For more news on FDL/emptywheel/Huffington Post coverage of the trial see this
In an effort to lay out what to expect from the Libby trial, I'm going to outline the charges against Libby along with the evidence we know (or suspect) to exist relating to those charges. IANAL, so I'm not going to treat the quality of that evidence. But this is what we know to exist so far (feel free to add in bits I've missed). I'll treat the false statements and perjury charges in pairs, starting here with the charges relating to Libby's July 12 conversations with journalists, particularly Matt Cooper.
These charges, count three and count five in the indictment, both relate to what Libby said when he told Cooper (and, for the perjury charges, other journalists) that Valerie Wilson worked at the CIA. This is what Libby claimed to have said to Cooper in his grand jury testimony:
Q. And it's your specific recollection that when you told Cooper about Wilson's wife working at the CIA, you attributed that fact to what reporters –
Q. – plural, were saying. Correct?
A. I was very clear to say reporters are telling us that because in my mind I still didn't know it as a fact. I thought I was – all I had was this information that was coming in from the reporters.
. . . .
Q. And at the same time you have a specific recollection of telling him, you don't know whether it's true or not, you're just telling him what reporters are saying?
A. Yes, that's correct, sir. And I said, reporters are telling us that, I don't
know if it's true. I was careful about that because among other things, I wanted to be clear I didn't know Mr. Wilson. I don't know – I think I said, I don't know if he has a wife, but this is what we're hearing.
Libby testified that he told Cooper he had heard of Plame's CIA employ from reporters. And he testified that he told Cooper he didn't know whether that fact was true or not.
But Fitzgerald will argue that Libby simply confirmed to Cooper that Plame worked at the CIA, offering no mention of how he knew it nor of whether he knew it to be true or not.
LIBBY did not advise Cooper on or about July 12, 2003 that reporters were telling the administration that Wilson’s wife worked for the CIA, nor did LIBBY advise him that LIBBY did not know whether this was true; rather, LIBBY confirmed for Cooper, without qualification, that LIBBY had heard that Wilson’s wife worked at the CIA;
The charge is important for Fitzgerald because, if he can prove it, it shows that Libby deliberately leaked Plame's identity to at least three journalists (Cooper, Judy, and an unnamed journalist whom Libby appears to have claimed was Glen Kessler), then made up a story after the fact to discount the deliberate aspect of the leak. That is, this alleged lie might prove a concerted campaign to leak Plame's identity that Libby subsequently tried to explain away.
Fitzgerald has, at a minimum, the following pieces of evidence to support this charge:
Matt Cooper's testimony
Matt Cooper will testify that, after Libby offered an on-the-record quote distancing Cheney from Wilson's trip, he went on to confirm that Plame worked at the CIA. According to Cooper, he did so with no caveats about learning that fact from other journalists.
On background, I asked Libby if he had heard anything about Wilson's wife sending her husband to Niger. Libby replied, "Yeah, I've heard that too," or words to that effect. Like Rove, Libby never used Valerie Plame's name or indicated that her status was covert, and he never told me that he had heard about Plame from other reporters, as some press accounts have indicated.
It is unclear what kind of notes Cooper has about this conversation; but according to Libby's lawyers, they don't include any mention of Plame, on which basis they seem to intend to claim that Libby didn't mention Plame at all.
Mr. Libby did not mention that he had heard that Ms. Wilson worked at the CIA.
I don't know how reliable Cooper will be as a witness. I get the feeling that Cooper (and Time) don't want to be the witness that sends a high level administration official to jail. Also, there is, Judge Walton tells us, one detail that changed in Cooper's drafts recounting his conversations with Libby.
Moreover, after the Court’s examination of the documents, there is no question that they are relevant, as they recount the conversation between Cooper and the defendant, which is the basis for several charges in the indictment.
However, upon reviewing the documents presented to it, the Court discerns a slight
alteration between the several drafts of the articles, which the defense could arguably use to impeach Cooper.
This slight alteration between the drafts will permit the defendant to impeach Cooper, regardless of the substance of his trial testimony, because his trial testimony cannot be consistent with both versions.
If this is a difference in Libby's wording: "I've heard that too," then it may not be that damaging to Fitzgerald's case. But if it relates to whether he heard from journalists or not, it would discredit Cooper as a witness.
Judy Miller's testimony
The false statement charge relating to this alleged lie mentions only Matt Cooper. But the perjury charge mentions Libby's conversations with other journalists. Presumably, that's because Libby made the same claims as he did about the Cooper conversation more generally about what he said to journalists.
Q. And let me ask you this directly. Did the fact that you knew that the law could turn, the law as to whether a crime was committed, could turn on where you learned the information from, affect your account for the FBI when you told them that you were telling reporters Wilson's wife worked at the CIA but your source was a reporter rather than the Vice-President?
A. No, it's a fact. It was a fact, that's what I told the reporters.
So, on the perjury charge alone, Judy may also serve as a witness to what Libby "told the reporters." It is unclear whether her testimony directly addresses the issue of how Libby discussed Plame, particularly whether he claimed to have learned of it from journalists. This is what Judy wrote wrt their July 12 conversation, the one relevant to the perjury charge.
