The Scooter Libby Headline for Day One

There's been lots of blogging coverage of Scooter Libby's first day of trial. In addition to those I mentioned in earlier posts, Christy at Firedoglake who was in the real (not media) courtroom posts this wrap-up.

As to Ted Wells' opening argument, I'm a bit surprised he chose to go after Rove so hard. It leads me to believe Rove won't be a witness. If Libby were to call him, surely he'd be a hostile witness after today's opening. I don't think Ted Wells wants to go mano - a - mano with Rove, not with Fitz backing Rove and Rove not impeachable on grounds he got a deal. There's no evidence Fitzgerald gave Rove anything for his multiple grand jury appearances.

Until today, Wells had a clean defense: Libby forgot and didn't intend to mislead investigators or the grand jury. Wilson's wife was just a speck in the grand scheme of things. Now, he's put Libby in the midst of an alleged frame-up. That's going to be a tough sell to the jury. But, given the Judge's refusal to allow a decent instruction on the principles of memory, maybe Wells needed a backup defense.

But that's not the headline for today. The real headline is much bigger and with far graver consequences to Libby. More below the fold.

The big news in today's proceeding happened during Fitzgerald's opening argument. Think Progress caught it right away from MSNBC's David Schuster.

“Scooter Libby destroyed a note from Vice President Cheney about their conversations and about how Vice President Cheney wanted the Wilson matter handled.”

The timing is important: According to Fitzgerald, Libby destroyed the document the day before his first interview by FBI investigators.

If this is true, Libby's memory defense is DOA. You can't claim "oops, I forgot" after you destroy evidence. Just ask Martha Stewart.

From the transcript of Shuster's report:

During opening arguments in the case against Scooter Libby, prosecutors outlined evidence about Vice President Cheney’s role in the leak of CIA operative Valerie Wilson that is new and will astound a number of people, even those who have been following this case. The prosecutors said the evidence will make it clear that the very first government official who told Scooter Libby about Valerie Wilson, the wife of a critic and the fact that she was working at the CIA, the very first person who told him that was Vice Ppresident Cheney. The prosecutor said the evidence will also show Vice President Cheney himself directed Scooter Libby to essentially go around protocol and deal with the press and handle press himself, that Scooter Libby should be the one talking to the press to try to beat back the criticism of administration critic Joe Wilson.

Prosecutors also revealed today that Vice President Cheney himself wrote out for Scooter Libby what Scooter Libby should say in a conversation with Time magazine reporter Matt Cooper. It was during that conversation when Scooter Libby provided confirmation to Cooper that Valerie Wilson worked at the CIA. In addition, there were some blockbuster revelations this morning about Scooter Libby’s actions before he testified to the FBI about the original leak. According to prosecutors, the evidence will show that Scooter Libby destroyed a note from Vice President Cheney about their conversations and about how Vice President Cheney wanted the Wilson matter handled. (my emphasis.)

There was other information that came out about Vice President Cheney. The prosecutors talked about the State of the Union speech where the president made a false claim about reasons for war with Iraq — the idea that Iraq was seeking uranium from Niger. When that came out, and the white house was trying to figure out who should take responsibility, according to prosecutors, Vice President Cheney repeatedly urged the Director of the CIA George Tenet to take full responsibility and that no blame whatsoever should land on the president or Office of the Vice President.

Crooks and Liars has the video of Shuster's later report in which he says the meaning of Fitz's statement that Libby "wiped out" the Cheney note to Libby isn't clear. As in, maybe he meant Libby forgot the note the day before his FBI interview? I'm skeptical. I think in context, "wiped out" means "destroyed."

The question I'm left with is, what was the document Libby allegedly destroyed? A hand-written note from Cheney? An e-mail?

Whatever it was, Libby's lawyers got it in discovery. Does anyone who was at the opening know if Wells addressed it in his opening statements?

