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June 07, 2007

Comments

clarice

Fred's article is also excellent. I think Otis has a very good point. If the judge insists that Libby begin serving time immediately as his appeal progresses, commute his sentence to bring it down to Berger's.

Cecil Turner

Fitzgerald as much as admitted after the trial (link to WaPo video) that he was brought in to investigate the very odd story being told by Libby . . .

That's funny, because I thought he was supposed to investigate:

. . . the possible unauthorized disclosure of classified information regarding the disclosure of Valerie Wilson’s affiliation with the CIA to various reporters in the spring of 2003.
I'm with Toensing on this point.

cathyf

I just posted this on the other thread, but it seems more on topic here. (And besides -- I get to consume more of Tom's bandwidth with the ego boost of seeing my words yet again!)

Well, Bush is a notorious poker player who doesn't tip his hand unless he needs to. If he were going to do what I want him to do, I would think, first, wait until we see if Walton denies the appeal bond. If he doesn't, then Bush should just keep his mouth shut. If he does, then the next step will be to appeal that decision -- and I think that appeal has an excellent chance of succeeding. Only if the appeals court denies the appeal bond should Bush commute the sentence.

I think that Walton is playing a dangerous game here. He is afraid that if Libby is allowed to appeal, then the appeals court is going to spank him very badly. So I think he is trying to force Bush to pardon Libby so as to moot the appeal and make it all go away. (Because, you see, a side effect of pardoning Libby is that it also "pardons" Walton and Fitzgerald and Russert by making any punishment for them dead letter.)

If that's what's in Walton's head, well something about bringing a knife to a gun fight comes to mind... If we can figure out that Bush can commute the sentence to let the appeals go forward, I'm sure that the White House can figure it out, too. Also, I have noticed that there is one value that judges have which cuts across all idealogical and philosophical lines and all levels of the court system -- they get really really really pissed off at people playing them for fools. If the appeals court decides that Walton is trying to screw with them, they will overrule him and grant the appeal bond so fast that Walton's head will be spinning for a week.

On that same line of reasoning, what Bush should want (as the guy who stood up twice and swore to defend and protect the constitution) is for the judicial branch to fix Walton's mess. The most effective way to do that is to give them enough room to do it -- anything which a prickly judge (and prickliness is a notorious aspect of judical character) would interpret as interference should be avoided unless absolutely necessary. What Bush should avoid at pretty much all costs is setting up a situation where the appeals court believes that Bush is going to pardon Libby anyway, because that would just piss them off, and who knows what sort of disaster they will cause if they decide to get revenge.

clarice

cathyf--that is such a brilliant analysis I;ve been posting and sending it everywhere.

Rick Ballard

From Fred -

Fitzgerald, seeing this probation report and reverting to form as someone without professional judgment or scruples when it comes to landing his prey, weighed in.

Now that's the way to get a donation - I'm With Fred

qquirl

The FIVE YEAR LAW MAKER was taken in because this was what Plame wanted Fitz to focus on. It's been an agenda at CIA since Ames. Plame has given away alot. She is allowing herself to be used in the NY terror airport(pipeline!way too cool a target) thing. She is an excellent resource. The G8 has to be impressed.

I don't think Vlad is gonna tell ya.

glasater

So Cathyf--If the President did commute, that wouldn't piss off the appeals court?

Rick Ballard

"Bush ought to declassify enough material that the rest of us can judge whether Ms. Plame really was covered by the IIPA, and whether Fitzgerald really had credible grounds to think so when he took the appointment."

TM,

Being covered would only be one prong. How do you get past the CIA's abject failure to protect if she was covered? Harlow's jibberjabber on top of her own attendance at a Democrat steering function with hubby are enough to snap that prong.

I would rather see the initial referral coupled with the final referral. I believe that the initial referral would be more dispositive. You know, the one made before CIA's Dem clique got their marching orders from Schumer and Conyers.

danking

I'm still surprised at how the defense let Ari off the stand without bringing in Dickerson and Gregory to confirm/deny the testimony, especially when Gregory ties into Russert.

