As an aside, one of the exhibits introduced today was Cathie Martin's list of talking points (pdf) from Cheney on how to respond to Wilson's allegations.

• THE VICE PRESIDENTS OFFICE DID NOT REQUEST THE MISSION TO NIGER

• THE VICE PRESIDENTS OFFICE WAS NOT INFORMED OF JOE WILSONS MISSION

• THE VICE PRESIDENTS OFFICE DID NOT RECEIVE BRIEFING ABOUT MR WILSONS MISSION AFLER HE RETURNED

• THE VICE PRESIDENTS OFFICE WAS NOT AWARE OFMRWILSON MISSION UNTIL RECENT PRESS REPORTSACCOUNTED FOR IT

How many times have we heard that since 2003? It still doesn't answer the question, how did Wilson's findings not result in the deletion of the 16 words from the state of the union address? It was Cheney that asked the CIA to find out about Saddam Hussein's attempts to purchase uranium from Niger. The CIA decided to send Wilson. It strains credulity to think that after Wilson returned, no one notified Cheney's office of his trip or his findings. But, that's what they have maintained all these years. (Also see this June, 2003 Knights Ridder article.)

It's also illogical to believe that the CIA just sat on Wilson's information and didn't bother to try and correct Bush's mis-impression. This was, after all, Bush's reason for taking us to war. Remember? Saddam was trying to acquire nuclear weapons, we were told. Bush raised the specter of the mushroom cloud. And it was false. Joe Wilson knew it and reported back to the CIA on it. But it didn't get to the President, it stayed in the speech and we went off to war.

Back to the trial. Before Cathie Martin testified, there was a spat between Fitzgerald and Wells over the timing of the delivery of Cathie Martin's notes. Wells complained they hadn't received them in enough time to prepare to cross-examine her. Fitz said the defense had copies for months. Wells said the copies weren't legible and he hadn't had enough time to review the originals especially given the volume of documents they had to review this weekend. The Judge basically vouched for Fitz's integrity. Christy of FDL was in the courtroom and writes that Wells overplayed his hand -- Martin's notes amounted to 6 pages. She believes Wells hurt his credibility with the court by this "stunt" as she calls it.

At the end of the day there was a battle between Patrick Fitzgerald and Ted Wells over Ari Fleischer's testimony, now scheduled for Monday. (I will be at the trial Monday and Tuesday, covering for Christy of Firedoglake.)

The issue is whether Fleischer will be allowed to testify why he sought immunity when the answer, according to the Government, is that he learned the disclosure of Valerie Plame Wilson's employment with the CIA might be a crime. Fleischer apparently disclosed it to NBC reporter David Gregory, after hearing it from Libby.

The Judge doesn't want that to come out because Libby isn't charged with that crime and it make make the jury think a crime other than the ones charged was committed by Libby.

The Judge discussed whether to let Libby's lawyers pick their poison...attack Fleischer on the immunity deal and then it comes in, or forego questioning Fleischer about the immunity.

That's not a proper solution in my view. Fleischer made a deal and Libby has a right to try to impeach his credibility with it. He shouldn't have to do so at the risk of having Fleischer announce his speculation that he might have criminal liability for a crime for which no one has been charged. The parties should come up with an alternative, more generic way of allowing Fleischer to explain why he sought immunity. It should be enough for Fleischer to say he was concerned his statements to team Fitz could lead to personal criminal exposure in the investigation because of things he said in his conversations about Ms. Wilson.

For a preview of Wells' upcoming attack on Fleischer, here's what he wrote in his Third Motion to Compel (pdf) in March, 2006:

On cross-examination at trial, the defense will be entitled to question Mr. Fleischer on issues such as: (1) when and how he learned about Ms. Wilson's identity; (2) the nature of his conversations with reporters; and (3) any efforts he undertook to criticize Mr. Wilson. If the press reports are correct, and Mr. Fleischer disclosed information concerning Ms. Wilson to reporters, he himself may have been a subject of Mr. Fitzgerald's investigation. Mr. Fleischer may thus have a motive to shade his testimony. Such possible bias will be vigorously explored on cross-examination.