Others discussing: Digby, Empty Wheel at Firedoglake (Wells and Fitz)

Update: Newsweek's Michael Isikoff thinks it's more likely now Rove will be called by Libby's lawyers. I still don't think so. It's easier for Libby to attack someone the jury doesn't get to hear from. Also, Libby's issue isn't who Rove told, but whether the White House decided to make Libby the sacrificial lamb in order to protect Rove. Rove isn't the best witness for that.

Update: John Dickerson at Slate has an interesting wrap-up of the opening arguments, particularly as to Wells' style and contrast between Wells and Fitzgerald.

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    What a strange strategy... (5.00 / 1) (#9)
    by sfflyman on Tue Jan 23, 2007 at 11:57:37 PM EST
    to employ while seeking a Presidential pardon.

    it makes no sense (none / 0) (#10)
    by Jeralyn on Wed Jan 24, 2007 at 12:56:06 AM EST
    unless Libby has heard Bush won't pardon him anyway.

    mr. fitzgerald has been extremely careful, (4.00 / 1) (#6)
    by cpinva on Tue Jan 23, 2007 at 10:23:01 PM EST
    during this entire investigation, to be very precise in his use of terminology. "wiped out" has really only one meaning, regardless of how you twist and turn: destroyed.

    not only is it reasonable to assume that's exactly what he meant, there really isn't any other way to interpret it.

    of course, assuming that's what he actually said.

    I thought (none / 0) (#1)
    by Che's Lounge on Tue Jan 23, 2007 at 08:04:45 PM EST
    that in order to set sombody up, you had to have a crime to set them up for...

    crime-fraud exception to attorney-client privilege (none / 0) (#14)
    by Screwloose on Thu Jan 25, 2007 at 08:36:00 AM EST
    What've been the issues & rulings on the crime-fraud exception to the A-C Privilege? proposed jury instructions submitted? Who has the burden of proof that there was a crime? Libby?

    Somebody, SOMEBODY (none / 0) (#2)
    by Che's Lounge on Tue Jan 23, 2007 at 08:05:16 PM EST

    The headline is, David Shuster is a liar. (none / 0) (#3)
    by Tom Maguire on Tue Jan 23, 2007 at 09:16:00 PM EST
    The "Libby Destroyed Evidence" would be the headline if it were true.


    Here is an earlier report from Shuster and the AP, since edited away and saved at E&P:

    Fitzgerald also alleged that Libby in September 2003 "wiped out" a Cheney note just before Libby's first FBI interview when he said he learned about Wilson and his wife, CIA operative Valerie Plame, from reporters, not the vice president.

    It was not clear if Fitzgerald meant that an attempt was made to destroy the note or that Libby had forgotten about it. In any case, the note was recovered and is part of the evidence.

    Here is James Joyner, who was liveblogging:

    "David Shuster of MSNBC, who is sitting in the room with me,  reports some big breaking news:

    Fitzgerald alleged that Libby in September 2003 "wiped out" a Cheney note just before Libby's first FBI interview when he said he learned about Wilson and his wife, CIA operative Valerie Plame, from reporters, not the vice president.

    It was not clear if the reference to wiped out was literal or figurative.

    I would note for the record that every other person in the media room, including bloggers for the liberal Firedoglake, are convinced it was the latter. Indeed, the idea that Fitzgerald would accuse Libby in his opening statements of destroying evidence, something with which he was never charged or seriously investigated, strains credulity."

    Here is Marcy Wheeler, the EmptyWheel, also liveblogging:

    The defendant lied. He made up a story. He told the story that he wasn't relying on any of the information he heard from government officials. He relied on information he got from reporters

    VP notes-Libby knew that note was in his file. But he wiped it out.

    His story was essentially this. Learned it from Russert. I don't know this. Passed it on to other reporters.

    Are you telling me that Marcy sat there and missed that, along with every other reporter except Shuster?

    As a bonus - an earlier Shuster report omitted some key words to enhance the Bush-bashing quality of his report and give the impression that the Plame leak was authorized:

    From Shuster:

    This is a document released by the court. It's a letter from Patrick Fitzgerald to Scooter Libby's legal team. And it says, "As we discussed during our telephone conversation, Mr. Libby testified that he was authorized to disclose information to the press by his superiors."

