Libby: The Fight Over Andrea Mitchell

The pleadings flew hot and heavy this weekend over whether Andrea Mitchell will testify at the Scooter Libby trial. Fitzgerald's latest is here and Libby's is here.

Fitzgerald is trying to block Mitchell's testimony. He doesn't want Libby to question her about this statement that she made on Capitol Report on October 3, 2003.

MURRAY: And the second question is: Do we have any idea how widely known it was in Washington that Joe Wilson’s wife worked for the CIA?

MITCHELL: It was widely known among those of us who cover the intelligence community and who were actively engaged in trying to track down who among the foreign service community was the envoy to Niger. So a number of us began to pick up on that. But frankly I wasn’t aware of her actual role at the CIA and the fact that she had a covert role involving weapons of mass destruction, not until Bob Novak wrote it.

Andrea Mitchell has since disavowed the statement, saying she was confused, or it was taken out of context, or she was just wrong. Here's one of her explanations:

“So clearly back in October of ’03, I screwed it up. . . . I was quite surprised to hear about [making the October 2003 statement] because it isn’t consistent with anything in my memory. I can’t find any notes that reflect this, this alleged knowledge, and so I was muddled on the timeline, that is all I can imagine.”.

Team Libby wants to impeach her with the statement, to show that there is a possibility she did know about Joseph Wilson's wife prior to the Novak article, and if that's the case, she would have told Russert, and Russert's memory might be wrong that he never mentioned it to Libby. Libby told investigators and the FBI that he forgot having learned it from Cheney in June, and when he heard it from Russert on July 10 or 11, it was like he was learning it for the first time. Russert is adamant the subject never came up in their conversation and he didn't know anything about it until he read Novak's column.

Team Libby writes:

When Ms. Mitchell is on the witness stand, we wish to explore how she was intensely focusing on the Wilson matter during the time period of July 6 through July 14 (although, as promised, we will not ask her to reveal the identity of her sources). If she denies that it is possible that she “began to pick up” on the fact that Mr. Wilson’s wife worked for the CIA prior to July 14, we will move to impeach her with her October 2003 statement. Thus, the defense has a good faith basis for calling Ms. Mitchell – to elicit testimony about how she paid significant attention to the Wilson story and how it is likely that she did in fact her a rumor that Mr. Wilson’s wife worked for the CIA.

....The defense contends that if Ms. Mitchell had not retracted her prior statement, great embarassment would have been caused to Mr. Russert and the NBC television network, particularly because the indictment against Mr. Libby was based in large part on testimony provided by Mr. Russert. Accordingly, the defense may also wish to elicit testimony from Ms. Mitchell regarding her retractions of her October 3, 2003 statement.

Libby says that if Mitchell says she didn't know about Valerie Plame Wilson before Novak's article, he has a right to impeach her with her October 3 prior inconsistent statement. But Fitzgerald says it's not a prior inconsistent statement because she disavowed it early on and has consistently maintained since then she didn't know about Wilson's wife working for the CIA prior to Novak's column. Mitchell's lawyer, not surprisingly, agrees with Fitz:

Ms. Mitchell’s counsel stated the following in this Court last week: "Number one, I am representing to you as an officer of the Court that Ms. Mitchell, if called to testify on these matters, would testify that she heard no rumor, that she had no information and no knowledge about the wife of Ambassador Wilson prior to the [July 14, 2003] Novak column.” 2/8/07 p.m. Tr. at 101-102. It is quite apparent that there is simply no good faith basis for the defendant to assume that Ms. Mitchell will testify otherwise.

I think the Judge won't let Wells ask Mitchell about her October, 2003 statement. It's too speculative: that the statement may have been true, which means she may have discussed it with Russert, which means Russert might have said something to Libby about Joseph Wilson's wife. Juries aren't supposed to pile inference upon inference in arriving at a conclusion.

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    Maguire misunderstands 'reaonable doubt' (5.00 / 1) (#8)
    by LabDancer on Sun Feb 11, 2007 at 07:10:38 PM EST
    And he's not alone. His main fanner of flames at his blog, JOM, Clarice Feldman, claims to be a lawyer, but if so she must have missed all classes on evidence or forgotten. In any event, both misunderstand the applicable Federal Court rules and the reasoning behind them. All they've got going for their position is that Team Libby filed a disingenous doomed brief in an attempt to recast their attempt to prop up Mitchell just to knock her down as "evidence".

