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October 30, 2005

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kim

And what, indeed, of intent? The jury will form an opinion. It will be based on the testimony of......

Well, you fill in the blank. It's an easy quiz.
=========================================

Creepy Dude

Oh good lord Krisna even Mickey Kaus understands this point. Fitz doesn't need the reporters.

I will explain it no more. If even the lowly Kaus comprehends this basic point, no one here (except perhaps 7M) has any further excuse.

Geek, Esq.

And Kaus didn't even need a taxi driver to tell him this one.

Cecil Turner

Because it wasn't spacing. He damn well knew it, and just lied about it.

If this is the only charge left when it goes to a jury, I'd be astonished to see a conviction (in fact, I'd be surprised if he weren't acquitted). The reporter testimony is critical, and right now it looks pretty weak.

The Cooper bit doesn't matter.

I'm with you. They could stipulate Cooper's phrasing and still win . . . "I heard that too" could mean exactly what Libby claimed, which any competent attorney ought to be able to show:

  • "Mr Cooper, what did you think he meant by: 'I heard that too'?"
  • "Isn't it possible, considering he was speaking to a reporter at the time, that he meant he heard it from one of your compatriots?"
  • "Did you take that to mean 'yes, that's a fact,' or did the phrasing suggest he wasn't sure about it?"
I'm not sure what they were thinking, but that one looks unwinnable. (Further, it might annoy some of the jurors.)

CT-there's no doubt that if reporters recanted, Fitz would have to rewrite portions of the indictment.

Yes, he'd have to throw out all but one charge. And considering that's a charge about Libby's statement about his state of mind during a particular conversation where the other party doesn't even remember what they were talking about (or claims Ms Wilson's CIA employment was never raised), I just don't see it. When Russert takes the stand and tells a completely different story from what Fitz alleges is true, I'd expect some juror to ask "why isn't he on trial for perjury?"

Don

A few questions for all to ponder and perhaps answer?

1 - Is not libby at this point permitted to withdraw any "waiver" he may have given his "reporter friends". I would think yes, F may be able to use gj testimony and it may not be in his interest but Libby's defense team could use the withdrawal of waivers as a sword. The prosecution must be able to put on a case, and the lack of reporters on the stand may find the case wobbly if not impossible to prove.

2 - Does anyone not think that Bush will pardon Libby? If I were Fitz, I would take a plea with probation (similar to Berger) and go back to chicago.

3- Does anyone else see the irony in why Fitz did not indict Rove. He indicted Libby because Libby allegedly led him and the GJ astray with the press contacts testimony. How was he going to indict Rove when he did the complete opposite when he failed to tell Fitz of his contacts with the reporters.

Geek, Esq.

CT:
If this is the only charge left when it goes to a jury, I'd be astonished to see a conviction (in fact, I'd be surprised if he weren't acquitted). The reporter testimony is critical, and right now it looks pretty weak.

Wrong, wrong, wrong. You're just dead wrong on this.

Here's what Libby told the Grand Jury, regarding his knowledge about Wilson's wife working at the CIA during his conversation with Russert: "At that point in time I did not recall that I had ever known, and I thought this is something that he was telling me that I was first learning.")

Bald. faced. lie.

And a lie that can be disproven regardless of what Tim Russert says.

Libby told the Grand Jury that when this conversation was taking place, he didn't know that, or had forgotten that, Wilson's wife worked at the CIA.

That is to say, when he picked up the phone to talk with Russert, he's claiming he didn't know, or had forgotten that, Wilson's wife worked at the CIA.

Russert's testimony is unnecessary to refute that lie. If they discussed Wilson's wife, that in no way confirms that Libby didn't know.

Truzenzuzex

Neo wrote:

Russert went to the grand jury under an agreement with Fitzgerald to limit the line of questioning.
Did he?

Not according to the Times:

Under an agreement with the prosecutor, NBC said, Mr. Russert did not go before the grand jury, and was not asked questions that would have required him to disclose information provided in confidence.
[emphaisis mine].

Gary Maxwell

Since we are quoting Mickey Kaus, DEMOCRAT I am sure my reality based friends will fully agree with this devastating observation by none other than Mr. Kaus himself:

Lawrence O'Donnell's reputation is intact: From two weeks ago ...

Prediction: at least three high level Bush Administration personnel indicted and possibly one or more very high level unindicted co-conspirators.

I believe Mr. Glenn Reynolds would put it "Heh."

clarice

*smacking palm to forehead*

Levin argues the obstruction charge is nonsensical:

[quote]Ok, one last thought. Count 1 - Obstruction. What Fitzgerald said at his press conference was the reason he couldn't prosecute the underlying crime of passing classifed information to reporters was because of Libby's obstruction by lying. The more I think about this, the more illogical that is. The basic rationale of the indictment is that the grand jury found out he was supposedly lying, and now knows the truth. Fitzgerald could not have charged perjury and false statements had not other witnesses told him the truth. In other words, he got past Libby's lies, and he didn't have the evidence to charge Libby on the underlying offense. So, I believe this underscores my point, which I have been making from day one, that it was wholly inappropriate because Fitzgerald did not adhere to his own standard of only speaking to the charges that were entered, i.e., that Libby passed classified information. This was nothing more than his personal opinion. Of course, he can charge obstruction even if it fails, but he cannot rely upon the alleged obstruction in order to accuse someone of passing classified information without charging him. [/quote] http://corner.nationalreview.com/05_10_30_corner-archive.asp#081350


Geek, Esq.

A few questions for all to ponder and perhaps answer?

1 - Is not libby at this point permitted to withdraw any "waiver" he may have given his "reporter friends". I would think yes, F may be able to use gj testimony and it may not be in his interest but Libby's defense team could use the withdrawal of waivers as a sword. The prosecution must be able to put on a case, and the lack of reporters on the stand may find the case wobbly if not impossible to prove.

They don't need the reporters to convict him of his bald-faced lie that the was unaware that Wilson's wife worked at the CIA the moment before he spoke on the phone with Russert. They can hang him with the testimony of a dozen other witnesses from inside the information that establish that he damn well knew that Wilson's wife worked for the CIA before and at all times during his conversation with Russert.

As far as retracting a waiver, no sir. That horse done left the barn.


2 - Does anyone not think that Bush will pardon Libby? If I were Fitz, I would take a plea with probation (similar to Berger) and go back to chicago.

I'll say an extra prayer that he does it two weeks before a national election. Of course he'll pardon Libby--Bush values loyalty above merit, honesty, and decency.


3- Does anyone else see the irony in why Fitz did not indict Rove. He indicted Libby because Libby allegedly led him and the GJ astray with the press contacts testimony. How was he going to indict Rove when he did the complete opposite when he failed to tell Fitz of his contacts with the reporters.

The evidence was much weaker against Rove and Rove's involvement was much less pervasive. There is simply no way that Scooter Libby forgot that Wilson's wife worked at the CIA between 7/8/2003 and 7/10/2003. None.

