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Breaking! Word from one of the (male) journalists: Ari Fleischer is in the bathroom. He uses the bathroom just like anyone else. He doesn't know whether he's going to testify today.

I bet you're glad I told you that…

Wells still up [questioning Martin].

She has a way of setting her mouth to prepare for this. She's looking at lawyers again. Now looks toward Defense table. Back to lawyers. Looking for someone in the audience. Bites her lips.

For some reason both Fitz and Wells wore gray suits today.

She's drinking water.

She moves mike down to her mouth.  Unbuttons her jacket.

W May I approach. Miss Martin I want to show you this exhibit. [she's leaning over almost looks fed up] It's an email from me to Libby's assistant, which I assume was going to Libby.

I need to talk to Scooter this afternoon re the Pincus stuff and Niger (with attachments)

W Does that help you place when you talked to Mr. Harlow.

M It helps me make logical sense of when I talked to Harlow. I remember things in pictures, and I don't have a picture of this.

W You still think 6/11 makes sense but you're not there yet.

[shows her the phone slip of the call to Grenier]

M I don't know him, but I know who he is. [says he was #3 at CIA which is incorrect]

W do you know that he was the person on 6/11?

M not before this trial.  It would help me make sense in my mind of the probability that I talked to Harlow.

W Based on all of the material you reviewed. If you accept the assumption that 6/11 was the day you talked to Harlow.

M It appears that way.

3:17 

[wells writing chronology again]

W it is your recollection that you had this conversation [Wells mispronounces Grenier's name: Gren-ee-eer]

Walton interrupts, that's not what she said.

M I'm just saying I don't have a picture in my head, based on what they're telling me.

W if you accept that Mr Grenier that it was on 6/11. 

W after you talked to them you had conversation with Libby and VP and disclosed to both of them that Mrs. Wilson worked at CIA.

[she's got a nervous smile now]

W you first talked to the FBI in October 2003, you hadn't had the benefit of reviewing all these documents and your memory at that time was that you had talked to Mr Libby and VP about Mrs. Wilson working at CIA probably on July 9.  

M I don't remember saying that but I do remember that at the beginning I thought everything about it. I knew on MTP that I knew his name so some of it had to have happened before.

W when you went into the FBI you recall you told them you learned about it the week of July 7. Then you went back for 2nd interview on Jan 15 2004 and at that time you continued to say you thought you told him during the week of July 7, not until GJ testimony in April of 2004 you had recollection that it had to be before July 6.

M At some point reviewing the notes and knowing I knew his name on MTP and I had to think about each conversation about when it occurred.

W there was a whole month in which you forgot you knew.

W background: Harvard law, you practiced in DC. You moved to TX and were involved in policy then moved back to DC at commerce as DCOS and WH liaison and then Mary Matalin asked you to be her deputy.

W who is Matalin

M prominent Republican strategist married to Carville,  

W when you took the job you were candid you didn't have a lot of experience working with the press.  Matalin told you you'd be great.

W Matalin left her positoin December 2003. You assumed her duties in terms of heading public affairs in VP office. At that time you did not have a lot of experience being front and center press spokeman.

M I wasn't the press secretary. I did deal with communication issues on VP messaging.

W Stepping into shoes of Mary Matalin was daunting.  She was bigger than life figure.

M Yes. I'm no Mary Matalin.

W People respected her judgement on press.

M Correct. Well the VP did.

W did you have discussions about how you'd do? 

M I didn't have discussions with Cheney, I had discussions with Mary about that. 

W And Libby?

M I said "I was not Mary, you're not getting Mary."

W Focus on Kristof article. You had been in your job 5-6 months.

M In the head of office job. 

W Millerwise Assistant.

M Press secretary.

W Prior to that she was at WH

M explains What this is.  We refer to that as a booker.

W she did not have a lot of experience either.

M She'd been a press sectretary on the Hill, but few of us had a lot of experience with this.

W June 6 Edelman left for Ambassador job? 

M Don't know about date.

W He used to work with you?

M More hands on with Jennifer.

