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Fitz Filing: Wants to Use Cheney Notes to Nail Libby About Russert

Patrick Fitzgerald has filed another response (pdf) to Scooter Libby's motion to compel documents. He includes portions of Libby's grand jury testimony from March 4 and March 24 as exhibits (pdf).

An AP report of tonight's filing is here, with a headline that Cheney may be called as a witness in Libby's trial. What Fitzgerald really said is, with respect to the issue of authenticating the copy of Joseph Wilson's July 6 New York Times op-ed with Cheney's hand-written notes on it (discussed here) that there are three ways to authenticate the article, one of which would be by calling Cheney as a witness. Fitz adds:

Contrary to defendant's assertion, the government has not represented that it does not intend to call the Vice President as a witness at trial. To the best of government's counsel's recollection, the government has not commented on whether it intends to call the Vice President as a witness.

Fitzgerald is clearly gung-ho to introduce Cheney's hand-annotated copy of Wilson's column into evidence at trial. Cheney had written on the article:

Have they done this sort of thing before? Send an Amb to answer a question? Do we ordinarily send people out pro bono to work for us? Or did his wife send him on a junket?

Fitz believes this blows a big hole in Libby's testimony that he learned of Wilson's wife working for the CIA from Tim Russert on July 10 or 11th. Libby acknowledged in the grand jury testimony that the handwriting looked like Cheney's and that while he had no recollection of having seen the copy of the article with Cheney's notes asking whether Wilson's wife sent him on the "junket" to Niger before FBI agents showed it to him, they had discussed it.

During his grand jury testimony, Libby puts the discussion with Cheney about the "junket" in late July or sometime before September, and not the week of July 6 to 12. Fitzgerald wants to use the article to show it is more likely the discussion occurred the first week of July, before Libby spoke with Tim Russert. Libby also told the grand jury that before he spoke with Russert, he didn't know Wilson had a wife. Libby says he forgot Cheney and others had told him this.

Defendant recalled discussing with the Vice President the issues reflected in the Vice President's handwritten notes but testified that he believed that they
did not discuss the specific issue of Wilson's wife's employment until after the July 14, 2003, publication of the Novak column, or at least not before the defendant's conversation with Tim Russert on July 10 or 11, 2003

As to the import, Fitz writes:

....the state of mind of the Vice President as communicated to defendant is directly relevant to the issue of whether defendant knowingly made false statements to federal agents and the grand jury regarding when and how he learned about Ms. Wilson's employment and what he said to reporters regarding this issue.

....Evidence that the defendant understood the concern that Mr. Wilson might have been "sen[t] . . . on a junket" by his wife shortly after July 6 would directly contradict defendant's testimony that he did not recall knowing on July 12 that Mr. Wilson had a wife and did not think at that time that the wife might have been involved in sending Mr. Wilson on the trip. See "Government's Response to Court's Inquiry Regarding News Articles the Government Intends to Offer as Evidence at Trial" at p. 6-7.

Libby also told the grand jury he doesn't recall discussing Wilson's wife working for the CIA with Cheney on the July 12 plane trip to Norfolk .

I'll be updating this with more thoughts shortly. Thanks to Tom Maguire for hosting the exhibits, his thoughts on tonight's filing are here.

Update: The point of this filing was not to establish a conspiracy between Libby and Cheney. It's about Libby's motion to compel Fitz to produce notes and files made by other witnesses like Mark Grossman and Ari Fleischer. Libby is arguing that since the government contends Cheney's state of mind is relevant, so is the state of mind of others whom the government has alleged discussed Wilson's wife with Libby. Fitz is resisting turning over those notes and files. Fitz writes that Libby contends:

In the same way that the government finds the views of the Vice President regarding Wilson and his trip relevant to its case, the defense finds the views of other government officials, such as former Under Secretary of State Marc Grossman, regarding Ms. Wilson relevant to its case . . . . Just as Mr. Libby was interacting with the Vice President regarding Mr. Wilson's charges, so was he also interacting with Mr. Grossman and other government officials and their respective agencies.

