confidence was that he had a note. There's no note in this case, you can't have reasonable doubt. You can't decide that's firm and convincing evidence of guilt.

Shows Russert's two inconsistent testimonies.

You look at Eckenrode affadavit, it was one, possibly two calls.

Russert oculd have told about Wilson's wife prior to July 14, you know Gregory story, Novak story.

That's the affadavit, read paragraph 6. [Wow, Ted shouldn't be rushing through this, this is the actual evidence he has]

Misleading statements, on TV.

Can I play that clip?

[Sound's not on for us here.]

He just leaves out how he didn't talk to FBI.

Shows Buffalo News, this is Buffalo news part of the case. What you'll see, this was a serious attack on Russert's credibility, in that article, person wrote that Russert involved in cheap shot, that Russert like bull in china closet, he said Russert embarrassed himself and his profession. Russert picked up and called person. Said I demand an apology, then he's interviewed, says he didn't call the guy. Then the guys publish their own article. Tim, don't you remember?

[Reads headline accusing him of "public memory lapse"] I would ask you, do not indict on the word of someone suffering public memory lapse.  The only reason he admitted he was wrong, is because he had a piece of paper. That's why you can't indict on he said she said testimony from a person like Mr Russert, it just would be wrong.

Lack of recollection on Libby' indictment. I don't recall, I don't recall, I don't recall. He was on the Today show, talking with Katie Couric, talking about how this is huge, says he doesn't recall any of it [Wells is switching the use of this evidence–originally it was introduced to make it appear that Russert WANTED Libby to be indicted, but now he's using it to hammer Russert for his memory]

[Plays Imus show] Didn't remember talking about Santa Claus. You cannot convict Libby solely on the word of this man. Again, you do not have to conclude that he was lying. Unlike other witnesses, he didn't admit his memory unreliable. He dug in. He said he believes it. The objective evidence shows he does have a faulty memory. You may decide, I'm not sure what happened. But that's not guilty. Maybe Russert is right and Libby is wrong. Remember, Novak says he may have said it to Libby at about the same time. Novak said he might have done it. It would have been natural for a reporter to have asked that question. Maybe Libby did nothing more than confuse Novak with Russert. That's what I mean, perhaps Libby is confused. There's no question he got some things wrong in the GJ. Same thing with Cooper, maybe he got Cooper confused with Russert. What it shows it's impossible to show with any degree of certainty that Libby is guilty of intentional lies.

That's where govt has falled shown.

How's my time?

Walton: You've got an hour 10 left.

Wells, evidence shows Russert conversation is unnecessary, He wouldn't have to concoct a story with Russert, his testimony is that on the same day Rove told him that Novak was writing an article and knew he was writing a story about Plame. It is a point that blows up entire story. [Hey, Wells, any reason you didn't put Rove on the stand so you had corrboration for this?]

Meat grinder. Best evidence for Libby's state of mind.

Concerned not about his job, but about being scapegoat.

Best evidence of innocence. Fitzgerald showed opening statement. But he didn't read it the same way I did. To get WH PS to clear him the way ROve had been cleared. He laid out the whole story, Only I showed you the note. 

I'm going to finish this section, judge. Just right now (gives page number). They [Card and McC] both blew him off.  This is Mr Fitz, asking a question. And Scooter Libby is sitting out there alone as someone whose named not cleared. I don't care what word you use, he had to go all the way to the VP to get cleared.

This is Libby describing to VP, I thought it was unfair since I didn't talk to NOvak either. See, Rove had lied, Rove did talk to Novak, Rove lied, Scooter Libby did not lie.  [a little jury nullifaction with your lunch, folks?]  Continues to go through the meat grinder lie. In GJ they explain that Libby had to go out and adress others. Incompetence of others is incompetence of CIA that let 16 words in SOTU. If you thought you had done something the last thing you would do is go to Card, then McC, then VP, only an innocent person would do that.

Walton: Break for lunch. Come back at 1:40. I'd ask to have everyone back at 25 to 2. Repeats warnings.

12:41

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