    But here in reality, the letter said this:

    We also note that it is our understanding that Mr. Libby testified that he was authorized to disclose information **about the NIE **to the press by his superiors," Fitzgerald wrote.

    Shuster has a guaranteed audience for his fantasies, but I would not advise being a part of it.

    FWIW - the real headline, which the media will studiously ignore, is that David Gregory of NBC recieved a leak from Ari Fleischer on July 11.

    Yet Tim Russert knew nothing, Andrea Mitchell now insists that she misspoke when she said she and other reporters knew, and get this - Fitzgerald never interiewed either of them.

    Tom, it's good to see you here. (none / 0) (#4)
    by Jakebnto on Tue Jan 23, 2007 at 09:34:04 PM EST
    You have a great voice, and this is a great site.

    I don't know anything about the Shuster report so I can't comment.  Really, I'm willing to wait to see how the trial works out without my following it closely - or at all.

    I think with the Bush's and the Republican's failure at the polls, combined with the revolt of substantial numbers of Repubican members of Congress, the whole Libby thing is now just a sideshow.  We all can see the end of this presidency (in real terms, that of effectiveness, it may already be over) and are less concerned with the bit players.  Frankly, Scooter is less of an issue than Eliot (or howevr you spell it) Abrams, for example.

    Like I said, good to see you here.

    FWIW, the leak itself is wrong but unpunishable.  Lying to a grand jury, OTOH, remains a no-no, even for Republicans and WH staffers.  Even VP staffers.



    It depends on the meaning of "wiped out" (none / 0) (#5)
    by Jeralyn on Tue Jan 23, 2007 at 09:42:38 PM EST
    In the context of the opening statement, in which Fitz apparently used the words "wiped out" when referring to the note or document from Cheney, I don't think it makes sense to say Fitz was talking about being wiped out from Libby's memory.  Not if it was the day before his first interview by federal investigators. I think it more likely "wiped out" means destroyed. But, we shall see.  In any event, if that's the way Shuster took it, it doesn't mean he's a liar. It means Fitz didn't choose his words carefully enough.

    "wiped out" means? (none / 0) (#13)
    by Screwloose on Wed Jan 24, 2007 at 05:30:14 PM EST
    As in delete and wipe your computer's hard-drive, e.g., WipeDrive software ads? Is there a forensic computer expert on the prosecution's scheduled witnesses? Not a simple delete/empty trash, but an attempted scrubbing so it was 'destroyed'? If defense contends, everything's always shredded by him, does prosecutor have a personal credit card statement? . . .

    Still on Shuster (none / 0) (#7)
    by Tom Maguire on Tue Jan 23, 2007 at 10:44:05 PM EST
    In any event, if that's the way Shuster took it, it doesn't mean he's a liar.

    Well, seeing as how (1) an earlier report on which he shared a byline was perfectly clear that the phrase was ambiguous; (2) no other reporter heard it the way he reported it; (3) Fitzgerald passed on an obvious criminal charge if Shuster was right, and (4) Shuster has a history of overstatement and error on the Plame case (I have other examples handy), I am comfortable asserting that he has deliberately overstated the case here with the intention of delivering the news his target audience wants to hear (and check other blogs - folks are loving it).  That said, I concede that maybe he is simply delusional, rather than a deliberate liar.  But I'll contribute $100 bucks to the charity of Jeralyn's choice if this report holds up.

    And remember - this is not some Shuster exclusive interview - he sat in the media room with a hundred other reporters watching the same video they saw.  How come only he got this report?

    not only is it reasonable to assume that's exactly what he meant, there really isn't any other way to interpret it.

    He wiped it out of his memory.  He wiped the hard drive; he wiped the blackboard.  Yet neither the blackboard nor the hard drive are destroyed.  A metaphor.

    If Fitzgerald is so careful, and he wanted to say "Libby destroyed evidence", why couldn't he find words that more than one reporter could understand?  DO you think all 16 jurors plus Shuster understood Fitzgerald, but no one else did?

