Dick Takes the Stand

by emptywheel

Kudos to looseheadprop for correctly reading the small print on Fitzgerald's last filing.

6. Witness security issues The government does not anticipate any security issues with witnesses it intends to call" (via TalkLeft — PDF)

OK, I'm going to go out on a limb here and say that this suggests to me that Cheney is not going to be called to testify. (howls of outrage from the popcorn eaters)

Apparently, in court today, Fitzgerald confirmed just what looseheadprop speculated--he is not going to call Dick. At which point Ted Wells turned around and said, well then, we'll call him. Dick Cheney will testify as a defense witness for his buddy Scooter.

Special Prosecutor Patrick Fitzgerald, who said last week he did not expect the White House to challenge his witnesses, said Tuesday he did not plan to call Cheney.

Wells immediately said he would.

"That settles that," Fitzgerald said.

Oh boy, if nothing else, we're going to have some fun next month, aren't we?

To be honest with you, I'm not really sure why they're doing this--they're either trying to wow jurors, corroborate Libby's stupid "dot" PowerPoint, or just have Dick get up there and lie, saying, "Oh no, Plame never came up, not at all." But here are some more far out ideas, which might explain why they'd put Dick in Fitzgerald's line of fire:

• Dick will get up there and say that he authorized Libby to leak Plame's identity, and that therefore he had no reason to lie about it.
• They really want Dick up there to reassure jurors that Dick authorized Libby to leak the NIE (perhaps they see, as I do, the implicaitons of the NIE stuff).
• Dick thinks he's Ollie North, because he has never gotten a follow-up question from the softball interviewers he deigns to speak to (Brit Hume and Tim Russert, for the most part).
• Dick will lie and say he didn't tell Scooter of Plame's identity in June 2003. Huh??!??!

Any other guesses?

Update:

Some more relevant background. First, one of the questions Libby's team has already submitted that it will ask potential jurors is what a juror thinks of Dick, and whether it will make them impressed (or some such thing). A very critical part of the "dot" defense is to make jurors think that Libby is very important and therefore to be forgiven for a little tiny white lie. Another thing to suppor this, as a Libby strategy, is that Libby wanted to name all the important people at the NSC he met with on his important topic job (Fitz got it limited to mentions of Cheney alone). So I'm sure this is part of a very important strategy.

Also, way back in May, Wells was sure that Cheney had testified that Libby had been authorized to leak the NIE. Fitzgerald managed to avoid giving Libby's team Cheney's testimony, so that may be why they're calling him--so as to dismiss any worries about the NIE.

Update 2:

Has anyone noticed that Libby's team doesn't have their big bombshell up on their website yet (as of 6:07 EST)? Which might suggest that they didn't know they would be calling Dick until today, when Fitzgerald said he wouldn't call Dick.

Update 3:

Here is a question Libby's team intends to ask potential jurors (they wrote this a month ago):

39. Based on either your personal experience or what you have read or heard about him in the news, please describe any feelings you have about Vice President Cheney.

a. Vice President Cheney is expected to be a witness in this trial. Would your opinion of him cause you to credit his testimony more or less than the testimony of any other witnesses?

Guess they want to make sure they find the 3 people in DC who actually like Dick.

Comments

[readerOfTeaLeaves]

Well... so much for my lunch break ;-)
Just saw this news at FDL, and suddenly the gloom of two days before the winter solstice has lifted.
Personally, I think there's probably a whole, entire botanical element about Aspens Turning that perhaps Deadeye will want to enlighten us all about from the stand... too bad they can't call Hadley, Abrams, Feith, and others for added details. But I'll settle for the pure amazement of news headlines about the Veep testifying in a Criminal Trial, and leave the clever interpretation to those more skilled (Colbert, et al).

Here's hoping Fitz is in fine fettle.
Truly, the midwinter sky at my latitude looks brighter since this news came across my particular Internet Toobs. I fear that I shall devolve into a hopeless Plame junkie from now through Feb 8-0

[emptywheel]

Don't be so sure Libby won't call Hadley. There were likely a range of interesting disclosures, but we only heard about Dick because it's such big news.

[jk]

I don't think that this makes sense at all. Not at all. If the truth is anything how Fitzgerald says it is, then Cheney would nearly ruin Libby's case. There are numerous ways that Fitzgerald could use Cheney to destroy the proposed defenses.

My only belief is that Libby is threatening to call Cheney in order to get a pardon before trial. Putting Cheney on the stand would open so many can of worms for the administration, I just don't see a way that they would let it happen.

Another possible explanation is that the defense often times threatens to put on witnesses for various reasons (often to confuse the prosecution or force them to waste their time trying to anticipate defenses) but it never happens. So this could simply be Wells acting as a defense attorney.

[Redshift]

I'm hoping for a re-enactment of A Few Good Men, myself, with Cheney in the Jack Nicholson role, but that doesn't explain why they're calling him.

[freepatriot]

so how does dead eye dick get out of this one ???

could cheney seek protection under the 5th Amendment, and refuse to testify because it might incriminate him ???

that's gonna look real good

I don't see how a blanket refusal to testify could work in the face of the Clinton Impeachment prescedent

maybe george will pardon scooter, and take his chances in front of Mr Waxman and Mr Conyers

anybody wanna speculate on the weasle manuvers that dead eye dick might try ???

