Monday, February 12, 2007

What's Up in the Scooter Libby Trial This Week

With the prosecution resting in the I. Lewis "Scooter" Libby trial, the defense now has to decide what, if anything, it wishes to present. TalkLeft has linked the motions of this weekend, here and here , that speak to the government's desire to keep certain evidence from the jury. The evidence would be coming from Andrea Mitchell and the issue to a large extent relates to the reliability of the testimony, a key component of hearsay. But the real question for the next week is whether Libby will testify.  If the case is strong it is likely that the defense will rest without his testimony. But, on the other hand, despite being told that an accused does not have testify, jurors want to hear what the witness has to say, and defense counsel often factors that into their decision. Stay tuned.


February 12, 2007 in Plame Investigation | Permalink | Comments (0) | TrackBack (0)

Saturday, February 10, 2007

Could the Jury Find Libby Not Guilty?

The government rested its case against I. Lewis Libby, winding up the testimony with Meet the Press host Tim Russert, who Libby identified in the grand jury as the source of his knowledge about Valerie Plame's status as a CIA operative -- or at least the second source after Vice-President Cheney.  Russert flatly contradicted Libby's statements to the FBI and grand jury, stating that he had never heard of Plame until he read Robert Novak's column a few days later, the item that touched off the long-running investigation of the leak.  Special Counsel Patrick Fitzgerald offered six witnesses from the Bush Administration who testified about conversations with Libby in which they informed him about Plame, and three journalists testified they received information from Libby about Plame.  Is that too much evidence for Libby to overcome with his "honest but overworked public servant" defense that claims he simply forgot about these conversations?

While the defense may be viewed as a bit far-fetched, the government's case is not as airtight as it seems.  The problem Fitzgerald faces -- not one of his own making -- is that just about everyone seems to be a liar.  In an approach that looks to be all-too-typical of Washington today, the various witnesses appear to have viewed their initial interviews with the FBI (or grand jury) as an opportunity to spin the investigation in a way that made themselves and others look good, apparently on the belief that if the statements were later contradicted they would just move on to a different story.  Pretty much standard procedure in a campaign, so why not try it with the investigators? 

The first two government witnesses were former State Department official Marc Grossman, a close ally of Richard Armitrage, another leaker about Plame who has not been prosecuted, and former CIA heavyweight Robert Grenier.  Each man recounted telling Libby about Plame, yet when each initially spoke with the FBI they made no mention of that fact.  Now, it could be that they simply didn't recall who they spoke with about what, and only focused on Libby later, but isn't it odd that each neglected to mention Libby and then later had almost complete recall of multiple conversations?  Former White House spokesman Ari Fleisher took the stand with a "pig in a poke" deal from Fitzgerald (see earlier post here) in which he refused to make any statement before receiving immunity -- not the type of witness who makes you comfortable with his recall when he demanded the prosecutor trust him blindly.

The media witnesses where hardly much better.  Former New York Times reporter Judith Miller, a key component in the case, spent 85 days in jail for refusing to testify before the grand jury about her conversations with Libby because she had promised him confidentiality.  In her first appearance before the grand jury, Miller testified as to her July conversation with Libby, but not about a June discussion that included Plame's CIA role.  Only after Fitzgerald showed her notes of the conversation did she now recall that earlier conversation, offering the excuse that if she didn't write a story about it she didn't remember the details.  A juror asked a question (through the judge) about whether that was her standard procedure.  Sitting in a jail in Alexandria for civil contempt because of your conversations with a senior administration official would seem to be a good time to try to remember everything about the case, because there isn't that much else you can do there.  How did an important detail of a relationship that could have landed Miller in jail for upwards of eighteen months slip her mind? 

Tim  Russert had his own problems, this time almost the opposite of the "forgetful first FBI interview" scenario.  When first approached by an FBI agent, Russert willingly recounted his conversation with Libby.  Later on in the investigation, he refused to cooperate with the grand jury and insisted that his source was confidential.  Russert also went on the Don Imus radio program and, according to reports of his interview, sounded almost exultant at the prospect of Libby being indicted.  Hardly the neutral journalist whose only interest is the truth.  But then, the testimony from Vice-President Cheney's media adviser, Cathie Martin, was about how the Administration sought to manipulate the media, so truth takes a back seat to access, sources, and spin.

