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NOTES: (1) This is not a transcript — It's the blogger's approximation, and no one really knows what that is yet! But I do know you shouldn't quote anything not in quotation marks. (2) I'll timestamp the updates and will update about every 15 minutes, servers willing. The hamsters that run the servers will appreciate it if you don't refresh excessively in the meantime. (3) If you're not having enough fun just reading along the liveblog, consider buying my book on this case.

Good morning Firedoglake. I've had a bracing week away from the liveblog, shivering through Michigan's 25 below windchills all last week. Thanks to Swopa for doing such a great job with the liveblogging so I could go home and freeze. 

I'm using this leftover question mark from Fitzgerald's unused mystery witness because … well, we have no idea what Libby is going to throw at us this morning. I've heard verying reports as to the first witness, including Cheney, Novak, Woodward, Sanger, Mitchell, Even Thomas, or Pincus (so I spent about 2 hours loading slugs up to ancitipate any possible witness; if I had to guess, it'll be some of the journalists). My best guess? We're going to spend the morning arguing motions and I'll have plenty of notice as to who is up first. 

Walton up (jury not here) to deal with motions. We're going to start with the motion to quash Andrea Mitchell's subpoena.

Wells: We wish to call Ms. Mitchell, and elicit testimony at a minimum that would show how intensely she was working on the Wilson story. When this story started, Russert was on vacation. Gregory is on the record as knowing Plame's identity. We have the right to show how intensely NBC was covering this story from which one can infer that she learned Plame's identity. "We think this case presents a different factual model" than any of the cases the government has cited.

Walton: But you want this to go to the truth.

Wells: No, what I want, to the extent that I have a wish list, my extreme wish is that your honor would treat it as residual evidence. But I have also said that if it is not treated as substantive evidence, it still should come in as impeachment evidence with a limiting instruction.

Walton: Impeaching her on what?

Wells: Impeaching her on her testimony that she can rule out that Plame worked at the CIA.

Walton: Assuming you can ask that, then what are you planning on doing with that, just argue it for that purpose? You're not going to seek to do the other, which is to suggest that she would have had conversations with Russert about it?

Wells: I could not do that if your honor limits it. I've made it clear that I have a more extreme argument that you treat it as residual evidence.

Walton: You've said a lot more in Chambers.

[Pachacutec is here--says he's doing Eddie Haskell]

Wells: I have every right to use it for impeachment. I want to start at that beginning, which makes it very unique from Johnson.

Walton: I don't buy the argument that it can be used for substantive purposes. But I'd like to hear what govt says about impeachment.

Bonamici: The question to be asked is what purpose would be served by impeaching their witness? Defense intends to ask about an unrelated subject–what Libby said to Mitchell, we presume that Defense would want her to be credible. This is a ruse to present the non-admissible testimony. They've got no reason to impeach, they're setting up a straw man so they can impeach. 

Walton: How is this different than Buffalo.

Bonamici: The Buffalo case is an outlier. There's not much case law that says the defendant should be in a different position than govt. It's a completely different situation. As your honor pointed out earlier, the statement was corroborated by other evidence, it's hard to imagine a statement more untrustworthy than this one? [not sure which statement she's referring to] A statement that even if it were offered for the truth, it would only serve as source of speculation to the jury. They're just trying to pile speculation on top of speculation. We would say that even if this had not been denied by Mitchell, it would be inadmissable under 403. 

Walton: 403 doesn't require evidence is substantive. If they only wanted it for impeachment purposes.

Bonamici: Even if this didn't pose the problem of Johnson, there's no reason to put this hearsay before the jury.

[unknown--maybe it's Mitchell's lawyer?] The Buffalo case is not the rule of this Circuit, even if you go to Buffalo, 

Wells: Let's assume that if Russert and Mitchell worked at NBC but they were entertainment reporters. [Yeah, let's just say that, huh Wells?] If they said I didn't know about it bc I was covering the grammys, that would be plausible. NBC was one of the lead networks covering this story. They started with Mr. Wilson. The jury could conclude based on intensity of this story, that there was such a possibility.

