Libby Trial Last Batter Up: Tim Russert

The Government will call its final witness today in the Scooter Libby trial. It's NBC's Tim Russert.

For other takes, be sure to check in with Firedoglake, Empty Wheel, Just One Minute and Media Bloggers. Here's mine:

Fitzgerald wants to end his case on a high note. That's why even today, he wasn't sure he was going to call "the mystery witness," a low-level DOJ employee. He'd rather end with Russert, who he thinks will be the final linchpin, the one who will put his case over the top and bring it home.

I suspect Jeffress will do the cross-examination since he has crossed all the journalists so far, if I'm not mistaken.

Jeffress may try to hammer home that Russert didn't have to go before the grand jury but got interviewed in his lawyer's office. Jeffress took this route with Matt Cooper (although I thought that line of questioning went nowhere.)

There is another wrinkle with Russert the defense may try to exploit, that Russert and Fitz had a deal whereby Russert was only asked questions about Russert'ss side of the conversation. In other words, he was questioned about what he told Libby, not what Libby told him.

First, some background.

The Indictment against Libby alleges:

On or about July 10, 2003, LIBBY spoke to NBC Washington Bureau Chief Tim Russert to complain about press coverage of LIBBY by an MSNBC reporter. LIBBY did not discuss Wilson’s wife with Russert. (page 7, Paragraph 20.)

The Libby-Russert saga began following a segment on Hardball. Libby had called Russert to complain about Chris Matthews' comments pertaining to Joe Wilson, his trip to Niger and the Vice President.

Libby told the Grand Jury and investigators that he learned of Joseph Wilson's wife from Tim Russert in this July 10 phone call, and that he thought he was hearing this for the first time. When asked about his having learned about Wilson's wife in June from Vice President Cheney, Libby said he had forgotten about hearing it from Cheney. He also said that what he told Judith Miller on July 12th he learned from Tim Russert. Only Judith Miller says Libby discussed Plame with her on June 23. And Libby apparently discussed Plame with a total of 7 Government officials, including Ari Fleischer, before he spoke with Russert. (see page 3 of Fitz' 2004 Affidavit.)

And Russert says he never told Libby about Valerie Wilson and didn't know about her until reading Robert Novak's column published on July 14.

Tim Russert gave a statement on tv about his testimony. I live-blogged it at the time, reporting what Russert said:

[Russert was]subpoenaed in May. On August 7, under oath, at his lawyers' office he was asked if he was recipient of leak, said no. Did he know of Valerie Plame's identity? No. Libby called him not to leak information but to complain about something he saw on television. Libby implied to Russert, Cooper and Miller that he was hearing info on Plame for the first time. Obviously the special counsel didn't believe that.

Russert's contact was solely that Libby called to complain about something on the cable news. He reported the call immediately to the head of NBC News. Russert's first learned of Plame when reading Novak's column.

You can be sure Russert will repeat this denial for the jury. As I said earlier, the defense likely will try and show he got some kind of special deal for his testimony because he got to be questioned in his lawyers' office and have the scope of the questions limited to what he told Libby rather than having to disclose the full conversation. I don't think the jury will hold that against Russert.

I think Team Libby may have to wait until the defense portion of the case to counter Russert by suggesting that Libby confused Russert with another reporter who had told him about Plame, and again assert that because he was so busy, he forgot that Cheney had told him in June and that he had discussed Wilson with other officials.

They will point to his "I don't recall" as opposed to outright denials and say that shows his honest failure to accurately remember conversations, not an intent to testify falsely.

Fitzgerald will argue that Libby's "I don't recalls" and attempt to cast Russert as his source were lies motivated by his concern that Fitz was investigating the leak of classified information and if it turned out that he passed on information about Valerie Wilson to reporters that he received from Government officials by virtue of his security clearance, he could have criminal exposure. Libby knew, according to Fitz, that if he was just passing along gossip from reporters, there would be no such violation.

This brings up another point of contention between the two sides. Team Libby has been trying to argue that any misstatements by Libby were not material because Libby believed the investigation only pertained to who disclosed Plame to Robert Novak. Fitzgerald says Libby knew the investigation was broader. To be convicted, the jury must find both that Libby intentionally lied and that his lies were material to the criminal investigation.

One more complication: Fitz also has argued that Libby's motive to lie is shown by his asking Cheney to go to bat for him with Scott McClellan to clear Libby. Once Libby told Cheney he didn't discuss Valerie Plame Wilson with reporters, and McClellan announced he wasn't the leaker, Fitz argues, how could Libby then 'fess up?

