Libby To Drop Appeal

Libby is dropping his appeal; here is the statement from his attorney at The Corner, and thoughts from the Politico.

Let's see - Bush can pardon Libby this Christmas season, or he can let "Should Bush pardon Libby?" be asked of every candidate at every appearance from now until the election.

The Decider lives for these tough choices.

My two cents: If it were done when 'tis done, then 'twere well it were done quickly.  One reason to get this over with is that right now the CIA is clearly at war with the world; Bush's pardoning spin can depict Libby as a victim of a 2003 rebellion.  Now, where is that old Howard Fineman link?  And let's put Doc Drezner's contemporaneous thoughts in the mix.

Bonus Wrinkle If I Were Spinning This For Bush (if?): If Congress wants to chat with Libby they really need to set a side a few minutes to sort through Ms. Plame's varying stories about the circumstances under which Niger trip was initiated and her husband nominated.  And maybe they can even get the CIA Counsel to finally opine on her covert status, and clue us in on the latest dates for which she received credit for service abroad on her pension - how cool would that be?  In the meantime we are filing that under "As If". 

A Point To Ponder:  A Libby pardon might give Congressional Dems and their currently alienated friends at the CIA a chance to re-bond and reunite on the fantasy that the Plame outing was consequential.  Awkward, since right now the CIA seems even more miffed with posturing Dems.

MORE:  The Captain is tough on Libby and his supporters:

This will take some wind out of the sails for Libby supporters, Thompson included.

I will never lack for wind.

...His supporters claimed that the commutation was not the end Libby or they sought, but an intermediate step to keep an innocent man from the injustice of imprisonment. They raised funds for his legal costs in part to help him meet that burden of complete vindication.

Now Libby has chosen not to pursue vindication at all. A felony conviction with no prison time apparently suffices for him. Will that change of heart produce a similar shift in opinion about Libby and his conviction for obstruction and perjury? Will people see this as a tacit admission of guilt?

Good question.  I would like to rally a table pounding defense, or even a sensible answer, but I am stuck on the fact that I more or less considered Libby to be guilty of some of the specific acts with which he was charged.  My hopes for an appeal essentially rested on technicalities, such as whether Fitzgerald had proper authority to undertake this investigation, and were based on the notion that Libby was caught up in a burst of political opportunism that allied the Democrats with the CIA in a tussle against the White House.

I also think that the Fitzgerald "investigation" did not lack for dubious characters - a full accounting would have:

1. clarified whether David Gregory of NBC News got a leak (Ari Fleischer said he did, and Gregory has never denied it);

2.  clarified whether Andrea Mitchell had received a leak; she said she did, and she was reporting on the right topic with the right people, but Fitzgerald never asked her.

3.  resolved the Tim Russert puzzle.  If either David Gregory or Andrea Mitchell had received a Plame leak, Russert would have been in a bit of a jam - Russert insisted he could not have leaked to Libby because of his own ignorance of the Plame story, but also insisted that he would have been tipped if either Gregory or Mitchell had been.  However, Fitzgerald helped Russert conceal his cooperation with the FBI, Fitzgerald helped conceal the David Gregory / Ari Fleischer situation, and he helped keep Andrea Mitchell off the witness stand.

Well, that is just at NBC News; Ms. Plame was not a trial participant but she has her own uninvestigated credibility issues.

That said, I think the truth would have set Libby free, and that he lied to conceal Cheney's involvement and keep Dick on the ticket for 2004 - neither Cheney nor Libby faced any criminal penalties (prior to testifying) but the political embarrassment might have prompted Bush to annoint a Vice-Presidential successor, rather than go with the Ticker Guy.  Mission accomplished.

Grr - I will trail off here, as time does not permit...

Comments

[Neo]

This also puts an end to Fitzgerald's oversight by Public Domain.
Leaving no one, except the DOJ, to talk to about those transcripts of conversations with Bush and Cheney.

[Semanticleo]

Perino will have her first chance to talk about Plame shortly, since the final "Plausible Denialism" of the pending Libby appeal is now moot.

http://www.whitehouse.gov/news/releases/2007/07/20070703-6.html

[MayBee]

Remember when the pro-Plames were decrying the politicalization of intelligence?

While Congress is investigating, and setting aside some time for Plame, I vote they investigate what the CIA was doing while Joe was gallavanting around town, lying about debunking the forgeries.

[cboldt]

"Dropping" his appeal, I presume. Not "dripping."

