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January 20, 2007


Mr. Russert has appeared to be in the Bush Administration's camp these long six years so it will be ironic if his testimony closes the prison doors on Libby. Something Mr. Russert himself will not be happy about, no doubt.

I know this sounds crazy. But do you remember when Alan Greenspan said "irrational exuberance"? A few months after that he married Mitchell. Then he started talking about "productivity". Then your plumber or check-out clerk got into AOL. That was right after the pension funds had "over-built" the fiber-optics network (Global Crossings, Asia Crossings) and facilitated the whole out-sourcing thing.

Talk about coincidence.

Have the prospective jurors been aksed about MTP in voir dire or specifically about Russert (neither is specifically mentioned in the pdf question list you linked to earlier)?

Maybe having a request for Mitchell's notes allowed them to ask about MTP generally, since she interviewed Wilson about his article, rather than Russert specifically.

Once everyone who watches MTP is eliminated, and the Faux news watchers remain, the Mitchell notes actually aren't important to them?

(This suggestion probably reflects my disgust with the jury selection process, though a lawyer friend tells me it's typical)


I've heard them ask all three--mostly they ask about Russert, once I've seen mention of Mitchell, and I think I've seen them ask about MTP.

I think they're able to do so bc of a last minute motion by Libby's team claiming the media coverage of this has been biased, which allowed them to gauge for media consumption. They've asked about Judy too. And Woodward has come up, as he would.

Now that they've bailed on Mitchell, I wouldn't be shocked if Libby's team doesn't even try to impeach Russert at all. They stand to lose less by writing this off to Libby's poor memory than they do by having Russert bury them.


Yeah, at some point I wonder if they'll just invest in Woodward and the Armitage shiny object instead.

It's not clear they've totally bailed on Mitchell (in other words, they might think they're stronger without her notes). But they do seem mighty worried by him.

One thing I pointed out the other day: Cheney interviewed with him in September. It's hard to impeach a guy the VP has interviewed with.

Notes or no notes, Libby will hang!

Confusion in their ranks.

One reason for fishing and then withdrawing the request would be that they want to create reasons for an appeal -- in which case the goal was to have their request denied.

Swopa--yeah, they do seem to be collecting those, huh?

And frankly, they're probably trying to accustom Walton to ceding to their requests out of fear of an appeal.

Marcy, my question is re Cheney as witness for the defense.

It's understandable that Fitzgerald wouldn't call a hostile witness like Cheney for the prosecution.

But, he also seems a bit risky for the defense. (Prince of Darkness; hated even more than Bush; etc.)

Defense is using Cheney (ie - Iraq) as a sort of litmus test to get certain potential jurors dismissed during voir dire. (And, probably, to also help them gauge the public mood and hone their strategy.)

question: Are they obligated to call Cheney as a witness?


No, they're not obligated to call Cheney. Though I'd be pissed if I were Walton if they had organized the entire voir dire process around Cheney as a feint.

I respect the argument that they're using Cheney in this way. But I do believe he is going to testify. I think he will try to discredit Cathie Martin, who is a very important witness for Fitz. And also, I think he's there to give weight to Libby's claims that some o fthe leaking he was doing was authorized.

By the time it might become clear that Cheney will not testify Walton will have a very limited discretionay involvement in the matter. Jury instructions are settled and the matter would only need be submitted.

Given the hypothesis that Cheney is being called to discredit Martin, presumably concerning the contents of July 12 conversation, how much latitude does Fitz have with respect to probing Cheney's memory capabilities?

That Libby is taking the tack of Cheney's not-wholly-disinterested memory now of events 3 years ago is going to be used to clear Libby's memory failures 3 months after the events in question is almost too good.

They asked every potential juror if the watch Meet the Press, and move on to a checklist of questions specifically about Russert from there. They clearly expect Timmeh's testimony to be bad for Libby.

Having reviewed Mitchell's handwritten notes, there can be no plausible argument that they are relevant to this case. Not only do they have no bearing on any issue relevant to this action, but there is also no basis for them being used to challenge Russert's recollection or credibility.

Walton's paragraph goes on from there, and recall the opinion is about production under Rules 16/17(c)), not about production or admissibility at trial. I may be reading too much into the words, but wonder whether "relevant to this action" is different from "relevant to a theory of defense." In any event, as cited below, Judge Walton refrained from issuing a definitive ruling as to production of the Mitchell documents.