Fitz filed this pleading to dispute that contention:

This argument ignores the fact that the Vice President was the defendant's immediate superior with whom the defendant worked daily and closely, and from whom defendant received direction regarding the response to be made to the Wilson Op Ed. Understanding what conversations took place between the Vice President and the defendant during the week of July 7, 2003, is critical to determining relevant issues in the case: whether defendant recalled Wilson's wife's employment prior to the conversation with Tim Russert on July 10 or 11, and whether defendant thought it necessary or appropriate to disclose that fact to reporters that week. Understanding what other government officials knew or thought about Mr. Wilson's Op Ed simply is not.

I wouldn't read too much into the Fitz's comments about calling Cheney as a witness. As I said above, Fitz argues that Cheney's testimony is only one of three ways the Government can get the handwritten notes into evidence. It's far easier to use Rule 901 (b)(2) of the Federal Rules of Evidence. All Fitz has to do is call a lay witness who is familiar with Cheney's handwriting from having seen it in the past, prior to this investigation. After the witness states he or she is familiar with Cheney's handwriting and describes the basis for the familiarity, Fitz shows them the article with the notes and asks them if based on their familiarity, they believe it was written by Cheney.

Update: Don't miss Tim Grieves at Salon's War Room on tonight's filing. He not only has laid out all the important details and placed them in context -- succinctly-- he makes a strong case for why Fitzgerald would want to call Cheney as a witness. I'm still thinking Fitz will end up deciding his other witnesses and Cheney's notes are enough to carry the day. The jury will be instructed it can draw inferences from the evidence and to use its common sense. If Fitz is a good closer, and his record suggests he is, he can connect the dots for them in closing.

Then he wouldn't have to take the risk of calling Cheney, who might, after all, bolster Libby's version. If that happened, where would he be? Not to mention, maybe Cheney either will be a target or indicted by the time Libby goes to trial, in which case the 5th Amendment privilege makes Cheney's testimony essentially a moot issue.

But after reading Tim, I'm less sure.

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  • Re: Fitz Filing: Wants to Use Cheney Notes to Nail (none / 0) (#1)
    by Tom Maguire on Wed May 24, 2006 at 10:04:32 PM EST
    With all this talk about Cheney's notes and Libby's recollection of his chats with Cheney, how can Cheney *not* be called as a witness? Especially since Fitzgerald must have gone over this when he interviewed Cheney.

    Fitz has not spoken a word about what Cheney himself has testified to. Is that possibly because Fitz is still considering indicting Cheney? If Fitz did decide to call Cheney to testify, would that indicate he was less likely to indict him? Thanks for the great analysis.

    Where did the OP-ED with Cheney's handwritten notes come from? How did that piece of paper come into Fitzgerald's possession?

    Tom --he doesn't need to call Cheney to authenticate the documents under Rule 901, see my update. And he says the notes corroborate his other evidence and witnesses --
    Therefore, the annotations corroborate the government's other evidence indicating that these issues were communicated to defendant by his immediate superior, who also directed defendant during the critical week after July 6 to get out into the public "all" the facts in response to the Wilson Op Ed.
    ...
    Evidence placing defendant's conversation with the Vice President shortly after the publication of the Wilson Op Ed also corroborates the accounts of a number of government witnesses who will testify that defendant discussed Mr. Wilson's wife on or before July 8, 2003.
    He writes that the notes and other evidence make it "more likely than not" the conversation about Plame working for the CIA occurred during the first week in July.
    The fact that comments regarding Wilson's wife were included among the Vice President's annotations also supports the proposition that defendant's conversation with the Vice President regarding Mr. Wilson's wife more likely than not occurred shortly after the publication of the Wilson Op Ed, rather than later, as defendant claimed
    He may be content to go with "more likely than not" since the jury will be instructed it can draw reasonable inferences from the evidence presented. If Cheney is a target of his investigation (or indicted by trial time) he won't call him because he'd take the 5th. If Cheney's in the clear, Fitz might not want to call him because of concern Cheney would try to help Libby. I think he's using the notes more to corroborate his other witnesses.