[Hmm, would you believe he was going to release one page per day in a steady drip, drip, drip until Valentines?

Ok, me neither.]

No pardon required ... or at least not at this moment. It would open up a can of worms that need not be opened (for the decider, that is) right now. He can issue the pardon on his way out the door, thereby removing the felony stain as a matter of formality.

The real question now is "Did Libby mount an appeal?" Yes or no? I dithered on whether or not he would, back when the commutation was issued.

[Other Tom]

The iron would seem to be white-hot if a strike against our friends at the CIA is contemplated. This is from today's Telegraph:

"Iran 'hoodwinked' CIA over nuclear plans
By Tim Shipman in Washington, Philip Sherwell and Carolynne Wheeler
Last Updated: 2:13am GMT 10/12/2007

"British spy chiefs have grave doubts that Iran has mothballed its nuclear weapons programme, as a US intelligence report claimed last week, and believe the CIA has been hoodwinked by Teheran.

"Analysts believe that Iranian staff, knowing their phones were tapped, deliberately gave misinformation

"The timing of the CIA report has also provoked fury in the British Government, where officials believe it has undermined efforts to impose tough new sanctions on Iran and made an Israeli attack on its nuclear facilities more likely.

"The security services in London want concrete evidence to allay concerns that the Islamic state has fed disinformation to the CIA.

"The report used new evidence - including human sources, wireless intercepts and evidence from an Iranian defector - to conclude that Teheran suspended the bomb-making side of its nuclear programme in 2003. But British intelligence is concerned that US spy chiefs were so determined to avoid giving President Bush a reason to go to war - as their reports on Saddam Hussein's weapons programmes did in Iraq - that they got it wrong this time.

"A senior British official delivered a withering assessment of US intelligence-gathering abilities in the Middle East and revealed that British spies shared the concerns of Israeli defence chiefs that Iran was still pursuing nuclear weapons.

"The source said British analysts believed that Iranian nuclear staff, knowing their phones were tapped, deliberately gave misinformation."

Don't we all feel much safer?

[MayBee]

I like "dripping his appeal". Sounds sexy.

I agree with cboldt's second sentence.

[Jane]

Off Topic - anyone wanna bet how long it will take Huckabee to tank? I say a week altho that could be wishful thinking.

[Jeff]

The real question now is "Did Libby mount an appeal?"

Explain, please. Libby's brief was due tomorrow.

[SunnyDay]

I think something big is about to break.

[MayBee]

via talkleft.com, here is Joe Wilsons (as always, insightful) email:

“By dropping his appeal, Mr. Libby has finally abandoned the pretense that his conviction was a miscarriage of justice. Mr. Libby’s decision suggests, however, that he may have received word that President Bush plans to pardon him shortly. Of course, a pardon is completely at odds with the president’s earlier claim that he would not tolerate anyone on his team leaking a covert CIA officer’s identity, but this is the kind of inconsistency representative of this administration. Given the White House’s extensive and continuing efforts to cover up how and why Valerie Wilson’s identity was leaked to the press, the only way that remains to get at the truth in this sordid matter is through our civil suit against Libby, Vice President Cheney, Karl Rove and Richard Armitage.”

[Semanticleo]

Well, I'm not surprised. Perino dodged the question this morning with a 'no comment'.

Probably wise. Over the weekend she admitted
she flubbed a question about the Cuban Missile Crisis....

"Appearing on NPR's "Wait, Wait ... Don't Tell Me" over the weekend, Perino said she "panicked" when she got the Cuban missile crisis question because she wasn't exactly sure what the Cuban missile crisis was. "I really know nothing about the Cuban missile crisis," Perino said. "It had to do with Cuba and missiles, I'm pretty sure."

Good guess.

[Jane]

How's Joe Wilson's appeal going? If he loses it will he admit that he's a big fat liar?

Sunny Day - what kind of big thing are you talking about? We need a hint.

[Other Tom]

"...the only way that remains to get at the truth in this sordid matter is through our civil suit against Libby, Vice President Cheney, Karl Rove and Richard Armitage.”

Good luck with that one, you dope.

[Semanticleo]

Perino dodged the question this morning with a
'no comment'. Probably wise.

Over the weekend she flubbed a question about the Cuban Missile Crisis......

