After analyzing the prosecution’s closing arguments I can see a myriad of ways to enter reasonable alternatives (no need to prove any of them, innocent until proven guilty) and all fo them are of equal potential to the prosecution’s unproven speculation. Someone should go back and count the times the prosecution used the word ‘suggest’ and hammer it home. I am sticking by my original game plan I presented Friday, but I would add some pull outs of specific mistakes by the prosecution I noticed in reviewing the prosecution’s close. The key is to partially argue the law, but mostly connect with the jury and get them to feel a need to ensure the law is applied fairly – and judiciously. The basic approach is to define what is off limits – and that is all the wild theories that go outside the indictment. No cover up for Cheney or Bush, not in the indictment. No cover up of forged intelligence – not in the indictment. All the liberal Fitzmas theories I would list and take them off the table as irrelevent and unproven. [heads up: Wells blows Russert and Fitz out of the water early on and I am now ready to predict a quick acquital – seems Jeralyn Merritt is pretty much on the same side of things]

So without further ado, onto the first half of Defense’s closing arguments:

LIbby did something only an innocent person would do , got to VP, I didn’t do anything. Clear suggestion once they cleared Rove, He goes to VP, only an innocent person would do this, VP writes in his own handwriting, It’s not right to clear Rove and sacrifice Libby. It was written and it exists. [Damn Wells is setting himself to get REAMED since the note says nothing about Rove.]

FDL is suffering from tunnel vision. The entire scenario includes the statements concerning Rove and resistence to mentioning Libby – the note doesn’t require every detail of the event it is referencing. That aside (and a hint of the bias to come in this segment), the point is defense does have real evidence of ‘state of mind’ that Libby felt isolated and offered up, a view supported by the VP. Can’t get around that one. Is it relevant? Not really, but it does open the door of doubt a bit – they have a good point about whether the state of mind was hiding something or exoneration. But it is just a crack.

Case about different recollections between Libby and some reporters. There is no charge in this indictment about Libby’s conversation with Grossman, Fleischer, Martin that’s all background evidence.

The classis house of cards. Fitzgerald’s case is built upon flimsy foundations, and this is a great point. Fitzgerald never proved which view was correct or factual, he just said their were differing views. Evidence of differing views doesn’t make Libby’s views wrong. And unless Fitzgerald proves this, he has no case. Now did Wells explain it the way I did? Who knows! But the Fitz house of cards is crumbling

Something changed in material way. I told you case was about 3 reporters, 3 telephone calls, recollections abotu what took place 3 months previously. Walton DISMISSED charges WRT Ms Miller’s July 12 conversation. let me read to you again what will be in Walton’s instrutcions. Take verbatim from Walton’s instructions. As I told you earlier, one of those allegations that Libby lied about conversation, one has been dismissed. Count one, the obstruction of justice count based solely on allegations that Libby falsely testified to GJ, concerning conversation with two reporters.

So we are making some progress, some progress is being made, 3-3-3 is not 2-2-3 [shows graphic with three crossed of, replaced with two in red ink]

Fitz blew this case when he did not even try to prove a key element of the indictment. Now the judge himself has cast doubt on the government’s entire case by dropping one of the charges. It cannot be used for or against the other charges, but once proven to be a false charge (in the minds of the jury) then there will be doubts on the remaining charges.

We are now left with conversations with Russert and Cooper. Let me talk about Cooper.

Facts almost undisputable in terms of background. Libby gets up, takes wife and two children, birthday of oldest child, his tenth birthday. Libby family on that Saturday go to Edwards AFB, get on AF2, going to Norfolk to watch commemoration of Reagan, like a holiday, a birthday present to kid, AF2, VP, a great birthday present. Ms Martin told you that Libby didn’t have his mind on talking to any reporters. She said, Reporters have been calling, including Cooper, Are we going to talk to them, or not? You don’t have to guess about what he said, there are notes.

This should be a recurring theme. For someone trying to get vengeance on Wilson (oh yeah, that is now off the table), sorry – for someone who is trying to recollect a quick, nuisance call on an important day the specifics will not come back. No one in that jury box is going to argue with Libby having his mind on his son’s birthday. Nice connection:

The plane lands, Libby goes into small room with Ms Martin, Jenny Mayfield’s in the room, they call Matt Cooper, Ms Libby and two children in next room, those kids have been up since 6 in the morning, want to get home and PUT those kids to be. Libby didn’t want to be on the calls. He had never talked to Cooper in his life. He gets on phone talks to Cooper. Cooper testified, SCOOTER Libby wasn’t running around, trying to leak. Cooper wanted to keep him on phone. Have you heard about the wife. I heard that to. I heard that too,but I don’t know if it’s even true. And it is about a few words, regardless of what he said.

Reporters are like salesman calling your house all night while you try and put the kids to bed! Boy, that will sink in with jurors with kids.

