Here's what has happened since the last live-blogging thread. We left off at about noon with an accusation by Scooter Libby's attorney, Ted Wells, that there was "bad blood" between Libby and NBC News, led by Tim Russert. When Russert denied this, Wells asked, "Weren't you elated when Libby was indicted?" Surprised, Russert said no.
Wells then attempted to play another video clip from Don Imus's cable TV show (the fourth one in less than an hour). At the site of the aging radio host in the cowboy hat, special counsel Patrick Fitzgerald objected vigorously — rather than hearing from the witness, we were seeing a TV show host's characterization of something.
There was a pause to re-edit the tape, during which the jury was excused and the two sides argued about whether the tape should be allowed at all.
The tape was played — it was from Oct. 28, 2005 with Russert saying "it was like Xmas eve here last night" just before the announcement of any indictments. Fitzgerald stopped the tape and said, this is just media excitement over end of case. He described the frenzy of speculation surrounding conclusion of grand jury term, said press conference had not even been scheduled , rumors of 22 indictments, 3 indictments, no indictments, people were taking photos of him getting coffee and writing about his shoeshine (Jane whistled and tried to look innocent), Sadly, although they walk right up to the edge, no one used the word "Fitzmas."
Walton thinks this is wild speculation. The tape is played again.
Imus: We don't know anything, do we?
(Russert jokes, then says we expect major developments today — sources say prepare for surprises. We expect this will unfold in 2-4 hours, and we expect to hear from Mr. Fitzgerald in early afternoon.)
Fitz stopped the tape, and noted that the banner says Rove not indicted — if there was bad blood, wouldn't it say Libby indicted?
Now Walton says maybe it's not prejudicial if there's a predicate of rumors that Libby would be indicted. Fitz doesn't think predicate is sufficient, emphasizes that Russert anticipated "surprises." There was a break for lunch… and now we're back. Live-blogging resumes now.
NOTES: (1) This is not an official transcript — just a very loose paraphrase, at best — so don't treat it as one. Even exchanges that look like verbatim dialogue are just the gist of each question and each answer, with any key phrases or pauses included as best I can. (2) My own notes will be in parentheses and/or italics. (3) I'll tell you the time at the end of each update; expect about 15-20 minutes before the next one. The hamsters that run the servers will appreciate it if you don't refresh excessively in the meantime. (4) I didn't write the book on the Valerie Plame outing — but you should buy it, if you haven't already. If you're wondering who this "Swopa" character is, my previous writings on Plamemania can be found here.
Wells says his team has looked for evidence that a Libby indictment was widely expected — he cites the NY Times front page that morning, as well as many other media reports (including morning news shows, etc.).
Fitzgerald reminds the judge of the redaction of reporters from a WH gaggle, says the frenzy in Oct. 2005 was even greater, that the excitement of newspeople that a major story is coming is much different than joy against one person's indictment out of personal animus. Fitz says, are we going to explain to the jury all the other rumors that were in the air? He think it's unfairly prejudicial.
Walton says if Russert felt Libby had used him in a lie, a jury might fairly think there was some personal bias (umm, but if he was lied about, then Russert is telling the truth, so isn't bias irrelevant?). He adds that he consulted with other judges at lunch, and they shared his opinion that the tape was acceptable to show, and then the jury can decide how appropriate the defense argument is.
Wells: On Oct. 27, the day before Mr. Libby indicted, the press was reporting that he would be indicted.
Tim Russert: I don't recall.
W: Let me see if this refreshes your recollection. (shows Russert the defense-team research)
T: I don't recall this.
W: Do you recall appearing on the Imus show the morning of the 28th?
T: (meekly) No.
W: Recall whether NY Times reported that Libby would be indicted? (reads actual text from NYT lead paragraph)
Fitz objects: "If we're going to read it, let's read it accurately." Sidebar.
W: Do you recall whether the Today show reported that Libby would be
T: I don't.
W: Do you remember being on the Today show yourself and discussing possible charges against Libby?
T: I don't.
W: Do you deny it?
T: I don't deny it, I just don't deny it.
W: You were covering CIA leak, right? Had reported on it before? Were head of NBC news bureau?
