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)
While high profile prosecutions usually are ascribed to the lead prosecutor (e.g. Ken Starr, Archibald Cox), much of the basic work in investigating and trying a case is done by career prosecutors out of the limelight. The same is true of Special Counsel Patrict Fitzgerald's office, and Legal Times has an interesting article (available on Law.Com here) giving the background of the various lawyers working on the investigation of the leak of Valerie Plame's status as a CIA agent. (ph)
Scrushy Pleads Not Guilty
It should not come as a surprise that Richard Scrushy entered a not guilty plea to corruption charges contained in an indictment filed in the Middle District of Alabama. Invoking God and country, Scrushy proclaimed that he was "absolutely not guilty," noting that he grew up reciting the Pledge of Allegiance and singing "God Bless America," but ""I am broken right now at what our government is doing." Scrushy also stated that the government offered him immunity if he would testify against former Alabama Governor Don Siegelman, but that he had nothing to offer. A Birmingham News story (here) discusses the not guilty plea. (ph)
Principal Steals From Students
Sometimes you see a case in which you wonder whether people can sink much lower. A principal at an elementary school in Clinton Township, Michigan, entered a guilty plea to embezzling over $400,000 from the school's child care program and parent-teacher organization over a seven-year period. A press release issued by the U.S. Attorney's Office for the Eastern District of Michigan (here) notes that under the guilty plea the principal will have to serve a sentence of 27 to 33 months and forfeit properties worth approximately $400,000. A principal stealing from students causes far more damage than just the monetary costs in the betrayal of trust. (ph)
October 30, 2005
Explaining the Obstruction Charge & Looking At the Defense
Co-Blogger Peter Henning explains the Obstruction of Justice charge here in the Washington Post.
And AJC (AP) reports here on the possible defense, which I call "the too busy executive." Actually this might be interesting as Libby probably has an incredible number of telephone calls and meetings - how could he remember them all? Will a jury buy this?
Couple this with the three charges and the list of witnesses for all three charges (all admissible at the same trial) and one has to ask whether the prosecutor be throwing spaghetti at the wall and hoping that something just might stick.
Or will there be a plea (will Libby want to roll the dice and go to trial or take an offer that might minimize a possible conviction?) Libby, a lawyer, has more to lose with a plea if the plea implicates his law license. And will Prosecutor Fitzgerald offer a plea, and will it be a reasonable one? If he does offer a plea will it be dependent upon Libby testifying against others? WHO might the others be? (is Karl Rove nervous?) And would Libby's testimony be credible - after all he was charged with false declarations?
And will there be a pardon now or down the road? A lot of choices. Did I hear Fitzgerald say - take a deep breath. Stay tuned.