I'm not so naive as to think most (or even many) people tell the truth in Washington.  But the government's case is built on people who made statements that strain credulity, and worked to manipulate the truth.  In that maelstrom of misinformation, can a jury find Libby guilty?  The burden of proof is on the government, and the issue is not whether Libby is innocent.  In an earlier post, I questioned whether Libby could avoid taking the witness stand -- Is Libby Backpedaling? -- but now I wonder whether he should testify.  Ted Wells, one of Libby's defense lawyers, has made a name for himself by successfully representing high-profile political defendants like former cabinet members Ray Donovan and Mike Espy in cases in which they did not testify.  The problem for Libby may be his grand jury testimony in which he says he first learned about Plame's identity from Vice-President Cheney, forgot the information, and then had it replanted by Russert.  Again, hardly the stuff of a credible witness.  But perhaps a defense tactic of "a pox on all the liars" would work.  The argument could be that Libby may have bent the truth, but so did everyone else it seems who found himself or herself in the same room as an FBI agent or grand juror, so how can we say he committed perjury, made false statements, and obstructed justice?  That might result in a not guilty verdict. (ph)

February 10, 2007 in Perjury, Plame Investigation, Prosecutions | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 7, 2007

Is Libby Backpedaling?

All along, defense counsel for I. Lewis Libby proclaimed that he would testify in his defense at trial to advance the position that any misstatements in his grand jury testimony and to the FBI were the product of a faulty memory -- the "dedicated but overworked public servant" defense.  It now appears that Libby may not testify at trial, as discussed in his brief filed with the District Court on February 5 (available below).  It states, "We emphasize that at this point Mr. Libby has not decided whether he will testify."  The brief seeks the admission of three categories of national security information at trial to show the types of information innundating Libby around the time that he spoke with reporters about Valerie Plame's CIA status.  The government's position is that if Libby does not testify, then the evidence should not be admitted because it is irrelevant.  Libby argues that denying admission of the evidence would infringe on his Fifth Amendment right against self-incrimination and Sixth Amendment right to present a defense.

The interesting question is why the defense appears to be backpedaling from its earlier position.  A faulty memory defense is difficult to establish without the defendant's testimony because there is no witness who can say what the defendant did and did not remember, or why the person was distracted.  Offering evidence of what could have occupied Libby's attention may not be admissible without his testimony as to what exactly he was focusing on, and how he could have made the mistake regarding his conversations with the reporters.  The District Court may not allow evidence to show what might have been on his mind.  Defenses centered on the defendant's lack of intent often pressure the person to testify, and it is not uncommon that evidence is excluded because it would allow the jury to speculate.

In a sense, Libby has already testified because Special Counsel Patrick Fitzgerald played approximately eight hours of the grand jury testimony that is the basis for the perjury charge.  I have not heard of a perjury case in which that much testimony of the defendant's testimony was provided to the jury, although it may happen in other cases.  The government's strategy in offering the entire body of testimony may be to put Libby in a position where it is too dangerous for him take the witness stand in his defense.  Having heard the explanations to the grand jury, it would be difficult for him to take a different position at trial, and he opens himself to the possiblity of being impeached by any inconsistency between the trial and grand jury testimony.  Libby's brief stating that he may not testify could be an acknowledgement that the government's tactic has effectively prevented him from testifying. 

His brief states that "any errors in his statements and testimony resulted form confusion, mistake, or faulty memory rather than deliberate deception."  The government's witnesses testified that they provided the information about Plame to Libby, and he was rather insistent about rebutting the charges made by her husband, Joseph Wilson.  Asking the jury to find "confusion, mistake, or faulty memory" when they've heard the grand jury testimony but without hearing from Libby may well be impossible.  (ph)

Download libby_state_of_mind_brief_feb_5_2007.pdf

February 7, 2007 in Perjury, Plame Investigation, Prosecutions | Permalink | Comments (1) | TrackBack (0)

Monday, February 5, 2007

8 Hours of Tapes

8 hours of tapes are what the jury is presenting hearing according to the Washington Post here. And Talk Left has some interesting commentary here.  Also check out Neil Lewis's article in the New York Times here.  Some questions to consider: How will jurors react to these 8 hours of testimony?  Will they find the prosecution pushing too hard in having such a long recording?  Will this evidence serve to discredit Libby and be the sounds that strengthen the prosecution case?  Stay tuned.


