libby1.jpg Don't update wildly. What were the other rules?

Jeffress: [continuing on IIPA] If there had been a violation of IIPA, I'm sure the govt would have charged it.

Walton: I always hear lawyers say indictment doesn't matter.  The fact that someone is indicted, I tell people not to take that seriously. The fact that someone isn't found guilty, that's stronger than the fact that they weren't charged.

Jeffress: Govt has never shown that the offense was committed.

Walton: The objective behind cross-referencing as it relates to obtstruction is that it's envisioned when law enforcement officials start an investigation and they go to citizenry to find out whether an offense has been committed, it is the obligation of the citizenry to cooperate, when a person is put on notice of what the govt is investigating. I think that's what this cross-referencing provision is designed to reach. You only look at whether a legitimate investigation was taking place, it's my view the x-referencing does apply, as it relates to the obstruction. I may not reach wrt the perjury conviction, I have questions whether it would apply.

Jeffress: I would point out two things. Not a single of these cases is in DC Circuit. [Shorter Jeffress: Silberman won't buy this argument]

Walton: I'm looking at it from a social policy perpsective. If the circuit wants to take a different position, they have that prerogative. If a person can keep the ability of govt to investigate by obstructing the investigation.

Jeffress: speaking of policy, the defendant may go to prison for twice the time than the case that was being investigated.

Walton just mentioned responsibility again…  (that is, why hasn't Libby taken responsibility)

Walton if you come to me in reference to very serious social offense, there's a difference. Cross-reference for obstruction does apply. We still have issue of … govt never presented any evidence that Libby knew what her status was. Either negligence or recklessness that resulted in that being disseminated to press.


Shit, lost a bunch. They're talking about perjury, whether that applies. In it, Jeffress noted that none of the X-reference were DC Circuit ideas [he's suggesting Silberman might reverse on this, Walton said, if Circuit reverses on appeal, so be it]

Fitz is talkign about how he questioned other people more closely. He talked a lot about Russert, but also the fact that Libby said Martin was there for a discussion about Plame, and that led them to distrust Martin.  

Walton: that was an unecessary substantial use of resources. 

Fitz: This is before we get to first amendment litigation, even aside from litigation, we don't need that much, it's fairly attributed to him, substantial expense tied to administration of justice. We had to go down and chase down rabbit holes that he took us down by lying to us.


[Jeffress now making arguments about the Cooper perjury charge that has absolute no basis in what we've heard from the jury so far. But he's arguing that since Jury didn't convict on the Cooper false statement the perjury upward enhancement can't apply] 

Walton: what about additional efforts government had to expire. 

Jeffress; not through any doing of Mr. Libby, he had waived all privileges and asked that reporters testify. The key issue is the law. Enhancements should not be applied if they had to prosecute solely the perjury charge.  The need to put Russert before GJ, cannot be explained on any ground, they needed Russert to prosecute for perjury. He had told FBI what his recollection was.

Fitz: If Mr Libby had told truth in GJ, we wouldn't have gone down road of seeking testimony, It was important for GJ to sort through this fun house of mirrors. By repeating the lies in March 2004, we had to get Russert. He included statemnet that his comment to Russert was explicitly made off record. The fact that there may have been dual motives, that does not mean resources don't count. 

[IMO this is not Fitz' strongest arguement]

Jeffress: It is irrational to say that Russert;s testimony was needed for any other reason than perjury.

[Govt needs to bring up Judy Miller. Jeffress has strong points on Russert and Cooper (though that is contestable on the Cooper bit), But Judy is backed up by Judge Tatel]

Fitz Libby said Russert that "all the reporters know this." If we're doing a leak investigation, that is something we had to make sure that Russert took an oath and said in fact all the reporters did know. The fact that Libby was claiming there was this widespread aspect. If we were going to trot out things that related to just the prosecution, but getting to underlying offense, when Libby is telling us that source is not only Russert, but all the reporters. We had to investigate whether there was this knowledge out there.

Jeffress: we don't disagree that if govt is investigating underlying offense. THere is no credible way to argue that Russert was interviewed to prove this investigation.

[Jeffress is taunting the govt–for some reason, Fitz doesn't want to bring up Judy, and Jeffress is going to keep hammering on Russert to force Fitz to bring up the other resources.] 

Fitz: Russert being surprised when he learned of Plame, that proved that there was no information out there. 

Walton: I would agree with defense, that if this is for sole purpose of pursuing perjury, three points can't be superimposed. I do think that if there is legitimate reason for seeking that information that the case law does say it is appropriate to impose additional three points. It's undeniable that Russert's testimony factored into equation whether Libby should be charged with perjury and obstruction. It could not have, based on what Libby said, adequately completed its investigation regarding conduct it was investigating without calling Russert before GJ. While Libby signed release, reality required govt to go before Chief Judge, accordingly consistent with case authority, since there was additional reason the addition 3 points would be appropriate. 

10:39 10 Minute recess



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