Tim, before the accident

The filleting of Tim Russert continues into a second hour this morning… the first hour focused on Russert never disclosing his gabby interview with the FBI in November 2003, either to TV viewers or in fighting a grand jury subpoena in 2004.  Of special interest to the defense is why the special counsel never declared this interview to be a waiver of Russert's First Amendment claims to confidentiality, nor did they specifically agreed not to use it against Russert.  This explains why the defense was saying a few days ago that they wanted to get their hands on any communication between Russert's lawyers and Team Fitz, because this should have been a topic that was negotiated about.

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 (W): Do you remember going on TV on October 29, 2005 and saying your role in the case was very simple?  (plays tape — Russert begins story with March 2004 subpoena)  You made no reference to the discussions with Eckenrode in November 2003, right?

Tim Russert (T): Right.

W: Did Fitz ask you not to disclose this conversation?

T: Never spoke to Fitzgerald about it.

W: Did Eckenrode ask you in November 2003 to keep conversation secret?

T: He did — I was thinking as a journalist, wanted to address misstatement, but when he asked to keep confidential, I was bound.  I did tell him I would share it with NBC counsel.

W: Did you feel bound to keep it confidential even after you were going on TV two years later to talk about the case and your experience?

T: Yes.

W: Would you concede that as a journalist, that disclosing to FBI substance of your conversation with Libby was newsworthy?

T: I did not disclose Libby's side, I just confirmed it.

W: Did you consider it newsworthy?

T: Not if it's confidential.

W: Did you ask for permission to talk about it, given all that had happened?

T: I treated it as confidential, just as I did with Libby.

W: But you talked about Libby's complaint on TV, plus fighting subpoena, etc… the one thing you didn't talk about was FBI interview.  Did you ever ask?

T: That was the day after the indictment had been read, and info you mention was in public domain.

W: But NBC released a statement about your deposition before the indictment.

T: That was about the deposition.

It's 10:50. 

W: Not one word in this statement (reads flowery language about First Amendent) that you had talked to Agent Eckenrode?

T: Two very different and distinct events.

W: I asked, did you mention it?

T: No, it was confidential.

W: And you didn't ask anyone to be released, for the sake of your credibility?

T: No.

W: Did you think it might be the right thing to do, to ask?

T: When I talk confidentially, I keep it confidential.

W: That's not what I asked.

Walton (interrupts): Asked and answered. (silence for a moment)

W: (quotes Pete Williams on TV, "all you testified was what someone would have heard standing in your office," Russert says I also said I did not receive leak about Wilson's wife — tape is played) When Pete Williams said that, and you agreed, that was inaccurate, right?

T: I also mentioned viewer complaint.  That was the totality of the conversation.

W: In your testimony, you also testified about what Libby said, is that correct?

T: Right.

W: So what you said to Pete Williams is incorrect?

T: No I went on to talk about viewer complaint

W: But you said "Right" to Pete Williams

T: But I went on to talk about viewer complaint, it was a free-flowing conversation.

W: Given that you have gone on so many TV shows to talk about your deposition, would it be embarrassing if it turned out you had a mistaken recollection?

Objection. Sidebar. Now they're taking a break.

It's 11:02. 

We're back.  Wells says he only has about five minutes left with Russert (fist-pumping by irreverent sorts in media room) — but there's something everyone feels should be handled first.  Tim is excused for a moment.

Wells explains to the judge that after the five minutes (apparently just that line of questioning — oh, well), he wants to ask about Russert's knowledge of Andrea Mitchell's infamous statement (since disavowed) that she and others knew about Wilson's wife.  Notes that Mitchell said this after Libby indictment, then disavowed it on Don Imus show.  Mitchell goes back on Imus show and says she doesn't know why she said what she said.  Apparently Mitchell said she had discussed statement controversy with Russert, also admits that question/answer were clear when she said she knew.

Tape is played — Mitchell answers a question about Wilson's wife working at CIA, saying it was known among people who were trying to learn about Wilson, but she didn't know specific role at CIA.  Then tape of Imus interview is played, Mitchell says statement was out of context (Imus says something like, "Isn't that always the case when you're threatened with having to testify?"), then explains that she obviously didn't know because she talked to Wilson on MTP on July 6th and matter didn't come up on or off screen.

It's 11:20.