Truzenzuzex

Gary:

Prediction: at least three high level Bush Administration personnel indicted and possibly one or more very high level unindicted co-conspirators.
As I am sure others will point out, there are no "unidicted co-conspirators" since no conspiracy was alleged in the indictment.

Therefore, O'Donnell was wrong as usual (so far, at least).

Creepy Dude

CT-once again you allow your stubborness to overcome your rationality. I must now assume you're denser than the insect brained Kaus. Congrats.

Gary Maxwell

A question for the lawyers on here. I am a CPA by training nad my b law classes only get me so far. Isn't there a concept in the law of materiality?

In other words if I tell the Grand Jury that the sky was orange with pink stripes on the morning in question and my notes from back then say pink with orange stripes and its clear that I did not misspeak but did in fact lie, dont I have a defense available that the color of the sky is not material to anything and thus no crime verdict can be sustained on that point?

cathyf
For those clinging to the absurd fantasy that LIBBY 'forgot' that Wilson's wife as a CIA employee, a quick reality check:
...
6. On or about 6/23/2003, LIBBY told Judy Miller that Wilson's wife might work at a bureau of the CIA.
...
Unless Judy Miller lied when she publicly described her testimony after her GJ appearances, #6 here is an example of Fitzgerald making a false claim about grand jury testimony. How many others does the indictment contain?

(And if you are going to put somebody in jail for 85 days in order to force her to testify, don't you think you ought to use her testimony, rather than what you wanted her testimony to be?)

cathy :-)

Harry C.

Samuel Alito is a little further left than I'd like, but I'll take him.

clarice

Exactly so, Gary. Something Cecil and I have argues on the Libby Indictment thread.

Creepy Dude

Judy Miller didn't spend 85 days in jail so Scooter could face perjury charges. If you can't see that Cheney remains in the crosshairs, Maxwell, well...you're Maxwell.

Governor Ryan was the 65th person indicted in the Illinois investigations. It takes time to work one's way up. And guily pleas can remain sealed.

Yes-I'm speculating. But just read the indictment without trying to spot bullshit in it. Read it like it's the truth and you'll see the fun is just starting. I think O'Donnell should stick with his prediction.

Geek, Esq.

Let me re-frame this, for our Republican friends, as a legal issue:

Issue: What was Scooter Libby's knowledge of Valerie Wilson's employment IMMEDIATELY BEFORE HE SPOKE WITH TIM RUSSERT.

What is relevant: What Scooter Libby told and heard from other administration officials BEFORE HE SPOKE WITH TIM RUSSERT.

What is not relevant: What Scooter Libby heard from Tim Russert.

Relevant testimony and evidence: Scooter Libby had frequent communications with other administration officials about the fact that Wilson's wife worked for the CIA, AS LATE AS TWO DAYS BEFORE HIS CONVERSATION WITH RUSSERT.

Libby's die-hard defenders: Joe Wilson farted! And Russert laughed!

Geek, Esq.

Let me re-frame this, for our Republican friends, as a legal issue:

Issue: What was Scooter Libby's knowledge of Valerie Wilson's employment IMMEDIATELY BEFORE HE SPOKE WITH TIM RUSSERT.

What is relevant: What Scooter Libby told and heard from other administration officials BEFORE HE SPOKE WITH TIM RUSSERT.

What is not relevant: What Scooter Libby heard from Tim Russert.

Relevant testimony and evidence: Scooter Libby had frequent communications with other administration officials about the fact that Wilson's wife worked for the CIA, AS LATE AS TWO DAYS BEFORE HIS CONVERSATION WITH RUSSERT.

Libby's die-hard defenders: Joe Wilson farted! And Russert laughed!

Creepy Dude

CathyF-you're actually accusing Fitzgerald of making a false claim about grand jury testimony!

You people amaze me. I challenge all other Libby defenders to confirm or refute Cathy's startling to say the least claim.

Geek, Esq.

In other words if I tell the Grand Jury that the sky was orange with pink stripes on the morning in question and my notes from back then say pink with orange stripes and its clear that I did not misspeak but did in fact lie, dont I have a defense available that the color of the sky is not material to anything and thus no crime verdict can be sustained on that point?

Yes there is an issue of materiality.

However, Libby's testimony was material as well as deliberately misleading.

Marcel

To the point of whether Fitzgerald needs the reports' testimony in addition to that of 6 or so government employees ... Most of the "inside" witnesses are White House employees, and 2 others CIA. Maybe Fitzgerald is concerned that the White House will claim "Executive Privilege" over the testimony of its staff members, and National Security could be cited as a way of preventing CIA staff from testifying.

Gary Maxwell

Thank you Clarice

I am still rolling all this around. I would not want to be in Libby's shoes but these indictments due seem to be fairly thin soup. I would think a Judge might listen carefully to a well constructed materiality argument.

Let say that Libby lawyers can produce neighbors, friends and family who will be compelled to admit on the stand that they knew the wife of Joe Wilson worked at the CIA. Does this not make it seem that all of this misdirection by Libby seems to be of no import at all. Case dismissed and the jury is thanked for their willingness to serve?

clarice

Depends on the question and context doesn't it--since the SP was appointed to see if anyone in the Administration leaked classified information (i.e. Plame's employment), I expect the thrust of the questioning was directed to that.

Again, I'd like to see a transcript in which he was asked clearly to detail when he first obtained information about that fact.(And not in the middle of hours long questioning about all his recollections of his conversations with reporters in which Wilson's name was mentioned.)

Truzenzuzex

Geek:

Issue: Whatwas Scooter Libby's knowledge of Valerie Wilson's employment IMMEDIATELY BEFORE HE SPOKE WITH TIM RUSSERT.
I don't think this is right, because IIRC his statement that Russert was his source was cited in the indictment as the materially false statement:
32. It was part of the corrupt endeavor that during his grand jury testimony, defendant LIBBY made the following materially false and intentionally misleading statements and
representations, in substance, under oath:

a. When LIBBY spoke with Tim Russert of NBC News, on or about July 10, 2003:

i. Russert asked LIBBY if LIBBY knew that Wilson's wife worked for the CIA, and told LIBBY that all the reporters knew it; and


Therefore, defeating Russert's testimony will be as critical to his defense as the allegations that he had prior knowledge of Plame's CIA connections. The judge will certainly allow Russert's assertions to be tested by the defense.

Charlie (Colorado)

Geek, Esq., just as a sidebar point, I happen to have been exposed to a lot of classified information at one time. If I were in front of a Grand Jury, and a prosecutor were to ask me a question the specific answer to which was classified, I would refuse to answer the question, and if I were asked one of those "stopped beating your wife" questions in which a refusal to answer would confirm something classified, I'd lie.

If a reporter asked me about something classified, and I'd seen or heard the same thing from an open source, I'd very likely say "Yeah, I heard that from an open source but I can't say if it's true or not."

The best I can piece together, the perjury charge comes down to Libby saying "I heard that from an open source" without saying "too" and saying that he thought he'd heard it from Russert, which Russert denies.