"Appearing on NPR's "Wait, Wait ... Don't Tell Me" over the weekend, Perino said she "panicked" when she got the Cuban missile crisis question because she wasn't exactly sure what the Cuban missile crisis was. "I really know nothing about the Cuban missile crisis," Perino said. "It had to do with Cuba and missiles, I'm pretty sure."

Good Guess.

[Other Tom]

I think Cboldt is wondering whether he expended any money to prepare an appellate brief. Inasmuch as he is in hock well into seven figures for trial prep and trial, my guess is that he probably didn't. Ted Wells doesn't like to work for free any more than the rest of us. There's plenty of that kind of work around, and for good reason.

[Topsecretk9]

Semanticleo

Over the weekend she flubbed a question about the Cuban Missile Crisis.....

Cleo -- is this a Perino post?

Also, is her flubbing CMC question on par with the the Dem Intelligence Committee head not knowing what Sunnis and Shia are?

[Jeff]

Inasmuch as he is in hock well into seven figures for trial prep and trial

I'd be very curious to know how you figured out that there was a shortfall of well over a million dollars in Libby's defense fund, or well over a million dollars in costs for trial prep and trial that had to be personally covered.

I appreciate that mounting a vigorous defense is prohibitively costly for far too many defendants, and that this is a major problem with our justice system. But I didn't take Libby to be a victim of it, given his special circumstances. To be sure, Libby was not limited to getting the best of the best in defense lawyers, as he did. Even so, though, I was unaware that the defense fund hadn't covered costs.

[MayBee]

Maybe Libby was afraid his appeals process would get news coverage, thus taking attention away from Joe and Valerie.

[SunnyDay]

Jane, I'm a clairvoyant. ;)

[Other Tom]

I have no idea whether or not the defense fund ultimately covered his costs. The last figure I saw had him over a million in arrears well before the trial. I also have no idea how the IRS treats contributions to such funds. If Libby is not financially strapped now, I'd be very surprised, and I don't know how he's going to support himself down the road. Here's hoping he gets a good book deal.

[Other Tom]

"...mounting a vigorous defense is prohibitively costly for far too many defendants, and that this is a major problem with our justice system."

Why is it a problem, and what would you recommend be done about it? Should the lawyers work for free? If they don't do so voluntarily, should they be forced to?

[SunnyDay]

I get regular mail re Libby's defense fund - if they are out of money I didn't know it.

There are some wealthy people helping him. A lot of us not so wealthy people donate regularly.

[Jane]

Sunny,

I predicted the Clinton bombing the morning it happened. Mr. Right was a witness. So I'm truly appreciative of those little glimpses into the future. I just wondered what category of big thing had entered your clairvoyantness.

[SunnyDay]

How did Ollie North do it?

[Jeff]

Here's hoping he gets a good book deal.

Agreed.

Why is it a problem

Because mounting an effective defense should be dependent on the strength of your case, not your ability to pay, and because everyone is entitled to a vigorous defense, and because a vigorous defense is a condition of an effective defense.

what would you recommend be done about it?

No idea, but it better involve higher taxes! otherwise the libs won't be happy, will they?

[SunnyDay]

Jane, all the little things come together at some point. Assume Libby has the money to appeal - this is a big little thing - an indicator that there is a different kind of relief in the near future.

Doesn't this free up the parties involved, so that they can talk publicly about the case? Or am I mistaken about that?

[MayBee]

what would you recommend be done about it?

No idea, but it better involve higher taxes! otherwise the libs won't be happy, will they?

They might be satisfied with a cap on attorney's earnings, like they want to do with oil companies.

[anduril]

Other Tom, I suspect there's one helluva book waiting to be written. Question is, is Libby the aspiring novelist any good at non-fiction?

[Jeff]

Question is, is Libby the aspiring novelist any good at non-fiction?

No, unless you mean by "non-fiction" an account of the real world, regardless of whether it's true - his grand jury testimony was truly a remarkable performance in that regard.

Libby, by the way, is not an aspiring novelist. He's a published novelist.

[Other Tom]

I agree, higher taxes is the key to a better life for all.

An alternative might be to limit severely the amount of money available to prosecutors, and to abolish the institution of special counsels, in order to level the playing field.

[Jeff]

he lied to conceal Cheney's involvement and keep Dick on the ticket for 2004 - neither Cheney nor Libby faced any criminal penalties (prior to testifying) but the political embarrassment might have prompted Bush to annoint a Vice-Presidential successor, rather than go with the Ticker Guy.