W Mr Edelman the senior non press person left so he was gone.

W Mr Libby's job was to focus on National Security Issues?  He would spend time on issues like homeland security and terrorism and war on Iraq.  It was not part of Libby's job to deal directly with press.

M fair comment.

M Edelman pointed out the Kristof article. He had pointed out to Jennifer. Eric, I assumed, was going to be the one who figured out something we could say, because he was a columnist, and attacked the administration fairly regularly, we were just waiting to see what Eric had to say and we didn't feel any urgency to get to Kristof.

W Kristof article. [reading from article]

3:32

Wells is reading the whole damn thing, down to the copyright. Including the lines, After all, "as Ari said…"

W Could you explain how the forged documents fit into Wilson's allegations.

M Documents we got from the French.

M Sorry. The Italians that suggested Iraq was trying to get yellowcake from Niger. At some point these documents were learned to be forgeries.

W did you find out the docts were forgeries after Wilson trip?

Objection/Withdrawn.

M I don't believe we talked about forged documents.

W WRT claim that VP requested the investigation. Did that correspond to the talking points.

M Our talking point was that VP did not know of any former Ambassador sent on this trip. 

W and your talking points were true at all times.

M Correct

[Wells keeps reading the article] 

W Is it correct that Cheney at no time received a report from CIA or Wilson? 

Objection, Sidebar.

3:39

She's looking toward her lawyers. Pouring more water.

Walton: He's upset you put your water up there bc if it falls on our computer, we have no money to replace it, because we have no budget.

W To your understanding, Cheney never received a report from CIA or Wilson on the substance of his trip?

M To my understanding that is correct.

W Let's take the article down. Is it fair to say that the next time that the Wilson allegations was on or around June 8-9-10 when Pincus started calling about an article that was published on June 12.

M I think that's correct.

W puts in Pincus article. It was this article that sharpened the focus on VP's office.

M I beileve Rice is asked about this.

W On June 8 

M So it gains prominence THERE.

W Okay, Kristof, June 8, she is confronted with questions, after that it kind of became a big issue. Mr. Pincus on June 12 2003, right after Pincus wrote his article Mr. Kristof wrote a second article.

M I've since seen the second one.

Wells introduces Kristof's second article.

3:52 

Wells goes through Kristof's article: starts with Rice, then goes to OVP learning of its role in Wilson's trip from Kristof's article.

M It was either Scooter or me that revealed that to Kristof.

W Your reply wasn't being accepted.

M By Kristof.

W "Kristof was mocking you." 

W From your perspective, people just wouldn't listen to you. 

M THe media was not reporting what we were saying, and if they were they weren't believing us. 

M Some journalists are getting it. Others are not.

W The Tenet statement that was released on July 11, the purpose was to get out certain facts concerning reasons for going to war.

M It was to make it clear how 16 words got into SOTU and by implication Admin believed them to be true when we inserted them in SOTU.

W After Pincus does his second article. The next time things blow up is when Wilson publishes his op-ed. [what about TNR article?] And Wilson goes on MTP.

M Correct.

W On the television show he makes allegations about what VP should have known.  

Wells introduces Wilson's oped.

Reading from op-ed.

W after the op-ed you felt it important to prepare talking points.

M Correct

W Can you just talk everyone through your talking points.

M she's just explaining the talking points.

M We weren't told they were sending a former Ambassador to Niger.

M Did not receive a briefing about it. We weren't aware of it. We didn't get a briefing about it. [she's got this very competent tone, but obviously was pissed at Wilson. I think it's a very effective tone.]

M Not aware of his mission.

W Is it your understanding that Ari used your talking points.

M I believe he did.

W is is correct that sometime on July 7 Bush, Rice, Powell and others left for Africa. Did not return until 11th or 12th.

M I believe it was the 12th.

W Also Bartlett, who is he

M Explains–press secretary and top communications person on the plane to Africa.

W when you said everyone was gone did you mean top communication types were gone?

M I believe I meant broader than that, eveyrone was gone. Condi, Powell, everyone who would have had a hand in SOTU was gone. 

