zeidenbergfitz1.jpg

(Photo by REUTERS/Jonathan Ernst via Yahoo.)


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.


Thanks to Christy for finding this picture–I had a hard time finding one of Zeidenberg. Zeidenberg will be up first this morning. And since both sides are lobbying for more time, there's a chance we won't finish up today.

We've got a full house in the court room: Jane, Christy, Pachacutec, Sid Blumenthal, and others. And me, sitting here with you all. 

Both teams are in the courtroom right now. Ted Wells looks all contemplative–probably getting into character for his Big Show this afternoon. Debra Bonamici looks like she hasn't slept for over a week–which she may well not have.  Zeidenberg looks pretty dapper this morning.

Libby is standing by the defense table, hands in pocket, talking to his wife.

Okay, here goes. We'll have thirdy minutes of argument, then we'll get Zeidenberg.

Walton: [sounds like he's still fighting the cold] No objections to govt's proposed jury instructions. I understand you want to change the word "conversation" in instruction.

Bonamici: That won't be addressed in closing.  The types of tapes, one is conversation and grand jury testimony and media publications. Suggestion govt made was to change description to audo recordings, to cover all three types of recordings jury has heard.

Jeffress: Introduced by witness.

Bonamici: In case of some, not introduced by witness.

Walton: Defense now prepared to waiver interrogatories on conversations amounting to violation of law.

Bonamici: We've requested an additional 15 minutes of argument time, without the special verdict form laying out conversations.  We want to take the time to lay out which conversation relates to which count. When special verdict form did it, we didn't need to spend that time, but now we feel like we need to spend some time to lay thi sout.

Walton: Don't want to inhibit ability. I personally think 3 hours is long time in any case. I'll try to give each side more time, but I can't give you more than 15 minutes, because that'll take us beyond 5.

Jeffress: Walton introducing something.

Walton As I indicated, the appropriate thing is to have the IIPA admitted introduced into evidence, Appropriate to give limiting instruction on how it'll be used. I think I sent you a copy of what I drafted wrt limiting instructions, regarding the IIPA statute.  I'd like to get started early, but the jury's not here yet. So let's take 10 minutes.

9:09

Here we go. We're waiting for the jury now.

Walton: Good morning. B4 we proceed with the argument, I'm going to permit the Defense to introduce another piece of evidence.

Jeffress: IIPA. 

Walton: Evidence concerning IIPA was presented at trial, statute presented as evidence. Libby not charged with violating IIPA, consider only for impact on state of mind.  In other words, consider only if Libby had a motive to provide false info when he spoke to FBI. With that we will proceed. Govt may proceed.

3 minutes ahead of schedule!!!

Zeidenberg:

Morning ladies and gentlemen. ABout a month ago, both sides gave opening statements. Fiz told you what he expected evidence to show. He told you govt would prove that this case about lying. Evidence would show that Libby lied to FBI and GJ how he learned about Valerie Wilson, who he talked to about it, and what he said when he discussed Wilson's wife with others. Defense didn't have to give opening statement. On behalf of defense, Wells elected to give opening. He painted different picture, told you about WH conspiracy to scapegoat Libby. Effort to make LIbby into sacrificial lamb so that Karl Rove would go free. You've heard witnesses testify, you've heard witness after witness, you've heard them testify about one or another conversation with Libby about Valerie Wilson during the time period that Libby claimed he had no memory of Wilson's wife. You heard Russert testify, take an oath and say he never spoke to Libby about Wilson's wife. In direct contrast to what Libby claimed. Now did you hear any evidence about a conspiracy to scapegoat Libby? If you draw a blank, it's not because of a problem with your evidence. I bring that to your attention to remind you that evidence is what happened on witness stand and introduced as evidence. Unfulfilled promises from counsel do no constitute evidence. Fitz told you this is case about lying, and I submit that is right. Not a case about bad memory or forgetting. Libby does claim he forgot 9 separate conversations over a 4 week period, but he also invents out of whole cloth, two conversations that never happened. His conversation with Cooper and his conversation with Russert. That's not a matter of forgetting or misremembering, it's lying.  Talk to you about evidence and credibility of witnesses.