Tape of Imus interview with Russert is played — Russert says Mitchell misspoke.  Tape of Imus interview with Mitchell the next day is played — Mitchell says she has been trying to figure out what the heck she was talking about in that clip.  She knows what she knew, and she knows she didn't know about wife — she was not one of people who knew who Joe Wilson was, and that's what she was trying to find out during that time period (i.e., who was envoy sent to Niger).  She just misunderstood question, and screwed up.  She says people weren't as focused on timeline then as opposed to now (what was pre- and post-Novak).  There's nothing in her notes or memory that she knew. Imus bring up Russert, and Mitchell says, "It's not fair to ask him about what I said, or what I knew."  (Wonder if Fitz will pick up on that.)

Walton: "This is nitpicking, at best.  I don't see how this becomes relevant to Russert's credibility, that because he has made comments about this that he has bias."

Wells argues that because he's gone on TV saying he didn't know about wife, and Mitchell says something "that totally blows up" his story — since he's said that if she knew, whole NBC team would have discussed it — it "goes to the core" of Russert's credibility.  

Walton says he doesn't even interpret Mitchell quote as saying she knew Wilson's wife works at CIA.   Wells points out that Mitchell concedes this herself in second Imus interview.

Walton says it requires too many inferences by jury.  Wells says, govt. has supplied plenty of evidence that requires inference — e.g. if Libby has an article in his file, he must have read it.  Gets very wrought up, arguing that to deny defense right to confront Russert and then Mitchell with this is unfair and undermines the justice system.

Walton says he's not trying to undermine the justice system, and he's not happy at suggestions that he is.

Fitz says if we admit this, we might as well throw out "Whitmore on Evidence" (a textbook, apparently) and replace it with "Imus on evidence." More Imus snark follows — "throwing a bunch of speculationand TV cable shows in front of the jury," "claiming that someone would be embarrassed because of what was said on a Don Imus show" "there is no Imus exception to the hearsay rules,"  

It's 11:38. 

Wells says that Russert's reputation is at stake, so he would have temptation to be misleading.  Walton says it's far-fetched — and then says he won't allow Russert to be confronted with it.  Says he understand Wells' argument, and if he's overruled by higher court, fine, but he's "just not going to go there."  He says if he allows this kind of evidence, trials would never end — if Wells is right, govt. would be allowed to start bringing in evidence to support Mitchell's credibility from NBC files, since NBC didn't report it.  Wells says, maybe it was just a rumor, and that's all they have to prove.

Now wells brings up Gregory, says it's on record that Fleischer says he told 

Walton says he does not want a trial on whether Mitchell quote is accurate.  If appeals court says otherwise, fine.  Walton feels he's bent over backward to be fair to Libby, he wants to move on.  Wells asks for a few minutes.  Russert is brought back in.

W: I just hae a few more questions.  What did Eckenrose

T: The conversation.

W: What did you understand that to mean?

T: The conversation he had with me.

W: Do you recall that his request was to keep FBI questions

T: No, it was along lines of "I would appreciate it if you keep this conversation confidential."

W: (brings up FBI interview notes, apparently) Does that refresh your recollection, that you were just asked to keep questions confidential?

T: It refreshes my memory of exactly what I said to you.

W: July 27, 2004 letter to your attorney, Fitz says request is to keep confidential, but you have right to disclose publicly what happens in deposition.  But you talked about it on TV.

T:  I did not have a pledge of confidentiality with Mr. Fitzgerald. Only talking about substance of deposition was after indictment made it public.

W: You never asked to be relieved of confidentiality with Eckenrode.

T: No.

W: As a journalist, you believe in telling whole story 

T: Yes

W: If you have a pledge of confidentiality, you can't tell whole story, you shouldn't report on story, right?

T: There are many stories I report on where there are pledges 

W: If public knew you had told FBI about Libby conversation, that would have an effect on your reputation, a possible chilling effect on sources, yes?

Objection. Overruled.

T: It was a confidential conversation.

W: And you never asked to be lifted from it.

T: Right.

W: You never remember any conversation with Libby when he asked you to keep it out of record?

T: No.

W: You said that Libby was agitated

T: Yes (brief aside as to whether Libby used curse words — are hell and damn curse words?)

W: In your previous testimony to FBI and grand jury, you never said Mr. Libby used words "hell" or "damn"

T: I would include that in

W: Bad blood betwen

T: No.

W: Weren't you elated when Libby was indicted?

T: No.

Wells tries to play another Imus clip.  Objection, with vigor — he's showing Imus intro, rather than just what Russert said. 

Sustained.  Pause while tape is fixed.   It's 12:02. New thread coming up.

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