At the time this opinion was drafted, Walton had seen the page of handwritten notes, and he knew that the page of handwritten notes do not refer to Mr. Wilson's wife or to Plame. Apparently, the page of handwritten notes does not refer to a conversation between Russert and Libby - if it did, it would be probative to the "action question" of "between Russert and Libby's version of their conversation, which one is closer to the truth?" The notes don't illuminate one way or the other whether Libby materially misrepresented the Russert conversation. Therefore, not producible under Rule 17(c).

Also, at the time this opinion was drafted, Libby had not committed to the flawed memory defense. Judge Walton concluded the paragraph ...

The remaining emails, while technically responsive to category five, would only be admissible if Mitchell testifies and if her testimony is inconsistent with the statements made therein. Unlike Miller, Cooper, and Russert, there is no clear indication that Mitchell will even testify during the trial. Accordingly, these documents [Note- the subject of this paragraph is both handwritten notes and e-mails] do not fall within the category of documents producible under Rule 17(c). ^16


16 The Court will, however, refrain from issuing a definitive ruling on all of the Mitchell documents. If Mitchell does testify during the trial, the defendant may request that the Court revisit whether documents responsive to the subpoena issued to her should be produced. Because there are only a limited number of responsive documents that will be at issue, there will be only minimal delay of the trial if Mitchell becomes a witness.

"Not fall[ing] within the category of documents producible under rule 17(c)" is emphatically not the same thing as not admissible. And one can read in footnote 16 that the judge was reserving the question of admissibility. Walton's December 19, 2006 Order further reinforced the fact that a final ruling on production was not made in the May 26 Opinion and Order. Now, today, at the start of the trial, given Libby's commitment to the memory defense, Mitchell can be one of several reporters in the week of July 6 - 12 who spoke with Libby, where Libby did not disclose that Wilson's wife works at the CIA. As such, the Mitchell notes which corroborate that data-point become relevant to the flawed memory defense.

All that just to support my conclusion that what was reported as a "change" by Judge Walton is not a change, he reserved making a final ruling. I speculate that production of the Mitchell notes is probably a mundane development at the end. At most (I speculate), this represents that Mitchell testifies for the defense that she and Libby talked, and that Libby didn't mention Mr. Wilson's wife or Valerie Plame to her.


IIRC (I'm sure Jeff will weigh in if he sees this), Mitchell and Libby spoke on July 2, not during the week of July 6. That date falls entirely out of the dates that Walton finds central to the memory defense.

Not that it takes away from your general point--that Walton didn't rule out admission of the documents.

All I'm saying is that the issue is dramatically different if Walton is saying he has to give Libby the emails (which might contain very interesting information but doesn't pertain to the memory defense in the least; rather it could pertain to Russert's honesty) or if he's saying he has to give Libby notes that--to the best of our knowledge--Libby has not pursued the equivalent of from Evan Thomas, Glenn Kessler, or David Sanger. This may well be mundane (that's why I'm trying to figure out of this hearing pertains to one or both of them). But if it's the emails, it may well NOT be munday, since they could either totally corroborate Mitchell's unconvincing story, or totally discredit NBC.

-- Not that it takes away from your general point--that Walton didn't rule out admission of the documents. --

Even at July 2, the data point may be useful to show that Libby didn't disclose to Mitchell, for what it's worth. The AP article seems to point only to "Mitchell notes of Libby conversation," which is the one page of handwritten notes.

What Libby is fishing for with the e-mails is evidence that "everybody (but Libby) knew" that Wilson's wife worked at the CIA. That makes it possible / more likely that Libby "first heard" from a reporter.

The hearing will pertain to whatever the defense asks for. Again, Walton has seen the evidence, so he's well prepared to rule on production once Mitchell is on the stand and has answered questions from defense counsel.

I'd have to ponder a bit as to whether or not Walton would have belayed making a ruling if the e-mails showed Mitchell awareness of Plame before July 14. My first reaction is that he would have ruled the same way, and let the line of questioning evolve at trial before ordering production. This has the effect of forcing Mitchell to testify in accordance with whatever the e-mails say.

-- the emails ... could pertain to Russert's honesty ... could either totally corroborate Mitchell's unconvincing story, or totally discredit NBC --

With NBC counsel characterizing the nature of the evidence to the Court, and having Walton review the handwritten notes and the e-mail in camera, NBC would really be playing with fire by leaving a potential "bombshell" (Russert is a liar, especially) out of defense counsel's hands. I'm not saying it's impossible, but I rather doubt the documentary evidence is as exciting as the imagination can make it out to possibly be.


I suspect you're right, about the emails. And it might explain why Walton would want to show them to Libby's team--so they didn't call Mitchell thinking she would discredit Russert, only to find out she reinforced him. In either case, the emails either support or refute the Libby "heard it from reporters" case, which is why they'd be more interesting in any case.

