Russert on the Hot Seat (updated)

Clarice Feldman
One of the differences between reading live blogging of the Libby Trial and reading or hearing news accounts, is that we have it in real time. Even the most skillful of reporters in the court like Matt Apuzzo have filing deadlines which usually means that they get the direct testimony but not the cross examination in their first stories. But in this case the cross examination is the story.

Tim Russert, who is a key prosecution witness, took the stand for about 11 minutes today to say that he had not mentioned the name of Wilson's wife in his call to Libby. (Libby's grand jury testimony is that he called Russert to complain about the coverage Chris Matthews was giving the Wilson claims, that the conversation was rather heated and was at one point broken off and resumed later or the following day.)

Then cross examination began, and Russert's credibility as a witness was deeply shaken.

Russert said it was "impossible" that Wilson's wife was mentioned in that call because he didn't know it then.

Wells confronted Russert with an incident where he was angry about an article in the Buffalo News critical of Russert's treatment of Hillary Clinton when Russert moderated a Clinton-Lazio debate. Russert had called the reporter twice to complain about the piece, and then denied any recollection of those calls. Finally he wrote a letter of apology, claiming he had no recollection of those calls himself and only his notes revealed the calls had, in fact, been made. (Background to this is here)  

Except where otherwise noted, all trial summaries were prepared today by Mainewebreport owner, Lance Dutson. They are not verbatim , official transcripts.
Buffalo News printed that Russert 'suffered a public memory lapse', says Wells. Russert is answering slightly defensively.

Memory problem occurred in May , a few months before you testified, correct?
yes

You admitted you r error as the result of your subsequent review of your files?
yes

But for the existence of your written notation, you would have continued to believe that you had not made the call correct?
I did not recall.

And to the Libby call, you have no written notes?
No
Wells asked him is he'd ever told the FBI that he may have discussed Wilson's wife with Libby in that call and when he denied that, Wells confronted him with an FBI report saying he had.

(From the Media Bloggers Association summary account of the examination):
Are you telling me as an aggressive newsperson, who is know for going after the facts, that you wouldn't ask questions about one of the biggest stories in the world that week? I described what occurred
No recollection of discussion about Wilson in the conversation

You have no recollection of NOT having a conversation about Wilson's wife?
Don't understand question

Do you have a present recollection that you did not ask about Mrs. Wilson, or are you reasoning backward because you did not know about her until Novak's column.
I have no recollection, and it would have been impossible.

(snip)

First time you were asked about week of July 6 conversation was in November 2003?
Correct

You have no notes of conversation?
No

No file memorandum close to the conversation?
No

You can't even remember if you had one or two conversations that week?
I believe it was one, but not sure

You told FBI that you remembered at least one and maybe two conversations ?
I only recall one conversation

So the FBI would have been incorrect?
(Wells brings FBI notes to show Russert)

Russert gets notes, puts on glasses. Judge tells him to read it to himself. Russert says ‘Its two pages', Wells points to top of page and says just that.
But the best was the last: Wells brought out that despite filing a pleading in the case seeking reporter testimony arguing that the privilege for confidential sources was key and moving to quash the subpoena served on him, he had already twice recounted both sides of his recollection of the Libby exchange well beforehand and had hidden that from the court in the pleading and the public in what had first appeared to be a principled stand for reporters' privilege.
NBC statement: Says Russert received subpoena to testify before a special grand jury investigating the Plame leak. Russert and NBC intened to fight the subpoena, Russert was not the recipient of the leak. NBC is resisting becuase fo the chilling effect, Shapiro says American public will be deprived of information becuase of this, because people will simply stop speaking with the press.
Wells knocks it home right here:
Is there any mention in this statement that you freely shared the content of Libby's call with the FBI agent in November 2003?
No

Does Shapiro know that you freely discussed the Libby conversation with the FBI?
I don't know

Did you ever have a conversation with him about this?
I do not know, I cant recall

Do you think, given your pattern and practice, that you would have told Shapiro about your free conversation with the FBI without refusing [b]ased on confidentiality?
I do not know, I don't recal
Wells is frying Russert here. This point is very strong, it shows the potential hypocrisy of NBC's statement and the subpoena resistance, since Russert had already spilled the beans so readily and without reservation about an established off the record conversation with Libby.
Firedoglake provides the final testimony of the day:  
Wells submits as evidence, and displays, a declaration by Russert filed with court. Paragraph 5 emphasizes that an essential part of his job is keeping conversations with government officials confidential, that he will not discuss identities or information publicly.

