Walton: I have a problem doing the video analysis, with all the unknowns with what was transpiring at WH, that I have a sufficient basis to conclude that there was an agency basis between Libby and McClellan. But I don't think I need to do that analysis. What is his state of mind when he goes to the GJ. He believes he's got to walk lockstep with what the WH has said. I think that analysis doesn't required 8012b analysis. I think to decide whether that info comes before GJ. Whether the statement was made, it's clear that statement was made. And then whether Libby knew. The jury can reasonably infer that statement was made before he went before GJ. I think it's reasonable for the jury to infer that subsequently McClellan did make statement. I think that's relevant to state of mind. So I will require that tape be modified so the only thing presented … none of the questions, because I think that is potentially prejudicial, but as far as just the statement McClellan says saying he had spoken to Libby, doesn't come in for the truth, but it does come in for purpose of showing Libby state of mind. It's reasonable to infer that he's going to distance himself from that information. I will permit those limited portions of the tape.
Fitz: I think we've identified 3 snippets. The only problem is that none of the snippets names Mr. Libby.
Walton: I think what you'll have to do is read the question that preceded the question.
Fitz: Okay, we'll read the question flat and then play the video.
Wells: I don't understand why we've done the first one, why we have to do any more. Why do we have to say it twice. I think the first one makes it clear.
Walton: How does the cooperation issue come into play? It seems to me what is important is that Libby knew that McC speaking on behalf of the President was saying that Libby had nothing to do with the situation.
Fitz: last one would be page 8. One paragraph, if someone's involved they won't work here.
Wells: This is just repetitive of the first one.
Fitz: We went through how we used the "leaking of classified information" from the note. That goes to the issue we just discussed that he used the term "leaking of classified information."
Wells: As long as it's framed so the jury gets the understanding.
Libby shifts noticeably here.
Fitz: And I went through that before. It's the language he used in the note. He wanted McClellan to use the same thing he said about Rove. He's asking for the same statement in writing.
Wells: I'm not concerned about the "not involved" in this, I'm concerned about the reporter. I don't know what the "this" is. [Note, the "this" question is when Libby shifted.] If they want to introduce this without defining what the "this" is, I'm okay about that.
Fitz: This goes right to how he has to hew the line that the WH has with the FBI.
Wells: He wrote he was not involved with classified info, and I think that's fair. Whether he said anything about a reporter, that's the part I'm concerned about. The gov’t has made a decision not to call McClellan. As I understand there was nothing beyond "were you involved." I do have real problems with this reporter question.
Fitz: It goes right to one, what the heart of the question is. He has every reason of motive. We're talking about talking to reporters.
Walton: Is there anything to indicate Libby said this?
Fitz: He wanted to get a statement out there and he got it.
Walton: The concern I have, is as I said earlier, he qualifies what he said. I don't know if when he says that, well, he may have related info about the wife, but he wasn't leaking classified info.
Wells: What I suggest be done, take out the "what."
[Argh! Walton is reverting to a different justification for entering this. He just admitted this on state of mind, not on Libby's agent!!!]
12:14 pm ET
Fitz: I think we've identified 3 snippets. The only problem is that none of the snippets names Mr. Libby.
Walton: I think what you'll have to do is read the question that preceded the question.
Fitz: Okay, we'll read the question flat and then play the video.
Wells: I don't understand why we've done the first one, why we have to do any more. Why do we have to say it twice. I think the first one makes it clear.
Walton: How does the cooperation issue come into play? It seems to me what is important is that Libby knew that McC speaking on behalf of the President was saying that Libby had nothing to do with the situation.
Fitz: last one would be page 8. One paragraph, if someone's involved they won't work here.
Wells: This is just repetitive of the first one.
Fitz: We went through how we used the "leaking of classified information" from the note. That goes to the issue we just discussed that he used the term "leaking of classified information."
Wells: As long as it's framed so the jury gets the understanding.
Libby shifts noticeably here.
Fitz: And I went through that before. It's the language he used in the note. He wanted McClellan to use the same thing he said about Rove. He's asking for the same statement in writing.
Wells: I'm not concerned about the "not involved" in this, I'm concerned about the reporter. I don't know what the "this" is. [Note, the "this" question is when Libby shifted.] If they want to introduce this without defining what the "this" is, I'm okay about that.
Fitz: This goes right to how he has to hew the line that the WH has with the FBI.
Wells: He wrote he was not involved with classified info, and I think that's fair. Whether he said anything about a reporter, that's the part I'm concerned about. The gov’t has made a decision not to call McClellan. As I understand there was nothing beyond "were you involved." I do have real problems with this reporter question.
Fitz: It goes right to one, what the heart of the question is. He has every reason of motive. We're talking about talking to reporters.
Walton: Is there anything to indicate Libby said this?
Fitz: He wanted to get a statement out there and he got it.
Walton: The concern I have, is as I said earlier, he qualifies what he said. I don't know if when he says that, well, he may have related info about the wife, but he wasn't leaking classified info.
Wells: What I suggest be done, take out the "what."
[Argh! Walton is reverting to a different justification for entering this. He just admitted this on state of mind, not on Libby's agent!!!]
12:14 pm ET
More on the Libby trial.
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