Just to be clear on this, your position is that, since for all Libby and Cheney knew Plame really was the most covert of covert officers under the IIPA, Libby's confidence that he was in no danger of criminal prosecution hinged entirely on his ability to persuade an aggressive prosecutor that he really didn't know that she was covert, and that the government was taking affirmative measures to protect her intelligence identity, right? And let's be clear, whatever you happen to think about that latter issue, you've got to figure that Libby would look at it and see such affirmative measures as something the prosecution would likely be able to show pretty easily, so it would not be grounds for confidence in getting off. So, in other words, Libby would have to feel confident that he'd be able to convince the investigators that he did not know that Plame was covert and her status classified.

My point, in part, is that is a distinct consideration from whether or not Libby did in fact know that she was covert under the IIPA.

[Jane]

Because mounting an effective defense should be dependent on the strength of your case, not your ability to pay, and because everyone is entitled to a vigorous defense, and because a vigorous defense is a condition of an effective defense.

He had an effective defense. He also had a shitty Judge and an overzealous prosecutor egged on by a media overcome by BDS.

Taxes are the cause not the solution.

[MayBee]

Now Libby has chosen not to pursue vindication at all. A felony conviction with no prison time apparently suffices for him...Will people see this as a tacit admission of guilt?

Isn't it the same in effect as agreeing to a plea?
Isn't there a big portion of our justice system- both criminal and civil- that depends on people being willing to take legal responsibility for something they say they aren't actually guilty of- just to make it all end?

[boris]

affirmative measures as something the prosecution would likely be able to show pretty easily

Sometimes Jeff's delusions are just too much.

CIA's Harlow and Grenier both admitted they blabbed "It was Wilson's wife" far and wide. Also Val outed herself at Joe's introduction meeting. But apparently any token classification is good enough for officious Jeffians regardless of actual practice or tradecraft.

[Cecil Turner]

So, in other words, Libby would have to feel confident that he'd be able to convince the investigators that he did not know that Plame was covert and her status classified.

He apparently was confident on that point, as he claimed precisely that in response to a Fitz query on whether he thought hearing it from reporters made it a non-crime:

My understanding, when I heard it from Vice President Cheney, was that it wasn't classified information. I didn't understand it to be classified information. So my understanding would be, if I didn't think it was classified information, if it wasn't presented to me as classified information, if I wasn't intending to release classified information, that it wouldn't be a crime.

Fitz must've bought it, since he pursued the reporter angle doggedly, but apparently gave up on the more pertinent knowledge-of-her-status question. Moreover, even the government witnesses supported Libby on that point:

At trial, the government produced three witnesses who said they, too, had told Mr. Libby that Ms. Wilson worked at the CIA: Marc Grossman; Robert Grenier; and Cathie Martin. None of them testified that he or she had told Mr. Libby that Ms. Wilson was covert or classified.

Because mounting an effective defense should be dependent on the strength of your case, not your ability to pay . . .

Would that it were so. I'd have a lot less heartburn with this whole thing if they'd allowed the memory defense at trial. (And perhaps had a venue that wasn't so inimical to the defense.) In any event, it's hard to justify another couple million dollars looking for a replay.

[clarice]

OT--contributions to legal defense funds like Libby's are not tax deductible.
If he won on the argument that the appointment was unconstitutional there would be no further proceedings to be had. Winning on any other point, however, wuld probably get him a new trial--in D.C. with the same jury pool, and a million or more bucks bill again. Considering the most onerous part of his sentence was commuted, I can see why he dropped the idea of an appeal.

[Jeff]

boris

You missed my point. Adopt the stance of Libby circa fall 2003. Libby had no reason to think he could get off because the government wasn't taking affirmative measures to protect her intelligence relationship with the U.S. To be left with only Tom's explanation for why Libby lied, you need to believe that Libby was confident that he could convince investigators that he really didn't know that Plame was covert. And note that, from Libby's perspective, that's not only a judgment about whether he knew she was covert or not. It's also a judgment about how what he said would be received by investigators.

[Jeff]

He apparently was confident on that point, as he claimed precisely that in response to a Fitz query on whether he thought hearing it from reporters made it a non-crime

Yeah, if only so much of the rest of his story wasn't made up. This is completely non-responsive. My point was about his confidence, not whether he would try to so convince investigators.

Fitz must've bought it, since he pursued the reporter angle doggedly, but apparently gave up on the more pertinent knowledge-of-her-status question.

