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Understand this. Libby's team is playing a big game with their witnesses, throwing a bunch of names out there--Cheney, Bartlett, Rove, Libby, Wilson, Woodward, and about 12 journalists to be named later. I really have no idea who will testify--remember that, even if Libby's subpoenas someone, they don't have to call that person as a witness. They may have subpoenaed these people just in case, for publicity reasons, to pressure the WH for a pardon--any number of reasons that may or may not mean they'll testify. But here are some thoughts on the big four: Libby, Cheney, Rove, and Bartlett.

I love when I voice a speculation and Fitzgerald comes along a day later and agrees with me. I speculated on Wednesday that Libby's team was trying to introduce all of the CIPA material without making Libby take the stand. Later in the week, Fitzgerald validated my suspicions by expressing the same concern.

Here's why this is important. The two sides wrangled for four months to find appropriate substitutions for the classified information in the Daily Briefs which, Libby claimed, he wanted so he could demonstrate how busy he was which therefore made him forget all the leaking he was doing that week. Wells was fairly generous in his interpretation of CIPA, arguing that Libby needed anything he wanted to mount a defense. But the entire CIPA process was premised on the claim that Libby would take the stand and present it. Walton has only ruled this classified information admissible in the context of Libby explaining what the events depicted therein did to his state of mind. Throughout the rulings--such as one from November 15 that Typepad won't let me link--Walton emphasizes the centrality of Libby's testimony to the Very Important Defense.

However, the defense has affirmatively stated that the defendant intends to testify in his own behalf. It will therefore be the defendants testimony about what he was focused on and that his workday was consumed by the information [redacted--probably references Morning Daily Briefings] that makes the classified information revealed in this documents admissible under Rule 401.

This stuff is only supposed to be admissible if Libby testifies. Wells has already made it a central part of his opening statement. But, as Fitzgerald noted, they did not mention that Libby would testify, and they seem to be speaking for Libby.

As you learned a few days ago, my name is Ted Wells. And I speak for Scooter Libby. Scooter Libby is innocent. Totally innocent.

Their tactics suggest that either something has come up that has made it problematic to put Libby on the stand--or they never intended to put him on the stand, and only claimed they would to justify their graymail attempt. If Walton--who hates when people waste his time or the government's money--learns it's the latter, he will not be happy.

Which brings me to Cheney. First, let me acknowledge that one of my recent speculations--that Cheney would refute Cathie Martin's testimony--was incorrect (though it was based on inaccurate reporting). It had been reported, remember, that Martin, Cheney, and Libby were alone on AF2 and discussed a response to Cooper, and I suspected that Cheney would come to discredit Martin. But as it turns out, Cheney and Martin were in different rooms of AF2 at the time. And Martin kept getting sent out of the room when Cheney was strategizing with Libby on July 8. So he probably can't directly refute her.

So then why call Cheney?

I think it may well be an attempt to have Cheney do Libby's "Very Important Defense Masquerading as a Memory Defense" for him. Libby attended Dick's briefings during this period, so he knows what Libby was briefed.Are they putting Dick on the stand to "stand in" for Libby. Cheney plays Cheney's Cheney to Cheney's Cheney? 

There is one other reason we've seen that Dick may take the stand--the words that Cheney wrote on Libby's sonnet explaining why Scottie had to exonerate Libby:

Not going to protect one staffer and sacrifice the guy that was asked to stick his neck in the meat grinder because of the incompetence of others.

Note, both teams mentioned this in the opening statement. Fitzgerald clearly believes it is damning in some way, since he brought it up. If it is damning, then Libby's team needs to find a way to spin it. Perhaps, in fact, the notion that this note refers to Rove--and just Rove--is total spin. What if it refers to Ari, not Rove? Ari, after all, was the one who admitted on July 7 that the uranium statement shouldn't have been in the SOTU. And someone really botched the statement to Pincus in suggesting they had gotten Wilson's report. So it may well be several people--people working on the orders of Libby--who were "incompetent." But Team Libby wants to claim it referred solely to Rove. If they feel the need to make this claim, they're going to need Dick to make it.

Here's one of the things that is--so far--totally unclear in Libby's excuses. He wants to argue that BushCo exonerated Rove in Fall 2003, but not Libby. But so far, they haven't explained what Rove did. They've argued Armitage was the Novak leaker, they've avoided all mention of Rove's leak to Cooper (and given events, it seems more likely that someone in DC--Rove or Hadley--was the Pincus leaker than Ari). In other words, they seem to want to simultaneously show that Rove was leaking ... but that he wasn't. And they've been looking for the evidence on Rove's leaking since last May, as this bit from the May 5 2006 transcript reveals. Fitzgerald argues that, so long as he doesn't call someone who now clearly appears to be Rove, then Libby doesn't get the details on his conversations unrelated to Libby.