    Nice breakdown... (none / 0) (#8)
    by squeaky on Tue Jan 23, 2007 at 10:44:58 PM EST
    I don't think Ted Wells wants to go mano - a - mano with Rove, not with Fitz backing Rove and Rove not impeachable on grounds he got a deal.

    Ouch. That sentence could be set to music.

    As for the wiped out note I bet it was one of the   deleted emails recovered, with the help of Rove, from computers siezed by Fitz from the OVP. TL:

    Back to the question of the deleted e-mails. Who in Cheney's office will this reach, and how high? Does Fitz have corrorborating testimony from others who have flipped in the case?

    and the line to the jury by wells that his hands were tied. Tricky... Fitz objected and wanted to tell the jury that his hands were tied as well.......

    dangerous grey mail territory. From emptywheel's liveblog.  

    Fitz up, I can't tell you whether she was or wasn't classified. We've taken the issue out of the case, but to leave the issue as if Wells wanted to say something but couldn't.....

    ...[Wells:] Judge Walton has made the decision about the parameters that I can discuss. I'm not faulting the government in any was shape or form....  

    ....Walton: before we break. Want to make sure about classified info.

    Restrictions have been made. These restrictions were not imposed by the government, they were imposed.  

    Not imposed by the government, they were imposed????

    hmmmm (none / 0) (#11)
    by Deconstructionist on Wed Jan 24, 2007 at 07:03:17 AM EST
      The recovered e-mail theory makes the most sense to me too. "Wiped-out" to most of us would connote deleting an electronic message as opposed to either destroying a hard copy or neglecting to mention it  when recalling events.

       It would also fit with Libby's "I was set-up" defense: Libby deleted the message from his computer and believed that the WH would take steps to ensure that the investigators could  not retrieve it from the secure server on which it was storeed. Thus, he felt betrayed when Rove pointed the investigation toward evidence that incriminated Libby.


    "wiped out" (none / 0) (#15)
    by Screwloose on Thu Jan 25, 2007 at 08:46:26 AM EST
    Did Libby select only this one document from his "Rove" [or is it "Cheney"? who is his client?] folder on his hard-drive to shred the day before meeting the FBI, - - but his client didn't shred their copy of it?

    Makes me think of Nixon and that 20-minute-gap caused by his secretary's accidental erasure. But, here there was a backup.


    Unrelenting on Shuster (none / 0) (#12)
    by Tom Maguire on Wed Jan 24, 2007 at 09:14:59 AM EST
    A day later, has anyone had any luck finding any other media outlet that confirms Shuster's "exclusive"?  So far John Dickerson, David Corn and Mike Isikoff have all overlooked it, as has Josh Gerstein of the Sun, the NY Times, and the Wash Post.

    Lacking such confirmation, riddle me this - how did Shuster sit in a courtroom with a hundred other reporters and emerge with information no one else had?

    As to the "Karl was out to get me" defense strategy - I am not sure I would have walked that road, but...

    (1) there may be a juror or two that is sympathetic to the notion that Libby, too, is just an innocent victim of Evil BushCo.

    (2) eventually, the defense will want to discredit the testimony of folks like Ari Fleischer; their desire to curry favor with Karl and Bush may be a motive to exaggerate Libby's role.  No fair asking me how that explains Cathie Martin, who worked for Dick Cheney.  As to David Addington, Cheney's chief counsel turned chief of staff, maybe the defense will argue that he and Libby were rivals and Addington got a nice promotion from Libby's travails.  Awfully aggressive, but who knows?

    (3) Based on Cheney's note (and previously released documents), Libby's paranoia about being the sacrificial lamb was sincere.

    (4)  At this point, the defense has not offered any facts to suggest how Karl's defenders manipulated Libby (maybe they re-directed the mind-ray they had trained on John Kerry).  If the defense never does that, I don't think it impacts a pardon - I bet these guys can separate these business from the personal, and getting Libby acquitted by appealing to sympathetic, conspiracist jurors is just business.