(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.

Ted's turn again. I suspect we'll get the contrite Ted. But that's just a guess.

Also, I'm using "L&G" as abbreviationg for Ladies and Gentleman. I've included it to give the civilized tone of the discourse. But it's too damn long.

Wells has 50 minutes.

Yup, contrite, calm Ted.  

Good Afternoon. I have 50 minutes left to speak to you. I'm going to have to be quick, cut some things about. I was talking about relevancy of meat grinder note. If you look at top part of that note, Libby is saying in his own handwriting that he did not leak classified info. That's a note he gave to the VP of US. He DID. NOT. did not leak classified info. Prosecution played a tape from McC, I say, give me a break. He had to go to Card, McC, then VP. That ain't a team I think he should WANT to be on. They didn't treat him like he should want to be on it.

In terms of time. THe record is very confusing. Russert says he thinks one call. He said call could have been 10, 11, or 12. When interviewed by Eckenrode, possible that there were two calls. Libby always thought two calls. One on 10th and one on 11th. No phone records to nail it down. I'm going to give you homework assignment. I'm going to ask you, if you look at Libby's GJ on March 5, you'll see LIbby's all over the place. if you also read GJ on March 24, there's more discussion. And Fitz on one of those pages, even says is it possible you talked to Rove before, withdrawn, Russert before you talked to Rove. Because I'm telling you what if Rove left early that day. Remember one of the rules. Questions by lawyers are not evidence. THat's just Fitz' question. Maybe he talked to Rove first and Russert second. What you'll see is mass confusion, bc there are no phone records. When you have this kind of confusion, benefit of doubt must be given to Libby.

This case built on theory that does not have hard evidence. They're asking you to speculate.  


There's nothing wrong with circumstantial evidence, it's got to be poweful evidence. it's got to bebuilt on strong foundation if you're going to change someon's life.

I want you to look at GX65, letter from DOJ that says what investigation is about. Says that investigation involved investigation into Novak article, and Newsday. Investigation was about Novak, when it first started, taht that was Libby's state of mind, part of packet from DOJ. This is from highest ranking officials in US. Mr Libby had every right, if given letter, to rely on doggone letter.

I want to go to another area.  Want to talk about how the fact that he was very involved in responding to allegations by Wilson, and saying you had to remember what you knew about the wife. THere's a disconnect. Everyone has problems remembering Mrs Wilson. Mrs WIlson did not become important until there was a criminal investigation.

This slide, I developed it with Ms Martin. It's one of the most important pieces of evidence. Contemporaneous on talking points that were developed by OVP. No one could have known criminal investigation. [names the defense exhibits to point to talking point documents.]

Those are the VIce Presidents own talking points that he dictated to Ms Martin. It shows what he was concerned about. I'd ask you to look at each one of those talking points. One of them was after Novak article. She never was part of the story. 

I was going to read you some testimony, but I don't have time. 

We do not dispute that Ms Martin on or abotu June 11 told Libby about the wife. Libby told FBI from day one that he learned about it. If you put Fleischer to the side, and Mr Addington, all the other witnesses cluster around the same day. [Um, and Judy judy judy? and You've put Mr Unitary Executive aside???]

Nobody is disputing that there's a period in June that Libby knew Mrs Wilson worked at FBI. He brought note. Like Mr Jeffress said, if he's such a bad guy he should have put the note in the trash can. He said he looked at note and refreshed recollection.

Govt tried to put cloud over VP Cheney. During questioning of Ms Martin. We'll you weren't with Mr. Libby all the time. Somethings could have happened while you weren't there. The clear implication was that there was skullduggery. That's unfair on teh facts of this case. Scooter Libby wasn't out pushing stories on the wife. Look at output side.

Faces of journalists. Best proof.

We brought in EVERY reporter. [except Mitchell] We didn't bring in Mitchell, she's in GJ he said he didn't say anything. [And also David Martin] 

The only person who said libby told her, I don't think it happened. She's got a note that says WINPAC. She didn't work at bureau. Bureau, taht's a state department. She's got bad information. When these people leaked, tehy said wife works at CIA. She got the word bureau, which is inaccurate, and WINPAC which is inaccurate. Mr Libby had no intention to give bad information. He didn't leak to anybody.

