The Witnesses Not Called

by emptywheel

Your YouTube Link for the Day [our dial-up readers have asked for just a link...].

For those of you in DC, I'll be doing a bookigning at Drinking Liberally tonight, from 6:30 to 9 at Timberlakes.

Now that both sides have definitely rested (which doesn't mean Jeffress won't try to get some of Libby's newspaper articles thrown out, as he did at the end of the day yesterday), I'd like to reflect about why three witnesses we expected to see were not called. The three are:

• Andrea Mitchell
• Jenny Mayfield
• Eric Edelman

Andrea Mitchell
I've read Tom Maguire enough to agree with him that Andrea Mitchell's behavior in this case was just plain old suspicious. She has changed her story almost as frequently as Bob Novak, which is saying something. Robert Novak was willing to go on the stand and state publicly, under oath, his latest story (though he did say he just plain forgot about the Libby conversation he had two days before he finished his column). You'd have thought Libby's team would want to do the same, if for no other reason than to add to the Parade of Journalists to whom Libby spoke yet didn't leak Plame's name.

Then there was Ted Wells' dubious theory that Mitchell told Russert about Plame.

But Ted Wells would only put Mitchell on the stand if he could get evidence in that would discredit her--and he was denied this opportunity by the governing rules of evidence.

Ted has been working hard to find something that would discredit Russert, using both this theory and the theory that Russert lied in his deposition only because the government agreed didn't think it relevant to make a public argument based on Russert's conversation with Jack Eckenrode in Fall 2003 (an attempt also denied by the rules of evidence). He sure sounded like he was positive that Andrea Mitchell had told Russert about Plame.

But in the end, he didn't call her to the stand.

Which suggests to me that something about Mitchell made her too dangerous to call to the stand even for the Parade of Journalists. Perhaps Libby didn't want his conversation with Mitchell from July 8 to come up in cross? Perhaps Libby didn't want the conversations Mitchell had at Gerald Ford's birthday party on July 16--when Chaney almost certainly told her to go after Plame hard--to come up under cross?

In any case, I think it instructive that Ted Wells didn't take any chances with Mitchell.

Jenny Mayfield
Jenny Mayfield was Libby's personal assistant during leak week. She was going to come to the stand to testify that Scooter is a very busy man. And to testify that Scooter never said anything about leaking Plame. Probably, she was going to testify that he was very very busy.

Frankly, I'm not surprised that May field didn't come to the stand--remember, she was a witness to Libby's side of Matt Cooper's conversation, and I think Fitzgerald really could use another witness to Libby's end of the conversation.

But I think Mayfield's non-appearance has as much to do with The Year of Iran John Hannah as it did with the Cooper conversation (after all, if Mayfield were a credible witness to the Cooper conversation Fitzgerald would have done).

I think Mayfield didn't get called for one of two reasons.

Perhaps they decided John Hannah would accomplish what they needed to, in kind of a one-stop surrogate Shooter and Scooter. In addition to testifying about how busy Libby is, after all, Hannah can better testify to all the Very Important things Libby was dealing with. He gets closer to a pseudo-memory defense than May field does. So maybe they just decided to substitute John Hannah for everyone else in OVP who might have testified.

But then there's the other possibility--that they decided John Hannah bombed, and anything Jenny Mayfield said would be more of the same bombing. "So, Ms Mayfield," the juror might ask, "you're the second person who has said Scooter was a very very forgetful person. Are you sure he really should have been trusted with our national security?" "So Ms Mayfield," Fitzgerald would ask after he had established that Mayfield hadn't heard Libby say, "I don't know whether it's true or not," "In your experience, does Libby dedicate two hours of his busy morning schedule to things that he doesn't think are of utmost importance?" It didn't help with Hannah, and I'm sure it wasn't going to help with Mayfield.

Eric Edelman
Perhaps the most curious absent witness, though, is Eric Edelman. Edelman, of course, was the guy who asked Libby if they could leak stuff to counter Wilson, at which Libby told Edelman to get to the closest secure line if he wanted to talk about it. Edelman is one of the biggest pieces of evidence that Libby knew Plame was covert and he shouldn't leak her name. Edelman is also the guy who did the early oppo work on Joe, before he went to Turkey to sell them cut-rate F-16s in exchange for political favors serve as Ambassador.

Now Edelman's non-appearance may be something as mundane as a credible dispute about what he wanted to leak. Maybe he just wanted to leak the report from Wilson's trip. (Though, that's unlikely since it now appears that everyone thought Wilson's report was fair game after he served as a source for Kristof and Pincus.) I still think that's somewhat damning, since it still constitutes leaking information Tenet didn't want leaked. But who knows, maybe it wasn't worth the effort.