Thanks for answering my question, Marcy,

Yeah, I expect Cheney on the witness stand could be pretty powerful. Imagine the electricity in the air! Impressive extra security precautions. A bit intimidating. And (though I can't imagine it, really) he's supposed to possess some charm.


Re Libby's memory defense:

I'm rapidly coming to the conclusion that Libby is intelligent but not very smart or not very honest or both not very smart and not very honest. He seems to like playing roles (Chief of Staff to the Most Influential Vice President in History During a Time of War of Civilizations. OR? Just yer average Cowpoke at the rodeo, knockin' 'em back at the saloon. OR? -- Ass.)

We've all experienced memory confusion (for example: "remembering" a childhood experience only because it's oft-repeated family story. Heck, just last week my husband told me an experience I could swear I'd had was actually his experience and not mine! And, then there's your garden variety eye-witness accounting. Etc.)

But, wouldn't the average honest and reasonably smart person refresh their memory before being interviewed by the FBI or testifying to the Grand Jury? Especially if they knew they had diaries, notes, logs, colleagues, etc.

Gah! Is this really Libby's defense? How could this fly?

I am inclined to agree that the whole thing about Mitchell's notes and emails is likely pretty mundane. What is very clear from the 5-16-06 hearing is that neither the notes nor the emails offer any suggestion that Mitchell or anyone at NBC had pre-July 14 knowledge of Plame.

For the record, Mitchell's interview would help Libby's defense in at least two ways. First, she's another reporter he spoke to about the 16 words and to whom he didn't say a word about Plame, contradicting supposedly the idea of a White House plot. (It does no such thing, but that's the idea.) Second, she is one of a large number of reporters to whom Libby spoke about the 16 words controversy in the relevant period, which makes it more understandable that he would be confused in his recollections of exactly what he said to and heard from whom. For god's sake, he even testified he told a reporter about Plame who he didn't say anything about Plame to in fact!

However, let me just add one intriguing possibility that Libby's lawyer raises in the 5-16 hearing. Mitchell's emails about her weird statement don't give any indication that she knew about Plame before July 14. But might they give indication of her knowledge of other reporters, not at NBC, who knew about Plame?

If so, of course, and Fitzgerald can get his hands on those, game on.

However, one question is whether Walton would have held those back from Libby at the time, in light of his obvious interest in substantiating Russert's purported statement that "all the reporters knew it" or whatever. I am actually inclined to think Walton would indeed still have held them back, keeping the possibility intriguing, but I haven't gone back and looked at what Walton had to say on those sorts of issues with any care.

As for the date of the Libby-Mitchell interview, July 2 is sticking in my mind as well, but as far as I can tell from the hearing, nobody can pin down just when it happened (although maybe subsequently somehow they figured it out?). In any case, i don't think it makes that much of a difference.

I would bet my bippy she knows something. But my only proof is the story she laid out, more honestly than any one I ever heard report on the story, back in 2003. Remember those early reports wouldn't even mention the conspiracy angle? They would just state that someone leaked...and often made it sound "accidental".

She was the first reporter I heard, lay it out as a possible conspiracy that could go all the way to president Bush. I can't remember her exact words but I know she used that sentence "all the way to Bush". I was shocked to hear her implicate Bush way back in 2003. I have also been interested in the fact that she has never repeated that scenario, that I have heard, and in fact has steered away from the conspiracy angle. Not by saying anything to disprove it or to argue against it, but it appears more to me, like avoidance. Maybe I am reading too much into that one report, but my gut is jangling. (I know..not the most accurate source of info...but it is what it is.)

Emptywheel –

“…And it might explain why Walton would want to show them to Libby's team – so they didn’t call Mitchell thinking she would discredit Russert, only to find out she reinforced him..”

Maybe I’m misreading, but I think you’re suggesting here that Judge Walton might do something to deliberately benefit the defendant, in essence ‘signalling’ his team to stay away from any quicksand in the Mitchell notes and NBC emails, and thereby deprive the prosecution of something it to which it is just as entitled as the defence to review and consider use were the defendant to continue its quest for them and succeeded in that.

I see that as akin to a referee tipping off defensive lineman that he’s going to turn away to give him a chance to headslap his opposing tackle. I also see no basis to conclude that Judge Walton is or would be so inclined.

Lawyers call that sort of judicial behaviour “entering into the arena”, “jumping into the ring”, or “entering the pit” [depending on how crude one chooses to analogize].

It’s far from unheard of, but I don’t see it happening here.

