For more news on FDL/emptywheel/Huffington Post coverage of the trial see this
The other day, I laid out the known evidence relating to the Cooper false statement and perjury charges against Libby. In this post, I will look at the known evidence relating to the false statements and perjury charges relating to Libby's conversation with Russert.
This one is a bit trickier than the charges relating to the Cooper conversation, because there are two things Libby is alleged to have lied about: the contents of the conversation with Russert on July 10, and how he learned of Plame's identity and whether he knew her identity was classified.
The Content of the Russert Conversation
Libby is alleged to have lied about what transpired in the conversation between him and Russert. Here's what Libby claimed to have transpired during his FBI interviews:
During a conversation with Tim Russert of NBC News on July 10 or 11, 2003, Russert asked LIBBY if LIBBY was aware that Wilson’s wife worked for the CIA. LIBBY responded to Russert that he did not know that, and Russert replied that all the reporters knew it. LIBBY was surprised by this statement because, while speaking with Russert, LIBBY did not recall that he previously had learned about Wilson’s wife’s employment from the Vice President.
But Fitzgerald will argue that Russert did not ask whether Libby knew about Plame:
Russert did not ask LIBBY if LIBBY knew that Wilson’s wife worked for the CIA, nor did he tell LIBBY that all the reporters knew it;
Note the formulation of this--Fitzgerald doesn't assert whether or not Libby told Russert (though Russert has sworn Libby did not tell him of Plame), he only asserts that Russert did not tell Libby. This would serve as a real basis of proof that Libby's other alleged lie (that journalists told him of Plame) was false, but I suspect Libby will take some time to suggest that maybe Woodward told him of Plame and therefore it's all Armitage's fault and he really did learn of this from a journalist, he just forgot which esteemed journalist he heard it from. That won't negate this claim wrt Russert, but it'll make the memory defense wrt the other journalists more plausible.
With regards to this claim, though, the primary pieces of evidence appear to be Libby's word and Russert's word. Unlike the other journalists who will testify for the government, Russert did not take notes from the conversation.
There are two other potential witnesses relating this charge. There are at least two (and, I suspect, more than two) people who know Libby's intent when he called Russert--to bitch about Chris Matthews' coverage of the Niger controversy and insinuate he was an anti-Semite. Libby asked Cathie Martin to ask Adam Levine to call Matthews to complain about his cover, which Levine did. After Levine made no headway with Matthews, he suggested Libby call Russert to complain. This testimony would not, of course, verify anything about what Russert said (and Levine was not expected to be a witness last year). But it would verify the purpose of the conversation.
There is one more person who I suspect will be on call to testify: Neal Shapiro, the president of MSNBC. Just after his call with Libby, Russert called Shapiro to explain Libby's complaints (after which Shapiro recommended they reel Matthews in--Libby's pressure had its desired effect!). Shapiro can't testify as a witness to the content of Russert's call. But, if I'm understanding what looseheadprop tried to patiently explain yesterday, Shapiro could be called in case Libby's team accused Russert of making up his story after the fact; Shapiro would effectively show that Russert told his version of the story contemporaneously, it wasn't a response to Fitzgerald subpoena.
Even though (and partially because) there is no paper documentation of this conversation, Russert and Shapiro are going to be much harder to impeach than Judy Miller. Russert is Mr. Respectability, after all. And Dick has been interviewed by him subsequent to these events. Doesn't Vice President's willingness to sit for an interview with someone add to his credibility (I mean, if you ignore Dick's habit of sitting for interviews with Brit Hume)? (Come to think of it, wtf was that about--Dick had to know that he might hurt Libby's case by sitting for that interview).
Libby's Knowledge of Plame
I have no idea whether Russert's word about his conversation with Libby will be convincing to jurors. But that's only part of these false statements/ perjury charge. The other part is the doozy--wherein Libby claims to have learned of Plame from Russert, even though he told Ari of her identity just three days earlier. As Fitzgerald has said repeatedly through this process, there is a long list of government officials with whom Libby talked of Plame before the Russert conversation:
- June 11 or 12: Marc Grossman
- June 11: Roger Grenier
- June 12: Dick Cheney
- June 14: Craig Schmall
- shortly after June 19: Eric Edelman
- sometime in this period: Cathie Martin
- July 7: Ari Fleischer
- sometime after July 6: David Addington
The timing (Grossman) or the content (Edelman and Ari) of some of these conversations is contested by Libby. But some of these things aren't contested, most notably that Dick told Libby of Plame's identity.
However, that will not itself prove that Libby lied about learning of Plame from Russert. That's because Libby admits to having learned of Plame from Cheney, but when he heard it from Russert, it was as if it were new.
And I said, no, I don't know that intentionally because I didn't want him to take anything I was saying as in any way confirming what he said, because at that point in time I did not recall that I had ever known, and I thought this is something that he was telling me that I was first learning.
So the burden for this charge is to prove that Libby still knew of Plame, not that he had once known of her. This means the key witnesses are those who spoke to Libby about Plame in the days just before his conversation with Russert: Ari, Martin, and Addington, as well as those who suggest some continuity, like Edelman. It's unclear how Libby's lawyers will try to discredit Martin (though, in everything we've read, the date of their conversation is vague, so she may not be the best witness on this subject--though she presumably will be on the obstruction charge).