So Ari didn't tell you about Plame but was dropping big hints to ask the CIA. Well, what did the CIA tell you when you asked? Did you tell your bosses? Why not? Wasn't this a huge story at the time?

What about the follow-up from Ari's testimony with the investigators? So Ari has said that he told Dickerson and Gregory about Plame. Can we see the notes from the FBI's interviews with these two reporters? You didn't talk to these reporters?

Just feel that the defense left a lot on the table. Still shocked that a reporter who worked with some of the witnesses was on the jury.

Jane

If the President did commute, that wouldn't piss off the appeals court

Not bloody likely. It's not like they are looking for work.

clarice

I'm not sure a reduction of the sentence would vitiate the appeal, Jane. But as the sentence far exceeded the Probation Dept report, I don't think a reduction ahead of the appeal would "piss off the court" either.

glasater

Being a former blackjack/poker dealer I appreciate the President's skill or proclivities in that area but right now am wondering how his chess game is doing.

Jeff Dobbs

Sorry, not going to let a thread titled "Justice for Libby" go without a link to one of my all time favoritest articles EVER.

E-V-E-R

I Call for Justice

No prize for guessing who wrote it.

cathyf
So Cathyf--If the President did commute, that wouldn't piss off the appeals court?
Absolutely. Which is why he shouldn't do anything which makes the appeals court even think that the idea has occured to him, unless he is actually in the process of commuting the sentence. Let Walton piss off the appeals court while Bush acts all innocent "of course we are deferring to you, blah blah blah."

In fact, I think that his touch has been about right -- so far. Emphasizing that there is a real person who is the victim in all this, and the political games are being played for high stakes for him, while staying very far away from anything even remotely resembling a threat of use of executive power (pardon or commutation.) It gives the appeals court judges the room to do the right thing.

Yeah, sure it's like parents of a high-strung toddler falling all over themselves to make sure that they don't trigger the brat to have a tantrum, but in this case the "brats" are extremely dangerous not only to Libby, but to all of us.

glasater

Thank you Cathyf for your truly insightful comments and clear thinking put to words. Can understand that judges are prickly but Walton should have had "reversal" in the back of his little mind from the beginning of the trial. One can only wonder---
And surely including pardoning Walton, Fitzgerald, et al, would be terrible.

cathyf
Just feel that the defense left a lot on the table.
Yeah, I know what you mean -- but on the other hand, I'm the author of endless multi-page blog comments. I'm very well aware that droning on and on and on just makes people turn off, and that overwhelming a jury with days and days and days of stuff risks turning them against you. (Although in this particular case this particular jury turned out to be very tolerant of this crap -- they put up with being forced by Fitzgerald to listen to 8 hours of tapes of Libby's testimony. It was a risky strategy for Fitzgerald, but he won on that one.)

We (collectively) spend way too much time here seriously engaging trolls, so we are experts and how it works. Fitzgerald's strategy was very troll-like -- throw all sorts of stuff around, hoping that some would stick, and that the defense would miss refuting something.

I spent lots of time talking about the peculiar logic of the Cooper count back during the trial. I maintain that Fitzgerald played a subtle game: he made a charge with an "and" in the middle. The charge was that Libby did not tell Cooper that he heard about Plame from reporters and instead Libby confirmed without qualification. Well, in fact, according to the testimony Libby said that there were two qualifications -- "from reporters" and "didn't know if it was true" while Cooper's notes noted one qualification -- "didn't know if it was true". So the second clause of the count -- "without qualification" -- was false according to all witnesses and all testimony. (And I keep screaming that filing this in an indictment was Fitzgerald committing perjury and obstruction of justice by simply lying in his characterization of Cooper's testimony before the grand jury.) The logic of Fitzgerald's game is that he was offering this as bait to the defense. You see, the defense went in there and proved beyond any and all doubt, that this charge was false. What I think happened, is that Fitzgerald thus successfully transferred the burden of proof to the defense in jurors' minds -- "Well, they didn't prove this charge false. They proved that other charge false, so why didn't they prove this one? It must be true." That charge then became the bunt or sacrifice fly for the other charges (my, my, more baseball analogies...)