    But both TM and CF suffer from a deeper misunderstanding on something that marks one among several critical differences between those who work with the legal concept called conspiracy and those who indulge in its pornographic fake, conspiracy theory.

    Reasonable doubt in the context of a criminal case is an expression of the necessity of applying a reasonable degree of skepticism to a case which the government brings against our fellow citizens. It does NOT and should NOT apply to each and every  incident that arises in the narrative surrounding the charge.

    I've got a lot of time for how TM and CF have taken Mitchell and Russert to task for their shortcomings in playacting as being faithful to the principles of true journalism. It appears Mitchell has risen to talking head status because she's connected and inoffensive, and that Russert is not only all bark and no bite, he appears to think there is some justification for filing affidavits to defend his toothless existence.

    But I draw a very bright line against miscasting legal principles to suit a talking points defence.

    I anticipate the possibility that either or both these amateurs on the Fantasy Island that is JOM may rebut that whether Mitchell heard some rumour before July 11 goes to the heart of Libby's defense. It does not, and can not, because it requires at least SOME evidence to support this chain: Harlow to Mitchell to Russert to Libby. That means, to get to the point where Russert could have said what Libby told the GJ he said, it is necessary to prove (1) that Russert heard it, which he denies - along with any OPPORTUNITY to hear it, (2) that Mitchell told him, (3) that Mitchell had heard it, which she denies - the site of the point of her impeachment, and (4) that she got it from Harlow. So, Team Libby has to have the court hear from Russert and Harlow before it can get to Mitchell.

    Great stuff for conspiracy theorists though, I must admit.

    Not screw up, no bad memory (5.00 / 1) (#12)
    by jamesepowell on Mon Feb 12, 2007 at 01:27:32 AM EST
    Andrea Mitchell did not screw up and she doesn't have a bad memory.  When she put out the "It was widely known" business, she was doing her job:  put the White House's narratives into play.

    She wasn't the only one putting this out there, if I recall correctly.  The story did not have the usual repetition-to-saturation cycle, the result that she and the White House expected.  So Andrea is exposed.

    Undisciplined "journalists" (none / 0) (#1)
    by cmpnwtr on Sun Feb 11, 2007 at 11:42:49 AM EST
    This statement by Andrea Mitchell is exemplary of how the "talking heads" who call themselves journalists have diarrhea of the mouth. Not being held accountable, and being undisciplined about their public statements, they speak to the public as if they were making authoritative statements of fact. We should always keep in mind they are just repeating the drivel that is being circulated among the punditocracy at that particular moment. The origin of it is most likely whatever current barstool where they hang out. Having been asked to authenticate the factual basis of her statement, Andrea Mitchell is now forced to recant it.

    Inference or baseless speculation? (none / 0) (#2)
    by MiddleOfTheRoad on Sun Feb 11, 2007 at 03:12:17 PM EST
    Juries aren't supposed to pile inference upon inference in arriving at a conclusion.

    Shoudn't that be - Juries aren't supposed to pile baseless speculation upon baseless speculation in arriving at a conclusion.

    To my layman mind - I don't have a problem with piling inference upon inference.

    You should (none / 0) (#4)
    by LarryE on Sun Feb 11, 2007 at 04:55:20 PM EST
    I don't have a problem with piling inference upon inference.

    You should - because with each step you can be less and less sure of your conclusion.

    Consider a mathematical illustration. Mitchell's statment might have been true. If so, she might have told Russell. If so, he might have told Libby. Okay, suppose you're pretty confident in each of those steps; let's say you have a 75% confidence level. That is, you're 75% certain that the original statement was true and 75% certain that she would have told Russell in that case and 75% certain that if Russell knew, he told Libby.

    You're not 75% confident Russell said something to Libby, you're .75 x .75 x .75 = 42% confident. You've actually decided that, more likely that not, Russell did not mention Plame to Libby.

    The thing to remember is that in building a string of inferences, every step must be true in order for the conclusion to be true. The likelihood of that drops with each added step. That's why it's so dangerous to pile inference on inference.

