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Never in His Wildest Dreams

It's week two in the Scooter Libby trial. Marcy has done a great job of live-blogging todays testimony. Today was my first day at the trial. I spent most of it in the courtroom, seated behind Mrs. Libby, and some in the media room. There were a lot of veteran PlameGate reporters on hand: David Corn of the Nation, David Schuster of MSNBC, Michael Isikoff of Newsweek, Byron York of the National Review and John Dickerson of Time, to name a few. Also following the action: Kelly O'Donnell of NBC News, David Stout of the New York Times, Nina Totenberg of NPR.

Being in the courtroom has advantages and disadvantages. On the plus side, you get the big picture, being able to watch the interaction between the prosecution and defense teams, Scooter Libby and his lawyers, the jury and the Judge. You also get to see what seems of interest to the jurors, what they smile and laugh at and what doesn't faze them.

On the minus side, it was stifling hot, many of us (including the Judge at one point) were using paper to fan ourselves and if you leave while court is in session, you can't get back in. Also, you are reduced to handwritten notes since no laptops are allowed in the courtroom.  This is not a high-tech trial. The lawyers aren't tapping away at computers. The exhibits aren't fancy. There are a lot of assistants on both sides.

Now for the substance. Cathie Martin, Cheney's former press secretary, was the first witness of the day, where she underwent cross-examination by Libby lawyer Ted Wells. He took her through a chronological version of her testimony from last week.

If there was anything new, I didn't learn it. If he had a point, I didn't get it.

I think he was trying to show that none of the Administration's talking points involved Valerie Plame Wilson. She also said she didn't discuss Plame's CIA employment with Libby during July. Wells tried to get her to say that she didn't hear the entire phone conversation between Libby and Matthew Cooper. But, it fizzled because she insisted she was in the same room as Libby for the whole conversation, she just was talking on the phone during some of it and Libby was reading from the Administration's script the whole time.

So, according to Martin, there was nothing ad-libbed that she would have missed.  I was really hoping Wells would end on a high note, leaving the jury to ponder a bone of contention that could amount to a reasonable doubt, but he ended with a housekeeping matter about document identification.

After Martin, which was dullsville, Ari Fleischer took the stand. Compared to Martin, he was a compelling witness.

He also was unshakable in his assertion that Scooter Libby told him at lunch on July 7th, the day he left for Africa, that Wilson's wife suggested him for the Africa trip and that she worked in the CIA's counterproliferation division. He said Libby told him this was "hush-hush" and on the QT.

Ari was a polished pro. Rather than directing his answers to Zeidenberg or Jeffress, he turned to the jury and spoke to them directly, gesturing with his hands. This is a trick FBI agents use. When it happens in my trials, I ask the judge to instruct the witness not to direct his answers to the jury, but to the lawyer asking the questions. Either Judge Walton would not have entertained such a motion, or Team Libby didn't think of it.  After a while, it got obnoxious watching Fleischer suck up to the jury.

Jeffress was a good cross-examiner, he had his facts down and it was easier to follow where he was going than it was with Wells and Martin, but he failed to trip up Ari. The whole issue of Ari's immunity fell flat, there was no attempt to show Ari had committed a crime and Ari took full responsiblilty for having leaked to reporters, although he made a point of saying several times, he had no clue Plame's status may have been classified.

In fact, he testified, "never in my wildest dreams" did he imagine she was a covert agent in the intelligence section of the CIA.

Ari used communicator type words, to say he was "horrified" that he might have a role in exposing Plame. He explained Dan Bartlett's statement to him on Air Force One about Wilson's wife being behind the Niger mission and working for the CIA as an extemporaneous utterance by Bartlett, not particularly directed at him. Ari was more interested in the document he was reading at the time, and didn't pay much attention to Bartlett, since he had heard this before -- from Libby.

Ouch.

Jeffress was trying to show that Ari told David Gregory of NBC News and John Dickenson of Time about Plame's job and supposed role in sending Wilson to Africa -- the inference being, that maybe Russert really heard about Plame from Gregory while Dickenson may have been the person who told Matthew Cooper. But, it was a balloon that didn't take off. I expect they will return to this theory during Russert and Coopers' testimony.