This seems like pretty damn thin gruel.

Geek, Esq.

Therefore, defeating Russert's testimony will be as critical to his defense as the allegations that he had prior knowledge of Plame's CIA connections. The judge will certainly allow Russert's assertions to be tested by the defense.

Do they have ANY evidence that Russert told Libby these things other than Libby's word--any? Do they even have any evidence that Russert had heard that Wilson's wife was an employee of the CIA before his conversation with Libby?

To put things in perspective: Russert could die in a plane crash tomorrow, and they'd still have ample evidence with which to convict LIBBY of perjury regarding his conversation with Russert. That he told more than one material lie during his testimony before the grand jury regarding his conversation with Russert is not a defense.

Geek, Esq.

Geek, Esq., just as a sidebar point, I happen to have been exposed to a lot of classified information at one time. If I were in front of a Grand Jury, and a prosecutor were to ask me a question the specific answer to which was classified, I would refuse to answer the question, and if I were asked one of those "stopped beating your wife" questions in which a refusal to answer would confirm something classified, I'd lie.

Two points:

1) When Scooter Libby learned about Wilson's wife working for the CIA, and what he knew about that fact when he spoke with Russert, is not classified information.

2. Then you'd be guilty of perjury, without a legal defense.

Creepy Dude

See Charley-you'd lie in a grand jury to protect classified info.

Whereas a guy like Libby would leak it and then lie in the grand jury about having done so.

That's the difference between you and him.

And great job Truzensux-I specifically point out upthread 32a.ii is the charge that matters not a whit what Russert says and you come back with 32a. 1.

I'll find my vindication in Libby's plea.

Marcel

Re: Gary's point - Valerie's neighbors/ friends may have known ... So far, there is not one published name of one single person (outside the CIA and some in the Administation with security clearance, plus her husband) who has been identified as having known that she was CIA before July 14, 2003. There are plenty of Fox commentators who claim that it was widely known, plus Cliff May. But no names. Anyone?

cathyf
CathyF-you're actually accusing Fitzgerald of making a false claim about grand jury testimony!

You people amaze me. I challenge all other Libby defenders to confirm or refute Cathy's startling to say the least claim.
Look, either Judy lied in her public statement after the testimony (a possibility which I explicitly left open in my earlier post, and I'm explicitly leaving it open here, too.) Or Fitzgerald lied about her grand jury testimony in the indictment. You amaze me if you can't see that.

cathy :-)

Truzenzuzex

Geek:

Do they have ANY evidence that Russert told Libby these things other than Libby's word--any? Do they even have any evidence that Russert had heard that Wilson's wife was an employee of the CIA before his conversation with Libby?
I'd say that is irrelevant, Geek. Remember, it is the job of the prosecution to prove beyond a reasonable doubt that Libby lied on each material point alleged in the indictment. Each material point is therefore subject to examination by the defense. The prosecution cannot simply pick and choose which parts of the indictment to pursue and which to just let pass.

You can bet that the prosecution will call Russert to testify as to his conversation with Libby. If not, you can bet the defense will attack it, because he is alleged to have refuted Libby in the indictment:

33. It was further part of the corrupt endeavor that at the time defendant LIBBY made each of the above-described materially false and intentionally misleading statements and representations to the grand jury, LIBBY was aware that they were false, in that:

a. When LIBBY spoke with Tim Russert of NBC News on or about July 10, 2003:

i. Russert did not ask LIBBY if LIBBY knew that Wilson's wife worked for the CIA, nor did he tell LIBBY that all the reporters knew it; and

Mackenzie

It is shocking that cathyf and many others commenting here have so little faith in our justice system.

Creepy Dude

And you consider it a plausible alternative that a U.S. Attorney lied about grand jury testimony in an indictment???

Tell your husband Mr. Ingmoron hello for me.

Geek, Esq.

T-Rex:

Russert says he didn't raise the subject of Wilson's wife. He has no motive to lie. There is no evidence that he's lying.

The prosecution can prove, beyond a reasonable doubt, that Libby lied when he said that he was unaware that Wilson's wife worked at the CIA immediately before his conversation with Russert.

Libby gets convicted, no matter what.

cathyf
So far, there is not one published name of one single person (outside the CIA and some in the Administation with security clearance, plus her husband) who has been identified as having known that she was CIA before July 14, 2003.
In Kristof's column discussing Joe Wilson's debrief, Kristof claims that he has two sources. One he claims is the "former ambassador" (Joe Wilson) while the other is "another CIA official who was at the meeting." There were only four people at the meeting. Joe, Valerie, and 2 CIA debriefers.

So, the possibilities:

a) Kristof lied,

b) Kristof's 2nd source is one of the 2 CIA debriefers,

c) Kristof's 2nd source is Valerie Wilson.

Which of those 3 things is true can be discovered by subpeona of Kristof, and if it's c) then Kristof would qualify as your "one single person (outside the CIA and some in the Administation with security clearance, plus her husband) who has been identified as having known that she was CIA before July 14, 2003."

cathy :-)

Creepy Dude

Actually, CathyF, perhaps you're right that Fitzgerald, and everyone in his office, would place easily refuted lies into an indictment sure to be the most read indictment of the year-

they do, after all, work for Bush.

Truzenzuzex

Creepy:

And great job Truzensux-I specifically point out upthread 32a.ii is the charge that matters not a whit what Russert says and you come back with 32a. 1.
So you were wrong.

Look, in any trial it absolutely matters every time a jury becomes convinced something in the indictment is wrong. These things mount up in their mind, and the defense will be looking to win as many of those little points as they can. I know it is not popular with judges, but there is such a thing as "jury nullification" and it happens most often in cases where there is little documentary evidence of guilt and the prosecution must rely on testimony. When that testimony is as old as this is, it will greatly impact the credibility of the witnesses if one or more of them is shown to have mis-remembered something.

So while you are waiting for the plea, I'll await the trial.

Truzenzuzex

Creepy:

And great job Truzensux-I specifically point out upthread 32a.ii is the charge that matters not a whit what Russert says and you come back with 32a. 1.
So you were wrong.

Look, in any trial it absolutely matters every time a jury becomes convinced something in the indictment is wrong. These things mount up in their mind, and the defense will be looking to win as many of those little points as they can. I know it is not popular with judges, but there is such a thing as "jury nullification" and it happens most often in cases where there is little documentary evidence of guilt and the prosecution must rely on testimony. When that testimony is as old as this is, it will greatly impact the credibility of the witnesses if one or more of them is shown to have mis-remembered something.

So while you are waiting for the plea, I'll await the trial.

Creepy Dude

If you think there'll be a trial-you are definitely out to lunch.

Cecil Turner

And a lie that can be disproven regardless of what Tim Russert says.