    As for baseless speculation, that should be tossed out at the start. Piling should never even arise.


    terminology (none / 0) (#6)
    by MiddleOfTheRoad on Sun Feb 11, 2007 at 06:11:06 PM EST
    Consider a mathematical illustration. Mitchell's statment might have been true. If so, she might have told Russell.

    The statement "she might have told Russert" to me is baseless speculation not inference.  Maybe I have my terminology mixed up.


    IRT to math & semantics (none / 0) (#10)
    by Sailor on Sun Feb 11, 2007 at 10:04:22 PM EST
    In research we rely on 'inferred' evidence. It's often the only way to detect something.

    If one hears 'baseless speculation' after 'baseless speculation' the sum is zero.


    Libby trial (none / 0) (#13)
    by MiddleOfTheRoad on Mon Feb 12, 2007 at 09:31:19 AM EST
    Reading the Live blogging of the Libby trial, it seems that the judge is also saying what I had said earlier - that you would have to go through some speculation (not inference) to somehow deduce that Russert knew about Plame before the Libby call.

    The Executive Branch at Work (none / 0) (#9)
    by squeaky on Sun Feb 11, 2007 at 09:23:05 PM EST
    The thing to remember is that in building a string of inferences, every step must be true in order for the conclusion to be true. The likelihood of that drops with each added step. That's why it's so dangerous to pile inference on inference.

    That is why the non-mathematical public is voting Democratic. They Republicans had convinced majority of Americans that  42% equals 75% for a good long time. They have since lost all credibility. Very few Americans are still buying their horse pucky. Even when it comes to front page Michael Gordon front page NYT propaganda pieces.

    Most people think, hnmmm....haven't I heard that somewhere before? And remember that Michael Gordon is a voice activated tape machine.

    NEW YORK--New York Times Executive Editor Bill Keller today announced that the paper's longtime staff writer Michael Gordon is not an actual person, but rather a voice-activated tape recorder.

    "I'm not sure why everyone didn't figure this out before now," said Keller, pointing to the fact that, in Gordon's 26-year career, all of "his" stories have consisted entirely of transcribed statements by anonymous government officials.



    Someone clarify something for me (none / 0) (#3)
    by LarryE on Sun Feb 11, 2007 at 04:36:05 PM EST
    I thought the real issue with Valerie Plame was not that she worked for the CIA but that she had been undercover for the CIA.

    I understand about trying to imnpeach Russell with Mitchell's seeming contradiction, but I thought the real issue involved with Plame was her covert role, not the fact of CIA employment per se. Am I wrong about that?

    1 Mitchell in hand = 2 Gregorys in bush (none / 0) (#5)
    by LabDancer on Sun Feb 11, 2007 at 05:49:33 PM EST
    The case law on calling as one's own witness someone for the sole purpose of impeaching to set up a link in a speculative 'chain of reasoning' has been well settled in the law of evidence for many over 150 years in all countries that rely on or consider the English common law. It's presence in the codified rules of procedure for the U.S. District Court system is because this court's genesis is somewhat late in the day, relatively speaking, due to the post-World II concept of the federal government not being immune from certain kinds of legal actions.

    This being only too well-known to the jerry-rigged law firm of Wells Jeffress Cline and the large resources of their respective firms, I am driven to conclude that the consensus of the Team Libby is that there is no basis for believing that anything they might get from calling David Gregory is going to improve Libby's ability to argue the possibility that Russert had heard from some other NBC reporter that former Ambassador Wilson was married to a CIA 'operative' who had some connection to his being sent to Niger to check out the dubious story of a somewhat contemporaneous Niger-Iraq uranium sale or negotiations to that end.

    Judge Walton already has demonstrated his inclination against 'first principles' original thinking and for following plain rules and precedents. Indeed, any and all erroneous and reasonably-arguably-wrong rulings he has made during in the over-heated atmosphere of this case have been when he has been too slow to stop a lawyer from exploiting a dubious opening (All the TL lawyers who have been on their feet and on the government side Fitz at least have demonstrated that they are very quick on their feet and will keep going unless and until Judge Walton stops them - in recognition of which Judge Walton has noted that in essence that he left private practice because he was thin-skinned in response to criticism, and in essence that he feels he doesn't have control over the proceedings - "I think I should have some role here, too"), or when he's made a ruling at some point in oral argument more out of a feeling that he should rule at that point just to keep the trial going. But, I think significantly, I haven't seen any error that would present a reasonable chance on appeal for Libby where Judge Walton has had written submissions in advance of making a decision or ruling.

