Josh Marshall - Russert may have taped Libby

[Jersey Devil]

Take a look at this post by Byron York at the The Corner. First, folks he's talking to agree that the case against Libby looks very strong. Set aside all the blah-blah about whether he should be indicting people for perjury if he couldn't get him on the underlying crime, etc. He went for a perjury and obstruction indictment. And it really looks like he has him. Second, he floats speculation that Tim Russert may had some definitive record of his conversation with Libby, i.e., audio tapes, rather than simply a different recollection than Libby's.

http://www.talkingpointsmemo.com/

[kurth]

1. Very likely - Russert is a big weasel

Taping a phone call without the caller's knowledge is generally illegal. However, he may have RETURNED Libby's call and turned on a tape recorder without Libby's knowledge. This is perfectly legal in MOST states ("one party consent" rule).

[thinkingwoman]

7. journalists OFTEN tape interviews

even casual ones.

Russert is definitely a weasel, but not because of that.

[kurth]

8. Question

Did Fitzgerald (i.e. the grand jury) ever subpoena the phone interviews that were taped by the various reporters? I didn't follow the Judy Miller case and I am not sure if Fitzgerald dared to attempt that route in view of the First Amendment.

[thinkingwoman]

10. I'm not sure

I'm an admitted Plame case junkie but even I can't remember it all. But I would assume (perhaps incorrectly) that taped phone interviews would simply be another form of journalist "notes." I know if I'd ever received a subpoena as a journalist I would have lumped my tapes in with my notes (unless a lawyer told me not to).

[Blue Belle]

18. He probably subpeonaed the phone records out of Libby's office...

and if Libby mentioned Russert, he could get the date and time of the conversations from this list.

[Neil Lisst]

9. There are 38 one party consent states. ...

and the district of columbia is one party, so he could have it recorded

[loudsue]

12. Which states are the "one party consent" states?

Does anyone have a list???

:kick::kick::kick:

[tsuki]

16. FL is not a one party.

[MADem]

13. There sure are!

http://www.aapsonline.org/judicial/telephone.htm

And so is NY--so if he was on the horn to Scooter, talking from Big Russ's joint, he is in the clear from that end, as well!

[goodhue]

19. MN is one party consent

Perfectly legal for one party to tape their phone conversations without other parties knowledge.

[lovuian]

2. I would believe that too!!!

Makes sense!!!

[GreatCaesarsGhost]

3. maybe tweety has a tape of rove saying plame was "fair game"

[The Backlash Cometh]

4. Who is this Josh Marshall?

Is he a conservative or liberal?

[Jersey Devil]

5. He writes Talking Points Memo

He is a liberal blogger and author, much respected in the blogging community.

Bio: Joshua Micah Marshall is a Contributing Writer for the Washington Monthly and a columnist for The Hill. His articles on politics, culture and foreign affairs have appeared in numerous magazines and newspapers such as The American Prospect, The Atlantic Monthly, The Boston Globe, The Financial Times, Foreign Affairs, The Los Angeles Times, The New Republic, The New Yorker, The New York Post, The New York Times, Salon and Slate. He has appeared on CNN, CNBC, C-SPAN, FOX and MSNBC and is a frequent guest on radio stations across the country.

Marshall graduated from Princeton in 1991 and holds a doctorate in American history from Brown. He lives in New York City with his wife Millet and their dog Simon.

http://www.talkingpointsmemo.com/

[The Backlash Cometh]

6. I just read his interpretation of the Fitzgerald indictments off of

Andrew Sullivan's webpage. Marshall's take is worth reading. I clipped the most relevant part:

"So he's bringing Libby in on those charges, they're going to talk some turkey, and Fitz is going to see if Libby will talk, maybe about VP, maybe about Official A (who's clearly Rove), or maybe about the VP's moles at State and in the CIA."

[KittyWampus]

17. Which is exactly how Fitz got Gambino etc. Squeeze someone near top

of the food chain to get the top thug.

[MADem]

11. NOW THAT makes sense!!!!

The best bit:

The observers also suspect that Fitzgerald has some strong but as yet unrevealed evidence to support the centerpiece of his perjury charge against Libby, that is, Libby's testimony to the grand jury about his conversation with NBC's Tim Russert on July 10, 2003, in which Libby swore that it was Russert who told him that Valerie Wilson worked for the CIA:

"Mr. Russert said to me, did you know that Ambassador Wilson's wife, or his wife, works at the CIA? And I said, no, I don't know that. And then he said, yeah – yes, all the reporters know it. And I said, again, I don't know that. I just wanted to be clear that I wasn't confirming anything for him on this. And you know, I was struck by what he was saying in that he thought it was an important fact, but I didn't ask him anymore about it because I didn't want to be digging in on him, and he then moved on and finished the conversation, something like that."

What is striking about the indictment, observers say, is that Fitzgerald does not say simply that Russert has another recollection. Instead, the indictment says:

In truth and fact, as Libby well knew when he gave this testimony, it was false in that: a. Russert did not ask Libby if Libby knew that Wilson’s wife worked for the CIA, nor did he tell Libby that all the reporters knew it; and b. At the time of this conversation, Libby was well aware that Wilson’s wife worked at the CIA...
In another place in the indictment, Fitzgerald states flatly that "Russert did not ask Libby if Libby knew that Wilson's wife worked for the CIA, nor did he tell Libby that all the reporters knew it." That sort of definitiveness has led the observers to suspect that Fitzgerald has some sort of evidence that clearly supports Russert's account of the conversation.

[MADem]

14. Then Libby is FUCKED--he is said to be going for the MEMORY DEFENSE

Libby's lawyer signals memory defense
Says Cheney aide cannot be expected to remember old conversations

http://www.msnbc.msn.com/id/9860621/

WASHINGTON - The lawyer for Vice President Dick Cheney’s former top aide is outlining a possible criminal defense that is a time-honored tradition in Washington scandals: A busy official immersed in important duties cannot reasonably be expected to remember details of long-ago conversations.

...Libby, who resigned as soon as the indictment was handed up, was operating amid “the hectic rush of issues and events at a busy time for our government,” according to a statement released by his attorney, Joseph Tate.

“We are quite distressed the special counsel (Patrick Fitzgerald) has now sought to pursue alleged inconsistencies in Mr. Libby’s recollection and those of others and to charge such inconsistencies as false statements,” Tate continued.

...Tate referred to another possible line of defense, saying that “for five years, through difficult times, Mr. Libby has done his best to serve our country.” That argument worked in the administration of President George H.W. Bush in 1992, though not in court.

HA!!!! He is going for "I forgot" or "Geeeeeeeeeez, I was so BUSY, cut me some slack, dude!!!!"

If that is all he's got, he is SCREWED. And if Timmy taped him, he is screwed, blued and tattooed!!!!

[mod mom]

15. Same link to TPM also says this:

Anyone have any insight on this graf from 'Libby Charged' article in today's Times?

Mr. Fitzgerald was spotted Friday morning outside the office of James Sharp, Mr. Bush's personal lawyer. Mr. Bush was interviewed about the case by Mr. Fitzgerald last year. It is not known what discussions, if any, were taking place between the prosecutor and Mr. Sharp. Mr. Sharp did not return a phone call, and Mr. Fitzgerald's spokesman, Randall Samborn, declined to comment.

Remember, in his capacity as president, Mr. Bush's lawyer is Harriet Miers, the White House Counsel. This is his personal lawyer. In fact, I believe Sharp was hired particularly for this case.

Thoughts?