Man, I'm going to have to ask David Shuster to give me fashion tips before I do this--boy do I look rumpled (though, of course, he's not liveblogging for 6 hours before he does his TV gig).
This is the key passage from yesterday's endless court arguments.
J He can be asked about state of mind. Let's take October 4 Washignton Post article. "The leak of a CIA agent has exposed." We are totally precluded from discovery on this. That would be so prejudicial for the defense I don't think we would be able to recover. The next one, talks about clandestine case officer. that same week, two top AOs disclosed her identity to 6 journalists. This is a trick, your honor. These cannot possibly go into evidence. You'll hear him testify in the GJ. To put in the articles themselves. We would deprive Libby of a fair trial.
Fitz This is not a trick to show state of mind. It is appropriate to consider Libby's state of mind. Libby was told by a CIA briefer that there are dangers in disclosing a CIA agent's identity. It's relevant to Libby's state of mind. They've told jury Libby had no motive to lie. That's a trick, to remove all the evidence that he had state of mind. He kept these aritcles. The jury's entitled to know what was in his head. That was in head and his file.
J It's in the GJ transcript. That's in the record. They're trying to prejudice the jury by putting in the actual articles. It is highly prejudicial.
Fitz The jury has a right to see what Libby saw before he testified. Coming from someone's files, what's in someone's state of mind. They want to stand up and say this is stupid. It's not stupid if you fear that you may have been involved in something, you switch your story that puts it on a journalist. These are form his files. They may be prejudicial in that they help us prove our case. But they're not unfairly prejudicial.
The exchange relates to two WaPo aticles published in Fall 2003 that were in Libby's files. The first explains that the leaks of Plame's identity also exposed her front company, Brewster & Jennings.
The leak of a CIA operative's name has also exposed the identity of a CIA front company, potentially expanding the damage caused by the original disclosure, Bush administration officials said yesterday.
After the name of the company was broadcast yesterday, administration officials confirmed that it was a CIA front. They said the obscure and possibly defunct firm was listed as Plame's employer on her W-2 tax forms in 1999 when she was working undercover for the CIA.
I'm kind of fascinated that Libby stashed this article away. I've always thought that Novak's emphasis on B&J during this week was an attempt to finalize the damage (or punish CIA for investigating the leak). I thought the two AOs who confirmed her identity--using tax documents--were part of that retaliation. But we know that Libby (and Fleischer) was in full panic mode by this point, lobbying for public exoneration.
In any case, this article repeated some of the same information that Craig Schmall would have told Libby--that the leak of Plame's identity might well ruin the cover of other people.
The inadvertent disclosure of the name of a business affiliated with the CIA underscores the potential damage to the agency and its operatives caused by the leak of Plame's identity. Intelligence officials have said that once Plame's job as an undercover operative was revealed, other agency secrets could be unraveled and her sources might be compromised or endangered.
Now, as far as I understand from the wrangling on this document, Libby didn't underline it. But he (or someone else sneaking around in his file drawers) did underline the second document, the second 1X2X6 article. Walton hasn't admitted Libby's copy of this yet (though I suspect he's leaning very strongly toward doing so), so we don't know what Libby found so interesting about the article. But I can imagine the now-panicked Libby might have found the following to be of concern.
In their interviews, FBI agents are asking questions about events going back to at least early June, the sources said. That indicates investigators are examining not just who passed the information to Novak and other reporters but also how Plame's name may have first become linked with Wilson and his mission, who did it and how the information made its way around the government.
One reason investigators are looking back is that even before Novak's column appeared, government officials had been trying for more than a month to convince journalists that Wilson's mission was not as important as it was being portrayed.
In early June, Wilson told his story to The Washington Post on the condition that his name be withheld. On June 12, The Post published a more complete account than Kristof's of Wilson's trip. Wilson has now given permission to The Post to identify him as one source for that article.
By that time, officials in the White House, Cheney's office, the CIA and the State Department were familiar with Wilson and his mission to Niger.
Starting that week, the officials repeatedly played down the importance of Wilson's trip and its findings, saying it had been authorized within the CIA's nonproliferation section at a low level without requiring the approval of senior agency officials.
Remember, Walter Pincus--to whom Libby lied about Cheney's involvement in the trip--is a co-author of this article. I'm quite certain that Libby read this (correctly) as Pincus revealing Libby's BS--and pinpointing the date when Libby learned of Plame's ID. And not only does Libby have this in his files, but he has it underlined. [And Libby's team pretends it wants to subpoena Pincus?!?!?! Ha!!!!]
Which is why I find this argument so significant. Jeffress may well be right that, if this was introduced, "That would be so prejudicial for the defense I don't think we would be able to recover." It would basically show that Libby knew the FBI was already focused on the leaks from early June. Before he met with the FBI and lied his ass off. Which is why, in this case, Fitzgerald is absolutely right that, "They may be prejudicial in that they help us prove our case. But they're not unfairly prejudicial." No wonder Jeffress is desperate to have them excluded.