9:32

Zeidenberg

There will be things that you know from common sense. Use your common sense. When you weigh credibility, don't look in isolation, look together, how their testimony fits together, and how it first with documentary evidence.

Grossman told you (#3 person at State), how on May 29 outside of meeting he was approached by Libby who wanted info about a trip by an Ambassador to Niger. Grossman hadn't heard about it–it bothered him he didn't know about it. He was being asked about something  he sould have been aware of. He digs around and finds some information. He finds out it was Wilson. He calls and tells him that info that day. Grossman wants a report. He wants something on paper. Goes on foreign travel, July [oops] 10 or 11, he's handed INR memo, date June 10 [Z has adjusted the way they're describing this to make it match Ford's testimony] He say that Valerie Wilson sent WIlson. Grossman thought it verged on impropriety, he thought it was bizarre. He sees LIbby within a day or two, he see Libby outside of Deputies Committee, says he looked into it, it was Wilson, he did report back, Grossman said another thing. There's something else you should know. Wilson's wife works at agency. Grossman thought important to tell Libby. And why wouldn't he, he had already been caught short, not knowing about Ambassador. He's reporting to VP COS, and he's going to hold back this information. When Grossman told this to Libby, it was the fourth time, in two days, that Libby had been told about Wilson's wife. The fourth time. I'm going to go through the first three, but first of all, want to talk about why you can rely on Grossman's testimony. #3 at State, a colleague of Libby, no confusion about this, I suggest there is no reason in the world he'd have to be biased against Libby. His testimony corroborated by INR report. Ford said unusual to have gotten a request about this subject. Grossman told you this was a zero on his radar screen. The only reason he looked into it was bc he had been requested.

The first, you know, was VP of US. VP told Libby, on what we believe to be is about June 11, you saw Libby's notes from June 11, where he wrote down that wife works at CP, as the result of a phone call with VP, in anticipation of article written by Pincus. Even though date has an approximation, just prior to June 12 Pincus piece. As I'll explain in a minute, we can tie that down. Libby learns on June 11. What else happens on June 11.

Call slip, Libby's call to Grenier. This was an unusual event, Grenier had never received a phone call from Libby before. Calls back about 2:00. Libby's upset with CIA. Some fellow talking to the press. According to Libby, this fellow is saying that he's been told by CIA that he was sent to Niger as result of request from OVP. Libby wants to know if true that Wilson sent, and if true that Wilson sent solely as result of interest from OVP. Grenier, like Grossman before him, when he gets request from COS of VP, he finds out about it. Libby is correct. Learns that interest not just from VP, but State and Defense. He also learns that Valerie Wilson, Joseph Wilson's wife ,worked in unit that sent him. Name's not used, but learned Wilson's wife worked at CIA. He was in dilemma. He's got 4:15 meeting with DCI regarding Iraq. Caught between calling Libby, remembers being torn. Decides he'll call Libby after meeting. Knock on door, he is pulled out. The first time in his life, pulled out of meeting with DCI. That is something you'll remember. Told that Libby wants him to call. Grenier realizes he's made a mistake. Matter of urgency. Grenier sees Libby 2-3 days a week, clearly this was pressing matter. Calls Libby outside meeting and gives him download. Tells him about trip, told him  that there was interest from Defense and State. And Grenier tells Libby another fact, Wilson's wife works in unit that sent him. So that is the second person, that day, Mr Libby heard that from. First from VP, then from Grenier. Libby wants to know whether CIA will go public. Will they confirm publicly?

9:43 

Grenier briefs Harlow, says they can confirm publicly, says not a problem. Libby says "great, have Harlow talk to my press aide." Harlow believes woman name of Cathie, it's Cathie Martin.

Want to talk abotu Grenier's credibility. Grenier wasn't sure he had shared the info on Plame. Unsure whether he shared it, but he knew he had gotten it, he wanted to err on side of caution. Now he testified at trial that he was sure. Want to remind you of how he accounted for that. Not memory of conversation, but memory of feeling of discomfort, that he had said too much, that he shouldn't have shared info about someone who may have been covert. He remembered unease about sharing the info. From that he could share what happened. He was quite clear in his own mind. But he didn't come clear right away. He didn't think it was important. H knew he didn't tell Libby his name. As press reports became public, reports about where Libby may have learned about it, that Libby may have learned it from press, Grenier felt duty bound to come forward, lay cards on table, and let you, Ladies and Gentlemen, sort it out. 