I note that on a subsequent thread leading with the WSJ editorial, Jeff is in a death match with a some conspiracy theocrat with the handle “Old Atlantic”. As an aside, Old Atlantic proves one thing: just as finding a pecan in a walnut grove does not prove pecans only grow in walnut groves, there is no necessary correlation between wingnuttery and conspiracy theocrats.

Next - I come in peace. I choose to post comments here because I find your posts are not just fun [Hey, JOM is a barrel of monkey laughs, though more 3 Stooges, and you more Al Franken], focused [JOM has one cage of creatures who like to castigate Jeff – Jeff! - forad hominem attacks! That certainly disposes of the chestnut that it takes one to know one.], famously provocative, and fruitful

[Damn! Tried for full 4F alliteration, but came up sounding like Bill The Cat: “Fffpf!”].

But - WRT issues on what Walton has done, might be up to, or might do with reporter Mitchell’s notes and NBC news’ emails, I suggest you’ve fallen prey to the same criticism Jeff leveled at Old Atlantic

As I understand, Jeff was trying to explain [with the same success King Canute has with the same force], two things.

First, that particular thread was set up to discuss disingenuousness in the WSJ chapter of the Scooter Libby Fan Club, smearing a career civil servant prosecutor with a insultingly convoluted revenge motive for carrying their Siegfried off the battlefield on the Indictment – and completely ignoring the reality, that, as a matter of both fact and law, it is grand juries which indict, not prosecutors [though WSJ might toss back that old lawyer grenade that a skillful prosecutor can get a grand jury to indict a ham sandwich].

Second, that just because we in the peanut gallery don’t get to see a document unless and until the trial judge rules it has something material to do with the case AND one side or the other decides to slap it on the overhead for the jury to better see, until which time the document technically shares file space with UFOs under ‘Anything Is Possible’, does not mean that all possibilities conceivable by descendents of orangutans are equally worthy of consideration, and does not license those who choose to comment here to waste the time and attention of the rest of us on Elvis sightings, notwithstanding the shininess of his sequins.

I think you, and maybe others here, have fallen prey to that temptation, WRT Judge Walton and these notes and emails.

Consider these factors:

As to Judge Walton’s “leanings”, the facts are that he is a Republican appointee from a family with a somewhat more recent residential experience in Africa that most of the rest of us. That does not mean he likes his cherry cola with just a dash of pubic hair, but it does suggests that if he has any dog in this fight, it’s not tied up in the prosecutor’s back yard. Conversely, at least until lately, Judge Walton’s ruling have been beyond any accusation of displaying any inclination to favor the defendant (as shown in the transcripts of those grand jury hearings released to date and of his treatment of Libby’s application to call expert evidence on memory}.

Once Judge Walton accepted as a matter of intellectual rigor that the defendant was entitled to raise his Crappy Memory Defense [registered trademark of emptywheel], a ruling with which I have difficulty arguing], that opened up the rabbit hole to a huge box of tricks for the hydra-headed defence team.

Finally, in has been my experience, which is not a little, that many earnest judges share what many of we Oblong Ball fans have been known to yell in accusation at our Panasonics on the occasional weekend – that inclination of a referee to make a call that may not be fair to the moment, but will appear fair in the flow of the contest, not merely to fans at home on the couch, but more importantly to the league’s supervisor of officials – in Judge Walton’s case, the court of appeal. Swopa and you had an exchange on this earlier, and I agree.

There is a lot that is deep and complicated about this matter of Judge Walton and the Mitchell’s notes and the NBC emails: how various aspects of the law of evidence come to bear on how and when lawyers can use such things, ethical considerations, etc. But unless and until someone points to something specifically revelatory about such an inclination on the part of this judge, I would not expect him to jump into the ring.

Being not just a newbie here, but a blogging infant still crawling around on hands and knees, my comments are still too long, so I’ll post any comments I might have on using notes legally and ethically separately.

LabDancer: Is the shorter version of your POV that there's no reason not to take Walton at his word ("I don't see how I can deprive the defense of it."), since excluding the evidence at trial would unduly complicate the appeal?

smintheus - No.