In the first place, you're arguing over what Libby was thinking at a particular point in time. It's not an easy thing to disprove, even if you can show he knows it for sure, especially if we're talking about a relatively brief conversation. (Have you ever incorrectly remembered your age? Did you really forget how old you were?) Further, if Russert's testimony is that Plame never came up, it's hard to see how that conversation or anything in it is material to the case. But the biggest problem I see is getting a unanimous decision out of 12 people on something so far removed from the central elements of the case.

Fitz should have charged leaking (even if he knew he'd lose it). With that backdrop, weasel-wording around the edges might well convince a jury to convict. Without it, this whole case is a snoozer.

Geek, Esq.

I certainly hope that the prosecution strikes any juror who posts at the Free Republic.

Truzenzuzex
If you think there'll be a trial-you are definitely out to lunch.
Not just yet, but I am heading for the frig right after I submit this. :)
Creepy Dude

One thing I've wondered is why did Libby wait until the minute of indictment to resign? He had to know he was going be indicted.

My theory-he didn't know if others (like Cheney) were going to be indicted as well. If they all got indicted, esp. Cheney, they would all hunker down and fight as a team. Libby would stay on and they'd sink or swim together.

But when Fitz just tagged him-he had to go. Point is: even Libby know what was going to happen, but he knew what could happen.

I saw this before on National Geographic. You separate the weakest from the herd first.

Florence Schmieg

This is the one good thing about this going to a trial. The defense can call any witness it thinks relevant. It is no longer controlled by the prosecutor. So, the MSM are likely to be called. Some may try to get out of it on first ammendment grounds but that will certainly not relate to any of those named specifically in the indictment. They will be cross-examined. So Russert will have to discuss the conversation with Libby more completely. Perhaps Libby's complaint relating to the MSNBC show was about Wilson's wife. If so, that could explain the confusion that led to his belief that he heard her name from a reporter. Just a theory. It would help explain Libby's bizarre Russert narrative.

Creepy Dude

That's why he didn't charge leaking-yet, CT. How much stronger will the case be if Libby is a cooperating witness?

Geek, Esq.

In the first place, you're arguing over what Libby was thinking at a particular point in time. It's not an easy thing to disprove, even if you can show he knows it for sure, especially if we're talking about a relatively brief conversation.

Come on, Cecil. He was having detailed conversations about this fact TWO DAYS EARLIER. This was a very key fact in their planned push-back against Wilson and the claims that LIBBY's office sent him to Niger. It defies credibility that he would hear something from Russert about her working for the CIAand have no recollection of hearing it prior to that.

You're smarter than that. Really.

There is no reasonable doubt there. None.

(Have you ever incorrectly remembered your age? Did you really forget how old you were?)

He's testifying as to his knowledge at the time. He's saying he heard that from Russert and that it didn't ring a bell with him. Not one of the dozen or so of his previous conversations with other WH officals came to mind, according to LIBBY.

Seriously, it takes willful delusion to believe that LIBBY wouldn't remember hearing that information if Russert brought the information up.


Further, if Russert's testimony is that Plame never came up, it's hard to see how that conversation or anything in it is material to the case.

Are you serious? Libby claimed that he found out that Wilson's wife worked for the CIA from reporters, instead of from other US officials with high-level security clearances. That speaks DIRECTLY to intent, which makes his lies not only material, but crucial.

Unambiguously material, as a matter of law.


But the biggest problem I see is getting a unanimous decision out of 12 people on something so far removed from the central elements of the case.

As noted above, intent/knowledge are not only material, but crucial elements in a criminal investigation. So, it is plainly false to state that what Libby knew, when he knew it, and from whom he learned it are "far removed from the central elements of the case."


Fitz should have charged leaking (even if he knew he'd lose it).

Prosecutors aren't allowed to do that. That's a crime.

With that backdrop, weasel-wording around the edges might well convince a jury to convict. Without it, this whole case is a snoozer.

The backdrop remains. It shows Libby's motive to lie.

cathyf
Actually, CathyF, perhaps you're right that Fitzgerald, and everyone in his office, would place easily refuted lies into an indictment sure to be the most read indictment of the year-
Yes, I found the presence of that statement in the indictment to be quite startling. If Fitzgerald is really claiming that when Ms. Run Amok said yeah, sure, your guess is as good as any, that she was testifying that this guess happened, then he is either dishonest or stupid. I vote for dishonesty -- he put a reporter in jail for 85 days, after a year-long struggle to force her to testify that went all the way to the supreme court, and when he finally got her in there and she started blathering, it was clear that she is a total flake with no credibility and her testimony was useless. He didn't want people to run a "Find" on the pdf of the indictment and say, "hey, after all that, the word 'Miller' doesn't appear in here anywhere!" So he stuck 2 clauses in, and later when Libby's defense attorney moves that they be struck from the indictment, he will not protest.

cathy :-)

Creepy Dude

In the first place, you're arguing over what Libby was thinking at a particular point in time.

In any perjury case, you're arguing about what the defendant was thinking at a particular time. Nothing novel here. Every perjury defendant actually fighting the charge claims he wasn't lying at the time.

The issue here is when Libby said that: was he lying beyond a reasonable doubt.

Fitzgerald says yes-so do I. of course, I agree that Libby is entirely innocent and has not yet presented a (credible) defense. He's still guilty as hell though.

Truzenzuzex

Creepy:

Ok, lunch is safely in the microwave. Lemme 'splain why Libby won't plead.

If he pleads, he will be expected to give something to the prosecutor. Let's assume that he is a loyal administration person and knows something that might help get, say, Rove. If he pleads and helps prosecute Rove, he will still be a convicted felon with no friends in politics. The right will hate him and the left will still hate him.

On the other hand, if he goes to trial he can easily drag the trial out until 2007 at least. The charges are complex, and persuading the juge to grant continuances will be easy. By that time, even if he is convicted, he will have stayed loyal to the adminstration (and out of jail, pending trail and appeals the whole time) and will likely be granted a presidential pardon. The left will scream, but given what Clinton and Regan did, the public will shrug.

Libby has absolutely no chance of a pardon if he pleads and gives up Rove, or Cheney or whoever (assuming, arguendo he can). Plus, by holding out for trial, he gets sympathy from the right. Also, there is always the possibility that he is not guilty and can prove it.

Gary Maxwell

So far, there is not one published name of one single person (outside the CIA and some in the Administation with security clearance, plus her husband) who has been identified as having known


Marcel Andrea Mitchell is on record as having said it was common knowledge in the community. Last time I checked she is not CIA or administration. What do I win?

Syl

Geek

"That is to say, when he picked up the phone to talk with Russert, he's claiming he didn't know, or had forgotten that, Wilson's wife worked at the CIA."

Exactly! He knew he would probably discuss Wilson/Niger (if this was pushback for the Hardball thing) and he had to be especially careful that he wouldn't slip the wilson's wife is CIA and sent him on the trip bit to Russert. So he pushed it out of his head.

Geek, let's say you work in an office and took a bunch of ballpoint pens home. The boss discovered there were fewer pens than there should be and called everyone in for questioning.