W: You are swearing that you will not release confidential information freely, right?

T: It depends on the nature of the conversation

Wells continues reading from the document. Quotes Paragraph 6, which specifically says Russert cannot testify about Libby conversation without violating confidentiality.

W: That's what you're saying to Judge Hogan under oath?

T: That it would have a chilling effect, yes.

W: You're saying under oath that you can't even confirm that

T: As a journalist, I didn't want to do it, correct.

W: Not just didn't want to, you can't do it, correct?

T: Correct.

W: You don't say that you had already talked to this to Agent Eckenrode in Nov 2003.

T: There is no mention of it.

W: You had already disclosed the substance of the conversation

T: There's a difference

W: But this does not say you had confirmed the existence of the conversation, and the content of it as well.

T: Correct.

W: In June 2004, your position that you could not do this.

T: Correct.

W: In Nov 2003, you violated this, didn't you?

T: No, because they asked about my side of the conversation, and conversation was a viewer complaint.

W: Are statements to Judge Hogan true or false?

T: So you violated these statements when you talked to Eckenrode [the supervisinf FBI official].

T The focus was on my words at that time, and Libby's viewer complaint was not in any way confidential. As is my policy, I did not report on them.

W: So why say you can't talk about the same conversation?

T: We did not want to get involved in an open-ended fishing expedition.

W: (Accuses Russert of making a false statement to federal judge)

T: I just talked to Eckenrode about my side of the conversation

W: You talked to him about both sides of the conversation

T: I listened to him describe Libby's side.
In sum, Wells established that (a) the FBI report of his conversations (they say he had two, he only recalls one) made far closer in time to the event indicate he conceded that Ms. Wilson's name may have come up in their conversation though he earlier discounted that as "impossible" (b) In a heated matter involving the Buffalo News, his own memory was faulty. He'd made two angry calls to a critical reporter, denied that he had, and then, after checking his phone records, apologized, asserting he had no memory whatsoever of the calls, and (c) while making an impassioned plea for the right of reporters to protect the confidentiality of sources, he'd already twice discussed the Libby exchanges with the FBI and failed to disclose that to the Court or the public.

From a filing by the prosecutor last evening trying to block inquiry into the accommodations made to Russert for his (total of 22 minutes) deposition testimony in his lawyer's offices, it appears that while this last point was not specifically noted in any pleadings I can see, the defense was provided with the FBI notes which provided some notice to them of the discrepancies in the NBC public pleading and that it contained a  false suggestion that Russert had not already cooperated with the government. It is not clear that this Court, or the Court which determined the related case on the reporters' obligation to testify, was ever informed that the Russert filing was false.

I cannot believe that tonight is a good night for Russert or for his colleagues Andrea Mitchell and David Gregory, whom I also expect to be on the stand.

The prosecution filed a motion to block Libby from calling her to the stand. I'd be surprised if that succeeds. The prosecution  has also signaled it intends to argue that all reporters were treated  gingerly because of the constraints of the Department of Justice regulations. In fact, many reporters who clearly were aware of the Wilson/Plame connection were - like Andrea Mitchell (Russert's colleague who famously indicated they all knew) - never questioned by the prosecution or the investigators.

I'll be very surprised if in a case risibly claiming the defendant obstructed the investigation, the defense is precluded from showing that, blinded by his nonsensical view of what happened, the special prosecutor obstructed the investigation himself. We know he granted immunity to the two people who admitted they deliberately leaked Plame's identity (Ari Fleischer and Richard Armitage) and steered clear of so many journalists who obviously knew more about the Mission to Niger and its participants than anyone in the White House did.

I predicted at the outset, the media would regret what they asked for. I was right. In Spades.

Clarice Feldman is an attorney in Washington, DC, and a frequent contributor to American Thinker.