Walton [fed up]: So you want to put this before the jury for the truth! 

Wells: the point I want to make is this. If she had never made the impeachment statement of 10/3, I could still call her.

Walton: But you couldn't argue from that she would have heard it.

Walton: To say that you're working on a subject and then to ask the jury to presume that you had heard about Mrs. Wilson, 

Wells: If she's working on the story, covering the State Department, where Armitage worked [but of course he wasn't returning her calls].

Walton: I don't think it's logical to assume that Harlow told her.

Wells: Harlow told Novak, he confirms it. [he says he'll call Harlow]

Walton: In a roundabout way, you want to get before the jury this statement that maybe she knew using a roundabout basis.

Wells; She was the lead investigative reporter, she was out working on the case.

Walton: You want the jury to infer that because she was working on it, she would have heard about Mrs. Wilson. The only basis for assuming that is the inconsistent statement.  You'd be asking the jury to speculate that just because she was working on this, he would have heard it.

Wells: Russert says there was a buzz.  We've already got on the record.  The 302 states, I cannot rule it out as a possibility.

Bonamici: That is a quote from the 302, but you recall that when he was questioned, immediately after that, he pointed to the passage that he believed this was after the Novak was published. He was standing there looking at the 302, "Well, Counsel, it also says right here" that it was after the Novak column. This is contradicted by every bit of evidence.

Walton asks for the 302.

9:25

Walton: [Referring to the 302] This seems to say different from what you say.

Wells: I'm going to call the Agent [Eckenrode] tomorrow. This is the one instance bc the notes cannot be found–there was a diligent search for the notes. 

Walton: but you're still trying to ask the jury to speculate.

Wells: I am allowed to present this with an instruction.

Walton: I agree, if there is a reason to show this in the first place. You want the inference to be drawn that because of the intensity that she was working the story, she would have heard of this.

Wells: Analytically we have a different perspective. It's a team. Russert and Mitchell and Gregory are a team.

Walton: I've heard all that, counselor, and I just don't buy it.

Well: For the govt to put Russert on, they created a situation for the jury that he's out by himself, and Ms. Mitchell is the reporter working on the ground.

Walton: We have one other issue, then I'll come back and rule. Have you reached an agreement regarding GX###,

Fitz says yes, they'll introduce something with instruction.

Walton: proposed instruction regarding dismissed instruction of obstruction count, it seems to be consistent with red book. We're talking about dismissal of a count,

Fitz That's what I think the appropriate distinction is that by separating out language from the indictment. There were 33 paragraphs or more form part one, the Judy Miller conversations are still an important part of the evidence in this case. It says that Libby misled and deceived the GJ as to the manner by which he acquired and disclosed, so the essential tenor of charge is about when he got it and gave it out. A juror hearing this that Miller was dismissed from the case would be highly inappropriate.

[As I suspected, Libby's team is trying to go after the July 12 conversation, and with it dismiss the importance of Judy as a witness that on July 8 that Libby knew Plame's ID] 

Walton: Does anything that has happened at this point impact that statement (About Libby's lie). My only concern is if I said anything in my preliminary instruction if that's been left out.

Fitz: We'd like to look at preliminary instruction in context. 

Wells: I strongly disagree with Fitz' characterization of what took place. The obstruction count was based on three false statements. We wanted it clear that on terms of the obstruction that there was nothing wih Grossman and Miller, What the obstruction count was predicated on was that obstruction was based on three-prong statement. I opened on it. The Jury can consider June 23 and July 8 in terms of what Libby knew. 

[Yup--Wells is trying to hide the what was obstructed--that Libby was trying to hide his conversation to Judy. Clever move, utterly dishonest, but clever. I think they emphasized the third false statement charge (which there was none) so by dismissing it, they could dismiss the obstruction charge.] 

