It has been quite a week in the Libby trial: testimony from Judy Miller, Matt Cooper and finishing the week with Deborah Bond, one of the lead FBI investigators in this lengthy investigation. One of the more amusing anecdotes to come out of the trial this week was an exchange between Bond and defense counsel, Ted Wells, during cross-examination yesterday. It seems that when Libby was interviewed by the FBI, he played coy with them and refused to tell them his first name without being pressed on it. Here's the liveblogging as Marcy recorded it yesterday:
W Jun 12 2003, Libby had a telephone call during which Cheney disclosed to Libby that Wilson's wife worked in Counter Proliferation. At the very outset of interview, he said to you he had reviewed this exhibit, it had refreshed his recollection, he now recollected that he first learned of Plame from VP.
DB That's what he claimed.
W (mad) That's what he said, that's not what he claimed.
DB He told us that, yes.
W He told us his name was Scooter Libby
DB Yes, it took us a long time to get him to tell us what his first initial stood for.
W He still won't tell me. He also said he was COS to VP.
DB Yes. (emphasis mine)
So, let's see: Libby is being interviewed for a criminal investigation on a national security breach, and he won't play it straight with the FBI about something as simple as his first name. This was deftly done by Bond on cross-examination — because it plants a seed in the jury's mind with a detail that is likely to stick — who in their right mind would go into an interview with the FBI and get cute about their first name? It certainly says a lot about Libby's personality and mindset at the time of the interview and, more importantly, it does raise some questions about his commitment to candor with authorities. As commenter Evil Parallel Universe said yesterday: "He wouldn’t be forthcoming about his given first name, and if he wasn’t forthcoming about that…..it is not difficult to assume that he wasn’t forthcoming about more important facts."
Additionally, during the course of Agent Bond's testimony yesterday, we learned of Libby's version of events for the July 12, 2003, Air Force II flight, on which Libby, Cheney and Cathie Martin discussed how to handle the press inquiries regarding Amb. Wilson. Readers will likely recall that there was a bit of a kabuki dance between Martin and Libby regarding the need for a response to Matt Cooper's inquiries during the flight, that Libby then took the questions to Vice President Cheney, was given specific instructions — handwritten by the Vice President — on how to respond and the marching order that Libby, not his Press Secretary Martin, would place the calls to the media that day. As Fitzgerald summarized this during his opening statement (via my description from day one of the trial):
There was a very interesting new tidbit about the July 12, 2003, flight on Air Force II, on which Scooter Libby and Cathie Martin (Cheney's then press secretary), seated at the back of the plane, discussed some questions that Matt Cooper of Time had for the Vice President about issues of credibility on Iraq. Libby then went to the front of the plane and discussed these issues privately with Cheney, and returned to talk with Cathie Martin with Cheney's handwritten notes on how the Vice President wanted Libby — not Martin — to respond to the press inquiries. That Cheney was directly involved in crafting specific messaging that he then directed his Chief of Staff and National Security Advisor to disseminate to the press is, to say the least, quite unusual and interesting. (And the mechanics in how the discussion occurred are very specific and new details.)
But yesterday, Agent Bond fleshed out another very interesting detail, regarding what Libby had told the FBI during their second interview:
Bond said that during Libby's second FBI interview in his office on Nov. 23, 2003, Libby described flying with Cheney on July 12, 2003, at the height of public controversy over allegations made by Plame Wilson 's husband, former ambassador Joseph C. Wilson IV .
Libby told the FBI he went to the front of the plane to get a statement Cheney wanted released to the press. It denied Wilson's suggestion that Cheney was behind Wilson's trip to Niger in 2002 to investigate a report that Iraq was trying to buy uranium there for nuclear weapons.
Wilson had said on July 6, 2003, that he had debunked the uranium report and that Cheney should have known that long before Bush cited the uranium story in his January 2003 State of Union speech as a justification for war with Iraq.
Bond testified that Libby told the FBI, "There was a discussion whether to report to the press that Wilson's wife worked for the CIA." She added that Libby expressed some doubt.
So, let's see, by my count in testimony and other evidence of which we are aware in the public domain, we have Cheney giving talking points and/or marching orders on the following occasions: (1) To Libby and Martin on Air Force II on July 12, 2003, regarding the response to media inquiries about Wilson, wherein there is discussion about exposing Wilson's wife working for the CIA; (2) On July 7,2003, when Cheney called Martin up to Capitol Hill and dictated notes as to what her media response ought to be and then had her forward those notes to Ari Fleischer; and (3) the infamous Cheney handwritten notes in the margins of the original Wilson op-ed in the NYTimes giving Scooter some marching orders on a Wilson response. And that's just off the top of my head — is it me, or are you seeing a pattern of behavior from Vice President Cheney in having a very strong hand in silencing a critic that, according to Team Libby, was simply "a sliver," according to Ted Wells' opening statement.
That "Libby a firewall for Cheney" theory has a whole lot more bricks in it as of this week, doesn't it? Why do I find the "Wilson story was a sliver" less and less believable the more and more hands-on interest and obsession we hear about Cheney and Libby attaching to the political pushback on the questions about Cheney's credibility?
There were a number of legal arguments to start the day yesterday, most of which dealt with the admissibility or lack thereof of materials that the government had obtained from Libby's office or from other witnesses and/or statements that Libby had made to the grand jury during testimony and other materials. Emptywheel has a summary of what she saw during her liveblogging yesterday, and her concluding paragraph sums up the legal arguments nicely:
Jeffress may well be right that, if this was introduced, "That would be so prejudicial for the defense I don't think we would be able to recover." It would basically show that Libby knew the FBI was already focused on the leaks from early June. Before he met with the FBI and lied his ass off. Which is why, in this case, Fitzgerald is absolutely right that, "They may be prejudicial in that they help us prove our case. But they're not unfairly prejudicial." No wonder Jeffress is desperate to have them excluded.
It is one thing to prevent the admission of unfairly prejudicial information as evidence. But where you have a piece of evidence whose probative value substantially outweighs the prejudicial potential — where the evidence is central to the questions the jury must answer in order to evaluate the case, and not just being thrown into the mix to make the defendant look bad, in other words — the judge must admit that evidence under Rule 403.
The Libby trial will continue on Monday, with Agent Bond still on the stand for the government. She is holding up well thus far under cross-examination, as you would expect from a trained and experienced FBI agent. Having met her while I was in DC covering the trial, she comes across as a no nonsense stickler for the rules, with a dry sense of humor, and I am certain that she enjoyed slipping in the bit about Scooter being less-than-forthcoming about his own first name. Will be interesting to see what more will come out once the government is up again on re-direct, because I just get this feeling that there is so much more that they have…but does it relate to Libby? Or someone else entirely?