Prosecution focused on July 8 meeting. They say, Mr. Libby, how if he was so busy to take two hours to have lunch with Miller on July 8, the reason he took two hours is taht Libby understood VP of US had directed, and President, President Bush behind it too. Not to say anything about Valerie Wilson, but to discuss info that Bush had privately, lawfully declassified concerning.

[Text says, "Libby was sent on a secret mission to discuss the NIE … it had nothing to do with Valerie Wilson"] 


The notion that he goes, it's basically a secret mission that VP and Libby know, somehow they try to make something bad about that.

It is outrageous. [Good to see outraged Ted back. I missed him.]

Told you two parts to Russert charge. Part one, what RUssert said to Libby. When Libby spoke with Tim Russert, Libby was surprised. Part two focuses on Libby's state of mind, when Libby was being interviewed by FBI, or GJ in March. Doesn't have anything to do with what happened in real time. What he has said to FBI, I thought I was surprised. There's no evidence that says if he says he was surprised, he did it as a lie.

WRT that part, of the Russert count, that deals with the surprise. Did Libby lie to FBI, when he said he was surprised to learn that Wilson's wife worked at CIA. The question was what did he believe in October 2003, March 2004. Testimony by govt witnesses about conversations does not answer question whether he lied in October 2003. They put 7-8 witnesses on the stand, that say we had conversations in June or July. Not one said anything about whether LIbby had a misrecollection, or what LIbby lying. Those witnesses can't help you in material way. They haven't given you witnesses. [No wonder Libby didn't take the stand.]  We misrecollect things, it happens to everyone.  It has happened to everybody. Now, I tried to display graphically, just how you ought to think about it. If you put witnesses on your left.

[Graphic saying, "The question is not what Scooter Libby remembered here" "But what Scooter Libby remembered HERE, 3 months later" With big red arrows] 

They've got to give you powerful evidence of him lying. THere's just a huge evidentiary gap. THey've got no witnesses concerning his state of mind, in October. There's no smoking gun document. No expert testimony that he could not have forgotten.

Libby could have made an innocent mistake in October. He doesn't have to prove that he made an innocent mistake. They havent' given you ANYTHING. They're asking you to speculate. They have no evidence that he thought something happened one way and it happeend another.

Fitz has hand face in hand, watchin, Ted is right close to him.

Of all the documents Libby had, he only had one note dealing with the note, it shows she was not important. It's easy to forget what he knew then. But also he had hundreds of other notes. Mr Addington told you Libby had hundreds and hundreds of pages of notes. That was his lifeline. He knew how to have mnemonic devices to support him, he had notes, and his staff. He's not stupid, man, I support myself with my notes, and my staff's recollection. THey say, no, criminal situation works a different way.

Wells goes to memory instruction.  Tries to give you guidance. on whether LIbby made good faith effort to remember. Some of the things judge Walton points to, ask yourself if you've been in situations where you've had a high stress jobs. Libby, we've learned he had one of the highest stress jobs in the country [except for the men and women he sent to Iraq, whom, I guarantee you, are under a hell of a lot more stress] Any evidence related to memory.

Instruction highlighed with: life experiences, amount of itme between when a person said or heard something, circumstances that existed when person was exposed to the events. The nature of things. Circumstances that existed when person asked to recall. Circumstances between time and when that person asked to recall. Assessment of memory capacity. [the stuff below is Ted's expansion on these ideas on memory–from here to the line]

Hannah told you all the things he had to do in terms of terrorism, homeland security. Those security briefings, it makes your toes curl. Put things in context. Give him benefit of doubt. And ask, what did govt give me that gives me certainty, they haven't given anything. anything.  

"The wife" was not important. [I thought we trained you off of that, Ted] Nobody cared at OVP, go to State and talk to Armitage, that might be a different thing, talk to Ari, talk to Rove, that might be different thing, the evidence is to the contrary, "the wife" was never part of the message.

During this entire period, country at war, in Iraq, Afghanistan, with ourselves. He's being bombarded with Blizzard of info, every day, 6 days a week.

Hannah said he did not have good mind for certain kinds of things. THey develop systems to remember this.  