Update:

Tom Maguire of Just One Minute speculates about Russert's behavior and motives. Could he have been protecting his job?
One of the differences between reading live blogging of the Libby Trial and reading or hearing news accounts, is that we have it in real time. Even the most skillful of reporters in the court like Matt Apuzzo have filing deadlines which usually means that they get the direct testimony but not the cross examination in their first stories. But in this case the cross examination is the story.

Tim Russert, who is a key prosecution witness, took the stand for about 11 minutes today to say that he had not mentioned the name of Wilson's wife in his call to Libby. (Libby's grand jury testimony is that he called Russert to complain about the coverage Chris Matthews was giving the Wilson claims, that the conversation was rather heated and was at one point broken off and resumed later or the following day.)

Then cross examination began, and Russert's credibility as a witness was deeply shaken.

Russert said it was "impossible" that Wilson's wife was mentioned in that call because he didn't know it then.

Wells confronted Russert with an incident where he was angry about an article in the Buffalo News critical of Russert's treatment of Hillary Clinton when Russert moderated a Clinton-Lazio debate. Russert had called the reporter twice to complain about the piece, and then denied any recollection of those calls. Finally he wrote a letter of apology, claiming he had no recollection of those calls himself and only his notes revealed the calls had, in fact, been made. (Background to this is here)  

Except where otherwise noted, all trial summaries were prepared today by Mainewebreport owner, Lance Dutson. They are not verbatim , official transcripts.
Buffalo News printed that Russert 'suffered a public memory lapse', says Wells. Russert is answering slightly defensively.

Memory problem occurred in May , a few months before you testified, correct?
yes

You admitted you r error as the result of your subsequent review of your files?
yes

But for the existence of your written notation, you would have continued to believe that you had not made the call correct?
I did not recall.

And to the Libby call, you have no written notes?
No
Wells asked him is he'd ever told the FBI that he may have discussed Wilson's wife with Libby in that call and when he denied that, Wells confronted him with an FBI report saying he had.

(From the Media Bloggers Association summary account of the examination):
Are you telling me as an aggressive newsperson, who is know for going after the facts, that you wouldn't ask questions about one of the biggest stories in the world that week? I described what occurred
No recollection of discussion about Wilson in the conversation

You have no recollection of NOT having a conversation about Wilson's wife?
Don't understand question

Do you have a present recollection that you did not ask about Mrs. Wilson, or are you reasoning backward because you did not know about her until Novak's column.
I have no recollection, and it would have been impossible.

(snip)

First time you were asked about week of July 6 conversation was in November 2003?
Correct

You have no notes of conversation?
No

No file memorandum close to the conversation?
No

You can't even remember if you had one or two conversations that week?
I believe it was one, but not sure

You told FBI that you remembered at least one and maybe two conversations ?
I only recall one conversation

So the FBI would have been incorrect?
(Wells brings FBI notes to show Russert)

Russert gets notes, puts on glasses. Judge tells him to read it to himself. Russert says ‘Its two pages', Wells points to top of page and says just that.
But the best was the last: Wells brought out that despite filing a pleading in the case seeking reporter testimony arguing that the privilege for confidential sources was key and moving to quash the subpoena served on him, he had already twice recounted both sides of his recollection of the Libby exchange well beforehand and had hidden that from the court in the pleading and the public in what had first appeared to be a principled stand for reporters' privilege.
NBC statement: Says Russert received subpoena to testify before a special grand jury investigating the Plame leak. Russert and NBC intened to fight the subpoena, Russert was not the recipient of the leak. NBC is resisting becuase fo the chilling effect, Shapiro says American public will be deprived of information becuase of this, because people will simply stop speaking with the press.
Wells knocks it home right here:
Is there any mention in this statement that you freely shared the content of Libby's call with the FBI agent in November 2003?
No

Does Shapiro know that you freely discussed the Libby conversation with the FBI?
I don't know

Did you ever have a conversation with him about this?
I do not know, I cant recall

Do you think, given your pattern and practice, that you would have told Shapiro about your free conversation with the FBI without refusing [b]ased on confidentiality?
I do not know, I don't recal
Wells is frying Russert here. This point is very strong, it shows the potential hypocrisy of NBC's statement and the subpoena resistance, since Russert had already spilled the beans so readily and without reservation about an established off the record conversation with Libby.
Firedoglake provides the final testimony of the day:  
Wells submits as evidence, and displays, a declaration by Russert filed with court. Paragraph 5 emphasizes that an essential part of his job is keeping conversations with government officials confidential, that he will not discuss identities or information publicly.

