9:30 a.m.: We’ve got a problem. The court puts censored copies of the Washington Post in the jury room each morning, with articles about the trial snipped out. This morning, someone forgot to censor the Style section. Media writer Howard Kurtz had a story in there about Tim Russert’s testimony (“Tim Russert, On the Uncomfortable Side of the Question”), and a juror saw it. Uh-oh—mistrial?! The juror is questioned further, and it turns out all she saw was a photo of Russert and the headline. She averted her eyes and alerted the authorities. Crisis defused.
9:45 a.m.: Russert is back on the stand for more cross-examination. Today, defense attorney Wells is trying to make the witness look like a hypocrite.
Russert tried hard to avoid being a part of this trial. He wanted to get out from under his subpoena by arguing that testifying here, and burning a source in the worst possible way (that is, possibly sending Scooter Libby to the hoosegow), could have a “chilling effect” on his own ability to do his job. But Wells points out that back when the FBI first called Russert with questions, in October 2003, Russert gabbed away about his conversation with Libby. Why didn’t Russert protect his source then, before it was too late? And why get all high and mighty now, after the source was already fried?
Russert draws a distinction. He felt the subpoena could lead to an “open-ended fishing expedition,” with all sorts of questions about whom he’d talked to and what had been said. That’s something he feels no journalist should willingly agree to. The FBI interview was different: Russert felt comfortable with it because he was talking about his own words. Libby had told the FBI that Russert had talked about Plame. Russert said he hadn’t mentioned her. He sees no problem in having corrected the record regarding something he himself was alleged to have said.
I see his point—up to a point. I don’t really view the FBI interview as burning a source. Libby had already broken the confidentiality seal on that conversation by telling the FBI that Russert mentioned Plame. When the FBI relayed this to Russert, was Russert obligated to let what he says was a falsehood about himself go unchallenged? (To push this to a comically illogical extreme: What if Libby had said to the FBI, “Tim Russert told me that he murdered a hooker with an ice pick and then ate her internal organs”? Should Russert say, “Well, I can’t talk about that conversation, because it would mean violating our confidentiality”?)
I do think there’s an element of hypocrisy (and pomposity) in Russert first yakking and then later self-righteously claiming that because he’s a journalist, he shouldn’t be forced to yak if he doesn’t want to. But the much more important question for Scooter Libby is whether this attack on Russert will mean anything to the jury.
I can’t imagine it will. Why would the jury focus on some gnarled First Amendment battle they don’t understand, or on Tim Russert’s theories about journalistic privilege? There’s a simple, easy-to-grasp dispute at the heart of this case: Libby says Russert talked about Valerie Plame, while Russert says he didn’t. The hubbub over media ethics is a side dish—and possibly only of interest to the media.
10:06 a.m.: Russert’s a little less unflappable, and a little more testy, than he was Wednesday. When interrupted, he huffs, “If I can finish, thank you.” Meanwhile, Wells keeps cutting him off. “If I don’t ask you a question,” the lawyer says, “then zhzhzht.” (This is an onomatopoeia which, to Wells, clearly means “shush it.” It’s hard to see from back where I’m sitting, but it looked to me like Wells might have accompanied the sound by making a snap-shut motion with his hand.)
10:21 a.m.: Hey, look who’s sitting right behind me. It’s former Tennessee Sen. (and sometime actor) Fred Thompson! He’s here with a much, much younger blond woman. I’m fairly certain that they are married, but she could very plausibly be his daughter. During a break, Scooter Libby’s wife walks back here to chat with them. Later, as Thompson is leaving, he signs an autograph for a fan. (Which really makes me wish I’d brought in my Iron Eagle III DVD. “Senator, do you think Scooter Libby is a tragic fall guy taking the hit for a wounded administration? Also, what’s Lou Gossett Jr. like?”)
10:52 a.m.: The defense is showing an old clip from The Tim Russert Show. (Apparently, this is a TV show that airs regularly on CNBC.) We see Russert at a roundtable with other reporters, stating that (contrary to Libby’s claims) he was not involved in the leak. At first I can’t understand why the defense is showing this, when it reinforces what Russert’s saying at the trial. But then the strategy becomes clearer.
“You went on all these TV shows to talk about it,” says Wells. “Would it be embarrassing if it turned out that you had a mistaken recollection about what you and Mr. Libby said on the telephone call?” Wells is showing us that Russert has proclaimed on national television (OK, basic cable, but still) that he was not involved. He’d look like a fool, and lose credibility, if he admitted to being so publicly wrong—which gives him incentive to stick to the story now.
The defense has two ways to negate Russert’s powerful testimony: 1) They can say his memory’s bad. They’ve tried, with mixed results. 2) They can say he’s lying. But then they need to show a motive to lie. If fear of embarrassment is the best they’ve come up with, I think they’re in trouble. Would Russert—having realized he misremembered things—stubbornly stick to his story, tell lies under oath, and maybe send a man to jail, all to avoid embarrassment? That makes no sense to me. The risk to Russert’s reputation is infinitely greater if he tells a lie in a courtroom than if he comes clean and takes his lumps. I just don’t see it.
12:05 p.m.: The defense switches tacks. Maybe Russert’s motive is animosity. “Is it true that there’s a lot of bad blood between Mr. Libby and NBC News?” asks Wells. “No,” says Russert. “Weren’t you elated on the morning of Mr. Libby’s indictment?” asks Wells. “No,” says Russert.
After much lawyer haggling, with the jury sent out and then brought back, Wells plays a clip from the Don Imus show that aired a few hours before the Libby indictment was announced. There’s Imus in his goofy cowboy hat. And there’s a still photo of a smiling Russert, who’s calling in by phone. “It was like Christmas here last night,” we hear Russert say, as Imus is laughing. “Santa Claus is coming. Surprises! What’s going to be under the tree?”
Russert certainly does seem giddy about the imminent guillotining. But he argues it was a newsman’s excitement over a big story. This is before the indictment had come down, and everyone was on edge waiting for the announcement. There’d even been speculation that Vice President Dick Cheney might get nabbed.
Wells doesn’t see it like that. Which is fair—would Russert be this happy if someone he admired and respected was about to get the collar? But the normally smooth cross-examiner lets his questions run off the rails a bit. “Is there any possibility that Mr. Fitzgerald was Santa Claus?” he asks. “Excuse me?” says a seemingly baffled Russert, as the courtroom titters.
On redirect, Fitzgerald tries to clear this up. “Did you take joy in the fact that Mr. Libby was indicted?” he asks. “No,” says Russert. “And I take no pleasure in being here today.” Soon after, he is excused, and limps out of the courtroom.
3:20 p.m.: A few exhibits are introduced. … The lawyers fight a little more. … And … the prosecution rests!
On Monday, the defense will begin calling its witnesses. It’s time to hear Scooter Libby’s side of the story.