The whole transfer of the burden of proof thing is classic troll behavior. They start by making all sorts of "ignorant" provably false assertions, which we all spend lots of time showing are false. But eventually it always ends the same way with them demanding that we prove a negative, and then claiming victory because we failed to do something logically impossible. The problem is that engaging the trolls at the beginning when their demands are reasonable gives their later absurd demands legitimacy.

cathyf
(And I keep screaming that filing this in an indictment was Fitzgerald committing perjury and obstruction of justice by simply lying in his characterization of Cooper's testimony before the grand jury.)
Here I am commenting upon myself again. Oh, well, vanity... :-)

There is a way to put an end to this sort of thing. Make an example of Fitzgerald. Collect up all of the lies in all of his court filings in this case, and charge him with perjury and obstruction. One count of each for each lie. Add conspiracy to commit obstruction, with the FBI agents and other lawyers either indicted or unindicted co-conspirators, to each lie as well. There's a line between playing hardball and committing crimes, and the DoJ has edged further and further over the line. It's time to push them back on the other side.

lurker9876

Very good posts, cathyf. Great analysis.

clarice

Thank you H & R. (A case of the good stuff is in the mail.)

Jane

Cathy,

While I certainly like the idea of putting Fitz in prison - for life to set an example, I can't think of a time when he was under oath and thus the perjury charge is a tough one. I'm rather see him disbarred for ethical problems. For one thing, it will probably hurt more. Most prosecutors like him and Nifong are holier than thou guys who think they corner the market on ethics - after all, they work for the people.

Actually, I don't want him even to go to prison. I want him out of public service and handed his hat "by the people".

It's not gonna happen.

Cecil Turner

The whole transfer of the burden of proof thing is classic troll behavior.

Ain't that the truth. Usually with a negative (e.g., Juke's patented: "Tell me why that doesn't prove . . . "). It's a fallacy, and fundamentally dishonest, but too often it works.

Actually, I don't want him even to go to prison. I want him out of public service and handed his hat "by the people".

Concur, and with your prognosis as well, unfortunately.

Jane

"Most prosecutors like him and Nifong"

Ugh - now that's one ugly sentence.

cathyf
I can't think of a time when he was under oath and thus the perjury charge is a tough one.
All of the legal filings are sworn to under penalty of perjury. Now, sure, the indictment press conference wasn't under oath so the lies he told there are "merely" obstruction and conspiracy to commit obstruction, but the whole paper trail is basically all under oath.

Heck, I don't even care if Fitzgerald goes to jail. I just want him made an example of as deterrence for the other prosecutors out there. (You see, I live in IL. Where prosecutors tried two innocent guys four time and got death penalties three times -- the convictions kept getting overturned on appeal and the defendents would get new trials -- even though the prosecutors got proof beyond any doubt between the first and second trials that the guys were innocent. This was discovered in the middle of the fourth trial. The prosecutors were tried for prosecutorial misconduct -- by Fitzgerald -- and got off. The county's states attorney, Jim Ryan, thought that using the judicial process to try to murder someone was so no big deal that he thought he could run for governor in 2002, and that's why we've got The Haircut as a governor. So, yeah, I'm pissed by prosecutors committing crimes in my name, and what happened to Libby is not some isolated incident.)

Jane

All of the legal filings are sworn to under penalty of perjury.

Yup, you are absolutely right!

So, yeah, I'm pissed by prosecutors committing crimes in my name, and what happened to Libby is not some isolated incident.)

That stuff has bothered me for my entire career - and the stuff in the other direction (Berger) bothers me too. I think it has gotten worse, I think more lawyers are willing to lie more often, but I could be wrong about that.

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