As to Ari, he is far and away the most likely candidate to be the witness who has received immunity for his testimony in this. That suggests Libby will be able to suggest he only testified to avoid his own trouble. But I suspect Fitzgerald wouldn't have immunized him (if he did) unless he could bring something substantive to the table. Perhaps Ari has documentation on his conversation with Libby on July 7, which would be pretty damning. In any case, if Ari is the immunized witness, it is likely that his credibility will depend on what he was at risk himself for
Addington will be another matter altogether. He is sure to be an unfriendly witness for the prosecution. But at the same time, he appears to be a witness to Libby's knowledge of Plame's CIA employ on July 8, either just before or after his conversation with Judy. I honestly believe Fitzgerald's handling of Addington as a witness may be one of the most critical aspects of the trial--if the testimony Addington appears to have already given is credible, it will be very difficult for Libby to claim he learned of Plame's identity "as if it were new" on July 10. He not only was talking about Plame's CIA employ to Addington, he was using it as a reference point to research more details about Joe Wilson!!
Libby's team will no doubt try to throw Woodward into the equation. As I suggested, they are likely to claim that Woodward must have told Libby of Plame's identity on June 23 or 27, at a time about a week past Libby's last known mention of Plame (and remember--Libby's team is contesting the content of the Edelman conversation that took place after June 19). As a reminder, here is what Woodward testified to:
I also testified that I had a conversation with a third person on June 23, 2003. The person was I. Lewis "Scooter" Libby, and we talked on the phone. I told him I was sending to him an 18-page list of questions I wanted to ask Vice President Cheney. On page 5 of that list there was a question about "yellowcake" and the October 2002 National Intelligence Estimate regarding Iraq's weapons programs. I testified that I believed I had both the 18-page question list and the question list from the June 20 interview with the phrase "Joe Wilson's wife" on my desk during this discussion. I testified that I have no recollection that Wilson or his wife was discussed, and I have no notes of the conversation.
I testified that on June 27, 2003, I met with Libby at 5:10 p.m. in his office adjacent to the White House. I took the 18-page list of questions with the Page-5 reference to "yellowcake" to this interview and I believe I also had the other question list from June 20, which had the "Joe Wilson's wife" reference.
I have four pages of typed notes from this interview, and I testified that there is no reference in them to Wilson or his wife. A portion of the typed notes shows that Libby discussed the October 2002 National Intelligence Estimate on Iraq's alleged weapons of mass destruction, mentioned "yellowcake" and said there was an "effort by the Iraqis to get it from Africa. It goes back to February '02." This was the time of Wilson's trip to Niger.
When asked by Fitzgerald if it was possible I told Libby I knew Wilson's wife worked for the CIA and was involved in his assignment, I testified that it was possible I asked a question about Wilson or his wife, but that I had no recollection of doing so. My notes do not include all the questions I asked, but I testified that if Libby had said anything on the subject, I would have recorded it in my notes.
If they are successful in introducing Woodward's testimony, they will effectively be arguing that Libby was right when he said he learned of Plame from a journalist, "as if it were new," and then passed it on to other journalists, but that he just plain old confused Woodward for Russert. That might be enough to raise questions in the jury's minds about the charge.
The biggest problem with this gambit is Judy.
If (a big if) Judy can retain some credibility, the she will be a witness--with notes to back her up--that Libby knew and spoke of Plame's identity on June 23 and on July 8. At this point it comes down to a question of timing. Will Libby claim that Woodward passed on the Plame leak over the phone (notably, the only conversation in this whole affair in which Woodward did not take notes or record the conversation). If not, than Judy's June 23 conversation really hurts any attempt Libby would make to peddle this story.
And it all may rest, finally, on one unknown detail: which happened first on June 23? Judy's conversation with Libby, or Woodward's?
It's worth mentioning one more thing. In the discussions about jury instructions, Fitzgerald proposed--and Libby's team has largely accepted--that the instructions make it very clear that the entire jury must agree on which statement Libby made was false. Here's Libby's version of the language:
In order to render a guilty verdict on a particular count, however, all jurors must unanimously agree on at least one false statement as alleged in the count you are considering. It is not enough, for example, that six of you agree that one false statement has been proved and six of your agree that a different false statement has been proved. You must all agree unanimously that the government has proved a particular false statement beyond a reasonable doubt.
While this may come into play with the Cooper charges (that is, it is possible the jury will be split on whether Libby's claim to have told journalists he learned of Plame from journalists was false, and/or whether Libby's claim to have told journalists he didn't know if Plame's CIA employ was true or not was false), I think the Russert charge is the charge for which Fitzgerald wanted to include this instruction. It is quite possible that some jurors will find Russert eminently believable, but also find the Woodward smokescreen plausible as well. That is, a jury may split on whether they believed Libby lied about the Russert meeting deliberately or whether he lied about how he learned of Plame's identity before he told all these journalists. Since Fitzgerald's argument for obstruction likely rests on the treatment of Libby's July 8 conversation with Judy (that is, that's one of the main things Libby was trying to hide), then clarifying which statement a jury finds to be false may well affect the obstruction charge.
But I'll save that--and the rest of my obstruction discussion--for the next installment.