At the end of the day, Cheney former counsel David Addington, now his Chief of Staff, took the stand. He was friendly, not hostile yet seemed to bury Libby. He said that between July 6 and July 14, Libby asked him if the President could order material declassified and whether there would be a paper trail if a CIA employee's spouse went on a trip. He also said that at one point in the conversation, Libby used his hands to gesture him to speak lower.

Judith Miller testifies tomorrow. Fitz says he won't introduce Scooter's Aspen letter in his case in chief. At this point, Team Libby's defense isn't focused enough for me to predict where they will go with her. So tune in to Marcy's live-blogging and back here tomorrow night, and we'll all find out together.

[Cross posted at Huffington Post and Firedoglake.]

Update: The defense introduced a handwritten letter Libby wrote to Fleischer. You can read it here.

Others weighing in: Media Blogs, Booman Tribune, John Dickerson at Slate, Michael Iskikoff at Newsweek

Update: White Collar Crime Blog weighs in on the Jencks Act and the Libby Trial.

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    A couple things jump out (none / 0) (#1)
    by scribe on Mon Jan 29, 2007 at 09:12:31 PM EST
    and I just have to toss in my $.02:

    If there was anything new, I didn't learn it. If he had a point, I didn't get it.

    I've been getting that feeling about Wells' cross throughout, and maybe even his trial prep.  It isn't focused.  It's like hitting with a hand with the fingers spread wide - diffuse, poking, and weak - rather than a clenched fist - concentrated and able to do damage.  This is, IMHO and based on the limited amount we've seen so far, more likely that he's been served a sh*t sandwich for a case, and he's trying to make it something more palatable.  Also, we don't know what high cards Wells has in his own hand for the defense case - whether and to what extent they've been able to prep Deadeye for his proposed testimony is question number one in my mind there.  I have no doubt Scooter will loudly and clearly proclaim his absolute lack of criminal intent, which only makes for a jury question.

    Looking back, it seems to me that when his proposed memory expert didn't remember Fitz, it foretold troubles for the defense case.  $3 mil worth of lawyers' and spinmeisters' fees should have bought trial prep and prep of a proposed expert which would have brought up to the expert - prior to testifying - that the attorney doing the cross on that expert had done so before.

    Ari was a polished pro.  . . . Ari used communicator type words, to say he was "horrified" that he might have a role in exposing Plame.  . . . Rather than directing his answers to Zeidenberg or Jeffress, he turned to the jury and spoke to them directly, gesturing with his hands.

    In an odd way, this helps his credibility.  Ari was being himself, and being true to himself.  He's a PR and communications man, he's one of the best going - he has to be, to be the Press Secretary for the Preznit.  He's communicating - textbook.  I strongly believe in the old saying:  "What you are screams so loudly I cannot hear what you are saying".  You don't dress a hod carrier in Brooks Brothers and expect his testimony to be believed (esp. if he's claiming poverty....)

    In this case, what Ari is and what he's saying are congruent and this makes him stronger as a witness.  As to his speaking directly to the jury, I wonder whether (and doubt) there was any preparatory instruction from the prosecution or whether it was simply unconscious behavior on his part.  I'd bet the latter.  Since, IIRC, Walton has tied counsel to the podium, this is not one of those situations where by moving around the courtroom one can force the witness to address the jury (by counsel questioning while standing at the downstream end of the box), or look away from them (by standing in an opposite corner).  You're absolutely right about asking the judge to compel the witness to look at the questioner, but it's hard to get that done before the jury without looking like a tool for wanting the witness not to look at them, and even harder if the witness is being compliant (which it seems Ari was)....  

    He also was unshakable in his assertion that Scooter Libby told him at lunch on July 7th, the day he left for Africa, that Wilson's wife suggested him for the Africa trip and that she worked in the CIA's counterproliferation division. He said Libby told him this was "hush-hush" and on the QT.

