DemFromCT helpfully sent along this Anne Marie Squeo article that suggests that Libby, no doubt bolstered by his new, competent defense lawyers, has decided to ditch the "I forgot" defense and will instead pursue a strategy of discrediting the witnesses against him. No matter that the most important witness against Libby is Ari Fleischer (in any case, I think Libby and Rove have been hard at work on impugning Ari as a witness all summer). Squeo concentrates on the journalists. The real fireworks in the case are sure to come when Libby puts Cooper, Russert, and Judy on the stand and starts ripping their credibility to shreds.
But legal experts say Mr. Libby's attorneys, like any attorney trying to impugn the testimony of a witness in a criminal trial, will likely try to blunt the prosecution by challenging the reporters on their other sources, their memories of events in question and their own reputations.
While the judge in the case, U.S. District Judge Reggie Walton, would be able to limit the grilling of witnesses to what is relevant to the case, criminal-defense attorneys say he will have to allow at least some questions that go to the credibility and professional ability of key witnesses, which in this case are the reporters. That could include performance reviews, corrections on previous stories and internal correspondence related to the reporters or their stories.
"It's Mr. Libby's right to a fair trial versus editorial privileges, and that isn't a close question," said one attorney closely involved in the case. "Most judges will say the right to a fair trial wins. ... We're over the hump of the identity" of secret sources, the attorney added. "Now we're talking about credibility" of the reporters.
Is this "attorney closely involved in the case" Ted Wells? Much more substance than Tate used to give us in his leaks. Wells could be a welcome change from Tate.
Squeo goes on, effectively, to handicap odds for major embarrassment on the part of the journalists.
The only thing she finds against Cooper is his "double super secret background" comment. If that's all Libby has, it's going to be tough to discredit Cooper, since the statement suggests Cooper's skepticism rather than his credulity.
Squeo also suggests Russert may have an easy time of it.
Mr. Russert may be the toughest witness for the defense to shake. Not only is he a household name but he also has a strong reputation. Mr. Libby told prosecutors that he learned Ms. Plame's identity from Mr. Russert. The television newsman says Mr. Libby called him to complain about another NBC show and the conversation was brief. Mr. Russert even mentioned the conversation to at least one other person, so the prosecution potentially has a supporting witness.
This sounds like journalistic narcissism to me rather than a real assesssment. "Russert's the Dean of DC journalism, therefore it'll be hard to discredit him." Not that I know how Libby would discredit Russert (I don't watch teevee so I'm not so good with teevee "journalists"). But if there's a way to impugn Russert, I'm sure Tom Maguire will find it.
Squeo makes brief mention of Novak, without revealing whether she thinks he'd be called to the stand for Libby's trial. (He only appears second-hand in the indictment.) If the charges remain as written, I doubt he'll show. But as I've suggested, Libby may have talked to Novak after all, in which case Libby might have the opportunity to slam Novakula for us. Will Libby bring up the time Novak bought now-convicted spy Robert Hanssen's leaks?
It should surprise no one that I think the real possibility for fireworks will come when Judy comes to the stand--and I don't think Libby will be focusing on performance reviews (although we know Keller and Abramson had to repeatedly forbid her to write security stories because her sourcing was so crappy, so Judy's performance reviews may be a piece of work). Now, presumably, Libby will stay away from the vast number of times he leaked Judy crappy information; he might even have to refrain from mentioning Chalabi, because that too would implicate Libby.
What I think Libby will attempt to do, instead, is prove Judy's own complicity in this affair. Libby, better than anyone, knows how hard Judy was trying to "get" Joe Wilson. And, given that Libby obligingly did more research for Judy on this story, he will somewhat plausibly be able to argue that Judy, not Scooter Libby, was the one intent on outing Valerie Plame and Joe Wilson. Indeed, Libby may even know the whole history of how Judy was not allowed to write solo-bylines; he can talk about how hard Judy tried to circumvent those restrictions.
The narrative, then, will be that "Judy Miller bears primary responsibility for this leak. She told Prosecutor Fitzgerald whatever he wanted to hear, all to get out of legal trouble herself. How can you believe her when it's clear she's just trying to blame someone else for her own crime."
Which ought to be enough to give Judy and Pinch pause. Pinch has been trying hard to find some way to silence Judy and hide the NYT's own complicity in this manner. But given how closely this line of attack on Judy's credibility aligns with the crime at hand, it will be very difficult to claim First Amendment privilege to shield this information. Moreover, Judy never wrote a story on this matter, Libby, better than anyone, is likely to be able to paint Judy's involvement as a malicious actor and not a journalist.
Maybe Pinch thinks Libby will spare them this aggravation because the NYT was so willing to hide Libby lawyer Tate's obvious attempt at witness tampering slide under the blanket of their First Amendment Martyr fiction. But I doubt it. I think, once again, Pinch may be over-estimating his ability to control information.