The prosecution has rested in the Libby Trial, and like a fish left out in warm weather, a strange and unpleasant odor is becoming more and more apparent as the sun shines on case. NBC News, which has recently taken a turn to the left, plays a particularly prominent role in the prosecution's case. Special Counsel Patrick Fitzgerald is fighting hard to make sure reporter Andrea Mitchell's testimony is not heard, and is asking the jury to buy some highly implausible notions about a key FBI interview with NBC's Washington Bureau Chief Tim Russert.
The prosecution is still trying hard to keep Andrea Mitchell from being called as a defense witness. In a pleading Friday, the defense is trying just as hard to get court permission to call her. The prosecution argues that the defense cannot call a witness just to impeach her, and the defense says that is not their only reason to call her, that she has other evidence to provide, and that a fair trial cannot be had without her being called and questioned by the defense.
In the period leading up to the disclosure of her status in the Novak case, Mitchell published a series of leaks (clearly from Department of State sources and just as clearly part of the CIA-State Department interagency war) aimed at the CIA's intelligence gathering. Among the interesting points in her stories:
- On July 14, 2003, just as Novak's article hit the newsstands, Mitchell made clear she was having a spat with Armitage (the first to leak), indicating the he wasn't returning her phone calls any longer and that he had chosen an appearance on Fox instead of NBC.
- On October 3, 2003, the very day that Armitage made his secret admission to the FBI that he was Novak's source, Andrea Mitchell publicly said that everyone knew about Plame, something she twice has tried unpersuasively to minimize once NBC became involved in this case and the knowledge of her boss, Tim Russert, became an issue.
(You would be hard pressed to find many regular Plame obsessives at Just One Minute who do not believe that Armitage leaked some details of the story to Mitchell as he did with Woodward and Novak.)
The prosecution has offered up a representation by NBC counsel in effect saying that Mitchell has no evidence to offer the Court-that she did not know Plame's identity before July 14, 2003 and never conveyed that information to Russert.
Aside from the fact that it seems ridiculous to regard this offer as the equivalent of the opportunity to confront Mitchell in court, we must remember that this representation is being made by NBC counsel, which had previously submitted a misleading and false affidavit from Russert, hiding his cooperation with the FBI, to Judge Hogan's court when the issue of reporter privilege came up. The same prosecutor now proclaiming Mitchell has nothing to add knew the Russert affidavit was false and did nothing to correct the record in that case.
I do not see how the trial court can deny the defense motion to call Andrea Mitchell as its witness.
The Eckenrode telephone interview
But the really eyebrow-raising aspect of NBC's and Russert's behavior seems to have whizzed right past the heads of most media observers: At the heart of the Russert testimony is an implausible scenario which suggests improprieties in obtaining his testimony and which raise questions about its veracity
Prior to Russert's appearance, the defense had sought all evidence relating to the accommodations the prosecution had made to obtain Russert's testimony. In the "Government's Memorandum in Opposition to Defendant's Request for Disclosure of Information Related to Accommodations Provided to Media Witness Tim Russert," Fitzgerald responded
"[FBI] notes taken during this interview [with Russert] have not been located, despite a diligent search."
This was a tiny detail many overlooked.
On the stand, Russert told a story so intrinsically implausible I had to review it twice before writing about it.
According to him, he was home on a Sunday when a man called and said that he was FBI agent Eckenrode, that he'd met Russert earlier when his church group had toured the NBC Washington headquarters. The man who identified himself as the agent then related to Russert what Libby had told the FBI about a conversation the two men had had on July 10 or 11 of that year. Russert said he gave his recollection of the statements to the man who'd identified himself as Eckenrode.
Defense counsel read to Russert Eckenrode's later written summary of the conversation - which suggested that Russert has been far less positive that he hadn't told Libby anything related to Wilson's wife. Russert claimed on the stand that he didn't recall the conversation as the summary described it. But, as the original notes by Eckenrode which contain more necessary detail "have not been located, despite a diligent search" not much more could be done to refresh Russert's recollection of that conversation.
Make no mistake: this Eckenrode conversation is at the very heart of the prosecution's Rube Goldberg case. For it is Libby's statement that he'd forgotten that Wilson's wife worked in counter proliferation and that something Russert said (in that conversation he initiated to complain of NBC's coverage of the Wilson flap) reminded him of it, which constitutes the basis of the perjury charge.