T: (yes to all)
W: If Ann Curry had reported this on the Today show, would you know about it, based on pattern and practice?
T: This is credited to the NY Times, so not if we didn't have the story.
W: But this was a big story, right? And Pete Williams discus
T: That morning, no.
W: This could have happened without you knowing?
T: If I'm away, or working on something else, or another big story… I don't know.
W: Remember the phrase "first time in a hundred years"?
W: You don't remember talking about this on Today show?
T: I appear on Today show several times a week.
W: How many times do you appear on the Today show to discuss possible indictment of chief of staff of VP, in a case where you were involved — first time in your life, right?
W: So you don't recall
T: No. I do recall watching (Fitzgerald) news conference and discussing it with Brian Williams. (is shown Today show transcript) I don't recall this, sorry.
W: You read NY Times every day, right? Washington Post?
W: Fair to say if they had stories saying Libby was to be indicted, you would have read that?
W: (shows news stories) Does this refresh your memory, is it fair to say you were aware of stories saying Libby would have been indicted?
T: I may well have been.
W: Given your personal involvement… you have no recollection of that day?
T: No, I said I remember news conf and going on air with Brian Williams
W: Don't recall Today show?
W: Don't recall Imus show?
Wells asks to approach the judge. Sidebar. It's 2:02.
W: Do you remember saying to Katie Couric about the indictment, "It's huge… first time in 130 years"?
T: No, I don't question that I said it, but I just don't remember.
W: Do you have a bad memory?
W: You don't remember going on TV to discuss a historic indictment, where you were personally involved?
T: I do television a lot, a lot of stories and interviews.
W: (repeats very important, you were personally involved, etc… I'll type more when he says something different)
T: (is shown Today show transcript… ) I don't recall this. In fact, I see most of the news is about Harriet Miers' withdrawal, which I now realize was that same day, and I didn't recall that, either.
Wells starts to show him something else, and then… yes, another sudden sidebar.
Wells reads from the Today show transcript, where Russert says to Couric (surprise!) "It's huge… first time in 130 years."
Now he plays the Imus tape, with "like Christmas eve" line.
W: That is from the morning of Oct. 28th. Do you have a recollection of that?
T: No, I don't.
W: Do you recall what you meant by Xmas eve?
T: Don't remember specifically saying that, but a lot of times for news stories, there's a lot of anticipation, like the Bush-Gore court decision
W: But do you remember what you referring to?
T: Not sure, there's laughter at beginning of tape
W: (replays tape) Do you remember who was Santa Claus?
T: No. Not sure what was meant by "last night."
Another sidebar. Now they've excused the jury briefly, so they can replay the full tape for Russert's benefit. It's 2:20.
Before they bring the jury back in, Walton asks Fitz how long his redirect will be. Fitz says, "It'll be short."
W: Do you have a recollection of what you just saw?
T: I believe that "surprises" refers to a piece Pete Williams had done the night before — I just remember that he said th
W: Do you recollect
T: Referring to surprises
W: And Santa Claus?
T: A significant news day
W: Presents under the tree?
T: No, sir.
W: And possibility of Mr. Fitzgerald being Santa Claus?
T (bewildered) No.
W: You look very happy in the picture.
T: It's a still picture.
Wells says something about it being a nice picture and sits down. Fitzgerald gets up for re-direct.
Fitz: Did you take joy in Mr. Libby's indictment?
T: No and I don't take pleasure in being here.
F: Which is bigger news, possible indictment or actual indictment?
T: Actual indictment.
F: What do you remember personally from October 28, 2005?
T: Press conference was a network interrupt, which was significant — and then hearing my name, which was jolting. And then Brian Williams talking me about the case and asking me to explain my role, which I did. First time in my life I'd heard my name spoken by a prosecutor.
F: Any chance Xmas and surprises was personal joy at seeing Libby indicted?
T: Absolutely not.
F: Remember reading anything that day?
T: Possibly news articles.
F: Did you read indictment?
T: Yes, I think it was released after the news conference.
F: What did you read?
T: Parts invoving things I was claimed to have said.
F: What did you think of those things.
T: That they weren't true.
F: No further questions.
And with that, another sidebar. New thread comin' up.