In any event, it is clear Cooper and Libby agree on the general thrust if not the specific words. and I doubt anyone is going to care beyond the generalities. Now how about Russert? Seems Wells laid into “Timmeh”:

Let me talk abotu Mr RUssert. I’m going to talk a lot about Mr Russert. Russert took the stand and said, it was impossible for me to have asked Libby a conversation on July 11, because I did not know, then, that Mrs. Wilson worked at CIA, so i could not have asked Libby the question. Russert said I didn’t read it until July 14, and I said wow.

I then introduced an affadavit, a stipulation, as to what Case Agent Eckenrode, he was the top guy, he was the one who called Tim Russert. It is stipulated as true. The stipulation says the November 24 report states, Russert does not recall stating to Libby anything about wife of former Ambassador Wilson, although he could not rule out possibility. That’s what Eckenrode would have testified to. He could not rule out possibility.

Wells does have Russert changing his story and there is no getting around that. And you can tell the FDL folks are responding with indignation – which means he is scoring points:

That stipulation in and of itself is reasonable doubt. I don’t have to talk about Buffalo news, Russert’s affadavit before court, how he was forgetful on stand the morning of indictment [wow, that relates to evidence that was ruled inadmissible] He made a statement that is different from an earlier statemen. This is an impeachment statement. THe mere fact that he made an earlier statement, where the stakes are a man’s reputation, a man’s life, that’s reasonable doubt in and of itself.

Well, it is reasonable doubt. Which Timmeh do you believe? Neither? Both? Fitz presented no proof, but Russert was caught basically in a lie when he tried to explain talking to the FBI was not discussing a confidential source. Russert really blew much of the rest of the case for Fitz. And Wells has him dead to rights:

‘m going to talk you through this, most important testimony in the whole case. THe govt’s timeline is wrong. Came out on AP wire, by 2:00 on July 11, if you lived in teh world of media, you could get access to it, people could call you, talk about it. maybe for those of us who are non-reporters, if you live in Russert’s world, it was on AP wire, even though it was embargoed, Reporters could read, talk about it.

Novak testified at trial, that he wrote Mission to Niger before Noon, on July 11, before noon. And that it was edited by 1 PM, ET. COlumn out on AP wire shortly thereafter. Let me read you from testimony.

“In this case, my recollection is that since I had a really busy afternoon, I wanted to finish teh column by noon.”

11:52

Edited by noon, it is given to AP, It’s on the wires on July 11.

Are people in newsrooms permitted to read it.

Anybody who subscribes to that column, it becomes general information.

Maybe all taht happened in this case, is that on July 11, Tim Russert read the column, talked to him about the column, only thing is that Russert has misrecollected the date on which he heard about it. Maybe he’s confused to think he heard about in the Post on the 14.

Damn! I did not even put that together. Russert would have DEFINITELY read a novak column – it is required reading. Just like it is always up on RealClearPolitics, there are must ‘scans’ you look for every week. So Russert probably scanned it while on travel and did know when Libby called. And Fitzgerald nor Russert can prove he DID NOT read the early release. Bloggers do the same thing day in and day out – check the headlines, check the regular outlets, check the topics you are following. Russert would have at least scanned the AP story on the embargoed service as part of his normal job. Right there is enough ‘reasonable doubt. And Wells has Fitz with a royal screw up:

Do you know about Wilson’s wife working at CIA. Russert says, all the reporters know. Natural response, if Russert knew it was on the wire. Maybe all that’s happened is that Russert has forgotten he heard about it on the 14th. It may be as simple as that. A simple piece of misrecollection. But think about the statement. The statement all the reporters know. By the 11th, it is a true statement.

Yep, by the time Novak’s article its the embargo wire every reporter does know it! BTW< no surprise Tom Maguire at JOM predicted this would be the surprise ending. As I predicted, Wells is beginning with presumed innocent until PROVEN guilty – not ‘suggeted’.

I’m going to talk about some of the jury instructions, bedrock principles of American justice system. Proof beyond reasonable doubt and innocent until proven guilty.

Presumed innocent. Presumed innocent, remains with defendant, unless and until he is proven guilty, beyond reasonable doubt. Burden of proof never shifts during trial. Law does not require defendant to produce any evidence. Let me repeat that. That is why Libby doesn’t have to testify, doesn’t have to do anything.

No surprise Wells hammers this home so the jury stays focused. Jeffress adds another nail into the prosecution’s case (one I have harped on over and over) and that is only one reporter in the ENTIRE TRIAL testified Libby offered up Plame

Govt says Libby not just putting this story out through reporters. I’m counting 11 reporters, there is one, that is Judy Miller, who claims that Libby volunteered something about Plame.

Even for a conspiracy theory Fitz’s is the lamest I have seen. 1 out of 11! I suggest folks read the rest for themselves. I am in all day meetings tomorrow but I think it is clear Fitzgerald lost this case. The jury is being asked to ruin a man’s life and have nothing but liberal fantasies as the basis for the punishment. I noticed the FDL folks were not very confident coming back from the lunch break. I think they are in denial. Losing one count and then having Russert destroyed on the stand just killed a terminally weak case. The only thing holding this up was liberal media hyperventilation. Which, thankfully, cannot yet overpower our judicial system.