Libby Trial: A Big Day Today

It was a big day in the Scooter Libby trial. Marcy (Empty Wheel) did an outstanding job of live-blogging all of it at Firedoglake, here and here. Three witnesses, former CIA employee Robert Grenier (Tenet's "point person on Iraq",) Libby's former CIA briefer Craig Schmall and Cheney's former press aide Cathie Martin all testified they discussed Joseph Wilson's wife with Scooter Libby before July 10, the date Libby spoke with NBC's Tim Russert.

Libby told investigators and the grand jury he learned of Joseph Wilson's wife from that July 10 conversation with Tim Russert. Russert says he didn't know about Wilson's wife before Robert Novak's article identifying her came out on July 14.

We also know that it was Vice President Dick Cheney who told Libby in June, 2003 about Wilson's wife supposedly being behind Wilson's trip to Niger. And that former State Department Undersecretary Marc Grossman also discussed Wilson's wife and CIA employment with Libby in June, 2003 -- before Libby discussed her at meetings with Judith Miller that month. And that Libby told Ari Fleischer about Wilson's wife during lunch on July 7, 2003, the day before Fleischer left for Africa with President Bush.

Wells tried to show that the memories of all of the witnesses, like Scooter's, were faulty.

As an aside, one of the exhibits introduced today was Cathie Martin's list of talking points (pdf) from Cheney on how to respond to Wilson's allegations.


How many times have we heard that since 2003? It still doesn't answer the question, how did Wilson's findings not result in the deletion of the 16 words from the state of the union address? It was Cheney that asked the CIA to find out about Saddam Hussein's attempts to purchase uranium from Niger. The CIA decided to send Wilson. It strains credulity to think that after Wilson returned, no one notified Cheney's office of his trip or his findings. But, that's what they have maintained all these years. (Also see this June, 2003 Knights Ridder article.)

It's also illogical to believe that the CIA just sat on Wilson's information and didn't bother to try and correct Bush's mis-impression. This was, after all, Bush's reason for taking us to war. Remember? Saddam was trying to acquire nuclear weapons, we were told. Bush raised the specter of the mushroom cloud. And it was false. Joe Wilson knew it and reported back to the CIA on it. But it didn't get to the President, it stayed in the speech and we went off to war.

Back to the trial. Before Cathie Martin testified, there was a spat between Fitzgerald and Wells over the timing of the delivery of Cathie Martin's notes. Wells complained they hadn't received them in enough time to prepare to cross-examine her. Fitz said the defense had copies for months. Wells said the copies weren't legible and he hadn't had enough time to review the originals especially given the volume of documents they had to review this weekend. The Judge basically vouched for Fitz's integrity. Christy of FDL was in the courtroom and writes that Wells overplayed his hand -- Martin's notes amounted to 6 pages. She believes Wells hurt his credibility with the court by this "stunt" as she calls it.

At the end of the day there was a battle between Patrick Fitzgerald and Ted Wells over Ari Fleischer's testimony, now scheduled for Monday. (I will be at the trial Monday and Tuesday, covering for Christy of Firedoglake.)

The issue is whether Fleischer will be allowed to testify why he sought immunity when the answer, according to the Government, is that he learned the disclosure of Valerie Plame Wilson's employment with the CIA might be a crime. Fleischer apparently disclosed it to NBC reporter David Gregory, after hearing it from Libby.

The Judge doesn't want that to come out because Libby isn't charged with that crime and it make make the jury think a crime other than the ones charged was committed by Libby.

The Judge discussed whether to let Libby's lawyers pick their poison...attack Fleischer on the immunity deal and then it comes in, or forego questioning Fleischer about the immunity.

That's not a proper solution in my view. Fleischer made a deal and Libby has a right to try to impeach his credibility with it. He shouldn't have to do so at the risk of having Fleischer announce his speculation that he might have criminal liability for a crime for which no one has been charged. The parties should come up with an alternative, more generic way of allowing Fleischer to explain why he sought immunity. It should be enough for Fleischer to say he was concerned his statements to team Fitz could lead to personal criminal exposure in the investigation because of things he said in his conversations about Ms. Wilson.