What neither side is likely to argue, and what conspiracy theorists want to hear, is that Cheney directed Libby to leak the information, and Libby fell on his sword to protect Cheney. Which would mean that Cheney knew Libby lied to investigators and the grand jury. If Cheney doesn't testify, as many now expect he won't, this may be one reason. But, this is just pure speculation.

If I've confused you, here's Fitz in his own words, from the news conference announcing the Indictment:

What he told the FBI is that essentially he was at the end of a long chain of phone calls. He spoke to reporter Tim Russert, and during the conversation Mr. Russert told him that, Hey, do you know that all the reporters know that Mr. Wilson's wife works at the CIA?

And he told the FBI that he learned that information as if it were new, and it struck him. So he took this information from Mr. Russert and later on he passed it on to other reporters, including reporter Matthew Cooper of Time magazine, reporter Judith Miller of the New York Times.

And he told the FBI that when he passed the information on on July 12th, 2003, two days before Mr. Novak's column, that he passed it on understanding that this was information he had gotten from a reporter; that he didn't even know if it was true. And he told the FBI that when he passed the information on to the reporters he made clear that he did know if this were true. This was something that all the reporters were saying and, in fact, he just didn't know and he wanted to be clear about it.

Later, Mr. Libby went before the grand jury on two occasions in March of 2004. He took and oath and he testified. And he essentially said the same thing. He said that, in fact, he had learned from the vice president earlier in June 2003 information about Wilson's wife, but he had forgotten it, and that when he learned the information from Mr. Russert during this phone call he learned it as if it were new.

When he passed the information on to reporters Cooper and Miller late in the week, he passed it on thinking it was just information he received from reporters; that he told reporters that, in fact, he didn't even know if it were true. He was just passing gossip from one reporter to another at the long end of a chain of phone calls.

It would be a compelling story that will lead the FBI to go away if only it were true. It is not true, according to the indictment. In fact, Mr. Libby discussed the information about Valerie Wilson at least half a dozen times before this conversation with Mr. Russert ever took place, not to mention that when he spoke to Mr. Russert, Mr. Russert and he never discussed Valerie Wilson or Wilson's wife.

He didn't learn it from Mr. Russert. But if he had, it would not have been new at the time. Let me talk you through what the indictment alleges. The indictment alleges that Mr. Libby learned the information about Valerie Wilson at least three times in June of 2003 from government officials. Let me make clear there was nothing wrong with government officials discussing Valerie Wilson or Mr. Wilson or his wife and imparting the information to Mr. Libby.

But in early June, Mr. Libby learned about Valerie Wilson and the role she was believed to play in having sent Mr. Wilson on a trip overseas from a senior CIA officer on or around June 11th, from an undersecretary of state on or around June 11th, and from the vice president on or about June 12th.

It's also clear, as set forth in the indictment, that some time prior to July 8th he also learned it from somebody else working in the Vice President's Office. So at least four people within the government told Mr. Libby about Valerie Wilson, often referred to as Wilson's wife, working at the CIA and believed to be responsible for helping organize a trip that Mr. Wilson took overseas. In addition to hearing it from government officials, it's also alleged in the indictment that at least three times Mr. Libby discussed this information with other government officials.

It's alleged in the indictment that on June 14th of 2003, a full month before Mr. Novak's column, Mr. Libby discussed it in a conversation with a CIA briefer in which he was complaining to the CIA briefer his belief that the CIA was leaking information about something or making critical comments, and he brought up Joe Wilson and Valerie Wilson.It's also alleged in the indictment that Mr. Libby discussed it with the White House press secretary on July 7th, 2003, over lunch. What's important about that is that Mr. Libby, the indictment alleges, was telling Mr. Fleischer something on Monday that he claims to have learned on Thursday.

In addition to discussing it with the press secretary on July 7th, there was also a discussion on or about July 8th in which counsel for the vice president was asked a question by Mr. Libby as to what paperwork the Central Intelligence Agency would have if an employee had a spouse go on a trip. So that at least seven discussions involving government officials prior to the day when Mr. Libby claims he learned this information as if it were new from Mr. Russert. And, in fact, when he spoke to Mr. Russert, they never discussed it.

But in addition to focusing on how it is that Mr. Libby learned this information and what he thought about it, it's important to focus on what it is that Mr. Libby said to the reporters. In the account he gave to the FBI and to the grand jury was that he told reporters Cooper and Miller at the end of the week, on July 12th. And that what he told them was he gave them information that he got from other reporters; other reporters were saying this, and Mr. Libby did not know if it were true. And in fact, Mr. Libby testified that he told the reporters he did not even know if Mr. Wilson had a wife.