W: You are swearing that you will not release confidential information freely, right?

T: It depends on the nature of the conversation

Wells continues reading from the document. Quotes Paragraph 6, which specifically says Russert cannot testify about Libby conversation without violating confidentiality.

W: That's what you're saying to Judge Hogan under oath?

T: That it would have a chilling effect, yes.

W: You're saying under oath that you can't even confirm that

T: As a journalist, I didn't want to do it, correct.

W: Not just didn't want to, you can't do it, correct?

T: Correct.

W: You don't say that you had already talked to this to Agent Eckenrode in Nov 2003.

T: There is no mention of it.

W: You had already disclosed the substance of the conversation

T: There's a difference

W: But this does not say you had confirmed the existence of the conversation, and the content of it as well.

T: Correct.

W: In June 2004, your position that you could not do this.

T: Correct.

W: In Nov 2003, you violated this, didn't you?

T: No, because they asked about my side of the conversation, and conversation was a viewer complaint.

W: Are statements to Judge Hogan true or false?

T: So you violated these statements when you talked to Eckenrode [the supervisinf FBI official].

T The focus was on my words at that time, and Libby's viewer complaint was not in any way confidential. As is my policy, I did not report on them.

W: So why say you can't talk about the same conversation?

T: We did not want to get involved in an open-ended fishing expedition.

W: (Accuses Russert of making a false statement to federal judge)

T: I just talked to Eckenrode about my side of the conversation

W: You talked to him about both sides of the conversation

T: I listened to him describe Libby's side.
In sum, Wells established that (a) the FBI report of his conversations (they say he had two, he only recalls one) made far closer in time to the event indicate he conceded that Ms. Wilson's name may have come up in their conversation though he earlier discounted that as "impossible" (b) In a heated matter involving the Buffalo News, his own memory was faulty. He'd made two angry calls to a critical reporter, denied that he had, and then, after checking his phone records, apologized, asserting he had no memory whatsoever of the calls, and (c) while making an impassioned plea for the right of reporters to protect the confidentiality of sources, he'd already twice discussed the Libby exchanges with the FBI and failed to disclose that to the Court or the public.

From a filing by the prosecutor last evening trying to block inquiry into the accommodations made to Russert for his (total of 22 minutes) deposition testimony in his lawyer's offices, it appears that while this last point was not specifically noted in any pleadings I can see, the defense was provided with the FBI notes which provided some notice to them of the discrepancies in the NBC public pleading and that it contained a  false suggestion that Russert had not already cooperated with the government. It is not clear that this Court, or the Court which determined the related case on the reporters' obligation to testify, was ever informed that the Russert filing was false.

I cannot believe that tonight is a good night for Russert or for his colleagues Andrea Mitchell and David Gregory, whom I also expect to be on the stand.

The prosecution filed a motion to block Libby from calling her to the stand. I'd be surprised if that succeeds. The prosecution  has also signaled it intends to argue that all reporters were treated  gingerly because of the constraints of the Department of Justice regulations. In fact, many reporters who clearly were aware of the Wilson/Plame connection were - like Andrea Mitchell (Russert's colleague who famously indicated they all knew) - never questioned by the prosecution or the investigators.

I'll be very surprised if in a case risibly claiming the defendant obstructed the investigation, the defense is precluded from showing that, blinded by his nonsensical view of what happened, the special prosecutor obstructed the investigation himself. We know he granted immunity to the two people who admitted they deliberately leaked Plame's identity (Ari Fleischer and Richard Armitage) and steered clear of so many journalists who obviously knew more about the Mission to Niger and its participants than anyone in the White House did.

I predicted at the outset, the media would regret what they asked for. I was right. In Spades.

Clarice Feldman is an attorney in Washington, DC, and a frequent contributor to American Thinker.

Update:

Tom Maguire of Just One Minute speculates about Russert's behavior and motives. Could he have been protecting his job?