How likely is it that these Eckenrode notes (there is some indication that there were 2 conversations, not 1 between Eckenrode and Russert, but Russert recalls only one) of the Russert exchange(s) just vanished? Not very likely I think.
Anyone working in a disciplined law enforcement agency on a major case like this one surely keeps the original copies of such materials in a trial evidence file. Anyone working on a case like this makes numerous working copies of the evidence and never touches the originals until time to prepare for trial. We are thus to believe that someone took or misplaced the original and no copies exist.
I think it is naive to assume that Eckenrode was alone when he made the call to Russert. The Russert interview would have been equally important as the Libby interviews, and would have been tightly scripted--what to say, what to ask, what to avoid, etc., would all have been scripted during extensive discussions between agents and attorneys. I mean, do you really think Fitz told Eckenrode, hey Jack, sometime between now and when we close up shop give Russert a buzz and see whether he wants to talk about whatever? Eckenrode assuredly is not the only one who knows what Russert said because, even if the other person(s) present didn't catch everything that was said, there would have been lengthy rehashes immediately after the call terminated and probably contemporaneous note taking while he spoke. For example, Eckenrode could repeat what Russert said (OK, so what you said was...) and some other person(s) is/are scribbling away. But only Eckenrode's official notes would be preserved for the record--well, for a while, anyway.
But there is even more strain on our credulity. Are we to believe that Russert would take a call from one of the many tourists to the NBC offices and relate such information to someone who merely identified himself over the phone as an FBI agent? (Remember this information was the subject of Russert's affidavit detailing to the Hogan court why he would never give this information up to an investigation.)
An alternative hypothesis
I think this call was prearranged by the FBI and NBC. I do not believe the trial testimony.
Are we to believe that an FBI agent on his own called a public figure like Russert at home? I don't believe this trial testimony. I think Eckenrode cleared this with higher ups at the FBI who arranged this call. Keep in mind that this is Special Agent-In-Charge John C Eckenrode who played such a pivotal role in the development of this high proifile case.
FBI agent Bond acknowledged that her notes of the Libby interviews are inaccurate and that the summary of the second interview prepared by her supervisor Eckenrode is substantially at odds with her notes. She also said that while Libby said he "couldn't recall" a key conversation, for example, Eckenrode reported that Libby "adamantly denied "it occurred.
Eckenrode appeared prominently at Fitzgerald's press conference announcing the indictment, where Fitzgerald praised him effusively for his outstanding work in developing this case.
According to Truth Out, a far left online publication which purported to have a great deal of inside information about the case (much of it laughably wrong):
Details about the latest stage of the investigation began to take shape a few weeks ago when the lead FBI investigator on the leak case, John C. Eckenrode, retired from the agency and indicated to several colleagues that the investigation is about to wrap up with indictments handed up by the grand jury against Rove or Hadley or both officials, the sources said.
The Philadelphia-based Eckenrode is finished with his work on the case; however, he is expected to testify as a witness for the prosecution next year against I. Lewis "Scooter" Libby, Vice President Dick Cheney's former chief of staff who was indicted in October on five counts of perjury, obstruction of justice, and lying to investigators regarding his role in the leak.
Eckenrode's retirement after the indictment but before the trial does not seem plausible either. This was the biggest case of his life. His bio indicates he was not subject to a mandatory retirement because of time in the service, and even if that were the case, given all the circumstances the FBI would surely have extended his employment as it normally does in such situations. He led the investigation (and there are some who believe that he persuaded Ashcroft to recuse himself from overseeing it and to turn it over to his Deputy Comey who appointed Fitzgerald).
And then after playing such a key role in a major case garnering a huge amount of media coverage he just vanishes? Color me very skeptical.
So the notes of the implausible Russert-Eckenrode conversation (or conversations) are missing; there are no copies; the summary of that exchange reflects that Russert did admit he may have told Libby something about Plame; the investigator who led the case through the indictment and took the missing notes is also gone.
I do not believe this story.
Clarice Feldman is an attorney in Washington, DC and a frequent contributor to American Thinker.