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Sunday, March 11, 2007

Russert

The distinguished and perceptive Charles Krauthammer wrote this  on Friday (boldface mine):

Everyone agrees that Fitzgerald's perjury case against Libby hung on the testimony of NBC's Tim Russert....

There is a second instance of Russert innocently misremembering. He stated under oath that he did not know that one may not be accompanied by a lawyer to a grand jury hearing. This fact, in and of itself, is irrelevant to the case, except that, as former prosecutor Victoria Toensing points out, the defense had tapes showing Russert saying on television three times that lawyers are barred from grand jury proceedings.

With due respect, Dr. Krauthammer and Ms. Toensing are both missing the obvious.

The previous footage of Mr. Russert, which comes from several years ago during the Clinton grand jury years, merely proves what most of us have long suspected:

TV news reporters and anchors — Russert obviously included — often read aloud on the air what's on the TelePrompTer™ (or on notes prepared for them by their producers and staff) with no understanding whatsoever of what they've just read!

Humor aside (and I didn't mean that entirely to be humorous), Libby's lawyers were given wide latitude to probe Mr. Russert's own memory while he was on the witness stand because it went to the credibility of his testimony, and that was entirely appropriate. By all accounts, they were pretty successful in showing past failures of memory on his part. But as Dr. K points out, Russert's knowledge of grand jury procedures in particular, while apparently transient at best, was not directly relevant to his own testimony about his conversations with Libby, nor to anything else in the Libby case. And because of its immateriality, it therefore could not have been grounds for any sort of perjury indictment or conviction against Russert.

As impeachment, this probably would nevertheless have been within the margins of "fair game" had Libby's lawyers wanted to bring up the old videotapes during their initial cross-examination of Russert. My understanding, however, is that this issue came up during Libby's lawyers' attempts to re-call  Russert — who at that particular moment was, I believe, outside subpoena range — to the stand during their own case for purposes of going into those tapes. It was that request that was denied. Commenters will correct me promptly, I'm sure, if I'm in error here; but if not, I am highly, highly confident that this discretionary ruling by the trial court is unlikely to form the basis for a successful motion for new trial or appeal. To establish an abuse of the trial judge's discretion here, Libby's lawyers almost certainly would have had to come up with a good reason why they didn't find, and couldn't have found, the old tapes before Russert left the stand the first time. And they'd have to show that the impeachment from these tapes in particular wouldn't have just been cumulative of their other impeachment — to the point that the outcome of the trial would quite possibly have been different. Ain't no way they can meet those burdens for appellate purposes, I suspect, and neither is the trial judge likely to reverse himself on this point in considering a motion for new trial.

The tapes are embarrassing for Russert, whom I'm inclined to agree deserves a fair share of embarrassment. It doesn't say much of anything about whether Libby's guilty or whether he got, in general, a fair trial.

Russert's Sunday morning show is already on my regular TiVo list (along with its counterparts from CBS, ABC, and Fox), but I certainly will be watching his live this Sunday morning if I can manage to. "Special Anchor," anyone?

I do hereby offer, however, two months' guest-blogging privileges on BeldarBlog to any guest of Russert's on this Sunday's Meet the Press who puts him on the spot about those tapes.

Posted by Beldar at 12:44 AM in Humor, Law (2007) | Permalink

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Comments

(1) MayBee made the following comment | Mar 11, 2007 3:30:12 AM | Permalink

I just began reading your post, but I will point out that the tapes of Russert are not of him reading statements on MTP, but of him giving interviews.
I know one is Russert as a guest on Larry King live, so he most likely had no teleprompter.
Russert is also an attorney, although obviously non-practicing.

(2) Patrick R. Sullivan made the following comment | Mar 11, 2007 11:59:06 AM | Permalink

'To establish an abuse of the trial judge's discretion here, Libby's lawyers almost certainly would have had to come up with a good reason why they didn't find, and couldn't have found, the old tapes before Russert left the stand the first time.'

That's easy. Russert's claim about not knowing the rule, was so from out of left field they couldn't have anticipated it. It simply took some time to search through all his television appearances to find them.

(3) Beldar made the following comment | Mar 11, 2007 12:19:16 PM | Permalink

Mr. Sullivan: I agree with you that as a practical matter, him coming up with that statement in his direct exam or original cross-exam at trial (which I assume was the case) is from pretty far out in left field. (That's true even though I think there are probably tons of lawyers, especially those who don't practice criminal law, who probably forgot that fact if in fact they ever knew it.)

But the two things working against Mr. Libby's defense team are: (1) "Unexpected" isn't usually a good enough excuse; "couldn't have found it" rather than "ought not have known to look for it" is closer to the standard. And (2) Mr. Libby's team wasn't short on resources (as compared, say, to your average public defender working solo). These days, the standard for reasonably diligent cross-examination preparation, constructively anyway, includes Googling and Lexis/Nexising the witness and thoroughly reading (and if necessary, computer indexing) the results. That's arguably true even for someone like Russert, who concededly will have thousands of entries.

I'm not saying I might not have made the opposite ruling had I been in the trial judge's shoes. But reversible error? Nah, I don't think so. Given how badly Russert was beaten up on cross (and I haven't read the transcripts, I'm going on what seems to be a widespread consensus from bloggers left and right and MSM reports), I can't see how that impeachment wasn't cumulative.

