Opening our Fitzmas Presents

by emptywheel

No no NO! I am not about to announce that Fitzgerald is indicting Dick, sorry. But yesterday both sides in the Libby case filed status reports (Libby's and Fitzgerald's) and, I gotta tell you, I feel like a kid who just realized that Christmas is right around the corner.

One of the big reasons why I'm so tickled is that, contrary to some rumblings from a few weeks, ago, it appears there will not be a delay in the trial. I know a lot of you were all worried about greymail and now that the Judge has approved the government's substitutions, that threat is gone (sorry I didn't post on it--I was honestly just never that worried about it, so I didn't have anything to say on the matter). But now Fitzgerald reveals that a separate issue--his intent to appeal the CIPA Section 6(a) ruling--is done:

The government does not intend to appeal the Court’s ruling pursuant to CIPA Section
6(c), and the government will move to dismiss its Notice of Appeal on the Court’s CIPA Section 6(a) ruling.

And in a footnote, Fitzgerald reveals he is prioritizing the remaining declassification/substitution review so there will be no delay in the trial. So it looks like -- there will be no delay in the trial.

Well, that was my big concern. Here's what everyone else's big concern was: Dick. Fitzgerald explains the following:

The government is not aware of any government witness who is intending to assert a blanket privilege, and the government does not otherwise anticipate any of its witnesses moving to quash or limit trial subpoenas. The government also does not intend to examine any witnesses on any topic for which we expect an assertion of privilege. Although the Jencks Act materials the government will be turning over contain a very limited number of topics where privilege issues may arise, the government does not intend to examine witnesses on those topics.

This almost certainly means 1) Dick Cheney has not indicated he will claim executive privilege and therefore won't testify, and 2) while there may be things Dick said in his testimony about which he would claim privilege, those things aren't issues that Fitzgerald will ask about. (Hmmm.) Or the short version: expect to see Dick testifying during the trial.

That's about everything of interest in Fitzgerald's filing. Now onto Libby's.

First, Libby seems like he's going to make one more go at the greymail defense. The one remaining substitution issue relates to government evidence, and about that they say:

In this regard, the defense notes that it may well object to the substitutions offered by the government, either under CIPA or under the general rules of evidence,

Well, like I've been saying, they're busy laying some grounds for appeal, so they might as well object to everything. I'm less worried about this than I was about greymail in the first place, but maybe Jeralyn will tell me I'm wrong.

More interesting, is the news that two of the journalists Libby wants to call to testify are going to fight the subpoena.

Mr. Libby has issued or will issue trial subpoenas to several news reporters whom he may call as defense witnesses. Based on communications with counsel for those individuals, the defense is currently aware of two reporters who may resist testifying.

In one case, we have agreed with counsel for the reporter that any objections that may be made in the event the reporter is actually called to testify can be addressed at the time of trial without causing any delay in the proceedings. Communications with counsel for the other reporter who has indicated he may resist testifying are ongoing. It is the defense's understanding, however, that the reporter will likely file a motion to quash upon issuance of any subpoena for testimony. If that occurs, the defense believes it can negotiate an expedited briefing schedule under which this Court can resolve the motion in advance of trial.

Now, I'm more interested in whom Libby will call than their efforts to avoid testifying (since it sounds like this will get resolved). Obviously, this doesn't involve Judy, Russert, or Cooper, because they're already going to be called by the government. So here are some other possibilities: Novak (to testify to godknowswhat, but we do know he had a meeting with Libby), Sanger (to testify about the NIE leak?), Andrea Mitchell, Clifford May (on the generous assumption Libby considers him a "reporter"), Kessler, Walter Pincus ... and, of course, Woodward.

I'm guessing that, at a minimum, Libby wants to call Mitchell (justifiably so, given her claims, then denials, that she had learned of Plame's identity), Woodward, and Pincus. And I would suspect that Pincus is the last named of these witnesses--the one who would try to avoid testifying. But those are guesses.