You're next. You prepare yourself for the questions and one thing you convince yourself of is that you were nowhere near the supply room during the time you know the pens were taken. So if you're asked if you used the john, which is next to the supply room, at any time between 3 and 5 in the afternoon you can answer 'no' because you 'KNOW' you weren't anywhere near the supply room at that time.

Geek, Esq.

T-Rex:

You may very well be right about Libby running out the clock with his trial. And I would be very surprised if he served up Cheney. Rove, maybe, but it's far from certain that Rove was at the center of this.

On the other hand, the WH wants this trial to go away and not extend to the 2006 elections.

Truzenzuzex

Gary:

Marcel Andrea Mitchell is on record as having said it was common knowledge in the community. Last time I checked she is not CIA or administration. What do I win?
Hold it. Didn't it turn out that it was impossible to find a quote anywhere where she actually said this? I know that was a thread on this blog back some time ago, and I never saw the claim Mitchell said this actually vindicated with certainty.

Did it happen somewhere when I wasn't looking?

Hooch

Sweet!!

"Vice President Dick Cheney, moving swiftly to replace an indicted aide [old what's his name] on Monday named attorney David Addington as his chief of staff and John Hannah as his national security adviser."

http://news.yahoo.com/fc/us/bush_administration

LOL.

Creepy Dude

Interesting Truzensuxsus. Your devious mind would be right at the home in the White House. I'm not surprised you understand these guys. The repeated continuances might work. But there can't be a trial. Too much sunlight there.

But if he gets his pardon assurance-he can plead to whatever the morning of trial and spend whatever is left of Bush's term in the pokey. Thus, he will plead...

Unless he can't be sure Bush will still be in office...

Geek, Esq.

Exactly! He knew he would probably discuss Wilson/Niger (if this was pushback for the Hardball thing) and he had to be especially careful that he wouldn't slip the wilson's wife is CIA and sent him on the trip bit to Russert. So he pushed it out of his head.
I buy repressed memory for sexual assault victims, not administration officials.

Maybe the jury buys it--if Marion Barry is passing out crack in the deliberation room.


Geek, let's say you work in an office and took a bunch of ballpoint pens home. The boss discovered there were fewer pens than there should be and called everyone in for questioning.

You're next. You prepare yourself for the questions and one thing you convince yourself of is that you were nowhere near the supply room during the time you know the pens were taken. So if you're asked if you used the john, which is next to the supply room, at any time between 3 and 5 in the afternoon you can answer 'no' because you 'KNOW' you weren't anywhere near the supply room at that time.

Uh, no.

Truzenzuzex

Creepy:

On the other hand, the WH wants this trial to go away and not extend to the 2006 elections.
It would be better to keep Libby "indicted but presumed innocent" than convicted right before the election.

See, federal trials take a real long time as a general rule. Fitzgerald is going to want to shore up his evidence, and I'd give it 50/50 he would have this declared a complex case even if Libby did move for a speedy trial, which I don't expect him to do.

Truzenzuzex

Creepy:

On the other hand, the WH wants this trial to go away and not extend to the 2006 elections.
It would be better to keep Libby "indicted but presumed innocent" than convicted right before the election.

See, federal trials take a real long time as a general rule. Fitzgerald is going to want to shore up his evidence, and I'd give it 50/50 he would have this declared a complex case even if Libby did move for a speedy trial, which I don't expect him to do.

Truzenzuzex

Creepy:

On the other hand, the WH wants this trial to go away and not extend to the 2006 elections.
It would be better to keep Libby "indicted but presumed innocent" than convicted right before the election.

See, federal trials take a real long time as a general rule. Fitzgerald is going to want to shore up his evidence, and I'd give it 50/50 he would have this declared a complex case even if Libby did move for a speedy trial, which I don't expect him to do.

Geek, Esq.

It would be better to keep Libby "indicted but presumed innocent" than convicted right before the election.

See, federal trials take a real long time as a general rule. Fitzgerald is going to want to shore up his evidence, and I'd give it 50/50 he would have this declared a complex case even if Libby did move for a speedy trial, which I don't expect him to do.

That was me, actually.

"Presumed innocent" is a concept that binds the legal system, not voters or the media.

cathyf
The defense can call any witness it thinks relevant. It is no longer controlled by the prosecutor. So, the MSM are likely to be called. Some may try to get out of it on first ammendment grounds but that will certainly not relate to any of those named specifically in the indictment. They will be cross-examined.
There is no first amendment grounds that would nullify a defendent's constitutional right to confront his accusors. Even if we have a press shield law, the Sixth Amendment will trump it.

I predict that if there is a trial, and if it turns out that some journalist had some information that was exculpatory for Libby, and that Fitzgerald did not have access to the information during the investigation because of the DoJ's press shield policy, then the DoJ's policy is over, any chance of a press shield law is over, and the state press shield laws will get repealed.

cathy :-)

Truzenzuzex

Creepy:

But if he gets his pardon assurance-he can plead to whatever the morning of trial and spend whatever is left of Bush's term in the pokey. Thus, he will plead...
Let's look at this reasonably. He isn't going to spend one minute in jail if he plays a very simple hand correctly. He will be out on bail after he is arraigned. Let's assume I'm right and the trial doesn't take place until 2007, and let's assume further that Libby is convicted. He will not be sent to jail.

Let me repeat that for emphasis: He will not be sent to jail, even if he is convicted. He will be allowed out on bail until the appeals are over. That could be years, but it need only be months until Bush pardons him at the end of his second term.

Cecil Turner

Libby claimed that he found out that Wilson's wife worked for the CIA from reporters, instead of from other US officials with high-level security clearances. That speaks DIRECTLY to intent, which makes his lies not only material, but crucial.

Sorry, Geek, but he didn't say that. You need to re-read the indictment. Also the press release, which recaps some testimony that's apparently not included, but definitely on point:

He said that, in fact, he had learned from the vice president earlier in June 2003 information about Wilson's wife, but he had forgotten it, and that when he learned the information from Mr. Russert during this phone call he learned it as if it were new. [emphasis added]
Come on, Cecil. He was having detailed conversations about this fact TWO DAYS EARLIER. This was a very key fact in their planned push-back against Wilson and the claims that LIBBY's office sent him to Niger.

Hopefully you've noticed that some of the indictment's characterization of the testimony is a little, well, optimistic (e.g., Cooper's and Miller's). I'm going to need to see some of that other testimony (in particular the one 2-3 or more days earlier--the one with the shaky timestamp).

That's why he didn't charge leaking-yet, CT. How much stronger will the case be if Libby is a cooperating witness?

Did you call me dense up thread? Just checking.

Sue

John Hannah? You mean the one that was a sure bet to be indicted? You think they would promote someone who was under the cloud of Fitzgerald?

Sigh....drat's....the left is foiled again. ;)

Tulsam

Trial in early 2007. Conviction (or plea bargain) in late 2007. Pardon in December 2008.

Truzenzuzex

Geek:

That was me, actually.

"Presumed innocent" is a concept that binds the legal system, not voters or the media.