Would have been easiest thing in the world not to share this. He doesn't work at CIA anymore. No animosity with Libby. No reason for him to come in here to put up with day of Cross-examination, except he thought he had info that was relevant. No reason to think that Grenier would fabricate that.  Grenier second person.

Third person is Cathie Martin. Grenier puts Harlow on the phone with Harlow. Martin told you she remembers learning about Joe Wilson's wife from Harlow of CIA. She told you that Mr Harlow told her that Wilson former charge in Baghdad, and wife works in CIA. Martin told you that as soon as she got this she went into VP's office, and told them both exactly what she had just learned. That is the third conversation he had on June 11. This is corroborated by other witnesses. Also corrborated by Defendant's notes. Look at GX104, portion of notes,

[Ut oh! Our evidence screen isn't turned on]

Upper right corner, says CP. Wife works in that division. This is the note that Libby writes down from conversation with VP on June 11. Now let me just show you portion of same note. OVP and State and Defense express strong interest in issue. Off to the left, Libby's symbol for VP, VP told, get agency to answer that. It's clear from this note that Libby told by VP to get OVP and Defense and State, VP wants CIA to say that. And that, ladies and gentleman, explains why Grenier got pulled out of meeting with Tenet, that's why Libby had called Grenier, when he had never call him before, this was matter of urgency. VP wanted to get  CIA to say this publicly. I suggest this note corroborates testimony of Martin and Grenier. This is exactly what Grenier told you Libby wanted. Grenier and Martin didn't have access to Libby's notes. Martin didn't remember date. But she always remembered sequence, she knew Wilson's name on July 6, she remember she got it from Harlow, got on phone after speaking with Deputy at CIA. from the testimony of those witnesses, clear that conversation with Martin and she immediately told Libby. Third time on June 11 that Libby gets that info. 

Next day, Grossman tells Mr Libby, 4 times, less than 48 hours.

What happens next? June 14, Schmall, CIA briefer. There's only 2 people in that room. Take a look at Schmall's notes from that day. Schmall told you he only writes down questions of person he's briefing. Why was Amb told VP office question. Joe Wilson, Valerie Wilson. 

Think about that question. That is the question Libby keeps trying to answer, and put to bed. That's the question public keeps asking about VP and this trip. 

9:55 

Schmall did not know their names. Libby knew more than his briefer. Schmall's testimony corroborates Martin's, Grossman's, and Grenier's testimony. Libby remembered this on June 14. Defendants say if you don't take notes, you can't remember it. Very few of us take notes in course of day. But in this case there are notes that Libby told Schmall that. There's no reason these notes should be questions. Fifth person Libby discussed Wilson's wife with. [shows a tree of who told Libby and who he told.]

Next person, Judith Miller, June 23. Ms Miller, NYT reporter. Taking notes, recalls that he was upset, angry with CIA, felt they were backtracking on what they said publicly before the war. Very familiar with Wilson. Said Wilson ruse, irrelevancy, should be ignored, Familiar with Wilson's trip, familiar with Wilson's wife. He said she worked in the bureau. From context Miller understood as reference in CIA that deals with non-proliferation. Ms Miller was 6th person that Libby talked to about Wilson's wife during that short span of time, June 11 to June 23, less than two weeks. [no discussion of Miller's credibility]