And, in fact, we now know that Mr. Libby discussed this information about Valerie Wilson at least four times prior to July 14th, 2003: on three occasions with Judith Miller of the New York Times and on one occasion with Matthew Cooper of Time magazine.

The first occasion in which Mr. Libby discussed it with Judith Miller was back in June 23rd of 2003, just days after an article appeared online in the New Republic which quoted some critical commentary from Mr. Wilson. After that discussion with Judith Miller on June 23rd, 2003, Mr. Libby also discussed Valerie Wilson on July 8th of 2003. During that discussion, Mr. Libby talked about Mr. Wilson in a conversation that was on background as a senior administration official. And when Mr. Libby talked about Wilson, he changed the attribution to a former Hill staffer.

During that discussion, which was to be attributed to a former Hill staffer, Mr. Libby also discussed Wilson's wife, Valerie Wilson, working at the CIA -- and then, finally, again, on July 12th. In short -- and in those conversations, Mr. Libby never said, This is something that other reporters are saying; Mr. Libby never said, This is something that I don't know if it's true; Mr. Libby never said, I don't even know if he had a wife.

At the end of the day what appears is that Mr. Libby's story that he was at the tail end of a chain of phone calls, passing on from one reporter what he heard from another, was not true. It was false. He was at the beginning of the chain of phone calls, the first official to disclose this information outside the government to a reporter. And then he lied about it afterwards, under oath and repeatedly.

< Putting Time Limits on Rape | Boehlert on Libby: How the Press Enabled the White House >
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  • Display: Sort:
    obstruction (1.00 / 1) (#14)
    by diogenes on Wed Feb 07, 2007 at 10:31:23 PM EST
    If Fitz already knew who the leaker was from early in the investigation, then how could anything Libby say later obstruct the grand jury's search for the leaker?  If anything, Fitz obstructed it by not pushing for an indictment of the real leaker early on.

    Linchpin - and what does the future hold? (none / 0) (#1)
    by pixpixpix on Wed Feb 07, 2007 at 01:06:04 AM EST
    Thanks for your derailed analysis Jeralyn.

    Are we to read anything in the misspelling of the word "linchpin" as "lynchpin" !!

    On another note, what are your thoughts on any additional indictments after this trial is finally finished? Fitz's point in his press conference was that the perjury and obstruction was standing in the way of doing a full investigation

    fixed the spelling, thanks (none / 0) (#4)
    by Jeralyn on Wed Feb 07, 2007 at 10:28:12 AM EST
    The Scooter Libby trial (none / 0) (#5)
    by dngyoung on Wed Feb 07, 2007 at 11:27:39 AM EST
    Could someone explain to me why the person who lied about the leak is on trial but the people who leaked are not?  

    They are. (none / 0) (#6)
    by Edger on Wed Feb 07, 2007 at 11:37:21 AM EST
    They were indicted on November 7, 2006.

    Hmmm (none / 0) (#7)
    by squeaky on Wed Feb 07, 2007 at 11:38:27 AM EST
    Not sure that your premise is true, dngyoung. The wheels of justice sometimes take a circuitous route.

    Who was indicted for what (none / 0) (#8)
    by sphealey on Wed Feb 07, 2007 at 11:44:22 AM EST
    You might want to read the record of the Martha Stewart indictment, the trial, and Ms. Stewart's appeal.  Particularly the outcome of the appeal.



    On a side note... (none / 0) (#2)
    by Edger on Wed Feb 07, 2007 at 08:27:10 AM EST
    Eric Boehlert has written a great article for Media Matters elaborating on the larger context and meaning of the Libby trial, and why it is also as much of an indictment of the media and the society as it is of Libby and the Bush Administration:

    Scooter Libby and the media debacle
    Feb 06/07

    So as the facts of the White House cover-up now tumble out into open court, it's important to remember that if it hadn't been for Fitzgerald's work, there's little doubt the Plame story would have simply faded into oblivion like so many other disturbing suggestions of Bush administration misdeeds. And it would have faded away because lots of high-profile journalists at The New York Times, The Washington Post, Time, and NBC wanted it to.

    In a sense, it was Watergate in reverse. Instead of digging for the truth, lots of journalists tried to bury it. The sad fact remains the press was deeply involved in the cover-up, as journalists reported White House denials regarding the Plame leak despite the fact scores of them received the leak and knew the White House was spreading rampant misinformation about an unfolding criminal case.

