Libby To Rest Without Calling Cheney or Libby

Ted Wells announced they will rest their case tomorrow. Neither Libby nor Vice President will testify. Wells said he and Jeffress advised Libby and he accepted their advice.
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Ted Wells announced they will rest their case tomorrow. Neither Libby nor Vice President will testify. Wells said he and Jeffress advised Libby and he accepted their advice.

The defense wants to call the three CIA briefers tomorrow for about 20 minutes. Wells said he will play some Russert tapes to the jury which will show he testified falsely.

The jury will go home now as the federal courthouse is closing. Legal arguments will continue today.

Jury instructions will be finalized Thursday without the jury. Closing arguments will be Tuesday of next week.

The Judge questions Libby out of the presence of the jury who confirms he does not want to testify. The decision whether or not to testify is one of the few decisions in a trial that is up to the defendant, not the lawyer.

2:50 The lawyers are arguing about the 3 CIA briefers again. Defense attorney John Cline says we know that Libby actually read these morning intelligence briefings. He wants to be able to raise legitimate inferences from these briefings to give the jury a sense of what Libby was dealing with. This was a man with a very full plate of heavy issues.

The judge will rule at 11:30 tomorrow. The issue as he sees it is whether a reasonable inference can be drawn by the jury that the items he was briefed on would have had some impact on Libby's thought processes relative to this investigation if they know he received these briefings.

3:00 Now they are arguing over the Government's stipulated statements of facts. The Government objects to the last three paragraphs because they say Libby was very concerned with issues of national security. The Judge won't let the last three paragraphs go to the jury because there has been no testimony regarding Libby's state of mind. He distinguishes it from the morning CIA briefing topics. The first two paragraphs of the statement admitting relevant facts can come in. Fitzgerald then stands up to object. He says Libby is getting to have his cake and eat it too. The Judge says he'll decide tomorrow.

Wells advises court of the impeachment evidence he wants to present against Russert. It includes:

A 2/3/07 letter from Government outlining concessions to Russert for his testimony. He hands letter to the Judge. It says a consideration Russert got was that the FBI agreed not to consider his statements to investigators in November, 2004 as a waiver. Mr. Russert said on cross-examination said he did not know about this specific benefit. Wells believes that jury should know the full scope of the benefits, regardless of whether Russert was aware. It was negotiated by his lawyers.

Fitzgerald says its irrelevant. There's no evidence he was aware of it. It was negotiated by lawyers. He didn't even put it in writing to his lawyers.

The judge will think about it overnight.

Second item is impeachment testimony. One of the benefits was that by testifying in his lawyer's office, his lawyer would be able to be present. Lawyers aren't allowed to be present in the grand jury room. On cross, Russert said he had no knowledge lawyers weren't allowed to be in the grand jury room. Wells wants to introduce three tapes to show he did know that lawyers are not allowed in the grand jury room.

First is 8/6/98 on Larry King Live discussing possible testimony of President Clinton.

The tape is played for the court. Russert talks about whether Clinton will "go in front of the grand jury without a lawyer like every other American."

7/26/98 Today Show, same topic:

5/12/97: Susan McDougal topic: He talks about her not wanting to testify before a grand jury, without a lawyer.

The Government argues that it's extrinsic evidence of a statement on a collateral issue which isn't permitted.

b) Extrinsic evidence of prior inconsistent statement of witness.

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).

3:25 pm The Judge agrees with the Government it is a collateral issue. Wells says it is not collateral, it is inextricably intertwined with the concessions he got for his testimony. It goes right to the heart of the benefit he got. As to the confrontation issue, he was taken by surprise when Russert denied knowing lawyers aren't allowed in the grand jury room. He asks to call Russert back to the stand. at 1:30 pm tomorrow.

The Judge says he'll rule tomorrow at 11:30 am.

3:37 The topic now is NBC reporter David Gregory. Ari Fleischer said he told David Gregory in Africa about Wilson's wife working for the CIA in the context of the Niger trip. Wells says the FBI never even interviewed David Gregory, but Fitz told the jury in opening that it had done a thorough investigation. Wells wants the jury to know that it failed to interview Gregory. Wells says if Ftiz beats his chest about what a great job the FBI did when it interviewed Russert for only 22 minutes and failed to interview Gregory, he should be able to point out the failure to interview Gregory. Wells says he won't raise it if Fitz limits his closing to whether Libby lied or obstructed justice and doesn't brag about the Government's thorough investigation. But if Fitz wants to tout the Government's great search for the truth and the thoroughness of the investigation, the defense should be able to raise its deficiency with respect to David Gregory.

Judge: Whether it's a great investigation or not, it has nothing to do with Libby's guilt. He asks Fitz whether he intends to praise the quality of the investigation in closing. Fitz says Zeidenberg will be doing the closing, Fitz will do the rebuttal.

Zeidenberg says no, he won't vouch for the investigation. Fitz then asks whether Wells is going to argue the investigation was deficient. The judge says he can't. There's been no showing Gregory is unavailable as a witness or his testimony would be unfavorable to the government.

The Government is not going to present rebuttal witnesses. Some housekeeping matters about redacting exhibits.

See Marcy at Firedoglake for more details on this afternoon's hearing.

Again, closing arguments are Tuesday of next week. We resume tomorrow at 11:30 am.

3:55pm Court recesses. School's out for today, I'll have a wrap-up post late tonight.

[Jeralyn Merritt blogs daily at TalkLeft: The Politics of Crime]

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