February 5, 2007 in Plame Investigation | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 31, 2007

The Devil Is in the Details at Libby's Trial

Special Counsel Patrick Fitzgerald opened the prosecution's case-in-chief with five high-level government witnesses, including former White House spokesman Ari Fleischer, who each testified to having given I. Lewis Libby at least some information about Valerie Plame's role as a CIA operative.  The trial has now switched to the media witnesses, beginning with New York Times reporter Judith Miller, who testified that Libby first spoke to her about Plame on June 23, 2003 -- the twenty-first anniversary of the famous "smoking gun" conversation between President Nixon and H.R. Haldeman about covering up the Watergate break-in.  As with the earlier witnesses, Miller had some recall  problems in her earlier grand jury testimony when she did not mention this meeting with Libby the first time she testified.  According to an AP story (here), Libby's counsel, William Jeffress, asked Miller about her inability to recall the meeting until reviewing her notes, and she responded that "it's really easy to forget details of a story you're not writing."  How she could have missed this "detail" entirely, at least for a time, is a bit mystifying, if you will, given that Miller spent 85 days in jail for civil contempt for refusing to testify about her discussions with a secret source who turned out to be Libby. 

Like so much in this trial, it is the details of the story that will tell the tale, and Miller palming off a lapse of memory like this may not play well with the jury.  Nevertheless, the drumbeat of witnesses from inside the Administration and in the media saying the same basic thing, that Libby told (or questioned) them about Plame's CIA status, will make it difficult to mount successfully a "gosh, it must have slipped my mind when I spoke with the FBI and testified before the grand jury" defense.  The case remains a credibility battle, and the stakes will go up with each additional witness who says Libby raised the issue of Plame's role at the CIA first. (ph)


UPDATE: For an interesting first-hand perspective on Miller's testimony, including an issue related to questioning her about confidential sources, check Jeralyn Merritt's thorough post on TalkLeft (here).

January 31, 2007 in Perjury, Plame Investigation, Prosecutions | Permalink | Comments (0) | TrackBack (0)

Monday, January 29, 2007

Ari Fleischer Testifies in Libby Trial

Testifying under a grant of immunity, Ari Fleischer disclosed to jurors in the I. Lewis "Scooter" Libby case that he had in fact been told about CIA Valerie Plame's undercover status by the accused. (see Washington Post and New York Times).   Because he is testifying under a grant of immunity, his testimony cannot be used against him.  In essence he is testifying, although it appears that there is no written guarantee of anything being given to him for this testimony. The only assurance he has is that prosecutors will not use his testimony against him, or the fruits of that testimony.   Absent perjury, it is rare a prosecutor indicts on the same conduct, and when they do it can be subject to enormous scrutiny (see United States v. Webster Hubbell). 

Prosecutors are often reluctant to put in writing specific terms of a deal, or to guarantee a deal, as this then becomes the heart of a cross-examination.  If they offer a deal, it has to be disclosed and the witness's testimony may be considered biased as influenced by the terms of the deal.  Thus, irrespective of whether a witness has criminal exposure, a grant of immunity allows the individual to at least receive protection for any statements that they make on the witness stand that respond to the question asked.  How this will play out may be seen tomorrow, when Fleischer gets cross-examined.

Exhibits admitted at the trial can be found here.


January 29, 2007 in Plame Investigation, Prosecutions | Permalink | Comments (0) | TrackBack (0)

Sunday, January 28, 2007

Jencks Act Statements & Libby Trial

The TalkLeft Blog discusses whether Libby's attorneys have all statements by Karl Rove, noting that:

"Fitz has taken the position since day 1 that he's not obligated to turn over statements of defense witnesses, only those of witnesses he intends to call. (That wouldn't be acceptable in my federal District, which has a more open file policy, but each District is different.)"

This is an interesting point that rings true to those of us who have researched the Jencks Act.  If the discovery material is exculpatory to the accused, the government is obligated under Brady to turn that evidence over to the defense.  Otherwise, the Jencks Act (18 U.S.C. s 3500) merely requires that once the witness testifies for the government, the defense is entitled to the prior statements of that witness before cross-examination is conducted. (see also  Fed. Criminal Rules of Procedure, Rule 26.2).  So if the prosecutor calls Karl Rove, the statements would become available to the defense.

