Libby Afternoon Closings, Part Two

(This is not a transcript. Typos will be fixed later Also check out Marcy at

3:00. Wells is back up.

In a case where what is at stake is a man's reputation and a man's freedom, the benefit of any confusion must go to Mr. Libby. No witness has given any direct evidence that Libby is a liar. There's been no smoking gun exhibit. Circumstantial evidence is good evidence, just like direct, but it must be built on a strong foundation if you are going to convict someone. And it's not here.

GX-55, DOJ letter describing scope of investigation (9/30/03.) It was about the unauthorized leak of possibly classified information to Novak. That was Mr. Libby's state of mind.

He moves to the difference between Libby being focused on responding to criticism of Wilson's article about his trip to Niger. There's a disconnect between everyone's recollection about his wife -- because she wasn't important until the investigation started.

There are contemporaneous notes of the talking points developed in real time by the OVP. These notes show what people thought were important. It was not Valerie Wilson.

Judith Miller: Points out she got bad information. She wrote "the Bureau" and "WinPac" and both were wrong. Mr. Libby wouldn't leak bad information. He didn't leak to anyone.

How did Libby have 2 hours to have lunch with Ms. Miller because the Vice President told him too, and President Bush was too. Not to talk about Valerie Wilson, but about the N.I.E. The President cleared it. Libby made sure President Bush authorized it. There's an instruction that says the President declassified the NIE and the Government does not contend Libby did anything wrong by talking about it.

There are two parts to the Russert charge. One is concerns Russert said to Libby. Part two is that Libby was surprised when Russert said that, it focuses on his state of mind, on his recollection.

If he was wrong, there's no evidence he lied as opposed to being mistaken.

The question is, if Libby lied or was mistaken when he said in Oct. 2003 and March of 2004 that he was surprised when he heard from Tim Russert that Wilson's wife worked for the CIA.

Argues Libby was just mistaken, and that's not a crime. The question is not what Libby remembered in real time in June or July, but what did he remember in October? Did he have a good faith recollection, or did he lie. None of the Government witnesses help on that point.

There have been no witnesses on Libby's state of mind in October. No one who says he lied in October. No expert told them it's impossible for him to have misrecollected.

There's no evidence that he didn't have one of those moments in life where he thought something happened one way when it happened another.

The jury will get a memory instruction from the judge to help them decide if the Government proved he lie.

Their assessment, based on their life experiences.

Passage of time and circumstances. For example the circumstances existing during the time period between statement and time of recollection. Scooter had a high stress job, there were briefings going on "that would make your toes curl."

Cathie Martin is an important witness. Except for the one time with the Vice President and Libby, she never had another conversation about Mrs. Wilson. Might be different for the State Department, but for the OVP, the wife was never part of the message.

Fitz' characterization of the issue as how can you tell something on the 7th (Ari) and forget it three days later when you talk to Russert? Wells: that's not the issue. The issue is whether he could have forgotten it three months later when he was questioned by the FBI.

Back to Judith Miller. She said her memory is note-driven. But she described a case when she was caught in a cross-fire in Beirut and got something wrong.

Why is Libby being treated differently than Miller and Russert who have had faulty memories? Miller forgot a conversation for a month. She wasn't lying, she was mistaken.

Wells is winding down now, he has only a few minutes left. "The wheels are falling off the Bush Administration." It's a crazy period. Bin Laden, Korea...

Mr. Libby made mistakes in the grand jury. Libby told the grand jury he told Cooper and Kessler about Wilson's wife. Cooper says he told Libby. Kessler says Libby didn't tell him.

Libby had no notes except the one he turned over to the FBI during the period of his grand jury testimony

"All I can do is trust in you. ...You and you alone will be the judges."

Follow the instructions and trust in evidence and each other. Be the protector of the integrity of your deliberative process. Help the person who thinks Libby has to prove something.

Don't sacrifice Libby for how you feel about the Bush administration. Give him a fair shake.

Admits Libby knew Wilson's wife's name back in June. But he wasn't lying, he got it wrong. He's got a wife and kids and he woke up every day to go to work 14 hours a day on national security. "Give him back, give him back to me, just give him back. There was a little choke in his voice. The media room howled.

Fitz will be back soon.