As I wrote in an earlier post,

Libby faces a tough road with Fleischer on two fronts: First, If Libby told Fleischer on July 7 that Wilson's wife's employment with the CIA and her role in sending Wilson to Niger was "hush-hush" and "on the q.t.", what are the chances his memory failed him by October and November, 2003 (pdf) , just three months later? It was in October and November that he told the FBI he first learned about Plame from Russert in a conversation that occurred days after his lunch with Fleischer.

Team Libby wrote in an April 12 filing (pdf) about Fleischer:

Mr. Fleischer may have learned about Ms. Wilson's identity from someone at the State Department or the CIA. The defense therefore needs access to any documents discussing Mr. Wilson, his wife, or his trip to Niger that may be found in the White House or at other agencies. Such documents are needed to investigate properly when and how Mr. Fleischer learned that Ms. Wilson worked for the CIA and when and with whom (other than Mr. Libby) he discussed that fact.

In our moving brief, the defense pointed to an even more specific reason to scrutinize the government's proffered version of Mr. Fleischer's testimony. Press accounts suggest that Mr. Fleischer may have learned about Ms. Wilson during his trip to Africa after seeing it in a classified report sent to Mr. Powell on Air Force One and then disclosed this information to reporters. Yet, the government claims that nothing further is required for Mr. Fleischer's cross-examination than "a copy of the report in question." (Id. at 12.) In so arguing, the government is once again attempting to dictate which defenses may be raised and which allegations in the indictment may be challenged. Nothing in Rule 16 or the case law of this Circuit suggests that the defense should be limited to cross-examining Mr. Fleischer with only the one report that the government deigns to disclose.

Other documents, totally unrelated to the report, may show that Mr. Fleischer learned about Ms. Wilson from someone other than Mr. Libby. Also, the substance of the report is not as important as what Mr. Fleischer did with or said about the report. That information is likely reflected in correspondence, notes, or e-mails in Mr. Fleischer's files, not in the report itself. After reviewing such documents, the defense will be better equipped to examine Mr. Fleischer about whether he saw the report on Air Force One, whether he recognized that it contained classified information, and whether he communicated its contents to anyone else.

I'm very excited about being at the trial for Fleischer's testimony. I've written a lot about him in this case, opining that he is a very dangerous witness for Libby. Here are some of the posts:

• Where Does Ari Fleischer Fit In? (7/14/05)

• Ari Fleischer is a Dangerous Witness for Scooter Libby (4/13/2006)

More on Wells' defense plan is here.

Lastly, the issue of whether Libby must testify at trial to raise his memory defense came up at trial today. Both Marcy and Christy (links above) discuss it, particularly in the context of Fitzgerald's complaints today that Wells was using Schmall to introduce statements from classified documents that should only be admissible if Libby testified and raised the memory defense.

The Judge said in order for Libby to get his memory defense to the jury, he must testify.

Since Libby's lawyers have previously indicated Libby will testify (but were smart enough not to tell the jury that in opening arguments in case they change their mind -- you never want to make a promise to the jury in opening that you later fail to keep, the prosecution will nail you on it in closing) I don't think this is a huge issue.

The bottom line is Libby is raising two memory defenses at trial. One is Libby saying his own memory is faulty. The other is Libby's claim that the government witnesses' memories are faulty. As Team Libby wrote in his April 12 pleading,

In a case where the jury will be asked to decide whose memory is accurate and whose statements are not trustworthy, it is perfectly appropriate to use Rule 16 to gather evidence that will tend to suggest that the testimony of certain government witnesses about their conversations with Mr. Libby is not believable. The materiality of such documents is not tied to whether the documents were reviewed by Mr. Libby or whether they describe meetings or conversations in which he took part.

In a case where it is already manifest that the memories of many witnesses conflict regarding many different conversations, it is not fair to foreclose the possibility that witnesses other than Mr. Libby may be confused or mistaken about relevant events.

Perhaps Wells would be better off combining his memory defenses and arguing that since the memories of all the witnesses as well as Libby have been shown to be faulty, that alone constitutes a reasonable doubt that anyone could recall events exactly right months or more after they occurred. It may be his best shot at convincing the jury that Libby didn't intentionally lie -- he was just, like the other witnesses, mistaken.