In reality, most prosecutors turn over Jencks material in advance of trial.  In a study I conducted years ago and reported in a symposium article titled, Criminal Discovery of Jencks Witness Statements: Timing Makes a Difference, 15 Georgia St. L. Rev. 651 (1999), a survey of defense attorneys noted that they received Jencks material days before trial, in many cases either 3, 5, 7, 10, or longer before the trial began.

Several things are clear here: 1) there is no uniformity on when witness statements will be received by defense counsel from the government. It seems odd that the government pushes for uniformity in sentencing, but is unable to offer the same within the trial; 2) that some prosecutors seem reluctant to give these important trial materials to the defense (don't they want the truth to prevail); 3) that if the prosecutor and defense counsel decide not to call Karl Rove, we may never know the contents of his testimony before the grand jury.


January 28, 2007 in Plame Investigation, Prosecutions | Permalink | Comments (0) | TrackBack (0)

Saturday, January 27, 2007

Did Fitzgerald Buy a "Pig in a Poke" From Ari Fleischer?

The common phrase uttered by prosecutors asked to grant immunity (or even enter into a plea deal in exchange for cooperation) is "We won't buy a 'pig in a poke.'"  Having uttered it myself with no clue what it meant, I once looked up the phrase and learned that in an earlier era pigs (and other animals) being transported to a market to be sold were kept in a "poke" sack, which is a thick canvas bag, to keep them from escaping -- pigs were especially prone to running away, so the sack was kept tied tightly.  Rather than buying something sight unseen (like we do on the internet all the time), the purchaser demanded to see the animal before paying for it, lest he buy the pig in an unopened poke.  For prosecutors, the phrase is an indication that the witness/defendant has to provide a statement, usually called a proffer, before the government will make a deal. 

The prosecution of I. Lewis Libby has brought this timeworn phrase to the forefront with news that former White House spokesman Ari Fleischer sold the aforesaid pig in a poke to Special Counsel Patrick Fitzgerald when he demanded immunity during the investigation of the leak of Valerie Plame's status as a CIA agent without first making a proffer.  Fleischer is scheduled to testify against Libby at trial, and the prosecutor refuses to turn over any notes because they are not witness statements (under the Jencks Act) nor was there a deal for Fleischer to receive immunity in exchange for certain testimony.  In that sense, while the government knows the outlines of Fleisher's testimony, the exact nature of it will be a surprise to both sides, at least according to Fitzgerald.  Needless to say, defense counsel are skeptical that an experienced prosecutor like Fitzgerald would make a blind immunity deal and are demanding to know what has been said about Fleisher's testimony. 

An AP story (here) quotes Fitzgerald as stating in court, "I didn't want to give him immunity. I did so reluctantly . . . I was buying a pig in a poke."  Although I doubt Fitzgerald meant the porcine reference to relate specifically to Fleischer, it certainly shows that the Special Counsel was willing to take a significant risk that Fleischer would say things that would protect others in the administration while making it virtually impossible to pursue criminal charges against him because of the immunity.  While risky, the grant of immunity without hearing Fleisher's likely testimony allows him to state on the witness stand that he did not "bargain" for that protection in exchange for "tainted" testimony, thus giving his credibility a small but potentially important boost.  Never having bought a real pig in a poke, I can't say what the risk there really is, but in a high-stakes investigation like this one Fitzgerald has shown his willingness to take chances.  To the extent the prosecutor denies having any information on what Fleischer promised to testify about, U.S. District Judge Walton's hands are largely tied because he can't order the government to turn over what it doesn't have, even if the government purposely chose to avoid creating such material to hamstring the defense. (ph)

January 27, 2007 in Plame Investigation, Prosecutions | Permalink | Comments (2) | TrackBack (0)

Thursday, January 25, 2007

Walking Down Memory Lane

The trial of I. Lewis Libby is moving down the the path of triggered memories and challenges to suddenly clearer recollections as the government focuses on when Libby learned that Valerie Plame was a CIA officer and defense counsel challenges the recall of the government witnesses.  The government's second witness was former CIA associate deputy director Robert Grenier, who testified that Libby contacted him to learn about former Ambassador Joseph Wilson's trip to Africa.  Grenier said that he was called out of a meeting with the CIA Director by a second call from Libby for further details on the trip, and that he told Libby that Wilson's wife was a CIA agent in the group that arranged the trip.  On cross-examination, William Jeffress noted that Grenier's testimony was different from his earlier statement to the FBI that he did not recall telling Libby that Wilson's wife (Plame) worked for the CIA.  Jeffress asked, "Do you find your memory gets better the further away from an event you are?"  Classic cross-examination to impugn the witness's testimony, a question that does not really seek an answer -- Grenier said, "It depends."  The case remains one about the credibility of witnesses, and whether the jury will accept the version presented by the government or Libby.  Talk of scapegoating during the opening has a certain rhetorical value, but the assessment of witness recollections (or the lack thereof) will likely tell the tale.  A Washington Post story (here) discusses the latest testimony, and the blog Firedoglake live-blog's the testimony (here). (ph)