W "No one could have predicted" that Wilson was going to go public. [Wells went to Condi school apparently]

M when we planned the trip to Africa? No, no one could have planned it. 

W Because top comm people are away, VP  Cheney, you and Libby are required to become more involved.

M I believe so.  

W On July 7 WH admitted for the first time 16 words was a mistake.

W that's the first time, it was a mistake.

M Correct. [she looks bored]

W Instead of that putting to rest this firestorm, it just got bigger.

M The press was pretty intensely focused on this.

W On July 8 as this story "is beginning to mushroom" you're on Capitol Hill meetng with VP. [see, Condi speak!!] 

M There are other people, McGrath. Correct, I took the opportunity to steal a few minutes with the VP.  

W you incorporated the talking points into the ones Cheney dictated.

Objection/withdrawn

W Libby approved of talking points.

W During this week, you and Mr Libby are working very closely together, especially bc Bartlett etc in Africa.

M Correct absent the time when I was not talking to them.

W On Wednesday the 9th, Matthews on Hardball has some unkind commetns.

M I don't recollect what he was saying but Matthews was saying a lot of things about us for a long period of time, genrally he was saying some outrageous things. It continued, I wouldn't limit it to that week.

W On July 10 you learned that a decision has been made by senior comm team that Tenet will publish statement explaining 16 words.

M I learned from Scooter that Scooter, VP and Hadley (Hadley more directly) were talking through Hadley but I assumed those in Africa were in the loop.

W Fitz asked to take the communciators out of the loop

M That's what Scooter told me

W Your concern about a possible conversation with Mitchell, VP looked you in the eye and told you "don't worry about it."

W You did not know that Libby had been tasked to talk to Mitchell about NIE.

M I did know that he was tasked to talk to Mitchelll and there was some reference to NIE but I did not know at the time it was declassified.

M frowns, Is that what he said.

Walton, that's not in the instruction.

Wells withdraw.

4:11

W Libby told you Hadley said to keep communicators out, he brought you in, but you had to do it in a way w/o Hadley would know about it.

M I don't think he said the last part, but that was the implicatoin.

W When Mayfield asked for the notes back, it was on the draft of the Tenet statement. And that's why they asked for it back. [Boy am I looking forward to comparing the delivered statement with this draft!]

W you worked into the night that night.

W 10 – 11:00 at night.

M I was there late.

W drafting the statement was a contentious issue.

M It seemed like a delicate issue. Hadley was doing the go-between.

M There was mutual understanding, We weren't trying to embarrass Tenet we were trying to set the facts state. 

Wells enters Tenet statemnt, reading first paragraph.  Does not read the stuff that damns the WH.

W It was your personal position that the Tenet statement didn't go far enough. There was more detail he could have put into it. How close in time they had told the WH that this was still good evidence.

W Were you referring ot the fact that on Jan 24 a doct had been giving to WH setting forth certain information. You thought that should have been referenced.

Some kind of discussion about this. 

4:17 

W During the period you were aware of the Jan 24, I'm going to show you what, there are a number of redactions, this is the one that has been declassified for purpose of trial. She looks unsure. Asks for something else. He gives her something. She smiles. 

W You have seen this.

M I have.

Puts doc up. Huge redaction, most of it [sorry eriposte!]. 

W This document, where the cover sheet is dated Jan 24, 2003 shows the WH was told Iraq had 550 tons of yellowcake and low-enriched uranium at Tuwaitha which is inspected annually by IAEA. Iraq also started trying to vigurously procure uranium ore and yellowcake; procuring either would shorten the time to produce nuclear weapons. [The document also includes the"early 2001" intell and the Congo and one other Africa one.] 

M Neither you nor Libby were succesful at getting Hadley to include it.  

Now we're looking at Martin's actual notes on the back of Tenet's statement.

The NIE  the highest consensus document in the US intelligence community said that Iraq was vigorously trying to pursue acquire uranium and cited contacts with Niger and two other African countries as evidence. Intelligence community we did not express doubts about Niger claims in NIE. 50 pages later. [ref to footnote]

[Wells interjects that he has problem reading this] 

Has her explain NIE. 

