December 15, 2006
by emptywheel, emptywheel@earthlink.net
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.
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