    Quite apart from whether Team Libby has received something about what Gregory can be expected to say that doesn't exactly fill them with joy, in my experience the most effective trial lawyers are so more due to their understanding of the frailties of human nature, mostly in the areas of personal ego and communications abilities, and particularly with that certain lack of precision that generally characterizes our everyday communications and which is so difficult to discipline against. In contrast with Russert, who though a lawyer is way to courteous an interviewer to interrupt a subject from saying just about any absurdity on MTP, and Mitchell, whose 'prominence' as a reporter seems to have come more from social connections than any skill, Gregory appears to be extremely well educated, self-disciplined and focused, and at the same time tough enough to put up with the daily crap thrown at him by President Bush, Tony Snow and the right wing blogosphere. For example, recall his exchange with Snow over whether his quoting from the Iraq Study Group report evidenced 'bias'. Unlike sleek pampered Russert and innocent pampered Mitchell, Gregory is on the front lines in the line of verbal fire every day. There are certain types of witnesses even the best cross examiners cannot do anything with - and Gregory fits the profile.

    All of which leads me to think we can expect these filings to be far from the last word from Team Libby on Mitchell - because lame though it most certainly is, it is far more promising for Libby than anything his team believes it might get from Gregory.

    Mitchell (none / 0) (#7)
    by Tom Maguire on Sun Feb 11, 2007 at 06:18:18 PM EST
    But Fitzgerald says it's not a prior inconsistent statement because she disavowed it early on...

    She made the statement in Oct 2003; it was re-popularized in Nov 2005 by James Taranto of the WSJ, and she disavowed it twice on Imus in November after Taranto created a stir.

    True devotees will recall that in July 2005 Powerline cited a version of her statement in a reader's email and drew flack for being unable to substantiate it, so for a while the existence of her statement had the status of an urban legend believed (or not) by the right and disputed by the left.

    I would also say the defesne could have said a lot more about her efforts tracking the Niger/uranium story.

    First, she broke the scoop (in June) that the INR ffotnote in the NAtional Intelligence Estimate had been misplaced - that certaily suggests she had Sttate sources (or State friendly sources) and was working the uranium story.

    Secondly, she did not just interview Wilson on MTP on July 6 - she had his phone number and called him on July 5, at home, to set it up.

    Thirdly, we have heard trial testimony (Cathie Martin) that Mitchell talked to Bill Harlow of the CIA on July 8.  Mitchell also delivered this report that day on the subject of who would be blamed for the 16 Words:

    MITCHELL: Well, people at the CIA say that it's not going to be George Tenet; and, in fact, that high-level people at the CIA did not really know that it was false, never even looked at Joe Wilson's verbal report or notes from that report, didn't even know that it was he who had made this report, because he was sent over by some of the covert operatives in the CIA at a very low level, not, in fact, tasked by the vice president.

    Pretty good detail about how the trip was arrranged.  AND, there is Bob Novak's "operative", six days before he used it.

    Talking to State in June; working the Wilson story; Wilson's number in her rolodex... hmm.

    My guess - she may have realized that the "error" in her Oct 2003 statement was that she was inviting a subpoena and exposing Russert to disgrace and her source to legal jeopardy (Especially if her source was Armitage, for whom this would have been his third leak, and the second one he forgot - do you suppose Mitchell wants to ruin both Russert and her source?).

    Juries aren't supposed to pile inference upon inference in arriving at a conclusion.

    I can't wait to hear Fitzgerald's close when he tries to come up with a motive for Libby without offering a mountain of inferences (OK, speculation).  Yes, legally his not obliged to offer a motive, but juries like to hear them.


    You're not 75% confident Russell said something to Libby, you're .75 x .75 x .75 = 42% confident. You've actually decided that, more likely that not, Russell did not mention Plame to Libby.

    Right, so we can't convict Russert of lying.  So what?  Libby is on trial, and 42% is way beyond my bounds of "reasonable doubt".

    Even at 50% cubed, there is a 12.5% chance that Libby is correct that Russert told him - reasonable doubt?

    This will be something (none / 0) (#11)
    by squeaky on Mon Feb 12, 2007 at 12:52:24 AM EST
    Looks like Cheney is going to testify.

    RAW Story