But I think it's something more subtle. One of the more curious exchanges came when Wells was trying to suggest that it was Cathie Martin's incompetence (trust me, she comes off as highly competent on the stand) that forced Libby to put his neck in the meat grinder.

W June 6 Edelman left for Ambassador job?

M Don't know about date.

W He used to work with you?

M More hands on with Jennifer.

W Mr Edelman the senior non press person left so he was gone.

W Mr Libby's job was to focus on National Security Issues?  He would spend time on issues like homeland security and terrorism and war on Iraq.  It was not part of Libby's job to deal directly with press.

M fair comment.

M Edelman pointed out the Kristof article. He had pointed out to Jennifer. Eric, I assumed, was going to be the one who figured out something we could say, because he was a columnist, and attacked the administration fairly regularly, we were just waiting to see what Eric had to say and we didn't feel any urgency to get to Kristof.

W Kristof article. [reading from article]

This felt to me like an attempt to pre-empt something. And there was also an attempt to get some early documentation from Edelman's response to Wilson introduced into evidence (I've got to see if it happened or not, I forget). I don't get this.

Anyway, I don't know what to make of it (and I believe it was viget emailed trying to figure out the same thing), but it seems like Edelman was much more central to this smear than has been previously discussed. Which would make you think he'd show up on the stand, wouldn't it?

But for some reason--and I'd love to hear your guesses--he did not.

Comments

[e3]

Spain Begins Trial of Suspected Madrid Train Bombers (Update3)

http://www.bloomberg.com/apps/news?pid=20601085&sid=aeEcmXd.__UI&refer=europe

[viget]

EW--

Edelman couldn't have left on June 6, right? The indictment suggests that he was talking about how to respond to the TNR article (which came out on June 19). Was it July 6, perhaps?

[P J Evans]

Small nitpick here: it should be 'Mayfield' (one word), and it's showing up as 'May field' (two words). Probably the spellchecker is fussing about it.

You're thinking that maybe one of those three would blow up Scooter's story completely, and tie Darth in to the leak very tightly?

[Pete]

Too bad my book is scheduled to get to me from Amazon around Jan 22-24. I presume that the book is selling better than expected.

A couple of lines from your introductory paragraph on Mitchell really cracked me up.

My own take on the NBC saga is that NBC did its best to protect Libby (short of perjury), but Libby's team used those very efforts to try to impeach NBC. Take Russert for example. Poor guy thought it was ok to talk to FBI since Libby had not leaked to him. Once he learned the implications, he clammed up and resisted Fitz's subpoena. He could have told his side of the story before the 2004 elections which would have surely hurt Bush/Cheney but he did not do so.

I have the same view of Miller. She was impeached by the very person whom she tried hard to protect.

The "Libby is forgetful" line from TYOI was just too obviously scripted and I hope backfires on them.

[viget]

Another curious thing... assuming Edelman was Scoot's point-man on Wilson oppo-research, what exactly was Hannah doing then? It seems like Hannah and Edelman had very similar responsibilities (it's not quite clear to me exactly what they were). Was Edelman senior to Hannah (I think he was)? And maybe Edelman is cooperating with Fitz regarding the larger investigation whereas Hannah was not? Jeralyn brought up a 2004 UPI article citing unnamed law enforcement sources saying that "Hannah was the major player in this" referring to the leaking of Plame, but Edelman was not? Or did Edelman just spill his guts whereas Hannah may have stonewalled?

I also think it interesting, if I understand the law correctly, that Jencks material on defense witnesses need not be turned over until after the witness testifies. As has been bandied about before, the same day Hannah testified, Walton was involved with a Sealed vs. Sealed hearing after the Libby trial recessed.

Could it be possible that Fitz has a sealed indictment (or plea deal?) for Hannah that needed to be disclosed to the defense team after he testified? And maybe it was the contents of that indictment that then led Wells and co to realize the huge risk of putting Scoots and the Shooter on the stand?

Just idle musing here. I'm just guessing that Edelman may not have testified because his Jencks material might have implicated Hannah and a possible sealed indictment/plea deal, which may have impacted the defense's strategy before the trial.

[Pete]

http://ankara.usembassy.gov/eric_edelman.html>On July 22, 2003, Vice President Richard B. Cheney administered the oath of office to Ambassador Eric Edelman as the new Ambassador to the Republic of Turkey.

[freepatriot]

thank you, oh wise and benevolent goddess of the innertubes

and shouldn't that say "Our dialup "READER" ???

[viget]

Thanks Pete. That's what I thought.

Sort of O/T, but check out Murry Waas' latest. The upshot is the FBI agent in charge of the Plame leak, Eckenrode, was also in charge of a probe into Congressional leaking about NSA intercepts regarding the Sept 11 attacks. Eckenrode wanted to compel journalists to testify in front of the GJ about the probe, but then head of the Criminal div at DoJ, Michael Chertoff refused to approve subpoenas.

