Here are the questions:
Is the prosecution alleging that Mr. Libby did not make the statement to Cooper as presented to us in the Indictment OR is the allegation that Libby did know Mrs. Wilson worked for the CIA when he spoke to the FBI on 10/14/03 or 11/26/03?
Is the prosecution's allegation in Count 3 that Mr. Libby DID know that Mr. Wilson's wife worked for the CIA when he made statements to the FBI on 10/14/03 OR 11/26/03? (Page 74/75 …"that Mr. Libby did not know if this was true.")
In determining Count 3, are we allowed to consider Mr. Libby's grand jury testimony?
This is the same question they've been struggling with since their first question, it seems. There's so little in the actual allegation that they're having a hard time getting their teeth into it.
Folks are wandering into the court room. Some jollity all around.
Walton; as I understand what was submitted to my clerk is what counsel has agreed to?
Fitz: Yes judge.
Walton: On the unanimity question, there is no request that a unanimity challenge be given. There's no challenge that Libby would have made the same statement in both FBI interviews.
Wells: There's no dispute that he made the same statement both times.
Walton: We'll have this typed up. As I understand you want me to just send this to the jury.
Fitz: Yes judge.
Well, that was anticlimactic. But at least I can get coffee now.
Folks, it'll probably take about an hour or so until we get the electronic copy of Walton's response. Will update then.
On the question of jury’s dress–yes, MSNBC says they’re dressed up. But remember, they may well have expected they’d be dragged into the court room to get an instruction on this question. Last time they were brought into the court room, they were reluctant about it because they were wearing their grungies.
The language of the instruction that they're hung up on reads:
Count three of the indictment alleges that Mr. Libby falsely told the FBI on October 14 or November 16 [sic] that during a conversation with Matthew Cooper of Time magazine on July 12, 2003, Mr. Libby told Mr. Cooper that reporters were telling the administration that Mr. Wilson's wife worked for the CIA but that Mr. Libby did not know if this was true.
One more thought about this: the jury may also be convinced, thanks to Wells' hard work, that reporters (Novak, allegedly Mitchell, allegedly David Gregory, and so on) were telling the administration about Plame. But that's not the same as believing that Libby said it.
We should have the instruction sent back to the jury in the near future. Will update then.
Here's a link to the response to the jury. I'll transcribe and comment in a few minutes.
Here's the transcription of the key explanation for the first two questions:
Charge Three alleges that the above statement is false in that Mr. Libby did not advise Mr. Cooper on or about July 1, 2003 that reporters were telling the administration that Mr. Wilson's wife worked for the CIA, nor did Mr. Libby advise Mr. Cooper on that date that Mr. Libby did not know whether the information regarding Ms. Wilson's employment was true. Count Three alleges that Mr. Libby confirmed for Mr. Cooper, that Mr. Libby had heard that Mr. Wilson's wife worked at the CIA.
To be clear, Mr. Libby is charged in Count Three with lying to the FBI about what was said in his July 12, 2003, convesation with Mr. Cooper. Mr. Libby is not charged with making a false statement to Mr. Cooper.
And here's the response to the third question:
With respect to your third question, the charge in Count Three relates solely to Mr. Libby's statement during the FBI interview, and not to any of his testimony before the grand jury. Concerning the false statement to the FBI charged in Count Three, you may consider Mr. Libby's grand jury testimony in March 2004, along with all other evidence admitted at trial, to the extent you find it helpful in deciding whether the government has proved beyond a reasonable doubt each of the elements as described in the instructions.
I think we're going to get into trouble with the second instruction–in that it doesn't specify how they can use the grand jury testimony. Though I do think that statement is, thus far, a win for Team Fitz. But I'm hoping that first statement will resolve this false statement question once and for all.