    If you only ever had lunch with a guy once, and the guy tells you strange stuff (or uses strange words) during that lunch - it's going to stick in memory, and you will not be shaken on that.  I'd opine the best the defense could have done with that "Hush-hush, QT" tidbit (which is all over all the evening news shows, along with Danny DeVito/"LA Confidential" references on blogs) would have been to let it pass and not ask any questions about it.  I'm led to wonder how forthcoming Scooter was in his sessions with his attorneys if they didn't see that coming (even without interviewing Ari).

    the inference being, that maybe Russert really heard about Plame from Gregory while Dickenson may have been the person who told Matthew Cooper. But, it was a balloon that didn't take off. I expect they will return to this theory during Russert and Coopers' testimony.

    For this line of questioning to work implies (and requires) (a) that Russert and Gregory talk, and that Dickenson and Cooper talk, (b) that these pairs talked in the relevant time frame, and (c) that Gregory and Dickenson both chose to share information which was either (i) seen as irrelevant idle gossip shared in a boring off moment of a foreign trip, (ii) ironic, ephemeral trivia, (iii) identified immediately as a transparent hit-job, or (iv) hot stuff.  We don't know (yet) the nature of the relationships among these pairs of competitive, top-of-the-game reporters, nor do we know how the recipients of the information saw it.  My preference is towards (ii) or (iii), followed by (i).  If it was (iv), I can't see these reporters just "sharing", at least without a quid pro quo or trade of something.

    Cheney former counsel David Addington, now his Chief of Staff, took the stand. He was friendly, not hostile yet seemed to bury Libby.

    They've already decided - long ago - to tie off that artery.  Doing it "friendly" is the Republican way.

    Ouch is right (none / 0) (#2)
    by squeaky on Mon Jan 29, 2007 at 09:18:21 PM EST
    He explained Dan Bartlett's statement to him on Air Force One about Wilson's wife being behind the Niger mission and working for the CIA as an extemporaneous utterance by Bartlett, not particularly directed at him. Ari was more interested in the document he was reading at the time, and didn't pay much attention to Bartlett, since he had heard this before -- from Libby.

    I was following Marcy's fabulous liveblogging when that came up and was floored. What a dis.
    The president's office v the VP.

    I was very impressed with how Ari put it. He is an extremely skilled actor with great talent. Answering questions is his craft.  As much as I hated his lying BS answers then as press sec at least I could watch it.

    Way better than watching Tony Snow, skilled with no talent and really mean to boot. I could only stand to watch him for his first four or five press conferences before I decided it that it was a waste of time.

    I missed this though:

    Libby asked him [Addington] if the President could order material declassified and whether there would be a paper trail if a CIA employee's spouse went on a trip. He also said that at one point in the conversation, Libby used his hands to gesture him to speaklower.

    Seems pretty damning. A whiff of conspiracy charges coming down the pike?

    You forgot to mention this (none / 0) (#3)
    by Kitt on Mon Jan 29, 2007 at 09:26:27 PM EST
    There's a 'videocast' on firedoglake with Jeralyn & Marcy.

    It's a damned good synopsis of today's events.

    What a riot (none / 0) (#5)
    by squeaky on Mon Jan 29, 2007 at 10:45:26 PM EST
    Great video cast. What a team.

    Amazing piece of the plameology puzzle: Valerie Flame. Can't wait to hear what Miller has to say about that.

    Parent

    libby and the outing (none / 0) (#4)
    by diogenes on Mon Jan 29, 2007 at 10:12:33 PM EST
    I assume Fitz is a competent prosecutor and that the grand jury thus should have heard anything that is being presented here.  Why in heaven's name is the only charge perjury if it is so very obvious about conspiracies, whisperings, outings, etc.  The grand jury needed a much lower standard of proof to indict Libby if it so wished.
    The excuse that they're going after Libby to get him to testify against Cheney is a dubious one if from the beginning of the investigation Fitz knew who the real leaker was.  


    It's not just perjury (none / 0) (#6)
    by Jeralyn on Mon Jan 29, 2007 at 10:52:23 PM EST
    it's also false statements to a federal officer and obstruction of justice.