Fitz: I'll briefly respond, The vice in taking language out, as opposed to a count is that you're asking them to rule beforehand.  I think the jury could find that the description of July 12 was a lie, but not using the language in the count, the jury can use that evidence against Mr. Libby, they can also use that evidence that when he said the first time he told her on July 12, that that was a lie. This proposed instruction would focus on July 12–and the language in the indictment, even though they were never going to see the indictment–would lead them to focus inappropriately on July 12.

Wells; We're not going to address that conversation. It has been dismissed. The jurors should know that it has been dismissed.  

Walton: I'm going to have to … I'll have to go back and re-evaluate the evidence to see whether… I don't want something before the jury that could be prejudicial. I need to go back and review the indictment. 

Taking a short break.

9:44 

Apparently the clock upstairs in the courtroom is now working.

Fitz is in his seersuckery grey suit again–probably wants to wear it before it starts to snow heavily here this week. Jane's upstairs with Sidney Blumenthal and Pachachutec. And Jeralyn is here blogging for Arianna. 

To explain a little more a little more about what I think happened. Originally, there were two alleged lies: the lie about Russert, and the lie about Cooper. Somehow, Judy got put in there in a way she wasn't from the start. I think she testified differently than what the charge said. So Wells got that charge thrown out (not that there was a charge on it). But now he wants to say, effectively, the Judy charge has been thrown out, even though, as um, questionable a witness as she is, she is a central witness of Libby's obstruction. That is, Wells has manufactured a very clever way to suggest everything about Judy is irrelevant, even though he only got the July 12 conversation as a lie thrown out. Now if that doesn't make sense–better ask Christy if you've got questions.

Walton: [about Wells' ploy to call Mitchell] I've thought about the issue and went back and looked at Johnson It seems to be wrt how you want to dress it up, you only want to bring that out has no relevance. It doesn't help the defense case whatsoever, the only reason you want to bring it out, you're going to do exactly what Johnson says you cannot do. I think there's a lot of mischief that comes with that. If you were to do that, it doesn't add to your case, it seems to me once you do that and you throw that before the jury, the jury may draw the inference that she knew about it, Russert knew about it, I just don't think Johnson permits that. I can hear from her, so we have a record, you can ask the questions of her, I'll do that outside of the presence of the jury, I am prepared to live with the ruling. Maybe the circuit will find a distinction between this and Johnson. You can dress it up as much as you want, but all the rest of this is purely done to get that prior inconsistent statement in. 

Wells: Tomorrow afternoon can we have a hearing, just so the record's clear, it is our position that the questions I would ask her about her involvement in the story would be relevant.

Walton: What would that relevance be?

Wells; This is a situation where NBC team was working intensely on the story?

Walton: What relevance would that have unless you trying to impute something to Russert?

Wells: There's no question that I'm trying to impute something to Russert.

Walton: I appreciate your candor. The only way you can have that imputed is if there's truth given to her statement. If she's just impeached on it, you can't use it. 

Wells: The issue is, bc of the intensity, could the jury decide, doggonit, they're working on it so hard, maybe it's not sure.

Walton: You have a chance, with the FBI agent, you have a chance arguing it from the FBI witness.

Wells: Where we do differ is on relevancy. If Russert had said, that particular week I was in Russia on vacation.

Walton: everything you say, counselor, has a ring of asking the jury to infer.  

Wells: The intensity with which she's working on the story, is independent evidentiary that she may have learned.

Walton: As the law exists you can't do this.

Fitz: Three small things. I assume Pincus is the next witness. Pincus co-author on article about Mitchell possibly knowing, I assume there won't be any question about Pincus.

Jeffress: that article was put in evidence by the government over my objections and certainly there will be questions on it. 

Fitz: Is he going to ask Pincus about it.  WRT Woodward, we have an issue to discuss, but I don't want to hold the jury any long. And we need to flip the flip chart.

10:10

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