January 25, 2007 in Plame Investigation, Prosecutions | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 23, 2007

Opening Day in LibbyLand

Many people have comments about the opening day of the Libby trial.  One thing is for certain from the defense opening statement - the name Karl Rove is a name that will be mentioned in the days ahead. And for Karl Rove yet a another stroke of luck (?) as the newspapers will be reporting this on the same day as the President's State of the Union Address.  Which one was above the fold and in the center of the paper that you read?

Here are some descriptive portrayals or blog entries of day number one -

Talk Left here

FiredogLake here

New York Times here

Washington Post here

LATimes here

Wall Street Jrl here


January 23, 2007 in Plame Investigation, Prosecutions | Permalink | Comments (0) | TrackBack (0)

Monday, January 22, 2007

Jury Selected in Libby Case

The opening statements are set for this a.m. with the jury selected in the I. Lewis "Scooter" Libby case.  (see Washington Post here).


January 22, 2007 in Plame Investigation, Prosecutions | Permalink | Comments (0) | TrackBack (0)

Sunday, January 21, 2007

Week Two in LibbyLand

The second week of the I. Lewis "Scooter" Libby trial starts today, and the jury has yet to be selected.  But it is anticipated that this will happen by the end of the day. For details on the jury selection process check out the Washington Post here and Firedoglake here.  It seems obvious from reading the media and blogs that this case will not be streamlined to cover just obstruction and perjury allegations.  It appears likely that the defense will be opening the door to cover matters that will relate to Iraq, or matters that may explain the surrounding circumstances at the time of the alleged criminal conduct.  As prosecutors can infer intent from the circumstances, the defense also has the right to have evidence that might shed a different light on the intent of the accused. But what that defense will be and how it will develop remains to be seen. Oftentimes the theme of the defense case can be seen when listening to the opening statement.  Jerri Merritt at TalkLeft has some pointers here.  It is always important to keep in the back of one's mind that the defense is not required to testify and is not required to prove anything.  The burden rests with the government.


January 21, 2007 in Plame Investigation, Prosecutions | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 16, 2007

Day One in LibbyLand

The trial of I. Lewis "Scooter" Libby opened today with voir dire, the questioning of the potential jurors.  The Washington Post reports on the political questions asked of these potential jurors (here) and also tells about some of the "other" questions. 

Good defense attorneys start their defense in the voir dire.  The questions the attorney asks (or request a court to ask when the court is doing the voir dire), sets the stage of the theme of the case.  It is clear from seeing some of these questions that one theme will be - "faulty memory"  or "we all make mistakes as to exatly what we recall."  Often the defense attorney will develop the theme with different witnesses presented. 

In this case we are likely to see a main theme and several subsidiary themes.


January 16, 2007 in Plame Investigation | Permalink | Comments (1) | TrackBack (0)

Monday, January 15, 2007

Libby Library

The following provide background on the Libby Prosecution.  To access the achives by date, see here:

Ground Rules Set for Libby's Trial 1/12/07

Libby Argues No Underlying Crime 11/15/06

Court Denies Use of Expert in Libby Case 11/5/06

Pre-Trial Sparring in the Libby Prosecution 11/1/06

What the Memory Expert Did Not Remember 10/28/06

Even Libby Can't Get All the Discovery He Wants 8/21/06

Plame Files Civil Action 7/17/06 Will Libby's Trial Be Delayed Further? 7/1/06

Libby: The Cost of Building A Case 6/12/06

Judge Denies Most of Libby's Document Requests 6/2/06

Witness for the Prosecution 5/25/06

Libby Challenge to Fitzgerald Appointment as Special Counsel Rejected 4/28/06

Will President Bush Be a Witness at Libby's Trial? 4/13/06

Proving Libby's Intent 4/7/06

Libby's "I Was Too Busy Blaming Others" Defense 3/19/06

Indicting at the Top 3/12/06

Fitzgerald to Libby: "REDACTED" 3/4/06

The Libby Website -- New Motion to Dismiss the Indictment 2/24/06

The Strange Assertion of Fitzgerald Regarding Libby's Grand Jury Testimony 2/11/06