What's next? Ari Fleischer, July 7. An event that stands out in Fleischer's mind. He was leaving, only time he had had lunch with Libby. Fleischer's memory of it clear. Future employment plans. Libby thanked him for comment in gaggle. Miami Dolphins. Mr Libby said he had info that was hush hush and on the QT. Wilson wasn't sent by VP, but by CIA and that Wilson's wife works in counter-proliferation division, the same diviision that Libby was told about and you saw referred to in note from VP. Mr Fleischer took this as gossip, as info that was passged on, unsual, Libby didn't share info normally, he was not someone that Ari could get info normally. WHY did Libby choose to share this info with PS on that date. If you think it was because conversation lagged and he had run out ofthings to say, or did he tell him that bc it was Ari's job to talk to the press, he could spread around without it ever coming back to him. I suggest it's the latter, gave it to him deliberately hoping Ari would talk to reporters. That's exactly what did happen. Gregory, Dickerson. Talks to them, tells people about Wilson's wife. No reaction from them. Don't write down in notebooks. No evidence they ever printed anything about this. Nevertheless, when Ari reads press accounts of criminal investigation, he is mortified, bc he sees that this info appears to have been classified, appears to have involved covert agent. Got a lawyer, got immunity. You should think about it–protects him only if he told the truth. The only thing he can be prosecute about is lying. They never published. He said he had no recollection of talking about Pincus. You heard Pincus recalls telling Fleischer told him. We don't dispute Pincus' testimony. The fact that Ari doesn't remember all the reporters he spoke to about Wilson's wife, doesn't explain why he would fabricate lunchtime meeting with Libby. Irrefutable fact that Ari knew Valerie worked at CP at CIA. Who could he have learned about it. There's no illwill. You saw nice note that Libby sent. Why would Ari lie about that conversation. There's not a question about his memory. Ari is 7th person Libby discussed Wilson's wife during period he claims to have no conscious memory.

Next, David Addington, current COS. Former colleague. Used to be counsel.

10:06 

Addington didn't remember date. But I'll explain how we can date it. Addington remembered unique conversation in anteroom. Libby shushed him. Addington soft-spoken man. Libby wanted to know whether President could declassify at will. Addington, yes, Navy v Egan. Libby mentioned Navy v Egan in GJ. Libby wanted to know what paperwork there would be at CIA if someone sent spouse on trip. It's clear who he's talking about. Who in the world would Libby be talking about? You can date it bc you know part about declassification, the NIE, that was doct Libby wanted to leak to reporter. He was going to leak it to Judy Miller on July 8. This conversation had to have happened prior on July 8. [Hey, Z, what bout the note?] Now, there was some suggestion when Addington was cross-examined, that Addington didn't mention word "spouse" when first cross-examined. Mr Addington right now works for VP. He used to be colleague. If he had a bias, which direction do you think it would be? Prosecution, or defense? No reason that Addington would come in here to talk about spouse being sent on trip if that is not his exact memory. He's a precise lawyer. He was clear on his memory. Addington the 8th person Libby spoke to.

The next, Judith Miller, AGAIN, on July 8. This was the meeting at St Regis hotel. This is where Libby was going to leak NIE. Highly unusual event. Only 3 people knew NIE was declassified; Pres, VP, and Libby. Tenet didn't know about it, Condi didn't know about it, Hadley didn't know about it. Just those three, Pres, VP, and Libby knew about it. And they're going to pick Judy to give it to. They met at St Regis. She had her notes. She told you Libby was agitated, angry. She told about NIE, what was in there. Talked about Powell presentation. She told you ground rules changed in middle. First, referred to as SAO. Then rules change, I want to be referred to for this next portion as Former Hill Staffer. Libby didn't work on Capitol Hill, worked in OVP. Didnt want this next part to be linked with him or his office. Conversation turns to Wilson and Wilson's wife. He tells Ms Miller that Wilson's wife works at WINPAC. WINPAC is section w/in CIA. Can you trust and corroborate Ms Miller's testimony [giggles in media room] When she first testified she didn't remember June 23 meeting. Can you find her testimony credible. A few things to keep in mind. Who is Judy Miller. Won Pulitzer. Libby had very nice things to say about her. Think about this, NIE gets declassified, only 3 people know about it. They could leak to ANY reporter in US. This is exclusive. Libby handpicks one reporter, Judy Miller. Why? As he said in GJ, he thought she was a responsible, conscientious reporter. Remember the circumstances, hardly ordinary. Goes into GJ after 85 days in Alexandria County Jail, fighting subpoena. She didn't want to have to testify in this case. No access to notes. Asked only if she understands interview about July 8. She testified, as she told you, Libby talking about Wilson's wife working at CIA. Asked "is this the first you heard of it." She says, "I have a memory, but I can't place the source." She's asked to find the notes. Her notes in shopping bag under desk. Finds, THERE, I did know. Guess who her source on June 23 was? It was Mr Libby. She looks at notes and it refreshes memory. What's the other corrboration. Libby's June 23 calendar. Shows meeting with Judy. Look at Libby's calendar entry July 8. Private meeting at St Regis. That's the meeting that Miller told you about.

