1/22 Update: Got some clarification from those in the Media room--it does sound like this pertains to notes. Apparently there is something in a phone conversation in which Cheney instructed Libby to call Mitchell to tell her that her reporting on Tenet was "not helpful." This appears in Libby's grand jury testimony, and they were talking about getting the corresponding notes from Mitchell. One important point about it is that Cheney told Libby to deal with it, not Cathie Martin.
Thanks to Terre, I see that Libby's team is being a bit fickle about whether they really want Andrea Mitchell's notes or not. You see, Libby's team tried once again to get Mitchell's notes. But once they learned they might get them--and Judge Walton scheduled a hearing about them--Libby's team withdrew the request.
A federal judge said Friday afternoon that he likely would release Mitchell’s notes to attorneys for Libby and scheduled a hearing on the issue Monday. Within hours, network spokeswoman Barbara Levin said the request for the notes had been withdrawn and the hearing canceled.
Mitchell’s notes on her conversation with former vice presidential chief of staff Libby have been under subpoena for nearly a year, but U.S. District Judge Reggie Walton had ruled that, because Mitchell was unlikely to testify at trial, her notes would not be released.
Before I get into why Libby might be so fickle, let me just note that I'm not sure which of Mitchell's "notes" these are. Back in the original go-around on this subpoena, Judge Walton said there were only two things that were specifically responsive to the subpoena to Mitchell. Notes from her conversation with Libby, and email discussions about her ever-changing story about Plame's identity.
Matt Apuzzo says that the hearing pertained to the notes; he makes no mention of the email.
Mitchell's notes on her conversation with former vice presidential chief of staff Libby have been under subpoena for nearly a year, but U.S. District Judge Reggie Walton had ruled that, because Mitchell was unlikely to testify at trial, her notes would not be released.
But the explanation for why the notes weren't already turned over doesn't match the reason Walton gave for not turning over the notes back in May. On Friday Walton implied he was turning over the "notes" because it was now clear that Mitchell will testify.
Walton reversed course and ordered attorneys for NBC to be in court Monday to discuss the notes. He added: "I don't see how I can deprive the defense of it."
But back in May, his reason for not ordering NBC to turn over the notes--as distinct from the emails--had to do with relevancy, completely independent of whether Mitchell would testify or not.
Having reviewed Mitchell’s handwritten notes, there can be no plausible argument that they are relevant to this case. Not only do they have no bearing on any issue relevant to this action, but there is also no basis for them being used to challenge Russert’s recollection or credibility.
That is, they're not relevant, whether or not Mitchell testifies. Now, Libby might still use irrelevant notes to prove that his July 2 conversation with Mitchell included no mention of Plame or Wilson or presumably the NIE (how do you like that, Andrea, you're not even getting the NIE that David Sanger got!). He has not, AFAIK, similarly tried to get Kessler's notes, which should be similarly irrelevant notes about North Korea but proof that their conversation did not touch the Wilsons. But if, in fact, that's all this hearing was going to be about, then perhaps Libby backed off to avoid the nasty optics of asking for a reporter's notes they knew to be totally irrelevant. You don't want to unnecessarily piss off the press corps when one of your goals for the trial is to win the PR battle that might set up a pardon nicely.
But then there's the other possibility--that Libby was looking for the NBC emails discussing Andrea Mitchell's variable claims to know about Plame's identity. Here's the language from Libby's subpoena for the emails:
5. All documents prepared at any time by Andrea Mitchell or by any other employee of NBC News that purport to discuss or explain the statement by Andrea Mitchell on CNBC’s “The Capitol Report” aired on October 3, 2003, as follows:
Question: “Do we have any idea how widely known it was in Washington that Joe Wilson’s wife worked for the CIA?”
Answer (by Mitchell): “It was widely known among those of us who cover the intelligence community and who were actively engaged in trying to track down who among the foreign service community was the envoy to Niger. So a number of us began to pick up on that. But frankly I wasn’t aware of her actual role at the CIA and the fact that she had a covert role involving weapons of mass destruction, not until Bob Novak wrote it.”
And here is Judge Walton's assessment of the relevance of emails that respond to such a request.
The remaining emails, while technically responsive to category five, would only be admissible if Mitchell testifies and if her testimony is inconsistent with the statements made therein. Unlike Miller, Cooper, and Russert, there is no clear indication that Mitchell will even testify during the trial.
In other words, at least according to Walton's ruling on the journalist subpoenas, these emails (and not Mitchell's notes) are the subpoenaed materials that would (will) be admissible if Mitchell testifies, which Libby's team claims she will. If these emails, and not Mitchell's notes, were to have been the subject of the hearing on Monday, then the headfake from Libby's team, in withdrawing the request, may be much more interesting.
I can only imagine that Libby's team may know--or have a strong suspicion--about what those emails contain and is withdrawing the request for them either to ensure they don't become available to Fitzgerald--or (now that they've gotten a verbal commitment from Walton to release them) to play their introduction for most effective value. Say, for example, the emails include an admission that Mitchell learned of Plame at Gerald Ford's birthday party on July 16; say they reveal that someone at the party or even earlier encouraged Mitchell to call Richard Armitage for more information about why Joe Wilson got sent and she tried but, as she complained, Armitage simply wouldn't return her phone calls, then Libby's team would be better off if the emails remained hidden . If (in what I'll call the Tom Maguire option) Libby's team knew that the email described Richard Armitage revealing Plame's identity--but not covert status--to Mitchell sometime between June 12 and July 14, then Libby's team may want to spring it on Fitzgerald, another nasty surprise from the purportedly incurable gossip Richard Armitage.
And there is one other possibility. Walton has said the emails would have greatest value if they showed some inconsistency in Mitchell's testimony, as a way to discredit her. But if they in fact corroborated how she would testify--and she is expected to claim she did not know of Plame's identity, and therefore couldn't have told Russert of it--then it would simply make her testimony stronger, and with it, Russert's testimony. If Libby's team has a good idea that Mitchell's emails will actually reinforced Russert's story, I can understand why they would withdraw the request.
One thing is sure. Given the frequency of questions about potential jurors' impressions of Tim Russert, Libby's team really seems afraid of his testimony and his credibility. I would imagine they're not going to do anything that will reinforce that credibility.