    Re: Fitz Filing: Wants to Use Cheney Notes to Nail (none / 0) (#5)
    by anon55 on Thu May 25, 2006 at 12:40:15 AM EST
    He writes that the notes and other evidence make it "more likely than not" the conversation about Plame working for the FBI occurred during the first week in July. When did Plame go to work for the FBI? Just curious. [TL: thanks for finding that, I just fixed it. My mistake. Typing too fast, as usual.]

    Not to worry. As per the NYT request Gonzales will be going after leakers. Like the NYT, the WaPo, etc. This is bound to make the folks who want Rove/Cheney frog marched happier. Isn't it? Har, har, har.

    THANK YOU for another smart and wise update on this whole thing. Very grateful to you.

    Fitz seems so thorough with his focus on Libby/Cheney, could it be that he has not really focused like a lazer on all of the contradictions in the 5 Rove appearances? Perhaps that is why no Rove decision has come down yet? All of them also have other jobs as prosecutors, so I would think that would make putting the pieces of testimony together move slowly....any thoughts?

    Re: Fitz Filing: Wants to Use Cheney Notes to Nail (none / 0) (#9)
    by JK on Thu May 25, 2006 at 05:45:11 AM EST
    I think Tom has a point, but I see it slightly differently than how Tom described it. Obviously, Fitzgerald does not need to call Cheney to authenticate the handwriting. However, I see it as a risky tactic to try and authenticate them through someone else. I don't think a jury would be moved by these notes as corroboration for the other witnesses, unless the "authenticator", or some other witness, can provide certain critical details. The trial testimony, at least if it is extrapolated from the indictment, will be that Libby spoke about Plame with others (Fleischer, CIA agents(?), Grossman(?), etc.) a short time before he spoke to Russert or other journalists. The handwritten notes could corroborate an argument that Plame's name was being discussed around that time -- but only if the notes were shown or discussed with Libby and only if those notes can be targeted to a certain time. Otherwise, the fact that Dick Cheney wrote certain notes would mean very little unless they are connected to Libby. I have a hard time buying Fitzgerald's argument that Cheney's state of mind is somehow relevant to Libby's case since he was his superior. I think Fitzgerald is relying upon this weak argument so that he does not have to reveal that he still is pursuing a conspiracy case. At bottom, the only way that i see these notes as being somehow relevant corroborating evidence is if the "authenticator," or some other witness, states that Libby was provided with those notes prior to the Russert discussion. I raised this matter in the comments to emptywheel's post at The Next Hurrah on the day that the notes were revealed. I believe that Fitzgerald's desire to admit these notes suggests that he has witnesses to corroborate a conspiracy. In other words, he has a cooperator who will not only verify that these are cheney's notes but also that cheney discussed them with libby. As I said then, there is no way that Fitzgerald will call Cheney to the stand. That is far too risky. My sense is that Fitzgerald's filing last night, like his previous ones, demonstrate that he has the evidence to show that there was a coordinated effort here. Which brings us back to Rove. I think Fitzgerald needs a central cooperator to bring the conspiracy charge. This is why I think that Fitzgerald is turning the screws so tight on Rove. He wants Rove to get Cheney. I think he knows that once he indicts Rove, there is no chance of cooperation, as is happening with Libby since Rove's legal team will also be bankrolled. This is why it probably has not happened yet (or has happened and fitzgerald is keeping it quiet due to the agreement). Sorry for the long post . . .

    Which brings us back to Rove. I think Fitzgerald needs a central cooperator to bring the conspiracy charge. This is why I think that Fitzgerald is turning the screws so tight on Rove. He wants Rove to get Cheney. I think he knows that once he indicts Rove, there is no chance of cooperation, as is happening with Libby since Rove's legal team will also be bankrolled. This is why it probably has not happened yet (or has happened and fitzgerald is keeping it quiet due to the agreement).
    I like that reasoning. Makes my posted questions seem moot. Something is truly going on with Rove....and their "was" a deep conspiracy. Remember Libby's little note to Judy Miller about the roots being connected? Guess his co-conspirator/author roles became intertwined!