MR. FITZGERALD: Okay. If the defense is calling a witness and, with all due respect, he's not bound to call a witness so at a pretrial discovery phase defendants often decide to call lots of witnesses that don't appear. My understanding is that under the law, 3500, Jencks and Giglio, we don't have obligations to turn over materials pertaining to defense witnesses and so my point is --

But Libby wants it anyway, to know how much they can argue about Rove.

Wells: But if they have, let's take Mr. Rove, if they have emails and other documents dealing with Mr. Rove's activities, I have a right to get that material.

Honestly--it's not clear whether they've every gotten this information. If Libby's team calls Rove, they do so with some real blind spots as to how he'll testify, I think.

But I think they need Rove for some of their timeline on July 11. But first let me talk about Bartlett:

They need Bartlett to impeach Ari. Remember, Libby wants to say that Ari, in an attempt to get out of having leaked to journalists, made up a story about learning from Libby (why, Ari) and therefore can't be trusted when he says Libby was talking about Plame's hush hush identity three days before Libby says he learned of it. So Libby will call Bartlett up to explain about how he told Ari of Plame's identity on July 11, after which point Ari leaked it to David Gregory who, they want to argue, shared it with Tim Russert.

They have the same risk here as they do with Rove. After all, according to Hubris,  Bartlett will testify that  Plame was part of the smear:

In a White House meeting that week [after Novak's article], communications director Dan Bartlett, just back from Africa, talked about redirecting coverage away from Wilson and his wife--and stopping the Wilson bashing. It was unproductive and demeaning, he suggested. Bartlett, according to Adam Levine, was "against the idea of the wife as a talking point."


"Scooter and Karl are out of control," Levine told Bartlett at the meeting. "You've got to rein these guys in." Bartlett rolled his eyes at and looked exasperated, but agreed. "I know, I know." (291)

In other words, Bartlett appears to be able to testify that Rove and Libby were part of a smear campaign that included Plame.

But here's what I don't understand about the narrative. These are the events that are supposed to have transpired on July 11, placed in the only chronology I can imagine being helpful to Team Libby. [And it's worth noting that Libby has tried to get a ton of stuff in on CIPA for July 11, even though Walton considers it only of secondary importance to Libby's memory defense.] Note: I don't think this is an accurate timeline, but it seems to be the one Libby is proposing.

Rice sticks the shiv into Tenet

Bartlett tells Ari about Plame's identity

Ari leaks that information to David Gregory (note, he pushed Dickerson to find out who sent Wilson sometime early morning ET, but he did not mention Plame directly)

David Gregory purportedly calls Russert with the news on Plame

Tim Russert talks to Libby, purportedly leaks Plame's identity (note, Fitzgerald seems to think he can prove this happened on July 10, which would blow Libby's story out of the water, but I'm seeing if I can make this work)

Libby and Rove speak about Novak -- and possibly Russert

Rove leaks to Cooper

Tenet makes his statement

In other words, there are several issues, all of which Libby would be trying to reconstruct or cast doubt on, with both Rove and Libby. First, did Bartlett learn of Plame from the INR memo on board AF1? Or did Rove call him and tell him to leak Plame's identity? Second, did the Ari to Gregory conversation happen before Russert? That's some pretty tight timing, particularly since Gregory doesn't work with Russert, to insinuate Russert learned of Plame from Gregory. Did Rove and Libby talk about Russert (I don't know why, contrary to reports and his own book, Isikoff claims they have)?

Here's something else nonsensical. In a January 2006 letter to Libby's lawyers, Fitzgerald said;

we were not aware of any reporters who knew prior to July 14, 2003 that Valerie Plame, Ambassador Wilson's wife, worked at the CIA, other than Bob Woodward, Judith Miller, Bob Novak, Walter Pincus, and Matthew Cooper.

This was long after Ari gave his immunized testimony, yet it doesn't mention David Gregory. Which says Ari either lied when he first testified and has since revealed that he told Gregory of Plame's identity (in which case he would have lost his immunity, I'd imagine), Fitzgerald just plum forgot to mention Gregory, or Fitzgerald does not believe that Ari told Gregory of Plame's CIA employ.

So here's what I think is a more likely chronology for July 10-11, which should mean that Rove and Bartlett aren't all that helpful to Libby.

July 10 Libby talks to Russert

July 11

Rice sticks the shiv into Tenet

Bartlett tells Ari about Plame's identity

Ari tells David Gregory and John Dickerson and others to find out who sent Wilson

Libby and Rove speak about Novak -- and possibly Russert

Rove leaks to Cooper

Tenet makes his statement

See, in this case, the July 11 conversation between Libby and Rove becomes much less helpful for Libby--because he may well testify that Libby didn't mention the Russert conversation.

I suspect there's more, that Libby knows or suspects. Like that Rove told Bartlett to tell Ari to push journalists to look into Plame's identity. But I agree with Jeralyn. It's not clear that Rove would be of much help to Libby.

Originally posted to emptywheel on Sat Jan 27, 2007 at 06:50 PM PST.

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