 History 01 What we now about Iraq

  • Acquired uranium from niger in the 80s
  • We knew they wanted to acquire nuclear weapons we knew

NIE

  • Vigorously trying to acquire
  •  All agree that reconstructing nuclear programs
  • As intell community DID NOT EXPRESS doubt
  • INR only

January 24 Document

  • We reiterated our statement in NIE that Iraq was vigorously pursuing
  • That restates language used in October

W You and Libby were taking the position that he should include this.

March 2002 Evidence Joe Wilson trip

September 02 Brit report

October 01 02 NIE 

October 7 02 [in different colored ink] Cincinnati Speech

January 24 03 Document restates NIE

Jan 28 03 SOTU

Feb 5 Powell UN 

W Wilson's trip occurred before NIE came out, what that says that in spite of Wilson's trip intell community thereafter published NIE that Iraq was trying to obtain uranium.

Sidebar.

4:31

W Documents made while you were working with Mr. Libb

M Correct but I may have been outside. 

More discussion of Libby's and Martin's discussoin of this.

M I thought it was based on our agreement of what had gone on. 

M It was based on what I thought was public

Martin looking at her lawyers. Looks relieved. Martin cross will finish on Monday.

Walton warning jury against media.

10 minute break then we're going to have a discussion about another witness.

4:37 

Lawyers juggling papers. Maybe they're taking Cathie's notes?

J What is the issue regarding Mr. Fleischer cannot represent what Fleischer what he will say.  Fleischer got immunity. Alerted this morning that Zeidenberg intends to ask Fleischer why he got immunity, he'd say he read that outing a CIA spy could be a crime. Completely improper to mention it.

J they want to put in 1X2X6 article. Jeffress contends the claims in the article was totally untrue.

Zeidenberg Fleischer's going to testify that he did seek immunity and he would not talk to the govt before he obtained it and he'll explain why he wanted immunity the reason he wanted it the evening of 9/28 he found the story online which indicated a criminal investigation into possible disclosure of covert agent he knew he had conveyed info to reporters that was previously conveyed to him by Libby. He realized your heart goes in your throat. The following day obtained legal counsel begand discussing with attorneys. We're not introducing this article for thetruth of the matter. Mr. Wells showed an article to Ms. Martin that she had never seen, he put and read a lot of it. Court said it could be relevant for state of mind.

Walton; the article will suggest other criminal behavior that could have resulted.  If the defense would forgo the fact taht he got immunity, it sees the govt should have some opportunity about why it was sought. Otherwise if the defense brings it out the implication may be that he was willing to talk but it may have a negative impact on his credibility. It would be unfair for the defense to bring it up. 

Zeidenberg: Defense already opened, said he has an immunity agreement.  Jeffess has said he'll bring it up, at the end they'll argue about immunized witnesses. This exhibit would be relevant not only in connection with this, the gist of this is also encompassed in a October 12 article which Libby underlined and he was specifically questioned about the allegation that two WH officials Libby acknowledged he had the article, it was two days before he testified, it's admissible independently of Fleischer. The FBI agent will testify they were investigating the 1X2X6 allegation, the FBI just like Libby had a copy, the FBI would have been remiss not to be seeking if there's anything behind the allegation. The article is not being offered for the truth. Ari did not believe for a second that he telephoned a reporter… 

Walton: [interrupts] Why can't he testify he read an article

Zeidenberg: the article is only relevant

Walton: why not let Ari testify that he read an article. BC of concern about whether it was.

Zeidenberg: if it said that it was a misdemeanor that would be one thing. You could tell them it's not relevant to the person's mindset.

Walton if Libby has an article it reveals he had concerns he may have committed a crime. Even if the article is wrong as it relates to Libby and he's got it underlined, maybe he had a motive to lie. However in reference to Mr. Flesicher. Unless there's some vigorous attack on Ari. He had concerns about Ari.