It's almost certainly not Woodward. Libby reveals he wants to introduce the tape of the Armitage-Woodward interview, and notes that,

The defense does not anticipate any objection to the subpoena from Mr. Woodward, assuming the Court rules the tape recording relevant and admissible.

My guess? The Court is not going to rule the tape recording relevant and admissible. The tape recording, recall, includes Armitage speaking the line, "everyone knows that." It refers to Joe Wilson's identity, though Libby wants to introduce the tape and claim that Armitage was, in fact, referring to Plame's identity. Now, to argue that the tape should be introduced, Libby will have to argue that in fact Woodward told him of Plame's identity at their meeting on June 27 (recall that Woodward has no record of saying so, but who cares, if you're Libby). He will further argue that, Armitage told Woodward that everyone knew of Plame's identity in June, so that Libby was right in remembering someone telling him that "everyone knew" of Plame's identity, but simply wrong in remembering that person to be Russert. Russert, Woodward. I can understand the confusion. With the added bonus that, if he got the tape admitted, Fitzgerald would be forced to call Armitage to explain that he was referring to Joe, not Valerie, there.

But I think the court will rule this inadmissible. I think so for two reasons. First, Judge Walton has always supported Fitzgerald's argument that Armitage is an innocent accused, so will be uninterested in trying Armitage during the trial. But further, Libby will have to go to some lengths to suggest that Woodward did tell him of Plame, which would be the only way he could argue that what Armitage said has any bearing at all. I may be wrong about this--the case is there to be made, if Ted Wells is as brilliant as they say. But the evidence so far in the case suggests it won't be admissible.

Libby allows for several more reasons for a delay (who knows, he might yet delay my Fitzmas, damnit). But the final bit--which I love--is this. Fitzgerald wants to submit all of Libby's grand jury testimony into evidence. Of this, Libby's team says:

it is clear that large portions of Mr. Libby's testimony bear no relevance to this case and would serve no purpose other than to distract and confuse the jurors during their deliberations. The government has further indicated that it does not presently intend to read or play a tape of the entirety of Mr. Libby's grand jury testimony during trial, but will instead publish to the jury only selected portions of Mr. Libby's testimony during its case-in-chief. The defense hereby requests that the government be required to identify the portions of Mr. Libby's testimony that it intends to publish now...

Shorter Libby: I said some really incriminating things to the grand jury. And I provided a whole lot of evidence that my motive for lying was to protect Dick. We need to know if you're going to publish this now, so we can respond accordingly.

I can't wait to see what is under my Fitzmas tree!

Update: For Ruth, Exhibit A, which is Fitzgerald telling Jeffress that, yes, we do get to see all the stupid things Libby said to the grand jury. Consider it your stocking stuffer.

Comments

[Ruth]

....but where's Ex. A??!

[Leslie in CA]

So, ew, you're doing lots of posting these days ... does that mean the book is done? Did I miss an announcement?

[emptywheel]

Oh, two more things of interest. First, several of us have been looking foward to the day when Fitz hand over Jencks material (well, okay, primarily me and Jeff). That will happen on December 22, and Libby will provide reverse Jencks on January 2. So December 22 (conveniently in time for a Christmas pardon) is when Libby will see whatever he's been after all this time.

And then there's this. In Fitzgerald's letter to Jeffress telling him that he will introduce all of Libby's GJ testimony into evidence, he says this:

Dear Bill:

This letter is in response to your letter of October 20, 2006, in which you inquire whether it remains the government's intention to introduce at trial the entirety of Mr. Libby's grand jury testimony. We have reflected on this matter and the short answer to your question is, "Yes, we do."

I'm a bit fond of it--"Yes Jeffress, we haven't changed our mind."

[emptywheel]

Leslie

The book is close to done. Though I'm in sort of an inactive stage. Plus, Gmail is down, so there's no doubt all sorts of stuff I should be doing but don't know about.

Announcement will be soon.

[smiley]

Fitz should play the tapes of Libby's GJ testimony, and then put him on the stand, ask him to explain the contradictions... and hit him with ANOTHER count of perjury.