Grand Jury Secrecy - Libby Case 2/5/06

The Libby Trial: Ready, Set . . . Wait 2/4/06

Special Counsel Fitzgerald's Response to Libby's Discovery Requests 2/3/06

The Outlines of Libby's Defense 2/2/06 Libby's Defense 1/22/06

The Latest on Patrick Fitzgerald's Investigation 1/11/06

What to Expect in 2006 1/1/06

Another Reporter to Testify in the Plame Investigation 11/28/05

Bob Woodward: Would You Buy the Book? 11/22/05

Will Woodward's Revelation Help Libby's Defense? 11/17/05

New Evidence in the Leak Case 11/16/05

Libby Documents 11/15/05

Who Will Pay the Lawyers? Libby? 11/9/05

Libby Prosecution Will Enter CIPA Hell 11/5/05

Libby Pleads Not Guilty 11/3/05

Do the President and Vice-President Have An Appropriate Compliance Program? 11/1/05

Libby Indicted 10/28/05

How High Could This Leak Investigation Go? 10/25/05

The Story of "Scooter" Libby 10/24/05

Will This Be Patrick Fitzgerald's Big Week? 10/23/05

Rove + Libby = ? 10/20/05

Could VP Cheney's Office Be Involved? 10/18/05

"Don't Go There" 10/17/05

More on the Judith Miller Case 10/16/05

What Does Patrick Fitzgerald Do Now? 10/16/05

Is Libby Wearing the Bullseye? 10/13/05

How Fitzgerald Got Miller to Testify -- And How Much Should We Know 10/6/05

What Now, Mr. Fitzgerald? 10/3/05

Can the "S" Show Intent? 7/22/05


January 15, 2007 in Plame Investigation | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 15, 2006

Libby Argues No Underlying Crime

"Scooter" Libby is arguing that there was no underlying crime, no motive to lie, and thus the jury should be allowed to hear evidence that he had no reason to lie.  From a legal perspective this is a tough argument as perjury (actually false declarations here) does not require a motive and a lack of a motive does not negate the elements of the offense.  From a practical perspective, however, this may be a hook for a jury, if it is so inclined, to find that he did not have the mens rea to commit the offense.

The basic elements of this charge are that the accused acted "1) under oath; 2) before or ancillary to any court or grand jury of the United States; 3) made a false; 4) material statement; 5) with knowledge of its falsity."  See Podgor & Israel, White Collar Crime in a Nutshell 3rd Ed. (Thomson/West 2004).


November 15, 2006 in Perjury, Plame Investigation, Prosecutions | Permalink | Comments (2) | TrackBack (0)

Wednesday, November 1, 2006

Pre-Trial Sparring in the Libby Prosecution

With the January 2007 trial approaching, Special Counsel Patrick  Fitzgerald and I. Lewis Libby have filed motions in limine to set the parameters for the proceeding (available below).  The parties filed motions on October 30 to prevent the other side from presenting certain evidence and arguments that each asserts is extraneous to the issues and potentially prejudicial.  The government motion seeks to prevent Libby's lawyers from discussing the government's decision to charge only Libby, and not to charge anyone for violating the federal law prohibiting the disclosure of the covert status of an intelligence agent.  According to the motion:

The evidence, comment, and argument this motion seeks to preclude are not relevant in the trial of the charged crimes; they have zero probative value in the case. The investigation that led to the indictment of defendant did not result in a charge against Libby or any other person for the act of disclosing classified information, nor was any person other than Libby charged with obstruction of justice, perjury, or making material false statements.  The fact that neither Libby nor anyone else has been charged with a crime for the disclosure of classified information is irrelevant to whether Libby committed the crimes charged in the indictment. Likewise, the fact that no one but Libby has been charged with obstruction of justice, perjury, or making material false statements is irrelevant as to whether Libby committed the charged crimes. Evidence, comment, and argument about the government’s charging decisions have no tendency to make any matter of consequence to the determination of the action more or less probable.

