Fitzgerald’s case is hanging by a thread before defense even begins. Clearly what happened late ast week is the judge decided to dismiss a key portion of the obstruction charge, putting the entire indictment on this count at risk. From the liberal Firedog Lake site we can see the concern about losing the Miller angle:

Fitz says yes, they’ll introduce something with instruction.

Walton: proposed instruction regarding dismissed instruction of obstruction count, it seems to be consistent with red book. We’re talking about dismissal of a count,

Fitz That’s what I think the appropriate distinction is that by separating out language from the indictment. There were 33 paragraphs or more form part one, the Judy Miller conversations are still an important part of the evidence in this case. It says that Libby misled and deceived the GJ as to the manner by which he acquired and disclosed, so the essential tenor of charge is about when he got it and gave it out. A juror hearing this that Miller was dismissed from the case would be highly inappropriate.

[As I suspected, Libby’s team is trying to go after the July 12 conversation, and with it dismiss the importance of Judy as a witness that on July 8 that Libby knew Plame’s ID]

Walton: Does anything that has happened at this point impact that statement (About Libby’s lie). My only concern is if I said anything in my preliminary instruction if that’s been left out.

Fitz: We’d like to look at preliminary instruction in context.

Wells: I strongly disagree with Fitz’ characterization of what took place. The obstruction count was based on three false statements. We wanted it clear that on terms of the obstruction that there was nothing wih Grossman and Miller, What the obstruction count was predicated on was that obstruction was based on three-prong statement. I opened on it. The Jury can consider June 23 and July 8 in terms of what Libby knew.

[Yup–Wells is trying to hide the what was obstructed–that Libby was trying to hide his conversation to Judy. Clever move, utterly dishonest, but clever. I think they emphasized the third false statement charge (which there was none) so by dismissing it, they could dismiss the obstruction charge.]

Fitz: I’ll briefly respond, The vice in taking language out, as opposed to a count is that you’re asking them to rule beforehand. I think the jury could find that the description of July 12 was a lie, but not using the language in the count, the jury can use that evidence against Mr. Libby, they can also use that evidence that when he said the first time he told her on July 12, that that was a lie. This proposed instruction would focus on July 12–and the language in the indictment, even though they were never going to see the indictment–would lead them to focus inappropriately on July 12.

Wells; We’re not going to address that conversation. It has been dismissed. The jurors should know that it has been dismissed.

Without obstruction the perjury charges will fall on their own weaknesses. BTW, I want to just thank the folks at Firedog Lake for all their efforts and this great experience of virtually attending the trial, even though I could find little common ground with their views. I do appreciate and recognize the sacrifice and effort. So thanks to the folks at Firedog Lake. Fitzmas is fizzling, but they have broken new ground in this new media age.