For a preview of Wells' upcoming attack on Fleischer, here's what he wrote in his Third Motion to Compel (pdf) in March, 2006:

On cross-examination at trial, the defense will be entitled to question Mr. Fleischer on issues such as: (1) when and how he learned about Ms. Wilson's identity; (2) the nature of his conversations with reporters; and (3) any efforts he undertook to criticize Mr. Wilson. If the press reports are correct, and Mr. Fleischer disclosed information concerning Ms. Wilson to reporters, he himself may have been a subject of Mr. Fitzgerald's investigation. Mr. Fleischer may thus have a motive to shade his testimony. Such possible bias will be vigorously explored on cross-examination.

As I wrote in an earlier post,

Libby faces a tough road with Fleischer on two fronts: First, If Libby told Fleischer on July 7 that Wilson's wife's employment with the CIA and her role in sending Wilson to Niger was "hush-hush" and "on the q.t.", what are the chances his memory failed him by October and November, 2003 (pdf) , just three months later? It was in October and November that he told the FBI he first learned about Plame from Russert in a conversation that occurred days after his lunch with Fleischer.

Team Libby wrote in an April 12 filing (pdf) about Fleischer:

Mr. Fleischer may have learned about Ms. Wilson's identity from someone at the State Department or the CIA. The defense therefore needs access to any documents discussing Mr. Wilson, his wife, or his trip to Niger that may be found in the White House or at other agencies. Such documents are needed to investigate properly when and how Mr. Fleischer learned that Ms. Wilson worked for the CIA and when and with whom (other than Mr. Libby) he discussed that fact.

In our moving brief, the defense pointed to an even more specific reason to scrutinize the government's proffered version of Mr. Fleischer's testimony. Press accounts suggest that Mr. Fleischer may have learned about Ms. Wilson during his trip to Africa after seeing it in a classified report sent to Mr. Powell on Air Force One and then disclosed this information to reporters. Yet, the government claims that nothing further is required for Mr. Fleischer's cross-examination than "a copy of the report in question." (Id. at 12.) In so arguing, the government is once again attempting to dictate which defenses may be raised and which allegations in the indictment may be challenged. Nothing in Rule 16 or the case law of this Circuit suggests that the defense should be limited to cross-examining Mr. Fleischer with only the one report that the government deigns to disclose.

Other documents, totally unrelated to the report, may show that Mr. Fleischer learned about Ms. Wilson from someone other than Mr. Libby. Also, the substance of the report is not as important as what Mr. Fleischer did with or said about the report. That information is likely reflected in correspondence, notes, or e-mails in Mr. Fleischer's files, not in the report itself. After reviewing such documents, the defense will be better equipped to examine Mr. Fleischer about whether he saw the report on Air Force One, whether he recognized that it contained classified information, and whether he communicated its contents to anyone else.

I'm very excited about being at the trial for Fleischer's testimony. I've written a lot about him in this case, opining that he is a very dangerous witness for Libby. Here are some of the posts:

More on Wells' defense plan is here.

Lastly, the issue of whether Libby must testify at trial to raise his memory defense came up at trial today. Both Marcy and Christy (links above) discuss it, particularly in the context of Fitzgerald's complaints today that Wells was using Schmall to introduce statements from classified documents that should only be admissible if Libby testified and raised the memory defense.

The Judge said in order for Libby to get his memory defense to the jury, he must testify.

Since Libby's lawyers have previously indicated Libby will testify (but were smart enough not to tell the jury that in opening arguments in case they change their mind -- you never want to make a promise to the jury in opening that you later fail to keep, the prosecution will nail you on it in closing) I don't think this is a huge issue.

The bottom line is Libby is raising two memory defenses at trial. One is Libby saying his own memory is faulty. The other is Libby's claim that the government witnesses' memories are faulty. As Team Libby wrote in his April 12 pleading,

In a case where the jury will be asked to decide whose memory is accurate and whose statements are not trustworthy, it is perfectly appropriate to use Rule 16 to gather evidence that will tend to suggest that the testimony of certain government witnesses about their conversations with Mr. Libby is not believable. The materiality of such documents is not tied to whether the documents were reviewed by Mr. Libby or whether they describe meetings or conversations in which he took part.