Katie Jensen – I feel as if there must be some saying by Confucius like, “Those who cannot subsist without their bippy ought not to bet it on a blind hole card.”
I have a number of reasons why I think it is likely that neither Mitchell’s notes NOR the NBC News emails about her ‘senior summer moment’ will surface in this trial, but for the purpose of responding to ms. kate’s comment, I’ll just observe that for production purposes the only ones that matter are those which Ms. Mitchell wrote and those which were sent to and received by her, all of which are joined at the hip.
Judge Walton’s comments on May 16, 2006 were for the benefit of both sides, since the law only allows him to see them, not the lawyers. Those comments clearly indicate there was nothing in Mitchell’s notes that was “relevant” in the senses of relating or hinting at Libby having spoken to Mitchell about Plame’s job, Plame’s existence or anything that might have from the NIE [leaving aside for now cboldt’s suggestion that the very fact her notes have nothing so “relevant” somehow RENDERS them relevant to Libby’s CMD – confounding the aphorism “absence of evidence is not evidence of absence”].
But if there is something in the NBC News emails that does somehow qualify as “relevant”, in order to use it in asking questions of Mitchell, then it must also be something she herself wrote, or that was written to her or about her that links to something she then did, including writing – or else it’s no more useable in front of the jury than the typical rant at JOM, or indeed any of my own. Given the thrust of Judge Walton’s comments at the hearing on May 16, if any of the NBC News emails satisfied these conditions, they would be covered by his general comments.
Assuming I’m wrong about that [for example, if something contradicting this was discussed and that wasn’t made public], then Mitchell’s “nothing” notes would also have to be released, to both sides, to put to whatever use each side is permitted under the rules, because at least the prosecution, and, per cboldt, Libby’s team, would find value in them, the prosecution because they could be used to attack anything she said on the stand in answer to Team Libby’s questions that was at least arguably inconsistent with her notes, or to rehabilitate the version everyone assumes would be her ‘first’ version should Team Libby manage to beat than down in its questioning.
To make this practical, one has to consider all the reasonably possible versions of Mitchell’s testimony before the jury at trial. I offer five here [there may be more]::
1) I AM A LYING LIAR - Mitchell could say that on October 10, 2003, she was both truthful and it was accurate that she knew that Ms. Plame worked for the CIA before Novak’s story was published, and since then, she has repeated lied that she did not know that. A JOM wet dream, following which many there would face their maker content.
2) I LIED, BELIEVE ME – Mitchell could say that on Oct 10 she lied when she said she knew Ms. Plame worked for the CIA before Novak’s story was published, and she has regretted ever since. This leads inevitably to the Cheap Shot Special, an obvious line of questions the honour of asking which goes more often than not to the member of the team everyone expects will have asked the least questions by the end of the trial, or the weakest examiner on the team, but for some reason the one that always seems to go over big with the without any trial experience: “You admit you lied, so we now we all know what you really are; you are a liar! But now you get to help us all out. Tell us, how is this jury going to figure out whether you lied then, or you’re lying now?” As I say, every much as guaranteed a hit as Henny Youngman’s “Take my wife ….please!”, in some part because a lot of jurors think the last answer should be “When I move my lips”, and those that didn’t think of that get to laugh uproariously in the jury room when someone says it to them.
3) CALL ME IRRESPONSIBLE – Ms. Mitchell was negligent in what she said on television on Oct 10, 2005, on whether she knew before Novak’s story was published that Ms. Plame worked at the CIA, and has been covering up since. Juries get told all the time that negligence is a “lesser standard” than what they will be required to follow when they go to decide on a criminal charge, so a lot of them tend to that means ‘proven to something less than reasonable doubt’. Whatever, Team Libby likely is still doing cartwheels and probably still gets to haul out the Cheap Shot Special.
4) I’M SO CONFUSED: Mitchell was wrong when she said she knew before Novak published his story that Ms. Plame worked for was CIA, and didn’t lying, but instead was just confused. To wit, Mitchell’s Summer Senior Moment, rocket fuel for conspiracy theocrats, and the kind of thing that kept Jim Garrison busy and Oliver Stone in Gucci.
5) IF YOU CAN BELIEVE THIS, I MISREMEMBERED SOMEHOW: On Oct 10, 2003, Mitchell was mistaken when said she knew before Novak’s story was published that Ms. Plame worked for the CIA, but at the time she said those words she honestly thought she was telling the truth, and only subsequently and on reflection realized she was, she must be, or she might be, wrong, and her ability to convey both the first fact of her wrong memory that day and the second fact of which one of those she believed after that day has been impaired by some combination of the nature of the investigation process and her and NBC News’ embarrassment. Need I say more?
Lot’s of fun for Team Libby, all without any of her notes or any NBC News emails.

FWIW, my official editorial position is that Mitchell now has a story and will stick to it - she knew nothing. She is aided by the fact that, as best we know, no one has come forward and admitted chatting with Andrea Mitchell about Plame.

I am not at all sure the defense will take a big run at her, either, although they may try to have some fun with her conflicting statement. So I am expecting to be disappointed.

As to the truth - IMHO, she had heard some chit chat about a Wilson and wife connection and is just protecting sources. But we may never know.

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