I'm sorry, Typepad is futzing with me a lot and I guess I got confused.

You're right about "presumed innocent", but it doesn't have to bind the public - they understand what it means. It will be repeated over and over whenever Libby's name is mentioned. Don't forget that court dramas are among the highest rated TV shows in this land. People get the whole "presumed innocent" thing, and by and large will withold judgment until there is a trial.

Oh, the Democrats will claim he is a felon, but that will work against them. People fear the power of the federal legal system, and the dynamics of this favor Republicans if, of course, Libby plays ball.

Creepy Dude

CT-certainly you're dense. But I've lost my density barometer to ascertain the extent, lead or osmium-let's go back to the original point.

Do you still(along with TM) maintain that the entire case is premised on Libby's words vs. those of reporters?


Geek, Esq.

Sorry, Geek, but he didn't say that. You need to re-read the indictment. Also the press release, which recaps some testimony that's apparently not included, but definitely on point.

Okay. He's lying about his state of mind during his discussions with reporters.

That's still material, and it's still a crime.

Hopefully you've noticed that some of the indictment's characterization of the testimony is a little, well, optimistic (e.g., Cooper's and Miller's). I'm going to need to see some of that other testimony (in particular the one 2-3 or more days earlier--the one with the shaky timestamp).

Are you talking about his discussion with Ari Fleischer on July 7th, his conversation with David Addington on July 8, or his conversation with Judy Miller on July 8th? That's three conversations within 72 hours of his discussion with Timmay. And those time stamps aren't shaky.

Not sure what you meant by 'optimistic.' Prosecutors as good and thorough as Fitzgerald don't put wishful thinking into indictments.

Creepy Dude

Actually Sue-it's turn out the the person described in the Libby indictment as Cheney's "principal deputy" [a/k/a cooperating witness] is not John Hannah but Eric Edelman, our present ambassador to Turkey.

Presumably the confusion arose with anonymous sources because they were referring to people by title.

Creepy Dude

Yes-please clarify what you meant by optimistic, CT.

Don't leave CathyF's explosive charge that Fitzgerald may be lying twisting in the wind.

cathyf
Libby claimed that he found out that Wilson's wife worked for the CIA from reporters, instead of from other US officials with high-level security clearances.
What Libby appeared to be claiming in the aspen haiku letter to Miller was that he only passed information to a reporter if either that particular reporter already knew the information, or if another reporter had disclosed to Libby that he knew the particular piece of information.

Given the "post-processing" that Fitzgerald may have given to Miller's testimony, I want to see the whole transcript of all of Libby's words before I am willing to say that there is no (reasonable) doubt that he told the FBI that when he was talking to Russert he didn't know Wilson's wife was CIA. I want to see all the words in their original contexts just in case there is some other reasonable interpretation of his statements -- for example, that he meant that he didn't know that the info had moved from the realm of "secret" to the realm of "reporters know it."

Seeing all of the words in their full context is what a trial is all about.

cathy :-)

Truzenzuzex

Creepy:

Interesting Truzensuxsus. Your devious mind would be right at the home in the White House. I'm not surprised you understand these guys. The repeated continuances might work. But there can't be a trial. Too much sunlight there.
I just noticed the "too much sunlight there" at the end of this paragraph.

Let's think about that for a minute. If the administration fears anything besides a late Rove indictment, it is that maybe Cheney knew or instructed Libby to get back at Wilson, and that there is some document or a number of credible witnesses who can testify to that. Assuming this is true, let's examine how the Libby timeline might go.

The trial, instead of being extended until early 2007 gets postponed until, oh, November. There will be an extensive witness list. Let's say the government calls Cheney early. The WH exerts executive privilege, and that must be appealed. It takes 4-6 weeks to wind through the appeals process and finally goes to the Supreme Court, which as luck would have it is out of session for the holidays.

Now remember - Bush has until his very last day in office to issue pardons, and he can of course issue a pardon to a person undergoing trial at the time. So now Cheney will not be forced to testify (even assuming the Supreme Court were willing to deny exectuive privilege, it will never get the chance). Bush pardons Libby his last day in office and the trial ends.

Patty F.

"We have not made any allegation that Mr. Libby knowingly, intentionally, outed a covert agent. We have not charged that."

- Patrick Fitzgerald, Justice Department Special Counsel

cathyf
Don't leave CathyF's explosive charge that Fitzgerald may be lying twisting in the wind.
Actually, I posited two possibilities, and Fitzgerald lying is the less explosive of the two. The more explosive charge is that we have a top-rate federal prosecutor who is so mentally retarded that he thinks Judy Miller is a credible witness.

cathy :-)

Creepy Dude

Oh and btw CT-don't forget that Libby testified he was "taken aback" when [he says, Russert denies] Russert told him Plame worked for the CIA?

Now-to follow up your weird analogy about forgetting your age-when you do forget it-are you actually "taken aback" when corrected.

Is more like "Jesus Christ-I'm 72?! I thought I was 56" or "Oh yeah, my birthday was last month, I'm 72."

Creepy Dude

By Occam's Razor CathyF I think we just have a mentally retarded commenter.

cathyf

Ahha! Something we agree on, creepy -- if you think Miller's testimony (as she reported it) is credible, then you are indeed a mentally retarded commenter.

cathy :-)

Creepy Dude

HaHaHa! I admire that you fired back, but don't make me crush you.

Seriously though, Miller's testimony is cited neither in the false statement charges nor the perjury charges. ONLY the obstruction, which as I cited ad nauseum, ultimately depend on Libby's state of knowledge, not the reporters.

So don't think Fitz has judged Miller that credible either.

Creepy Dude

Remember-the fact that the reporters contradict Libby is just the icing on the yellowcake. (I'm trying to launch that phrase so please use it elsewhere).

Syl

Cathy

I predict that if there is a trial, and if it turns out that some journalist had some information that was exculpatory for Libby, and that Fitzgerald did not have access to the information during the investigation because of the DoJ's press shield policy, then the DoJ's policy is over, any chance of a press shield law is over, and the state press shield laws will get repealed.

While I enjoyed the fear that reading this would put in the hearts of the press, it's not Fitz's responsibility to ferret out exculpatory evidence for Libby.

That's Libby's defense attorney's duty in the next step of the process. And he has no such constraints.

cathyf
it's not Fitz's responsibility to ferret out exculpatory evidence for Libby.
I don't agree. Our system is adversarial for sure, but it is not symetric. The prosecutor's responsibility is to justice, not to prosecution. (Here in Illinois we've had a little problem with that. Prosecutors who think that if they get a conviction and death penalty in some heinous crime they will be feted as great defenders of law and order, even though they knew during the trial the guys they were trying were innocent. They seem genuinely surprised that people are horrified by their actions, and shocked when the voters didn't reward them with high office.)

cathy :-)

arrowhead

cathy -

"Actually, I posited two possibilities, and Fitzgerald lying is the less explosive of the two. The more explosive charge is that we have a top-rate federal prosecutor who is so mentally retarded that he thinks Judy Miller is a credible witness."