The irony of all this is that the investigation was spurred by a call from Cheney to Sen. Graham, then the Chairman of the Select Committee on Intell. He threatened to yank their clearances unless something was done to find out who was leaking. I think Cheney suspected that this would stymie the congressional investigation into Sept 11, but instead, the House and Senate intell committees decided to let the FBI investigate.

Because of this investigation, and the fact that Eckenrode was involved in both, the admin had to approve Fitz's appointment, as it would have looked highly hypocritical to deny an investigation into the WH, when Congress on its own initiative allowed a FBI probe for a similar leak investigation.

Karma's a bitch, huh?

[Mimikatz]

In the TV appearance you comment that Wells seemed very sincere in saying that he believed that Libby would testify right up to when he heard the prosecution witnesses. Defendants are notroious for lying to their attorneys. You think Libby did? Or that they just thought the prosecution witnesses would be shakier than they were in fact? Or were you being sarcastic?

[SaltinWound]

I thought Wells was saying the prosecution witnesses were weaker than he expected, and that's why Libby wasn't going to testify (I disagree, but I thought that's what he was saying). A bigger question to me than the witnesses not called are all the witnesses Fitz never even spoke with. Dickerson, Gregory. Who else? He had years. Is there any reasonable explanation for this?

[Rayne]

Hmm. Continues to look to me like both sides are trying to play their cards very close to their respective chests, and that calling any one of these three could have revealed more than they wanted the other side to know. Can only hope that where there's smoke, there's fire...

[emptywheel]

Think I fixed the typo--thanks.

My WElls comment about his sincerity was honest--his demeanor was demonstrably different from what we normally see. Still. I don't buy the argument. Everything I said in yesterday's post still stands.

[Pat_AlexVA]

Maybe Wells was worried the jurors would have trouble avoiding the papers over their long weekend, and the headline was already out.

Libby misled judge.

[David Boyle]

Timberlakes. Will Justin be there? Oy.

By way, see my current DKos "Fireblog, uh, doggers, on NYT frontpage re Libby livebloggery" at http://www.dailykos.com/story/2007/2/15/1488/35783 .

Have fun tonite!

[MayBee]

Which suggests to me that something about Mitchell made her too dangerous to call to the stand even for the Parade of Journalists.

The Parade of Journalists all agreed to speak with the defense attorneys to tell them what they knew and what they would testify to. Andrea Mitchell would not/did not agree to that.
What made her too dangerous to call was that they had no idea what she would say. That risk outweighed the remaining benefit, and no prosecutor or defense attorney would ever take it.

[kspena]

Could it be that some of these potential witnesses have made statements on both sides of the issue? Both Mitchell and Dickerson have made conflicting statements.

[tryggth]

Fitz will go down the litany of "not rebutted" though they could have called "XYZ" to do so.

[tryggth]

And in the end, not doing so (not calling the obvious rebuttals - hey Gregory!) will be the pointer to the motive. Heh.

[tryggth]

Do you suppose Libby told Wells what Cheney did? I would think he had to.

[kim]

EW, announce here on TheNextHurrah if you'll be in Beantown (Boston) for DrinkingLiberally signings, Drinking Liberally typically notifies us by email around an hour before the meeting so it's very hard to schedule.

[Jodi]

tryggth QUOTE:

"Do you suppose Libby told Wells what Cheney did? I would think he had to."

So, why do you ask that?

[emptywheel]

MayBee

Are you quite sure of that (that all the journalists agreed to meet with Libby's team?). Abramson, after all, fought her subpoena, as did Sanger for a period.

[ohioblue]

Marcy, what do you think Armitage's motive was in leaking to Woodward and Novak? Was he just trying to protect Powell by saying that State wasn't involved in sending him, it was his wife.

I guess I could accept that wrt Woodward, but he set up a special meeting with Novak, who had never met him before, and then told him.

I remember Fitz referring to Armitage (before we knew for sure it was Armitage) as the innocent accused. What's up with that? I would like to know what Armitage told Fitz to keep from getting charged. And who told Armitage?

How was the book signing? Are you staying in DC for the weekend? Have a great weekend. I am positively addicted to your live blogging. Thank you.

[ohioblue]

One more question - Do you think that Fitz realized that the Oct 12 article mentioned the other statutes as well? Hope they're following your live blogging!

[MayBee]

EW- no, you are correct that Sanger and Abramson most likely did not meet with defense. I'm sure the defense team knew what they would say, however, and could therefore keep questioning tight enough to not open up a whole lotta cross. Both direct and cross were very limited with both of them.
Andrea had been very confusing on the whole issue, which made her riskier than Sanger and Abramson.