I'm going to make a wildarsed guess that we'll actually get to the CIA briefers this afternoon, or at least Criag Schmall. Craig Schmall, you might be asking. We already saw him!!!Yes, we did (and I made a not-nice description of him in my notes, for which I would like to apologize to Schmall). Schmall testified that Libby mentioned the Wilsons on June 14, 2003. And that Libby and Cheney mentioned something to him about Novak's article on July 14, 2003. But Libby's lawyers want him back so they can list every single detail from that day's briefing to show how unimportant the Wilsons are by comparison. I'm predicting a very smart cross on this ploy–we shall see.
Also, we should learn Walton's rulings on some of the things we were arguing about before lunch: whether Russert is going to be hauled back here tomorrow so Wells can get another shot at him, wheter or not a tidbit that Fitzgerald mentioned as a favor to Russert's lawyer, Levine, can be used to impeach Russert, whether the two other CIA briefers who had shot a day and a half at this point waiting to testify will actually have to testify. Did I miss anything?
Walton: [to Levine, Russert's lawyer] Did you ever impart to Russert that the government would waive the FBI thing.
Levine: At the time this happened, we and Fitz were adversaries, we were filing a motion to quash. I called him to say, are you going to raise the argument that any communication Russert had with FBI constituted a waiver. He said no, and I said, okay, I'm not going to brief on it. That has nothing to do with the negotiations we had later.
Walton: Thank you. Based upon those representations, it would be unfair to suggest that Russert was receiving a benefit that influenced his testimony based upon govt's decision that it did not need to raise waiver issues to argue its case against quashing subpoena. I don't think it would be appropriate to say that had an impact on Russert's testimony. It'd be unfair to him.
Wells. If you want to predicate your ruling on something other than counsel's representation, to the extent counsel's representation is like filing an affadavit, I don't accept his representation.
Walton: He said he didn't think it was something he had to talk about with Russert.
Walton: I don't see how this can be construed against Russert.
Wells; The fact that they were not asserting waiver, the govt has taken a posture, that permitted him to be champion of First Amendment, that could influence his testimony, jury should hear it. If you're going to predicate a ruling on testimony of counsel. If this were a piece of civil litigation. People file affadvits all the time, affadvits get tested. Your honor relies on a representation.
Walton All he's done is cooperate with Fitz' representation. In the same way that I respect you make accurate representations to me, I trust them. We've got a rule, I understand the arguments, I don't think it's fair to permit Russert's integrity to be challenged based on govt representation. In reference to tapes, the law is clear wrt impeachment on proir inconsistent statement. Under circumstances, when it's collatoral, extrinsic evidence can't be used for impeaching. The fact that Russert made the statement doesn't go to what he said about Libby.
2:22pm ET
Update 2:
Walton: the letter's in the record. That's fair game. I don't fault counsel for not finding that out earlier. The timing for Russert to be called in vacuum and be asked on collatoral matter. It has minimum probative value.
Walton: In reference to briefers. The rulings I made during CIPA were clearly predicated on my understanding that Libby was going to testify. The level of detail was based on him testifying. That was why I let the level of detail and why I pushed as hard as I did to make govt to make concessions to provide the level of detail that I felt he needed to mount his defense. I don't think it appropriate for info to come to the jury that would put Libby's perception of the importance of the nat security information. The only way you can do that and to have the jury in a position where they can calibrate the difference in importance. Without Libby testifying, that cannot be before the jury. I do think the amount of work is important. If the jury is aprised of the fact that he's got a lot on his plate. Whether it's nat security info or something else, the jury has a right to know. The level of detail that I ultimately bought in on was based upon that being a substitution for his testimony. He's not testifying now. It can come before jury to give generic perspective of how busy he was. I hope we can have time to do that. There's so many documents I looked at. What he has to be able to do is to indicate through the briefers that he was briefered on matters related to terrorists, port security. I think I have to give him the ability to give those generic titles so the jury will have an appreciation of things that were on his plate. I think such a limitation, the govt's concern, which I think is justified. Without Libby's testimony he can't do that. I have to in effect make a, it's not a CIPA determination, I think the general title of the subject he was briefed on.
Fitz: Most of the info was provisionally declassified. I wonder if it would make sense if CLine and I would speak. Recognizing where we're at to see if we can come to an agreement.
Cline: We can bring in June 14, right? Can I consult with
Fitz: We did go through it with June 14.
10 minute break
2:30 pm ET
More on the Libby trial.
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