    Sorry...meant to say "there" was a conspiracy...it's early!

    Rob -> that was my question. I think that reliance upon Cheney's testimony to make the the case against Libby would seem to obviate a subsequent prosecution against Cheney. Conversely, a conspiracy charge against Cheney would seem to rule out the ability to compel DeadEye's testimony. Caveat: It's been a long time since I've romped in the fields of criminal law so I'm definately not sure of the subtleties of conspiracy practice or under what circumstances a prosecutor can compel a defendant to testify against another defendant (or to testify against himself for the purposes of authenticating his handwriting).

    I rather think the Cheney comment is a threat. If you think of Libby's $5 million defense team as the cabal's defense team, they will think seriously about what it means that Cheney would be called to the stand. And presumably, there are questions Cheney was asked during his previous chat with Fitzgerald that might hurt Libby's case I'm thinking, with respect to this filing, of Fitzgerald's assertion that he knows the conversation about the op-ed questions happened immediately after the op-ed came out. Fitzgerald has some kind of evidence of that that he's not showing us, yet. So the cabal defense team will have to weigh the possibility that Cheney will either totally discredit Libby (and get embarrassed in the process) or he will contradict his prior testimony. It's a pretty big threat, IMO.

    Emptywheel -> I'm thinking along the same lines and that Fitzgerald is tweaking the cabal - but why would Cheney testify at all if there is an indictment or even the faint waft of a threat of legal jeopardy hanging over his head? He won't talk even when there's no apparent jeopardy - like his little energy "consortium."

    Re: Fitz Filing: Wants to Use Cheney Notes to Nail (none / 0) (#15)
    by Repack Rider on Thu May 25, 2006 at 09:36:08 AM EST
    If Cheney is called to authenticate the notes, I don't see how he can invoke the Fifth Amendment, unless just the making of the notes is considered a crime. Obviously it is not a crime for the VP to notate news articles, it's what happens to them later that becomes a crime, and Fitz probably would avoid that area while sticking to questions about whether and when Cheney made the notes. Cheney is the meanest looking man in the world when he's HAPPY. Can you imagine what contortions his face will undergo when Fitz starts twisting the knife?

    Re: Fitz Filing: Wants to Use Cheney Notes to Nail (none / 0) (#16)
    by squeaky on Thu May 25, 2006 at 09:52:52 AM EST
    If Cheney is called to authenticate the notes, I don't see how he can invoke the Fifth Amendment, unless just the making of the notes is considered a crime.
    There are two issues here. If Cheney becomes a target and is called into the GJ he is likely to take the fifth as some have suggested. As a witness he would testify against Libby and the fifth would not be relevant. I think ew is right and Fitz is shaking the tree here. The evidence exists, and as it has been pointed out, there are much easier ways to introduce it then to call in Cheney as a witness. Most of us here have been primed by TL's early tagging Cheney as Fitz's big prize. This is a warning shot for all involved. Cheney will be in court but most likely as a defendant rather than a witness.

    Re: Fitz Filing: Wants to Use Cheney Notes to Nail (none / 0) (#17)
    by jimakaPPJ on Thu May 25, 2006 at 07:29:00 PM EST
    Squeaky - Oh really?
    That's what Cheney did with the column, Libby said, because Cheney saw it as attacking his credibility. "He wanted to get all the facts out about what he had or hadn't done, what the facts were or were not. He was very keen about that and said it repeatedly. Let's get everything out," Libby testified
    .
    So let's see if we have this straight. Fitzgerald believes that Libby lied to the grand jury and FBI because Libby didn't want anyone to know how involved Cheney was in rebutting the mendacious Wilson op-ed.
    And how does Fitzgerald know this? Because Libby revealed Cheney's deep involvement during his grand-jury testimony!


    Re: Fitz Filing: Wants to Use Cheney Notes to Nail (none / 0) (#18)
    by jondee on Thu May 25, 2006 at 07:36:37 PM EST
    Alright, how about a link for that "promise codified in their religion" now. Powerline must have somethin about that.