In a case where it is already manifest that the memories of many witnesses conflict regarding many different conversations, it is not fair to foreclose the possibility that witnesses other than Mr. Libby may be confused or mistaken about relevant events.

Perhaps Wells would be better off combining his memory defenses and arguing that since the memories of all the witnesses as well as Libby have been shown to be faulty, that alone constitutes a reasonable doubt that anyone could recall events exactly right months or more after they occurred. It may be his best shot at convincing the jury that Libby didn't intentionally lie -- he was just, like the other witnesses, mistaken.

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    Except... (2.00 / 1) (#2)
    by jarober on Thu Jan 25, 2007 at 10:09:10 PM EST
    This is all very entertaining, but we already know that the leak came from Armitage.  Fitzgerald didn't bring any charges against Armitage (or anyone else) based on the supposed crime; instead, he went after the standard "I've spent all this money, I better prosecute someone" trick of calling faulty memory perjury.  He gets bigger headlines by hitting someone like Libby instead of some reporter.

    Last Time I Looked (5.00 / 1) (#3)
    by Jeralyn on Thu Jan 25, 2007 at 10:16:31 PM EST
    lying to federal investigators and the grand jury is a crime. This case isn't about the disclosure of Plame's identity -- it's about whether Libby lied.  Or was simply mistaken.  Let's see how the evidence plays out.

    You are wrong (5.00 / 1) (#4)
    by Repack Rider on Thu Jan 25, 2007 at 10:34:28 PM EST
    Where ever the leak originated, Libby lied ab out his role.  When Bill Clinton lied about something completely inconsequential, he was accused of perjury and impeached, so I don't think we should change the standards just because Libby is a Republican.

    Just so we're clear, do you condone lying about matters of national security to a Grand Jury?

    In any event, by getting ANY kind of a trial, Fitz puts people who have been lying for years UNDER OATH, and gets to ask the questions the rest of America has been wanting to ask.  Al Capone was a brutal murderer who was only convicted of tax evasion, so whatever charge you can make stick that gets scum like Libby behind bars works for me.

    Nothing bad can come from making people tell the truth, right?


    Sigh (1.00 / 1) (#5)
    by jarober on Thu Jan 25, 2007 at 10:48:37 PM EST
    I don't condone lying to a grand jury.  I find it entertaining that the left is so enthralled by what is a relatively minor matter - there was no actual crime here, and it may or may not have been perjury.  

    Meanwhile, is TL at all interested in Sandy Berger's theft of classified papers?  The man hasn't lost his clearance, and he'll probably land a job in some future Democrat administration.

    If TL were actually interested in national security, Berger would be getting at least as much attention as Libby.  

    Apples and elephants (none / 0) (#6)
    by Repack Rider on Fri Jan 26, 2007 at 12:26:51 AM EST
    I find it entertaining that the left is so enthralled by what is a relatively minor matter - there was no actual crime here, and it may or may not have been perjury.

    How do you know what the jury is going to say before the testimony is complete?  Are you some sort of psychic?  If the CIA says that a crime was committed, where did you get your information that they were wrong?

    Exposing a CIA agent and blowing the longstanding Brewster Jennings cover that had shielded her activities and the activities of so many others engaged in stoppping the spread of WMD is a minor matter?

    A blow job is a minor matter.  Exposing a CIA agent and a WMD anti-proliferation program isn't.

    Am I correct in assuming that Sandy Berger was not acting as a member of the US government when he committed a crime for which he has already been punished?

    If Sandy Berger had to face a judge, shouldn't Libby?  

    If perjury in a Grand Jury investigating national securityis all you can get Libby on, and if pa lie that wasn't even perjury, committed in a moot deposition in a matter of no importance was a strong enough charge to impeach Bill Clinton, where do you get off saying there was no crime?