A couple of things I want you to think about. Remember how busy Libby was. Remember how he was doing work of two men. Yet he can block off several hours to meet with Ms Miller to deal with political PR matter. Tells you how pressing this issue was. What's the other corroboration. Show you portion of MIller's testmiony on June 23.

Want to show you document introduced as defense exhibit. Show you fax sent to Libby on June 9, this fax in Mr Libby's files was conveyed to Miller on June 23.  "Initially referred to as clandestine guy. CIa sent Wilson out to investigate claim." This is what she took from what Libby told her. Take a look at exhibit. Fax to Libby sent June 9, 2003. This is the time period Hannah said Libby doing homework. Memorandum for VP. "In response to your question on sale of uranium to Iraq, we have tasked our clandestine source with ties to Niger govt." Clandestine guy, VP office, report 2002. Ms Miller able to accurately recount what Libby told her June 23 2003, able to come in here 2007 to tell you about fax sent to him by CIA. A couple things to take away. 1) Libby WAS doing his homework. 2) Libbby was able to remember facts from June 9 to June 23. Hannah said Libby has great memory for remembering facts that support argument. 3) Miller able to accurately get that info and tell you about it. Ms Miller was the 9th person who talked about Wilson's wife with Scooter Libby between June 9 and the time he says he was surprised to learn it as if for the first time.

Russert. 

10:21 

First, I want to remind you what Wells said about Russert. "I do not contend ANY of them are lying. He makes clear Russert one of the most respected reporters in US. I'm not arguing now that anyone is telling intentional lies." That's what he told you in opening. Then, in cross, for 5.5 hours, Wells tries to suggest to you that Russert IS lying, lying because he's trying so hard to go into GJ, lure of being deposed in lawyer's off is so great. And also lying, Wells said, bc of feud with VP's office. First recall about what Libby said in GJ. He referred to Russert 3 dozen times. You can read it, but I suspect your memory will remember those 3 dozen. He testified not that he thought it was LIKELY he learned of it from Russert, he was unequivocal, he remembers what he was thinking, he remembers what he was feeling, how it struck him, that Russert thought this info was important. Want to play a piece of that conversation. This very first clip is language charged in indictment.

Walton: You've consumed 59 minutes of your time.

[Plays Libby tape: Did you know that Wilson's wife worked at CIA. I was taken aback by it. I said no, I don't know that. Intentionally, bc I didn't want him to take anything as confirming what I said. I thought this was something he was telling me that I was first learning. I wanted to make sure I didn't confirm with him. I reminded him, Tim, off the record. Russert said to me,  did you know Wilson's wife CIA. Then he said, "all the reporters know it." I said, I don't know that. Wanted to be sure I wasn't confirming anything. Struck by what he was saying. Didn't ask anything more, didn't want to be digging in on him. Then we finished conversation. F Why so surprised? L I was surprised that he knew it, and I didn't. Russert is one of the best of the newsmen, one of the most substantive of the newspeople, not only did he know it and I didn't, but also that he thought it was important.]

Ladies and Gentlemen, you now know that was made up. Russert took stand, remembered conversation. Had never received phone call from high govt official. Swearing. He's watching hardball, monitoring what's happening. Russert has clear recollection of this conversation. Russert never talked to him about . It never happened. Russert didn't know about Wilson's wife. He read about it in newspaper in column on July 14, same way Sanger, Kessler learned of it, they read it in newspaper. That conversation never happened. Now, Wells wants to suggest to you that Russert is fabricating, that he's saying he's certain when he's not. Lets just talk about motives.

I'm going to next thread

10:29