This courtroom became a laboratory on memory problems. I submit they had problems bc Mrs Wilson had not become that important. Libby had different job than anyone who testified. Hannah said he had two jobs.  

Fitz asked how you could have said to Ari and forgot it in two days. [highlights a Martin quote, back when they said that conversation happeend leak week, "I don't mean to say I forgot it in two days. I'm saying she didn't tell me that."–this is not applicable, but Ted tries to argue again, that the "surprise" thing is relevant only in October.

Ted goes through Grenier, Grossman, Miller, Schmall. to show how people don't remember.


For people who have been married for many years, it is so common to have an argument about what happened in the past. Maybe you even had notes, showing that you were wrong, but you felt it and felt it with confidence. No difference from Tim Russert who was confident until he saw a note. Why's Mr Libby being treated different?

Now shows initial and later recollections of Grenier, Martin, Miller, Grossman, and Schmall. [not all of these are accurate]

She forgot a whole month. She wasn't lying. She realized what she had said.

Mr. Libby's memory system.  [how is he able to introduce this??]

One of you jurors asked a great question–how did Libby do his job?

Answer is Libby had a system. What LIbby told GJ is to cope, he pooled collective recollections together. Backbenchers, always take one person whose job is repository of information. That person to take notes.

Libby took hundreds and hundreds of pages of notes.

In red: THere is an inherent conflict between Libby's memory system and a criminal investigation. Libby should not be penalized for having a different memory from the investigators.  

Wells says LIbby should not be penalized for having a different mnemonic system, that worked for the specific job he had to do, which was to be NSA for VP.  

[Playing GJ testimony on memory.]  

Walton: Five minutes

Wells To extent what he remember turned out to be a mistake that doesn't mean he was a liar, it means he misrecollected. He had a system, it made him a good NSA to VP.

What Hannah told you was LIbby had two full time jobs. 13-14 hour day. [Hey Good News, working poor working two jobs are excused from ever telling the truth!!] 4 meetings by mid-morning. Often one, two NSC meetings in a row. SHows a briefing, he got that six days a week. Try to think about how that might impact your memory. Just be fair.

What I have up here, you'll get it all from stipulation, or what Hannah said. During this whole period, you had a major crisis. [so WTF were you spending 6 hours a day dreaming up a response to Wilson] All this in addition to being sent to St Regis by VP to respond to Wilson.

"At this time, the wheels were falling off the Bush Administration" And then you talk, dude, what do you remember about Valerie WIlson.

Shows this WACKY graphic of his "world" including OBL, and Saddam, Cathie Martin and so on.

Now, LIbby got a number of things wrong in GJ

  • He said he told COoper.
  • He said he told Kesslert
  • He didn't know Wilson's name until Wilson's op-ed
  • Had no recollection of talking to Novak during week of July 6 

Remember alot of this stuff, taken place, in 8 hours of GJ, it's unfair to expect him to remember exact words. That comment, "I don't know if he has a wife, that comment was made months later, in March 5 session. More homework. First time ever he says he doesn't know if he ever said he doesn't have a wife. He's reconstructing, what happens when you reconstruct, is that you can be all over the place. That's what people do. Witness after witness.

Use your common sense and life verdict. Common sense will tell you not established verdict. How much time.

Walton:5 minutes. 

Ted is rushing through one after another slide. He's done about 10 slides in the last 3 minutes.  See I almost made it, I did make it.

I told you that when we chose you, we alread made the most important decision. For some of you this will be the most important decision you will ever make. Trust in the evidence and trust in each other. Be protector, if somebody begins to go off track and have a situation where Libby has to prove innocence, help that person, if someoen says, "he's a Republican, he worked for Cheney, let's just do him," help that person. 

Don't sacrifice Scooter LIbby for how you may feel abotu war in Iraq or Bush Administration. Treat him the way he deserves to be treated. He worked every day to be NSA for this country. Analyze it fairly. Fight any temptation for your views if you're Democrat whatever party. This is a man who has a wife kid. He's been under my protection for the last month. Just give him back. Give him back to me, give him back. 

[Wells gets all choked up, crying.]

Okay, we're going to take a break.  



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