    Seeing you try to rationalize the crap the GOP has been spewing for years is my idea of entertainment.  Don't stop now.


    What the jury says... (1.00 / 1) (#7)
    by jarober on Fri Jan 26, 2007 at 08:02:20 AM EST
    What the jury says doesn't necessarily track with reality - witness OJ.  

    The thing is, Fitzgerald was supposed to find who leaked Plame's identity, and whether that leak violated any law (like the Espionage Act).  We know who leaked it - Armitage.  Fitzgerald found that out during the initial weeks, and knew that neither the Espionage Act (nor any similar law) had been broken.

    Like Starr, once he found out that there were no laws violated in the area of his investigation, he should have stopped

    Instead - like Starr, and like pretty much any prosecutor with an unlimited budget and no overwatch - he decided that he had better find evidence of some crime and prosecute someone.  Given the way memory works, and the way people react to situations, he (like Starr) eventually found someone who either lied or remembered events differently than other people.

    Like Starr, he decided to jog past the bounds of his initial investigation, and engage in prosecutorial misconduct.  if you disliked Starr's actions, you ought to dislike Fitzgerald's - for the same reasons.  Instead, partisan Republicans cheered Starr, and boo Fitzgerald.  Reverse that, and you have partisan Democrats.

    Apparently, TL is more like the opposition she dislikes than she thinks.

    Don't know your basic facts, do you? (5.00 / 1) (#9)
    by Swopa on Fri Jan 26, 2007 at 09:57:45 AM EST
    Fitzgerald was supposed to find who leaked Plame's identity, and whether that leak violated any law (like the Espionage Act).  We know who leaked it - Armitage.  Fitzgerald found that out during the initial weeks...

    Actually, Armitage came forward in early October of 2003.  Fitzgerald wasn't even appointed until late December.

    Think about that a moment.  Even though Armitage had already admitted his conversation with Novak, investigators at the Department of Justice had found enough separate evidence of a crime that Attorney General John Ashcroft felt compelled to recuse himself and allow the appointment of a special prosecutor.  So it's not exactly just Fitzgerald's crazed quest for self-justification, is it?

    Unless you're going to tell me that longtime GOP/religious-right stalwart Ashcroft was secretly part of a Bush-hating moonbat conspiracy, I'd suggest you go back to where you came from and ask for some new talking points to recite.

    'Cause right now, we're all having a good laugh at your ignorance. :)


    Swoopa (none / 0) (#17)
    by jimakaPPJ on Sat Jan 27, 2007 at 07:49:10 AM EST
    Interesting. Do you have a link that we can look at?

    I think... (none / 0) (#24)
    by Deconstructionist on Sat Jan 27, 2007 at 12:27:45 PM EST
      ...it is safe to assume that Fitzgerald would have been informed of the Armitage angle immediately upon sssuming SC. So what?

       Is the argument that based upon that one piece of information he should have either shut down the investigation or targeted only Armitage regardless of what OTHER evidence may have existed?

       That's not a good argument.    


    Deconstructionist (none / 0) (#26)
    by jimakaPPJ on Sat Jan 27, 2007 at 12:57:29 PM EST
    I may be wrong, but he was tasked with finding out who leaked her name.

    When he had, essentially, a confession, he had accomplished what he was appointed to do.

    If he felt that he should continue then he should have, as Starr did, go back and ask to proceed.

    BTW - Remember that I don't believe in a SP and didn't think the Repubs should have done what they did.


    Swopa (none / 0) (#21)
    by jimakaPPJ on Sat Jan 27, 2007 at 11:52:16 AM EST
    Actually, Armitage came forward in early October of 2003.  Fitzgerald wasn't even appointed until late December.

    That doesn't tell me what and when Fitzgerald knew.

    Do you have a believeable link with some timelines?


    Libby on the stand? (none / 0) (#1)
    by Repack Rider on Thu Jan 25, 2007 at 09:17:14 PM EST
    I caught that early on, that you can't argue Libby's memory, which is the linchpin of the entire defense case, without putting Libby on the stand.