    And that's why the Plame investigation then, and the Libby perjury trial now, so perfectly capture what went wrong with the timorous press corps during the Bush years as it routinely walked away from its responsibility of holding people in power accountable and ferreting out the facts.

    um..........so what? (none / 0) (#3)
    by cpinva on Wed Feb 07, 2007 at 10:08:38 AM EST
    In other words, he was questioned about what he told Libby, not what Libby told him.

    wouldn't what libby told him be heresay? as well, if libby is asserting that he learned of ms. plame's employment status from russert, than clearly what russert told libby would be far more compelling anyway.

    of course, i may just have been wasting my time watching all those reruns of "law & order". lol

    Question your analysis (none / 0) (#9)
    by atlanta lawyer on Wed Feb 07, 2007 at 12:11:17 PM EST
    Jeralyn, I haven't read the statute, but are you sure that they have to prove that 1)Libby intentionally lied AND that 2)Libby knew the issues he was lying about were material to the investigation?  Usually, criminal liability lies, and intent is proven, where it is proven that someone intended to do the prohibited act, not that they intended to break the law.

    you are correct (none / 0) (#10)
    by Deconstructionist on Wed Feb 07, 2007 at 01:01:15 PM EST
      The elements are that, under oath, he knowingly and intentionaly made a false statement of fact that pertained to a material matter.

      The knowingly and intentionally only goes to falsity not materiality.


    I think that's what I said (none / 0) (#11)
    by Jeralyn on Wed Feb 07, 2007 at 01:24:22 PM EST
    "To be convicted, the jury must find both that Libby intentionally lied and that his lies were material to the criminal investigation."

    Fitz argues in his instruction brief that the test for false statements should be:

    O'Malley § 40.07, as proposed by the government:

    1. That Mr. Libby knowingly made a false, fictitious or fraudulent statement;
    2. That Mr. Libby made the statement willfully, that is, intentionally, knowing
    that it was false;
    1. That the statement was made in a matter within the jurisdiction of the FBI;and
    2. That the statement was material, that is, that it had the effect of influencing
    the decision or actions of the FBI, or was capable of or had the potential to
    do so.

    For the perjury charge, Fitz argues the test should be:

    1. That Mr. Libby made a statement before the grand jury while he was under oath;
    2. That such statement was false in one or more of the respects charged;
    3. That Mr. Libby knew such statement was false when he made it; and
    4. That the false statement was material to the grand jury's inquiry, that is, that it had
    the effect of influencing the decision or actions of the grand jury, or was capable of
    or had the potential to do so.

    Motivation. (none / 0) (#12)
    by MetaData on Wed Feb 07, 2007 at 02:15:58 PM EST
    Thanks for this reminder of the chain of events.

    What strikes me is that Cheney's office was so actively concerned about discrediting Joe Wilson and I guess even his wife. Wilson was an insider spilling the beans on a corrupt and dishonest drive to make war on Iraq. Here we see Libby, a top staffer running around to various reporters trying to get them to report against Joe Wilson's article.

    In terms of motive, this obsession indicates the degree to which Cheney (the wizard) and Bush (the avatar?), were really, really concerned about losing the justification for the Iraq war.

    With 2/3 of americans against the war, they've lost that battle. What they still have going for them are Republicans in the Congress and the timidity of the Democrats.

    Maybe I confused your analysis with Libby team's. (none / 0) (#13)
    by atlanta lawyer on Wed Feb 07, 2007 at 03:55:13 PM EST
    Jeralyn, you asserted: "Team Libby has been trying to argue that any misstatements by Libby were not material because Libby believed the investigation only pertained to who disclosed Plame to Robert Novak." The materiality of the statements are the objective materiality, not Libby's subjective belief there about.

    cpinva: It's not hearsay, which is an out of court statement introduced to prove the matter asserted.  The prosecutor is not trying to prove the contents of Libby's statements are true, just that he made them. If a witness says "Bill told me the defendant shot him", that's hearsay if that's what the trial is about. If a witness says "The defendant shook my hand and said "deal", in a contract dispute case, it's not hearsay b/c the truthfulness of the statement is irrelevant, you make a contract by your words whether you're being honest or not.

    Secondly, even if it was hearsay, there is an exception (one amoung many) for statements made by a party opponent.  In criminal cases, it means any thing a criminal defendant says to anyone is excepted from the hearsay rule if it's used against him, and him alone.  

    Right, that's Libby's assertion (none / 0) (#15)
    by Jeralyn on Wed Feb 07, 2007 at 11:00:24 PM EST
    and I don't agree with it. Fitzgerald told him at the beginning of his grand jury testimony that the scope was the crime of leaking classfied information and any other crimes, including false statements, that the grand jury learned of during its investigation.  He knew it went well beyond who leaked to Novak.  

    Thanks for contributing your expertise, it's much appreciated.