Well said. Your comments about Prosecutors in Illinois provide an explanation for Fitzgerald's actions. Apart from the problems with the indictment, my gut feeling about Fitzgerald is that anybody who feels compelled to talk as much (read "give a speech") as he did on Friday has something to hide.

Cecil Turner

Do you still(along with TM) maintain that the entire case is premised on Libby's words vs. those of reporters?

Every part of every specification deals with a conversation with a reporter (none of which have anything to do with the actual leak that outed Plame, incidentally). Further, every charge hinges on these two assertions:

  • Russert did not ask LIBBY if LIBBY knew that Wilson’s wife worked for the CIA, nor did he tell LIBBY that all the reporters knew it; At the time of this conversation, LIBBY was well aware that Wilson’s wife worked at the CIA;
  • LIBBY did not advise [Cooper or Miller] that reporters were telling the administration that Wilson’s wife worked for the CIA, nor did LIBBY advise [them] that LIBBY did not know whether this was true
The reporters' testimony is required for all but the second part of the first assertion . . . and by itself, that's awfully academic. So yes, without the reporters, you got bupkus.

Not sure what you meant by 'optimistic.' Prosecutors as good and thorough as Fitzgerald don't put wishful thinking into indictments.

  • Libby (per Cooper): "I heard that too"
  • Indictment: "LIBBY confirmed for Cooper, without qualification, that LIBBY had heard that Wilson’s wife worked at the CIA;"
Inaccurate? Not really. Overstated perhaps.

Geek, Esq.


Russert did not ask LIBBY if LIBBY knew that Wilson’s wife worked for the CIA, nor did he tell LIBBY that all the reporters knew it; At the time of this conversation, LIBBY was well aware that Wilson’s wife worked at the CIA;

That's two assertions, not one Cecil.

And let's approach this as thinkers, not Republicans.

We have three witnesses who have no motive to lie whose stories all contradict the word of someone who (A) has strong and possibly multiple motives to lie and (B) has already been busted in one lie.

Cecil Turner

Oh and btw CT-don't forget that Libby testified he was "taken aback" when [he says, Russert denies] Russert told him Plame worked for the CIA?

Was he "taken aback" because he heard Wilson's wife worked at CIA? Or because he was learning about CIA agents from a reporter? Shouldn't he have been? And again, if Russert denies ever having the conversation (or that it covered Plame), why should we give great weight to the specifics he claims were discussed?

The other optimistic characterization was of Miller's testimony . . . Miller's version:

I told Mr. Fitzgerald that I was not sure whether Mr. Libby had used this name or whether I just made a mistake in writing it on my own. Another possibility, I said, is that I gave Mr. Libby the wrong name on purpose to see whether he would correct me and confirm her identity.
I also told the grand jury I thought it was odd that I had written "Wilson" because my memory is that I had heard her referred to only as Plame. Mr. Fitzgerald asked whether this suggested that Mr. Libby had given me the name Wilson. I told him I didn't know and didn't want to guess.
Indictment:
LIBBY did not advise Judith Miller, on or about July 12, 2003, that LIBBY had heard other reporters were saying that Wilson’s wife worked for the CIA, nor did LIBBY advise her that LIBBY did not know whether this assertion was true;
Miller was definite that he never told her that? When she apparently doesn't even know what name they discussed? Again, perhaps just a bit overstated.

That's two assertions, not one Cecil.

Two assertions--two halves of a compound assertion--whatever . . . Fitz is the one who lumped 'em together, blame him.

Geek, Esq.

Two assertions--two halves of a compound assertion--whatever . . . Fitz is the one who lumped 'em together, blame him.

Are you reading the same indictment I am?

*********************
Count One, Obstruction:

33. . . . LIBBY was aware that (the above statements) were false, in that:

i. Russert did not ask LIBBY if LIBBY knew that Wilson's wife worked for the CIA, nor did he tell LIBBY that all the reporters knew it; and

ii. At the time of this conversation, LIBBY was well aware that Wilson's wife worked at the CIA; in fact, LIBBY had participated in multiple conversations concerning this topic, including the following occasions . . .

*********************
Count Two (False Statement)

4. As defendant LIBBY well knew when he made it, this statement was false in that when LIBBY spoke with Russert on or about July 10 or 11, 2003:

a. Russert did not ask LIBBY if LIBBY knew that Wilson's wife worked for the CIA, nor did he tell LIBBY that all the reporters knew it; and

b. At the time of this conversation, LIBBY was well aware that Wilson's wife worked at the CIA
**********************
Count Four, Perjury:

3. In truth and fact, as LIBBY well knew when he gave his testimony, it was false in that:

a. Russert did not ask LIBBY if LIBBY knew that Wilson's wife worked for the CIA, nor did he tell LIBBY that all of the reporters knew it; and

b. At the time of this conversation, LIBBY was well aware that Wilson's wife worked at the CIA.

vnjagvet

Geek and Creepy:

You have spent a lot of time asserting that a successful trial of the crimes alleged in the Libby indictment do not depend on the credibility of Russert, Cooper and Miller. Based on my experience prosecuting and defending a number of perjury and false official statement cases, I respectfully disagree with those assertions. I continue to believe that unless the jury credits the respective versions of the Russert, Cooper and Miller of their conversations with Libby over the version which Libby gave the FBI and the grand jury, an acquittal will result. A conviction cannot be achieved unless each of testifies on direct and cross about those conversations and all relevant background circumstances surrounding those conversations.

I would be interested in hearing from experienced practitioners whether they agree or disagree about this point.

I also would be interested in hearing from Geek or Creepy what their order of proof would be for any or all of the indictment's counts.

Creepy Dude

"Further, every charge hinges on these two assertions"

Sorry CT but that's just flat out wrong. Apparently, there's no convincing you, but here goes:

Libby testimony from Count V which the indictment alleges is false testimony (i.e. this is a lie):

Libby: "I was very clear to say [to Cooper] reporters are telling us that because in my mind I still didn't know it as a fact. I thought I was – all I had was this information that was coming in from the reporters."

Now how does testimony from Libby about the state of his own mind depend on what reporters said? It's his own mental knowledge he's testifying to-not what anybody said.

Fitzgerald is charging that Libby's testimony as to (i) his personal knowledge and (ii) the information Libby had at the time are both lies. IOW Fitz thinks he can prove beyond a reasonable doubt that Libby lied about his own knowledge as to Plame's status. Thus, Libby claims he "fogot" he had already learned this from 9at least) Cheney.

Impossible to prove you say? Again nothing novel in a perjury charge, or really any litigation where personal knowledge is a topic of dispute. Proof is not to Godlike certainty-it's only to beyond a reasonable doubt.

Indeed, unless Libby himself recants, this is what Libby will be testifying to the petit jury should he take the stand. They can assess his credibility on the spot. Unfortunately for Libby, the grand jurors already have and found it wanting.

