Monday, October 31, 2005

The "Dedicated-But-Overworked-Public-Servant" Defense

The initial outlines of I. Lewis Libby's defense to the five-count indictment emerged shortly after the charges were unveiled when his attorney, Joseph Tate, stated, "Mr. Libby testified to the best of his recollection on all occasions."  As Ellen Podgor notes (post here), the defense will emphasize how busy Libby was, and that these were relatively brief conversations amidst the crush of important government business (perhaps thereby invoking the war in Iraq and even Sept. 11 as touchstones of the scope of his responsibilities).  This strikes me as an off-shoot of the "honest-but-ignorant CEO" defense urged earlier this year in the trials of Richard Scrushy and Bernie Ebbers -- successfully by one but not the other.  The crux of the defense is that a CEO of a large company cannot be expected to pay attention to the details of the entire business, and that the person relies on others to handle the more mundane tasks (such as accounting).  The details of individuals meetings and memoranda are not what a CEO focuses on.

While the prosecution of Libby involves different charges, the case hinges, like the corporate cases, on proving his intent.  Libby could take the approach that his statements were entirely accurate, but then he gets into a fight over whether Tim  Russert and Matt Cooper were telling the truth, a battle that may be very hard to win.  Focusing the case on Libby's potentially faulty memory, and any inconsistencies in the testimony of both the media witnesses and internal government officials, can be used to support the position that Libby shares the same trait as others: a lack of attention to detail.  Moreover, the "dedicated-but-overworked-public-servant" defense does not force him into a confrontation with the government witnesses, particularly Vice President Cheney should he testify, but would instead present Cheney (and perhaps Karl Rove) an opening to support Libby's position by noting how important his work is and how many issues Libby dealt with on a daily basis.  By building up Libby's work, that may diminish the importance of Valerie Plame's CIA role within the scope of his attention.  An interesting question will be whether a defense that emphasizes the importance of Libby and the Vice President may be perceived as diminishing the importance of the President and his advisers -- the whole "power behind the throne" issue that might cause a reaction from the White House. 

A Washington Post story (here) discusses Libby's defense. (ph)

http://lawprofessors.typepad.com/whitecollarcrime_blog/2005/10/the_dedicatedbu.html

Obstruction, Perjury, Prosecutions | Permalink

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