    Libby on the stand is Fitzgerald's dream come true.

    After Cheney on the stand, that is.  If Fitz gets Cheney under oath, Cheney's heart will explode.

    There can't be anyone in America who does not want to see Cheney questioned under oath.

    Libby (none / 0) (#8)
    by PJKelly on Fri Jan 26, 2007 at 09:23:54 AM EST
    TL: re the talking points, I think you mistake the KR article for Wilson's debriefing. The KR article refers to the forgeries, doesn't it? CIA's failure to inform Cheney of Wilson's trip could make sense in this context: 1. CIA was generally unfavorable ("at war with" is a bad metaphor) toward the Bush admin. 2. Grossman testified that they didn't think Wilson's "report" was compelling, because it confirmed an Iraqi "trade mission" to Niger (not, presumably for Niger's agricultural resources), and found that Niger didn't sell or agree to sell yellowcake. That doesn't exactly conclusively show that "Iraq has tried to purchase yellowcake from Africa."

    I understand that you believe the above is untrue or has been debunked, but I have not read TL thoroughly enough to understand why. So here's a chance to preach to something other than the "choir." Thanks.

    PJ Kelly (none / 0) (#18)
    by jimakaPPJ on Sat Jan 27, 2007 at 07:54:02 AM EST
    Actually this what the CIA had to say about the information provided by Wilson.

    The CIA's DO gave the former ambassador's information a grade of "good," which means that it added to the IC's body of understanding on the issue...... He said he judged that the most important fact in the report was that the Nigerien officials admitted that the Iraqi delegation had traveled there in 1999, and that the Nigerien Prime Minister believed the Iraqis were interested in purchasing uranium, because this provided some confirmation of foreign government service reporting.

    Media coverage (none / 0) (#10)
    by jarober on Fri Jan 26, 2007 at 12:57:20 PM EST
    About this:

    "Think about that a moment.  Even though Armitage had already admitted his conversation with Novak, investigators at the Department of Justice had found enough separate evidence of a crime that Attorney General John Ashcroft felt compelled to recuse himself and allow the appointment of a special prosecutor.  So it's not exactly just Fitzgerald's crazed quest for self-justification, is it?"

    Likewise, plenty of people knew there was no "there" to the Whitewater stuff.  The media would have yelled "cover up!" had Clinton worked to stop the Starr investigation, and they would have done the same had Bush worked to stop Fitzgerald.  Neither investigation had - now, or ever - anything to do with justice or crime.  They both had everything to do with CYA and point scoring.

    Apples and elephants (5.00 / 1) (#19)
    by Repack Rider on Sat Jan 27, 2007 at 11:04:50 AM EST
    Whitewater was a failed investment that took place before Clinton was president, and a five year, $65 million investigation ended with NO CRIME BEING IDENTIFIED.  Imagine that.  Congress spent all that time and money in order to determine to an umprecedented degree that Clinton had not committed a crime.  Can't be cleared any more impressively than that.

    The Plame scandal was the result of clasified information being used against a critic of the White House, and the exposure of the front used by the CIA to monitor the spread of WMD.  There is no doubt that Brewster-Jennings was exposed, negating many years of work and wasting millions of tax dollars, or that the exposure of this asset was a crime.

    Attempting to conflate Whitewater and Plame is a sign of sheer desperation on your part and you know it, but since it's all you have, you try to sail that one past us.

    Not working, is it?


    RePack (none / 0) (#23)
    by jimakaPPJ on Sat Jan 27, 2007 at 12:10:54 PM EST
    No crime? Tell that to the people who went to jail.



    Correct, no crime (none / 0) (#28)
    by Repack Rider on Sat Jan 27, 2007 at 05:10:15 PM EST
    If you think a crime was commtted by one of the Clintons in connection to Whitewster, despite the fact that the Judge Starr spent $65 million and couldn't identify one, please identify the crime and tell us how you know.

    Listen to swopa (none / 0) (#11)
    by squeaky on Fri Jan 26, 2007 at 01:06:47 PM EST
    I'd suggest you go back to where you came from and ask for some new talking points to recite.

