Patrick Fitzgerald has filed another response (pdf) to Scooter Libby's motion to compel documents. He includes portions of Libby's grand jury testimony from March 4 and March 24 as exhibits (pdf).
An AP report of tonight's filing is here, with a headline that Cheney may be called as a witness in Libby's trial. What Fitzgerald really said is, with respect to the issue of authenticating the copy of Joseph Wilson's July 6 New York Times op-ed with Cheney's hand-written notes on it (discussed here) that there are three ways to authenticate the article, one of which would be by calling Cheney as a witness. Fitz adds:
Contrary to defendant's assertion, the government has not represented that it does not intend to call the Vice President as a witness at trial. To the best of government's counsel's recollection, the government has not commented on whether it intends to call the Vice President as a witness.
Fitzgerald is clearly gung-ho to introduce Cheney's hand-annotated copy of Wilson's column into evidence at trial. Cheney had written on the article:
Have they done this sort of thing before? Send an Amb to answer a question? Do we ordinarily send people out pro bono to work for us? Or did his wife send him on a junket?
Fitz believes this blows a big hole in Libby's testimony that he learned of Wilson's wife working for the CIA from Tim Russert on July 10 or 11th. Libby acknowledged in the grand jury testimony that the handwriting looked like Cheney's and that while he had no recollection of having seen the copy of the article with Cheney's notes asking whether Wilson's wife sent him on the "junket" to Niger before FBI agents showed it to him, they had discussed it.
During his grand jury testimony, Libby puts the discussion with Cheney about the "junket" in late July or sometime before September, and not the week of July 6 to 12. Fitzgerald wants to use the article to show it is more likely the discussion occurred the first week of July, before Libby spoke with Tim Russert. Libby also told the grand jury that before he spoke with Russert, he didn't know Wilson had a wife. Libby says he forgot Cheney and others had told him this.
Defendant recalled discussing with the Vice President the issues reflected in the Vice President's handwritten notes but testified that he believed that they
did not discuss the specific issue of Wilson's wife's employment until after the July 14, 2003, publication of the Novak column, or at least not before the defendant's conversation with Tim Russert on July 10 or 11, 2003
As to the import, Fitz writes:
....the state of mind of the Vice President as communicated to defendant is directly relevant to the issue of whether defendant knowingly made false statements to federal agents and the grand jury regarding when and how he learned about Ms. Wilson's employment and what he said to reporters regarding this issue.
....Evidence that the defendant understood the concern that Mr. Wilson might have been "sen[t] . . . on a junket" by his wife shortly after July 6 would directly contradict defendant's testimony that he did not recall knowing on July 12 that Mr. Wilson had a wife and did not think at that time that the wife might have been involved in sending Mr. Wilson on the trip. See "Government's Response to Court's Inquiry Regarding News Articles the Government Intends to Offer as Evidence at Trial" at p. 6-7.
Libby also told the grand jury he doesn't recall discussing Wilson's wife working for the CIA with Cheney on the July 12 plane trip to Norfolk .
I'll be updating this with more thoughts shortly. Thanks to Tom Maguire for hosting the exhibits, his thoughts on tonight's filing are here.
Update: The point of this filing was not to establish a conspiracy between Libby and Cheney. It's about Libby's motion to compel Fitz to produce notes and files made by other witnesses like Mark Grossman and Ari Fleischer. Libby is arguing that since the government contends Cheney's state of mind is relevant, so is the state of mind of others whom the government has alleged discussed Wilson's wife with Libby. Fitz is resisting turning over those notes and files. Fitz writes that Libby contends:
In the same way that the government finds the views of the Vice President regarding Wilson and his trip relevant to its case, the defense finds the views of other government officials, such as former Under Secretary of State Marc Grossman, regarding Ms. Wilson relevant to its case . . . . Just as Mr. Libby was interacting with the Vice President regarding Mr. Wilson's charges, so was he also interacting with Mr. Grossman and other government officials and their respective agencies.
Fitz filed this pleading to dispute that contention:
This argument ignores the fact that the Vice President was the defendant's immediate superior with whom the defendant worked daily and closely, and from whom defendant received direction regarding the response to be made to the Wilson Op Ed. Understanding what conversations took place between the Vice President and the defendant during the week of July 7, 2003, is critical to determining relevant issues in the case: whether defendant recalled Wilson's wife's employment prior to the conversation with Tim Russert on July 10 or 11, and whether defendant thought it necessary or appropriate to disclose that fact to reporters that week. Understanding what other government officials knew or thought about Mr. Wilson's Op Ed simply is not.
I wouldn't read too much into the Fitz's comments about calling Cheney as a witness. As I said above, Fitz argues that Cheney's testimony is only one of three ways the Government can get the handwritten notes into evidence. It's far easier to use Rule 901 (b)(2) of the Federal Rules of Evidence. All Fitz has to do is call a lay witness who is familiar with Cheney's handwriting from having seen it in the past, prior to this investigation. After the witness states he or she is familiar with Cheney's handwriting and describes the basis for the familiarity, Fitz shows them the article with the notes and asks them if based on their familiarity, they believe it was written by Cheney.
Update: Don't miss Tim Grieves at Salon's War Room on tonight's filing. He not only has laid out all the important details and placed them in context -- succinctly-- he makes a strong case for why Fitzgerald would want to call Cheney as a witness. I'm still thinking Fitz will end up deciding his other witnesses and Cheney's notes are enough to carry the day. The jury will be instructed it can draw inferences from the evidence and to use its common sense. If Fitz is a good closer, and his record suggests he is, he can connect the dots for them in closing.
Then he wouldn't have to take the risk of calling Cheney, who might, after all, bolster Libby's version. If that happened, where would he be? Not to mention, maybe Cheney either will be a target or indicted by the time Libby goes to trial, in which case the 5th Amendment privilege makes Cheney's testimony essentially a moot issue.
But after reading Tim, I'm less sure.
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