It's also important exactly how the issue arose, which I confess to not knowing in detail. Was the defense asking for leave to supplement their witness list, for example, because they had not listed Russert as a witness whom they might call? That would probably make their burden now tougher. Or were they asking for a brief continuance so that Russert could return to subpoena range? Or was this ruling just based on the trial judge's desire to avoid unnecessary and cumulative testimony (on which he still has broad discretion, but maybe less than the other contexts I've just posited)?

I'd be grateful for your or other commenters' elaboration on this, as I confess that I've gotten worn out on digging up supporting detail (as evidenced by the conceded lack of hyperlinks in my last few posts).

(4) cboldt made the following comment | Mar 11, 2007 2:24:30 PM | Permalink

The defense elicited Russert's "I thought it was not abnormal to have counsel present during giving of GJ testimony" when Russert was under cross examination on February 8. The object of the line of inquiry was to illustrate for the jury that Russert and the prosecution had cut a special deal, therefore giving Russert cause to shade his testimony in the prosecution's favor.
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I suspect the defense was caught by surprise with Russert's "I didn't see that as odd" response. The likely figured he would admit that yes, this was different from the ordinary conduct of GJ proceedings - upon which the defense would have invited the jury to infer that Russert's testimony was being shaded in the prosecution's favor.
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The Defense Motion in Support f Introducing Additional Evidence to Impeach Russert was filed on February 14, and was denied from the bench that same day. The defense could have called Russert, but without the recorded evidence to impeach Russert on his feigning (if it was) ignorance of GJ procedure the defense had already pretty well run-out it's course of impeaching the witness.

(5) Retiree made the following comment | Mar 11, 2007 2:29:42 PM | Permalink

I'm not a lawyer so don't know the rules, but it seems to me that Russert denying he knew he could not have a lawyer present in a grand jury goes directly to his truthfulness. Libby was convicted in large part on the jury belief that Russert told the truth and Libby lied. Couple that with the "lost" FBI notes re Russert's interview where Russert allegedly said he might have mentioned Plame and Libby loses twice. Also a question, how does one escape a subpoena from a federal court while still in the USA?

(6) antimedia made the following comment | Mar 11, 2007 9:00:10 PM | Permalink

I am not a lawyer. Neither is my wife. We've both served on juries here in Texas, and my wife has served on a Federal Grand Jury for eighteen months (the normal term.)

Both of us know that neither witnesses nor suspects are normally represented by counsel before the Grand Jury and that presence of counsel would be quite unusual.

How could Russert, a man trained in the law and obviously well-versed in the politics of Washington, where very other person you meet is a lawyer, not know that?

(7) Beldar made the following comment | Mar 12, 2007 1:09:11 AM | Permalink

cboldt, thank you for those links. Footnote 2 of Libby's motion says that "The defense is willing to recall Mr. Russert as part of the defense case if the Court deems it appropriate, although it appears that Rule 613(b) would be satisfied if the government has an opportunity to recall Mr. Russert as a rebuttal witness." They wanted just to put the clips into evidence, in other words, without taking the risk that Russert, if recalled to the stand by them during Libby's case, would end up hurting them on anything more than he already had.

If the Firedoglake liveblogging is correct, the judge didn't refuse to let them call Russert in their case; he just said they couldn't introduce the tapes without him being back on the stand where he could explain them. I think the judge is right on that.

If Libby's lawyers then chose not to recall Russert live (and he was indeed available), then that's the end of their argument. They've waived it by not recalling him if they could have. I don't recall hearing of any attempt by them to recall him live being turned down — was it?

I understand their tactical decision not to, but tactical decisions often have consequences of destroying later appeal points.

Retiree, I was wrong in suggesting that there is any "range" to a federal criminal trial subpoena; Rule 17(e)(1) of the Federal Rules of Criminal Procedure do indeed permit service anywhere in the United States (which is different from the civil-law counterpart I'm used to, Rule 45(b)(2) of the Federal Rules of Civil Procedure, which limits service to within the federal district or 100 miles. The fact that something "goes to his [Russert's] truthfulness" is part of the inquiry, but not the end of it. As I wrote in the original post, if they'd brought this up during his original cross-examination, they'd almost certainly have been permitted to confront him with the video. They didn't. If they chose to recall him to the stand during their case they'd have been permitted to use the video. They didn't. They tried instead to use the videos and deny Russert any chance to explain them (unless the prosecution chose to recall him as a rebuttal witness after the defense was done) by just sort of "popping" them into evidence without any live witness to talk about them. That's not the way the drill works: you can't introduce impeachment on a collateral matter (Russert's memory on things other than his conversation with Libby) without the witness being there with a chance to explain.

antimedia, you and your wife have more experience with and knowledge of grand juries than most lawyers who don't practice criminal law. That speaks well of y'all and poorly of them, but there you have it. It wouldn't surprise me if there are a goodly number of licensed lawyers who don't know that grand jury proceedings are secret, or that the target's lawyer can't cross-examine witnesses, or lots of fairly basic things about their operations. Mind you, I'm not defending Russert here; he (and all lawyers) ought to know that sort of detail. I knew it, and I don't do criminal law work and have never dealt with a grand jury. But I'm at least a trial lawyer, if a civil-law one, and Russert doesn't even practice, so whether it's excusable or not, it doesn't surprise me if he genuinely didn't know (or had forgotten it).

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