[emptywheel]

smiley

He's reserving that tactic for Dick, I hope.

Oh, and Ruth, make sure you check your Christmas stocking.

[Rayne]

Buying up near-term popcorn futures, EW, can't wait!!

Hey, did you happen to catch this bit? A fellow FirePup left it in threads, laughed at the feeble but continued disinfo attempt in this bit of trash; just scan down to "Plame".

Jeff Gannon. What a useless and deluded whore, actually takes himself seriously as both a journo and a prostitute. Good old fashioned conservative values, the kind that might have won the election for the Repugs if only the neo-cons in the party weren't more fond of racketeering than whoring and propaganda.

[SaltinWound]

Oh God, I've gotten all excited for Fitzmas once before and ended up disappointed. I still don't know what to think of Fitzgerald! I don't understand his role leading up to 9/11, I don't fully understand the other trial he's involved in with Judy Miller. I liked him at the big press conference way back when. As for the reporters fighting Libby, at first read I assumed he wanted them to testify about conversations with Libby. Now I'm realizing it's probably to ask about conversations they had with other people. But who?

[emptywheel]

I would assume he wants to call Pincus to force him to reveal his source (which has not yet been revealed--and which Swopa believes to be Ari Fleischer, I think).

I would assume he wants to call Woodward to talk about his Armitage conversation.

And I would assume he wants to call Mitchell and really grill her about whether or not she did learn of Plame's ID--if he can raise any doubt in the minds of the jury, then it might cast doubt on whether fellow NBCer Tim Russert really didn't know of Plame.

[SaltinWound]

Well, I'm rooting against Libby, but Andrea Mitchell on the witness stand really would be a treat.

[emptywheel]

And btw, just a guess, but I suspect they won't subpoena Woodward to testify until after they get Jencks on December 22. They want to know what he said, particularly wrt the NIE leak, before they call him.

[freepatriot]

the wheels of justice grind slowly

and the wheels of justice grind extremely fine

when this is over, scooter is gonna be a finely ground pile of dried dog shit

and he's gonna be a convicted felon too

scooter don't get to serve his 30 year sentence in a minimum security facility

people who are sentenced to that much time are considered a flight risk

scooter's goin to the BIG HOUSE

better hope your cell mate is a repuglican

[John Lopresti]

I wondered if Vinovka was merely an instrumentality in weakening of Libby's alibi, or if Fitzgerald would want to talk about her reporter notes more. There was a time last year when I thought Fitzgerald was prepared to get chalk on the cleats with respect to some of Libbys attorney's efforts to keep on giving a slanted story to the press. I can hear Judge Walton wishing Viveca would not exacerbate that already delicate topic about which he has warned counsel for both sides. And I continue to ponder, in a parallel world, the matter ew raised the other day about the government's work to use a GJ subpoena to prevent unreleased documents from entering into evidence, wondering if there is some distant expectation in the administration that a favorable ruling in that other matter might occur with timing suitable to serve as a backdoor way to accomplish what Jeffress might not achieve in the Libby matter via frontal graymailing.

[emptywheel]

John

Vivnovka never took notes. You know, because she wasn't really journamilisming. She was drinking with a friend.

[John Lopresti]

I had worried about Gerson's enhanced information sourcing now that he is at WaPo, as well. I understand Viveca was an inadvertent source of information in a specific one-time conversation.

[NEtale]

Yes, it's Bond, Kit Bond.

Plame and Wilson in NM don't find much:

NEW TALENT -- Governor Matt Blunt has grabbed Sen. Jim Talent's former communications director to be his own. Rich Chrismer was announced yesterday as the governor's new mouthpiece.

[Leslie in CA]

ew,

Your Gmail glitch is our gain ... but "close to done" is so, well, tantalizingly close.

As for Jencks, I seem to remember hearing last year that Dec. 22 is Fitz's birthday; heck of a way to spend it.

[Tom Maguire]

I would assume he wants to call Pincus to force him to reveal his source (which has not yet been revealed--and which Swopa believes to be Ari Fleischer, I think).