I told Mr. Fitzgerald I believed that before this call, I might have called others about Mr. Wilson's wife. In my notebook I had written the words "Victoria Wilson" with a box around it, another apparent reference to Ms. Plame, who is also known as Valerie Wilson.
I told Mr. Fitzgerald that I was not sure whether Mr. Libby had used this name or whether I just made a mistake in writing it on my own. Another possibility, I said, is that I gave Mr. Libby the wrong name on purpose to see whether he would correct me and confirm her identity.
I also told the grand jury I thought it was odd that I had written "Wilson" because my memory is that I had heard her referred to only as Plame. Mr. Fitzgerald asked whether this suggested that Mr. Libby had given me the name Wilson. I told him I didn't know and didn't want to guess.
Of course, Judy testified they had spoken about Plame twice before, once on June 23 and once on July 8. Judy leaves open the possibility that Libby was uncertain of her CIA employ on June 23.
As to the question mark, I said I wasn't sure what it meant. Maybe it meant I found the statement interesting. Maybe Mr. Libby was not certain whether Mr. Wilson's wife actually worked there.
But she describes being told definitively on July 8 that Plame worked at WINPAC.
My notes contain a phrase inside parentheses: "Wife works at Winpac."
Given the two earlier mentions of Plame, Fitzgerald might be able to argue that Judy took Libby's later comments about Plame as verified truth, rather than gossip passed along from journalists.
Judy may not (!?) be a credible witness, either. Her testimony appears to have stayed very close to her notes. But Walton reveals that the drafts of her own tell-all, as well as the NYT tell-all, may have evidence that can be used to impeach her.
In fact, The New York Times has produced these documents—draft articles—to the Court for its in camera review, and it is clear from the Court’s examination that the documents responsive to this specific request are not only relevant, but will clearly be admissible as impeachment evidence.
Further, if Judy testifies to details beyond what she said in her grand jury appearance (particularly regarding her knowledge of Plame's identity and her attempts to publish an article about it), other materials requested by Libby (relating to a conversation with the NYT's lawyer admitting she had had many conversations about Plame, as well as NYT documents referencing Plame), may become admissible as evidence to impeach her. In addition, they plan to use the very vagueness of her testimony--the very thing that may have protected Libby and others from greater jeopardy--as a way to claim she's an unreliable witness.
Cathie Martin's testimony
Cathie Martin serves as a witness to this charge in two ways. First, Libby's lawyers have revealed that Martin--and Libby's personal assistant Jenny Mayfield--were present when he called Cooper.
For example, regardless of whether Mr. Cooper chose to disclose the details of his conversation with Mr. Libby to the government, Mr. Libby could not have assumed that he could falsely represent the details of that conversation with abandon.Mr. Libby could not have assumed that he could falsely represent the details of that conversation with abandon. This is because two other witnesses were present for that call: Cathie Martin, Assistant to the Vice President for Public Affairs, and Jenny Mayfield, Mr. Libby's personal assistant. Obviously, Mr. Libby could not have expected that either Ms. Martin or Ms. Mayfield would refuse to cooperate with the investigation or testify falsely.
We have no idea what Martin (or Mayfield) has testified to wrt this conversation, though I kind of suspect that having Martin, at least, as a witness to corroborate Cooper's testimony is one of the reasons Fitzgerald brought the charge as it specifically relates to Cooper--because he had a third (and presumably fourth) witness to the content of the conversation. Though I also suspect that is why Libby's lawyers want to claim that Libby didn't mention Plame at all--because given the descriptions of this conversation, Martin and Mayfield could only testify to hearing Libby say "Yeah, I've heard that too"--they wouldn't have heard Cooper ask about Plame (unless he was on a speaker phone or something). So Libby's comment could be presented as not referring to Plame at all. Claiming that Libby didn't say he heard about Plame is a way to turn this into a claim that pits Libby's word against Cooper's, in an attempt to minimize the number of witnesses against Libby.
But Martin may have more to say about the content of Libby's conversations on July 12. That's because she was present for the discussion aboard Air Force Two at which she, Dick, and Libby discussed how they would respond to journalists' inquiries (including, specifically, Cooper's) about Wilson.
On or about July 12, 2003, LIBBY flew with the Vice President and others to and from Norfolk, Virginia, on Air Force Two. On his return trip, LIBBY discussed with other officials aboard the plane what LIBBY should say in response to certain pending media inquiries, including questions from Time reporter Matthew Cooper.
This is the meeting, remember, where Cathie Martin was pulled off of point-person duties with regard to the Wilson response, and Libby took over. Shortly after this conversation, Libby called "several" journalists and told them about Plame. I'm guessing, but I strongly suspect there is something that transpired at this meeting that supports the false statements and perjury charges relating to the July 12 conversations.
Other evidence to support these charges might include Jenny Mayfield's testimony or Libby's own notes. I doubt Glenn Kessler will be called (because, according to reports, he testified that he and Libby didn't speak of Plame at all).
Up next: How Libby will respond to this charge.