Geek, Esq.

Vnjagvet:

Given the fact that Libby has already been busted in one lie (that he was unaware that Wilson's wife worked for the CIA when he spoke to Russert) and the fact that he has tremendous incentives to lie while the other THREE witnesses lack such incentive, it's pretty much a slam-dunk.

Especially combined with the severe problems that come with putting Libby on the stand.

vnjagvet

Doesn't that still mean, Geek, that in order to make out his case, Fitz will have to rely on the testimony of Russert, Cooper and Miller, and that the jury will have to credit their respective versions of the three conversations over Libby's?

Geek, Esq.

Legally, no.

Realistically, moot point. Libby's version isn't credible. The evidence of the case supports their version--that this leak flowed out from Libby et al to reporters, not the other way around.

Truzenzuzex

Cathy:

I don't agree. Our system is adversarial for sure, but it is not symetric. The prosecutor's responsibility is to justice, not to prosecution.
Look Cathy, that is certainly the way the system should work, but the reality is rather different. In practice, prosecutors do relatively little actual investigating. That work is carried out by the FBI, or DCIS, or NIS, or the IG's office, or the IRS or all those other alphabet guys with blue coats and big yellow letters on them.

These officers are generally very suspicious people. They don't intend to do wrong, but they do tend to rationalize away exculpatory evidence unless it is very direct and compelling. In general, such evidence never makes it before the grand jury or even the prosecutor.

Another reason exculpatory evidence rarely gets heard by the GJ is because targets almost never testify in the real world. Only in the perverse world of politics, where you can get fired for taking the fifth, is this not the case. And when targets do appear before the GJ, their counsel will always, always tell them, "Don't try to talk the Grand Jury out of an indictment. Answer the questions truthfully and as completly as possible, but don't give them anything they don't already have to use against you."

Now I know that sounds wrong, but you have to understand the culture of the people we are talking about. Most of their time is spent trying to put real dangerous people behind bars, and they become very jaded by that process. A really good prosecutor can mitigate that cultural bias somewhat, but they defer to the LEO's to do the grunt work and they trust them for the most part.

This is why the old saying goes "any prosecutor worth his salt can indict a ham sandwich". Exculpatory evidence is, generally speaking, delivered in the trial court, not before the GJ. There are exceptions, especially before state grand juries - but for the federal GJ, rarely.

clarice

Vnjagvet Someone asked about discovery and I thought I responded but can't find it..Can you refresh my recollection because it's a long time since I dealt with this?
The prosecutor has to turn over to Libby all exculpatory material in his possession.
He has to turn over to him the statements of all witnesses he intends to call and all documents which he intends to place in evidence.

But in this case, the Prosecutor was more constrained in interrogating the reporters than he would be of other witnesses . Thus, he apparently didn't ask Russert about whom else he had discussed Wilson/Plame.

How is Libby to get adequate pretrial discovery of the reporters?
(a) I suppose he could ask them to voluntarily submit themselves to pre trial discovery and note at trial their unwillingness to cooperate.
(b) I've never seen this, but he could make a 6th Amendment argument to the Court asking that such depositions be permitted and argue that to not have that would be unconstitutional under the particular circumstances of this case. (The SP would argue that the conversations are not relevant under the terms of the indictment, but as we've been arguing, the conversations are critical.Certainly that is the case with Russert.)

cathyf

Ok, suppose the transcript of the FBI interview goes something like this:

LIBBY: When you have been given the trust of keeping secrets, it's like the Aspens in Colorado. When they change color in the fall, they all change together because their roots are interconnected. The only way to prevent them from doing this is if there is a barrier between one set of roots and another.

LIBBY: . . . . And then he said, you know, did you know that this – excuse me, did you know
that Ambassador Wilson's wife works at the CIA? And I was a little taken aback by
that. I remember being taken aback by it. And I said – he may have said a little more
but that was – he said that. And I said, no, I don't know that. And I said, no, I don't
know that intentionally because I didn't want him to take anything I was saying as in
any way confirming what he said, because at that point in time I did not recall that
I had ever known, and I thought this is something that he was telling me that I was
first learning. And so I said, no, I don't know that because I want to be very careful
not to confirm it for him, so that he didn't take my statement as confirmation for him.

And the FBI guys, being practical down-to-earth kinds of guys, left the weirdo crap about the trees out of their report.

Something like that would certainly put a way different spin on Libby's statement, wouldn't it?

cathy :-)

cathyf

Ok, somebody screwed up the blockquote tags -- it wasn't me this time!!!!

cathy :-)

Truzenzuzex

vnjagvet:

I would be interested in hearing from experienced practitioners whether they agree or disagree about this point.
I am not a "practitioner" but I spent several years involved in a large and complex federal case [not as a defendant, thank God]. I can tell you that your post describes exactly how every single defense attorney approached the defense of each federal indictment in that case. Is that standard practice? I can only offer anecdotal evidence to support it, but I offer what I can.

One lawyer involved was a former IRS special agent turned defense council. He specialized in IRS cases, but sat first and second chair in many white collar criminal cases. His basic philosphy was to disprove or cast doubt on as many of the allegations contained in the indictment as possible. He told me the more holes you can poke in it, the less likely a jury is to convict.

cathyf

Truzenzuzex, I appreciate your argument, but there is one powerful incentive for a prosecutor to give at least some passing concern to exculpatory evidence, and that is being made a fool in court. I'm sure that FBI agents and police detectives don't appreciate being played for fools by lying witnesses, either.

Not to mention the long-term career damage which becomes obvious when you go to run for governor and your opponent (known to one and all by his nickname "The Haircut") keeps hammering away at how you tried these 2 guys for murder four times until you finally got a conviction and a death penalty which held up on appeal. Even though you knew 1 month into the second trial that you had not only exculpatory evidence, but proof beyond a reasonable doubt that they were innocent.

(A note -- Fitzgerald is the federal prosecutor who now runs the office which prosecuted the county prosecutors for civil rights violations of the two innocent guys. So he has a slightly more up-front-and-personal view of these issues.)

cathy :-)

Geek, Esq.

The problem is that there are very few holes to punch here.

First of all, Ari and the other WH insiders are going to be prosecution Witnesses. Do you really think that Libby is going to let his defense counsel call the WH a bunch of liars? Goodbye, pardon!

As far as the reporters are concerned, he's going to have a really tough time contradicting their GJ testimony that they never told LIBBY about Wilson's wife.

And again, defense counsel is going to think long and hard about putting Libby on the stand.

Truzenzuzex

Clarice:

How is Libby to get adequate pretrial discovery of the reporters?
Libby's lawyers could simply depose them. I can't imagine why Libby's team would be bound by the agreements made by Fitzgerald.

Of course, the reporters could refuse to answer based on source confidentiality and Libby's council would have to show why he needed testimony beyond the subject matter already disclosed, so they would have to have a rather compelling reason. If they could show a compelling need, the judge would probably be inclined to order the reporters to answer.

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Wilson/Plame