    'Cause right now, we're all having a good laugh at your ignorance. :)

    Your ignorance gleaned from reading the RNC cliff notes is shining through like a black hole.

    Bliss? We are all having a laugh at your expense.


    squeaky smears (none / 0) (#22)
    by jimakaPPJ on Sat Jan 27, 2007 at 11:57:46 AM EST
    Can you make any comment without smearing someone? Shall I quote your declaration that you don't need the truth to run your smear machine? As you know, I will be happy to do so.

    The question to swopa is that he doesn't give us a source, which he should be able to do. And he doesn't tell us when Fitzgerald knew, or what he knew. I think that's important.

    If it's not, then we'll just say that as soon as he came on board someone called him up and said, "Armitage is your guy." Case closed.

    The question becomes why he did not, which goes to when and what.


    Explain.... (none / 0) (#12)
    by jarober on Fri Jan 26, 2007 at 01:19:56 PM EST
    Go ahead, explain where I'm wrong.  

    No Thanks (none / 0) (#13)
    by squeaky on Fri Jan 26, 2007 at 01:40:40 PM EST
    Do your homework first.

    Squeaky (1.00 / 1) (#16)
    by jimakaPPJ on Sat Jan 27, 2007 at 07:47:38 AM EST
    Which means you can't.

    Trolling (none / 0) (#20)
    by squeaky on Sat Jan 27, 2007 at 11:36:41 AM EST
    no ppj, it means I won't take the bait of a troll,

    squeaky (none / 0) (#25)
    by jimakaPPJ on Sat Jan 27, 2007 at 12:49:04 PM EST
    Asking someone to provide information on their claim  is not trolling.

    Four sons (5.00 / 1) (#27)
    by squeaky on Sat Jan 27, 2007 at 01:00:56 PM EST
    Ever read the Passover story about the four sons?
    The wicked one had no interest in the Passover story but wanted to distract and call attention away from the discussion toward himself.

    I would say that is the part you and jarober are playing right now.

    I said do your homework first. That is a minimum requirement and would indicate that you are really interested in discussing rather than distracting. Otherwise it is a waste of time.



    Immunity for Cathie Martin (none / 0) (#14)
    by Rick B on Fri Jan 26, 2007 at 07:53:29 PM EST
    Do we know if Cathie Martin got immunity from Fitzgerald? If it has appeared in Marcy's paraphrased report, I haven't seen it yet.

    Just curious.

    Jeralyn, this is an excellent post. I've read all the stuff at Firedoglake, and this puts it into excellent perspective. Thanks.

    Rick B.

    It doesn't appear Martin Got Immunized (none / 0) (#15)
    by Jeralyn on Fri Jan 26, 2007 at 11:37:22 PM EST
    It wasn't mentioned during her testimony, so I assume she did not get immunity.

    Glad you are reading and I welcome your commentary (and compliment!)


    No answer (none / 0) (#29)
    by jarober on Sun Jan 28, 2007 at 11:49:41 AM EST
    I asked a simple question - "show me where I'm wrong".  No response, so I'll have to assume that neither Squeaky - nor TL, nor anyone else here - has an answer.

    I'll go back to what I said earlier - Fitzgerald has gone down the same slope of prosecutorial misconduct that Starr went down.  Failing to find evidence of the crimes they were supposed to look for, both men went off on a hunt for anything they could hang on anyone.  Perjury is a fairly easy one to find, since you can always find people who have either:

    -- something to be embarrassed about
    -- faulty memories

    If this weren't a political case - and instead involved a drug investigation that had turned into a stupid perjury case, TL would be up in arms (and rightly so).

    This case is a mirror image of the Clinton stuff in the 90's.  Back then, the right insisted that the perjury trial was incredibly important, and the left was outraged.  All you need to do now is flip the spectrum, and you have the same thing.  

    At the end of the day, Fitzgerald and Starr are hacks.  Someone should explain the concept of a "sunk cost" to both of them, and why the initial money spent on an investigation that turned up no crime didn't justify a follow on look for some other "crime".