Incorrect. The knowledge-of-her-status question was explicitly described as part of the reporter angle. And there's no evidence to suggest he gave up on the knowledge-of-her-status question in the sense of buying that part of Libby's story.

If he won on the argument that the appointment was unconstitutional there would be no further proceedings to be had.

Good point, which gives the lie to Wells' purported explanation for why Libby gave up his appeal, especially since this argument seemed to be the defense's first line of appeal.

[MayBee]

Libby had no reason to think he could get off because the government wasn't taking affirmative measures to protect her intelligence relationship with the U.S.

He would have had some reason to believe the US wasn't taking affirmative measures to protect her intelligence relationship. All of the people at the CIA that talked about her, apparently, talked about her quite freely.

It's also a judgment about how what he said would be received by investigators.
I think he made a serious misjudgement about how investigators would receive anything he had to say, or how they would treat the case in general.

[cathyf]

Good luck with that one, you dope.

Gee, and I thought I was the only one who noticed the uncanny resemblance between Joe Wilson and Sheldon J. Plankton. (Not to mention the resemblance between Valerie and Plankton's W.I.F.E. Karen...)

[kim]

I don't know, SunnyDay; there are about three different shades of 'rouge CIA' displayed on my color monitor right now. Mine's always been sensitive to the Rove Rays, though, maybe it's static or jamming.
=======================

[boris]

Libby had no reason to think he could get off because the government wasn't taking affirmative measures

What about all the witnesses who claim they told Libby about her without clearly informing Libby of classification?

Doesn't your presented theory require that Libby didn't remember or register those conversations now?

[MayBee]

And there's no evidence to suggest he gave up on the knowledge-of-her-status question in the sense of buying that part of Libby's story.

There's also no evidence that he investigated the CIA end of things to discover the source of whoever it was that supposedly told Libby of her covert status.
Nobody at the CIA was charged with obstruction for hiding the fact that they'd told Cheney of her IIPA status.

[Sue]

he gave up on the knowledge-of-her-status question in the sense of buying that part of Libby's story.

And we are still waiting on UGO to be prosecuted for revealing the identity of a super-dooper secret agent woman. Because we all know Fitzgerald was seriously looking at charging someone, anyone, with the IIPA.

::grin::

[kim]

For Christmas, the Yellowcake is revealed to have been bombed in Syria by the Israelis, and Mukasey's DoJ pursues the Independent Prosecutor into the Supreme Court.
=========================

[boris]

It's also a judgment about how what he said would be received by investigators

And I have always maintained that the most reasonable explanation for Libby's bafflegab had more to do with exactly that issue. On a general plausibility scale the situation Libby faced (witch hunt and frame) was one where simple truth seemed more fraught with risk than pointing the finger elsewhere.

In retrospect there was no evidence to convict Libby on IIPA and the "simple truth established" at the trial would not have resulted in conviction. So why didn't Libby just present that "simple truth"?

Speculation on that point from Jeff, cboldt and even Other Tom has never been at all compelling IMO.

[MayBee]

What I love is that Libby deciding not to appeal is somehow evidence he admits his guilt, but Fitzgerald deciding not to charge Rove, Armitage, or Cheney is not evidence of their innocence.

And yes, nobody being charged with outing a covert spy or treason!, is not evidence that no such crime was committed.

It's that cloud, man.

[kim]

The Gang that Could't Shoot Joe Wilson Straight, was the last to know about Val Plame's real role. Except for us, of course.
=============================

[cboldt]

cboldt: The real question now is "Did Libby mount an appeal?"

Jeff: Explain, please. Libby's brief was due tomorrow.

It was just a silly comment, to probe whether or not the prediction "Libby won't appeal" was accurate. Said prediction coming hot on the heels of his sentence being commuted, before he filed the appeal in chief.

Although I did wonder how Wells' rationale, "winning would result in a retrial," plays into the grounds of appeal that amounted to "Fitz's appointment was defective." If the appointment was defective, how/why would there be a retrial?

[Patrick R. Sullivan]

If he won on the argument that the appointment was unconstitutional there would be no further proceedings to be had.

Maybe...maybe not. I don't think he could count on it. With Mukasey being another Southern District of New York guy, he'd probably still need a Presidential pardon to insure he wouldn't be re-prosecuted.

The worst outcome would be to win his appeal, and then get convicted on retrial when Hillary was President. No commutation or pardon from her. Tactically, he did the smart thing.