The government's concern is that the defense will put it on trial by raising questions about the reason for the charges and the failure to find any "real" wrongdoing.  This in turn leads to the position that the Special Counsel opted for the obstruction/perjury/false statement charges to justify the large expenditure of resources to investigate the leak of Valerie Plame's identity that did not turn up evidence of a substantive offense. To the extent the defense can build sympathy for Libby, which may be difficult, it would help make the argument that he has been singled out unfairly.

Libby's motions strike a similar tenor.  One seeks to prevent the government from offering evidence that Plame's position with the CIA was classified or covert, and to exclude arguing that national security was damages by the disclosure of her CIA status.  The defense argues:

Notwithstanding the clarity of the Court's prior rulings (and the government's own narrow view of relevance during discovery), Mr. Libby is concerned that the government intends to raise at trial both Ms. Wilson's actual employment status and "evidence" regarding "potential" damage that Mr. Libby knew nothing about at the relevant time . . . Having steadfastly refused to provide discovery relating to these issues (other than conclusory assertions contained in two brief "summaries" prepared by the CIA), the government cannot now be permitted to inflame the jury -- and encourage it to punish uncharged and unfounded national security violations -- by offering irrelevant and largely speculative evidence that sheds no light on Mr. Libby's guilt or innocence of the charges that were brought.  Specifically, the government should be prohibited from referring to Mrs. Wilson's employment status as classified or covert, or to any actual or potential damage caused by disclosure of that status, except for evidence and argument of what Mr. Libby, or others he spoke with, knew about those mattes at the relevant time.

The motion is built on the District Court's earlier denial of defense motions for broad discovery about Plame's CIA role and the knowledge of it in a variety of offices in the Administration.  To frame the case, the Special Counsel will want to discuss Plame's status with the CIA, so at least that part of the motion is likely to be vigorously opposed.  The second motion concerns references to the reporters whom Libby is alleged to have leaked to about Plame.  The defense seeks to exclude the following:

1. Whether any news reporters refused to testify in the government’s investigation of the disclosure of Valerie Wilson’s identity (the “investigation”);

2. Litigation involving news reporters and relating to the investigation, including any news reporters’ motions to quash grand jury subpoenas;

3. Threatened or actual contempt proceedings against any news reporter, including Judith Miller and Matthew Cooper, relating to the investigation; and

4. Judith Miller’s imprisonment for contempt of court, including the letter dated September 15, 2005 that Mr. Libby sent to Ms. Miller in jail.

Libby seeks to exclude this evidence to undermine the government's argument that Libby thought he could leak information freely because the reporters would protect their source, an argument the motion calls "implausible."  The relationship between Libby and the reporters will certainly be important, although the subsequent contempt proceedings against the reporters is the type of evidence the judge may well exclude or substantially limit because it appears to be irrelevant to the core issues of lying to the grand jury, federal agents, and obstructing justice.

As trial gets ever closer, look for the sparring between Fitzgerald's prosecutors and the defense team to intensify. (ph)

Download libby_government_in_limine_motion_oct_30_2006.pdf

Download libby_motion_in_limine_exclude_evidence_oct_30_2006.pdf

Download libby_motion_in_limine_exclude_reporter_issues_oct_30_2006.pdf

November 1, 2006 in Plame Investigation | Permalink | Comments (0) | TrackBack (0)

Saturday, October 28, 2006

What the Memory Expert Did Not Remember

The prosecution of I. Lewis Libby, former chief of staff to Vice-President Dick Cheney, has been in an extend quiet period but reemerged at a hearing in U.S. District Court on October 26.  One of the defenses to the perjury and false statement charges has been the "honest-but-overworked-civil-servant" claim, that Libby's misstatements to the grand jury and federal agents were the result of his having wide-ranging responsibilities so that he simply forgot what he said.  The defense is premised on the fact that former CIA agent Valerie Plame's identity was of no real interest to him, and therefore he misspoke but did not intend to mislead. 

In furtherance of that position, the defense is seeking to use an expert on memory, Dr. Elizabeth F. Loftus from the University of California-Irvine.  The government challenged the defense effort to call Dr. Loftus as a scientific expert who would testify that jurors do not understand the limits of memory and that she can explain how a busy person like Libby could have simply forgotten what he said to reporters about Plame.  Special Counsel Patrick Fitzgerald apparently had a field day cross-examining Dr. Loftus, according to a Washington Post story (here). 