Really? I know that we don't know Pincus' source, but I have a strong feeling the defense does. That said, I have no idea where to look to verify/rebut that.

However, I agree with Swopa that Ari is the one, and if I had time to look it would be in the defense filings that suggested why Ari is a conflicted witness. The defense theme (as I recall it) is that Ari's version is that he heard about Ms. Plame at his weird lunch with Libby, rather than from the INR memo on AF 1. And why was Ari so helpful? To get himself off the Pincus hook.

But as to whether the defense knows that Ari leaked to Pincus or is only guessing, I just don't know. But I would have guessed that they know.

[emptywheel]

If Ari is the one who leaked to Pincus (it's possible, though I think Hadley is much more likely), then Libby knows. He has Pincus' testimony. And while Pincus no doubt doesn't name his source, the questioner surely did.

But don't forget Ari was claimed to be the Novak source, which would be impossible given the INR memo, and we now know, according to Novak, is not true.

[katie Jensen]

I still can't get over the change in andrea mitchell who's first reporting on this first tipped my mind to the idea that there had been a conspiracy. It was very early on, and I just kept looking for her to say it again. She never uttered another word that I could find that would lead anyone down that path, but I swear to you that one night way back in 2003, while she was subbing on hardball, she set up the scenario as plausable. In her one sentence she implicated the president and vice president. It was her sentence that sent me to the web looking for info and hoping that this issue could bring down this lousy pres. I thought, "she knows what went down."

Then not another word. The only thing that kept me on this path was finding out that Bush had hired a criminal lawyer for his testimony. My only interest from the beginning in this story was the hope that it would bring this president down. So here we are years later, no sign that it will happen and a president who has already brought himself down. But I had no doubt on the day I heard her speak of plame, (and this was my very first education about it) that she knew something big. It would not have caught my attention unless she had implicated Bush himself. (in the form of a conspiracy). Yes, I have been wondering for a long time what she knew.

[Sara]

Katie, I have a feeling (just a feeling) you may be right. My sense is that Bush probably was told in March, 2003, that the UN had figured out that the Niger documents were forged, and that Joe Wilson was on CNN talking about it without being all that specific. Then, about the time of "mission accomplished" Wilson is back, clearly the source behind Kristoff's column. At some point in there, GWB gives one of those "command-decider" orders -- "Cut off this guy's balls." It's left to the staff to figure out how to exactly accomplish this.

EW -- Have you read Moore and Slater's "The Architect: Karl Rove and the Master Plan for Absolute Power?" Fascinating on a number of levels. He has one of the best integrations of the source of the Niger Forgeries I've yet seen -- focused on the role of Ledeen -- with much info about earlier relationships between Rove and Ledeen, and Ledeen to the Feith operations in DOD. Did Fitzgerald take Ledeen to the GJ? Recently I saw a note somewhere that FBI was re-opening their investigation of the forgery -- probably a consequence of the election returns. Not only will Rockefeller be finishing that Intelligence Report, but Leahy may do some oversight on FBI Tradecraft in such investigations. Moore/Slater have a journalistic summary of the state of what's known and unknown -- (and I wonder if the FBI's is as thorough?) but I suspect it will take oaths and a threat of contempt of congress to get answers to the open holes in the story about who forged the Niger Documents.

[Jeff]

I suspect they won't subpoena Woodward to testify until after they get Jencks on December 22. They want to know what he said, particularly wrt the NIE leak, before they call him.

I know I am one of the select few (crazy people) eagerly awaiting December 22 now, but I can't remember now whether the prosecution has to hand over Jencks on prospective - not even set - defense witnesses. And we know that the prosecution does not intend to call Woodward, and has already handed over at least a portion of Woodward's deposition or whatever, to say nothing of the transcript of Woodward's interview with Armitage. So what more does the defense actually get?

[emptywheel]

Jeff

Based on the Andrea Mitchell decision, I think they can hold on Jencks until the witness is deemed admissible. In other words, to some degree they'll have to go blind on Woodward. But I could be wrong.