    Parent
    As you note, the grand jury needs less to indict (none / 0) (#10)
    by scribe on Tue Jan 30, 2007 at 07:37:54 AM EST
    and the real problem with this (or any other inchoate, intentional crime) is proving beyond a reasonable doubt.  Ain't easy, even given the large resources the Gov't, rep'd by Fitz, has.  And, Fitz has something of a reputation for not overcharging and for making solid cases on those charges he brings.

    Parent
    Well, that was a letdown (none / 0) (#7)
    by Kitt on Mon Jan 29, 2007 at 11:25:48 PM EST
    Scooter's letter was to Ari.

    Re: conspiracy (none / 0) (#8)
    by Che's Lounge on Tue Jan 30, 2007 at 12:16:40 AM EST
    If Libby is convicted this could be a watershed moment.

    In a way (none / 0) (#9)
    by squeaky on Tue Jan 30, 2007 at 12:19:05 AM EST
    But he is going to appeal. There is already has been a reference to it. So watershed yes, but dragged out for two years.

    Parent
    ineffective defense (none / 0) (#11)
    by orionATL on Tue Jan 30, 2007 at 09:02:29 AM EST
    ditto what scribe said above, except he/she said it better and more completely.

    what in the world is going on with libby's defense team?

    have they concluded that he does not have  a prayer and are trying to extort help or pardon from the whitehouse?

    if so, revealing the white house m.operandi doesn't seem a very good way of going about this.

    if i were libby i'd be pissed and scared at my lawyers' spineless defense.

    are they just trying to keep a low profile and play down the prosecution's strong points right now and not make too much of them in front of the jury?

    any expectations of defense fireworks be coming later?

    No plea bargain (none / 0) (#12)
    by sphealey on Tue Jan 30, 2007 at 09:04:06 AM EST
    > Also, we don't know what high cards
    > Wells has in his own hand for the defense
    > case

    The point that keeps coming to me is that Libby/Wells did not take a deal.  Not at the start, not after the indictment, and not after the November  2006 elections/Rumsfeld's resignation - at which point a pardon prior to 2009 became much less likely.

    So either they have something to base their defense upon.  Or their plan is to make the trial so ugly that Bush issues a pre-emptive pardon.  But the latter strategy is so risky I don't see how they could chance it.

    sPh

    true that Libby took no deal, but (none / 0) (#14)
    by scribe on Tue Jan 30, 2007 at 04:25:32 PM EST
    that assumes one was offered beyond "plead to the indictment and throw yourself on the mercy of the court but recognize we will seek the max".

    Parent
    You have to play... (none / 0) (#13)
    by Deconstructionist on Tue Jan 30, 2007 at 09:43:17 AM EST
    ...the cards the facts dictate. This isn't a TV drama. No lawyer can make the evidence go away. To the extent the evidence is clear that Libby learned of and spoke about Plame's existence and connection to Wilson prior to when he later swore to have learned about it, the defense would be foolish to try to convince the jury otherweise. Once you squander your credibility with a jury, you are cooked. If you unwisely try to persuade a jury not to believe things it has no reason not to believe you will almost always have no chance of persuading it to believe something it might believe if the argument comes from a defense it perceives a s credible. It appears clear that the entire defense is going to be intent based. This is not a "fireworks" type defense. It's a construct a framework in which Libby's claim he spoke falsely because of failure of recollection and not intent to deceive defense. Libby's defense is not going to be that any of these administration folks are lying (or even wrong) about their interactions with Libby. I seriously doubt that it will be that Cooper, Miller or the other media witnesses are lying. The defense is going to be that the prosecution has not sufficiently negated the possibility that Libby's false statements were made without intent. Long, boring cross-examination could in fact be a deliberate tactic to create another analogy for Libby. Along with showing that some of the witnesses recollections are imperfect, I can forsee and argument that "personalizes" it for the jury by saying, more or less: You are serving a very important role in a very important matter and I know you take it very seriously and have paid close attention to all the testimony. During your deliberation, i ask you to consider your ability to recollect all of the important testimony and to consider whether your recollection is always identical to that of other jurors.... Those long examinations without a clear point could be something other than poorly focused lawyers at work.