Among other things, Fitzgerald got Dr. Loftus to admit that her methods are not particularly scientific, which may well be the kiss of death for calling her as an expert under Daubert.  In a backhanded way, she may have established the point about faulty memory.  Fitzgerald asked her whether they had ever met, to which Dr. Loftus stated they had not.  At that point, Fitzgerald asked about a case in New York in which she testified for the defense, when he was an assistant U.S. Attorney and cross-examined her.  Rather than simply not remembering, perhaps Dr. Loftus wiped that memory clean.

It certainly does not help an expert on memory to be unable to recall someone who cross-examined her once before and to admit that her conclusions are not the result of a rigorous scientific analysis.  Whether that keeps her from testifying is another matter.  It may be that U.S. District Judge Reggie Walton will permit Dr. Loftus to give limited testimony on memory issues so that there is not a complete denial of evidence on the question that can be raised on appeal if there is a conviction.  I'm hopeful Dr. Loftus remembers to submit her bill for the time spent in Washington D.C. at the hands of the Special Counsel. (ph)

October 28, 2006 in Plame Investigation, Prosecutions | Permalink | Comments (2) | TrackBack (0)

Sunday, July 16, 2006

Plame Files Civil Action

According to Smoking Gun here, Valerie Plame Wilson and Joesph C. Wilson IV have filed a civil action against Karl Rove, Lewis "Scooter" Libby, Richard Cheney and John Does 1-10.  The action is for alleged First and Fifth Amendment Violations, Civil Rights Conspiracy, Failure to Prevent Civil Rights Violations,  Public Disclosure of Private Facts, and Civil Conspiracy. 

What may prove to be the more complicated aspect of this action is the civil discovery.  In civil actions, counsel use interrogatories and depositions to obtain evidence.  When there is an ongoing criminal action, as in the case against "Scooter" Libby, defense counsel may be reluctant to turn over information that may eventually find its way into the criminal trial.


July 16, 2006 in Plame Investigation | Permalink | Comments (1) | TrackBack (0)

Saturday, July 1, 2006

Will Libby's Trial Be Delayed Further?

An AP story (here) reports that U.S. District Judge Reggie Walton will hold a motion by I. Lewis Libby until September before deciding whether to postpone the trial that is currently scheduled to begin on January 8, 2007.  Libby's lead trial counsel, Theodore Wells, Jr., of Paul Weiss, has a trial scheduled in Los Angeles County Superior Court that may go until early January, and the defense filed a motion requesting a postponement until February 12.  Judge Walton will wait until the judge in Los Angeles holds a scheduling conference on August 31 before deciding on the defense motion.  Whether that conference will provide much clarity about Wells availability is an open question because trials almost inevitably last long than expected -- a handy rule of thumb is to take any litigators estimate of trial time and add 50%.  It is likely the Libby trial will be moved at least into February 2007, and could be pushed back even further if problems related to national security information arise that could easily derail discovery. (ph)

July 1, 2006 in Plame Investigation | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 13, 2006

Rove Dodges an Indictment

An AP story (here) reports that Special Counsel Patrick Fitzgerald informed Presidential aide Karl Rove that he would not be indicted in connection with his statements in the investigation of the leak of Valerie Plame's identity as a CIA agent.  Rove's attorney, Robert Luskin, stated that Fitzgerald informed him in the evening on June 12 that the prosecutor did not expect to seek an indictment of his client.  Rove testified before the grand jury five times, most recently in April 2006, to explain his contacts with the media about Plame and his knowledge (or lack thereof) regarding the leak of that information.  There had been widespread media speculation that Rove would be indicted on perjury, false statement, and obstruction of justice charges, similar to the indictment of I. Lewis Libby, the Vice President's former chief of staff.  With the possibility of charges gone, the next question will be whether Fitzgerald plans to call Rove as a witness at the Libby trial.  The two were in close contact during June and July 2003, when the administration sought to combat claims by former Ambassador Joseph Wilson, Plame's husband, about the lack of evidence of WMD in Iraq.  As an earlier post (here) about Korean prosecutors noted, it is helpful when a target of an investigation receives information that the government does not intend to pursue charges rather than be left hanging. (ph)

June 13, 2006 in Plame Investigation | Permalink | Comments (0) | TrackBack (0)