Saturday, January 21, 2006

Libby's Defense

"Scooter" Libby's defense is starting to show more and more. (See Washington Post here)  The Wall Street Journal reports here of possible forthcoming subpeonas of the defense (interestingly the motion was filed jointly with the prosecution).  Two themes seem to be appearing:  1) a defense of the "too busy executive" (see post here), and now 2) others knew this information.

This second defense is important because it can eliminate the "materiality" element of the false statement and false declaration charges. Both 18 U.S.C. 1001 and 1623  require that the statement be "material."  If others already knew this information, then materiality becomes questionable.  The Indictment against Libby (here) has two (2) counts of false statements and two (2) counts of perjury.

In addition to these four counts, there is a count charging Libby with Obstruction of Justice. The obstruction charge 18 U.S.C. 1503 may be more problematic for the defense. Obstruction does not have a clearly defined element of materiality. I have argued that one should read "materiality" into the statute, in the same way that "materiality" has been read into the mail fraud statute in United States v.Neder, 527 U.S. 1 (1999). (See Symposium, Washburn Law Journal - "Arthur Andersen, LLP and Martha Stewart: Should Materiality be an Element of Obstruction of Justice." (see here). Perhaps this case will wind up being the test case of whether materiality should be a part of an obstruction charge.


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