Zeidenberg: The critical part of the article as far as Fleischer is concerned. Maybe we can negotiate a satisfactory amont of evidence read the very beginning ofthe article and he knew that some Admin officials has passed this on and this was a possible violation of Federal law. 

Walton: My concern is that the jury not get the impression that Mr Libby had committed a crime when he read it. 

Z He's in a situation that he spoke to reporters and the subject matter may have related to a covert agent.

Walton trying to find a way for Ari to express why he had a concern, but that didn't want to prejudice Libby.

Jeffress I would like to point out this is not something someone reads an article Fleischer is represented by Williams and Connelly. 

Walton but his state of mind is that he sought counsel bc of hte article.

J Mr. Fleischer's state of mind doesn't make any difference.

W IF he's going to be placed under attack, then he's got to have some oppty to explain why he sought immunity.

J We'll submit that to you.

J We have requested from the govt under giglio of any proffers with the govt. That we think would be producable under giglio. It has been represented to us that there were no such communications, blind immunity, without any knowledge of what he would say of Mr. Libby.

Z I don't know the reference to blind immunity. We didn't have any proffer, there were no factual proffers thta would qualify. There were no representations.

Walton He didn't say before hand "if you give me immunity this is what I'll say."

J If Flesicher said through his lawyer, I detected some hesitation.

Walton Is that accurate that you didn't know?

Z we got no specifics from his attorney.

Walton Just a general statement that he could provide  

Z there was no reference to Mr Libby.

Fitzgerald The notion that we're hiding the ball.  There wasn't some representation of what he would say. There wasn't a factual proffer.

Walton do you accept counsel's representations that if his lawyer represented that he could say something about Mr. Libby about this case and he said that before he got immunity, would that qualify in giglio.

Fit What I object to is that we're playing fast and loose to something. They refused to give us a proffer. It wasn't as if someone said "here's what we'll give you" It wasn't something that we had laid out before us. For them to raise the issues as if we're hiding something. Proffers are usually turned over as Jencks.

Walton Mr Fleischer never provided a factual scenario of what he would say  

F We were told he had relevant information. Frankly I didn't want to give him immunity, I was buying a pig in a poke. I did not know what we were going to get other than I knew it was going to be relevant to the case. They're asking for things they're not entitled to. It's not fair.

Wells We have a very different view of the law.

Walton–all he can tell you is that Fleischer had info on this case.

Wells I'm not sure that's what they're saying.  Let me explain how govt and defense bar deal with these issues. Blind immunity is commonly referrred to as a situation where govt says, can you help me. Once I go beyond "I can help you." the jury has a right to know, that's negotiated testimony. If the lawyer made through oral representations, we have a right to let the jury know that this was bargained-for testimony. If they said it'll help you case…

Walton I assume Fitz didn't stand before me and make a misrepresentation. He knew Fleischer had info about the case.

Wells if the only statement is, he was on the airplane. If the defense lawyer, eventually we'll get to it maybe after the case,  if defense lawyer gave some way it would be helpful. If it's truly blind immnunity, there's nothing to say. There was some kind of it'll help you.

Walton maybe lawyers have a reason to be suspect. That's what I quit practiing because I got tired of people saying I had done things that are not true.

Wells Mr Fitz and I have been at this game for a long time.

Wells we have a disagreement about the law. 

Fitz I have been at the game long enough to know defense attorneys will say some things so they can learn things they're not entitled to learn.

Walton if Ari said through his lawyer that he had info and it'd be helpful would you be obligaed to disclose that.

Fitz No.

Walton if he said he had something that it'd be helpful.

F if someone says "we're not going to give you anything without immunity."  If Fleischer says here's what we get, we don't even get to giglio. Did I know he had relevant information. When he asserted the fifth, I stopped. We understood he had given it out to SOMEONE but I didn't know which reporter. It's not a Jencks obligation. Even though I'm not obligated. I think that's wrong. 

Walton if the defense believes given what govt based on what he indicated under the second. He says it doesn't. If defense believes, they can file appropriate motion, I will rule on it.  

Somewhere Wells said this would come up after the case–does he think he lost the case and is appealing it?

End of the day. Beer thirty!