[smiley]

so what happens if Scooter calls Dick, and Dick... just doesn't show up? The judge can send federal marshalls to drag his traitor ass into court, right?

[John Lopresti]

I can imagine prosecution's case being airtight irrespective of Cheney's narrative.

I would expect Cheney to explain that his office wrote, in conjunction with NSA, a secret executive order, to this date unpublished, which Bush-2 signed, affirming linkage between instaDeclasify-instaReclassify, resting this classification system on executive war powers and unitary executive theory of asymmetrical checks and balances.

The interesting part here, if Cheney actually shows up to testify, is it will be his first sworn statements. Recall Bush and he permitted only one interview and only together not separately, and unsworn, in the White House.

[pdaly]

Does it seem like Libby's team expected and perhaps was a little irritated that Fitz telegraphed a plan to NOT name Cheney as a prosecution witness?

Is there an established legal procedure to naming witnesses? such as first the prosecution draws up a list and then the defense draws up its list? Or could have Libby's team named Cheney sooner than now as one of its witnesses?

If 'yes' to the latter, what would have been the higher benefit to Team Libby letting the prosecution name a witness it wanted anyway?

[emptywheel]

pdaly

I think that's likely--that they would have rather had Fitz call Dick. One of the reasons to do that is that Fitz has to reveal more about Dick if HE calls him, than if Libby calls him. I don't think that matters in this case (that is, I think Libby knows exactly how Dick will testify).

I need to go back and review it. But one of the most damning witnesses in the Ollie North trial was a witness North had called. There was something Walsh had wanted to present, but didn't want to reveal it in discovery. He couldn't believe the break he got when Ollie decided to call him, because he basically got to ambush Ollie with the testimony.

[smiley]

pdaly- perhaps yesterday's discussion at FDL addressed this- if you call the witness, you need to arrange for security for the witness. And maybe pay for that security. Fitz presumably doesn't need to call Dick to prove that Libby is a liar... so maybe this is nothing more than saving himself the hassle.

We all want to see Dick on the stand because we'd love to see some kind of self-incriminating A Few Good Men-esque theatrics (YOU CAN'T HANDLE THE TRUTH!) from Big Time while he's under oath.

Indeed, if Cheney actually testifies, it's hard to imagine him throwing Libby under the bus- he's going to get up there and lie like a rug, to try and save Libby's ass. If we're lucky, Fitz will either trap him in a lie, or with a contradiction between Libby's (recorded) GJ testimony and what Cheney says on the stand, or (best case) force Cheney to take the 5th.

Given that he's not necessary to the instant case AGAINST LIBBY, why should Fitz pay for it, if the security fees can come out of the Libby Defense Fund?

[looseheadprop]

It is such an honor to be mentioned here.

I am such a fan! Half the time I cannot even follow the posts, b/c Marcy's command of the details is so intense.

The WaPO is saying that Cheney will NOT resist the call to testify.

So, whatever Cheney is going to say, he and Scooter are in agreement that he should say it. Not that I am saying that Scooter's agreement is voluntary maind you, just that they appear to be acting in concert.

[SaltinWound]

I think this is great news. I like the Ollie North comparison. Fitzgerald has more to gain by nailing Cheney on cross examination than by calling him in the first place.

[rbrab]

Fitz is so much smarter than the people around Bushco. We need to always proceed on the premise that this Administration has advice from 3rd tier law students who joined the Federalist Society and thought their success was assured.

[emptywheel]

lhp

Trust me, the fandom is mutual. (Especially, as a former Outside Center--we gotta respect the props, you know.)

Yeah, I'm fairly certain they fully intend to go to trial, fully intend to call Dick, and honestly believe Dick will help Libby. It's either the wow factor or concern over the NIE.

Here's my latest thoughts.

1) Libby needs to call Woodward to introduce Armitage (which will help the pardon), but by calling Woodward, he basically introduces the fact that he leaked the NIE without knowing whether he could or not (which, in turn, highlights the attention to the NIE).

2) To explain away his unauthorized leaking to Woodward, Libby can call Dick, and support his "go stop go" authorization claim.

3) But he will also, then, need to claim he wasn't authorized to leak Plame's ID. Voila! Dick helps there, too.

[katie Jensen]

E.W,

You may have addressed this a million times but I have missed it and someone on FDL asked this question and I wonder what your take would be on the question. Why did Fitz allow Pres and V.P to interview together (which I feel was a big bonus to them so they could know each other's testimony) and why would he allow them to testify without being uder oath? And if they had nothing to fear because the NIE was declassified by themselves why were they not willing to testify under oath? I just don't get it?

[ArthurKC]

I have not followed Marcy's details since last fall but I concur with the suggestion up thread that this is a ploy for a pre-trial pardon. It gives Bush cover to say that his NSC/CIA staff have informed him that allowing Cheney to testify would compromise national security. Voila. I must pardon.

Alternatively, perhaps the administration intends to assert executive privilege and refuse to allow Cheney to testify, thus hoping that if the privilege assertion sticks, the case against Libby would have to be dismissed.

[LabDancer]

Hey, how about a readers’ poll?
- Impose a deadline for comments on this post, followed by a fresh post containing the more promising speculations, for readers to rank them in order, most likely to least.
At this point, I would rank your second and third speculations as co-most likely to come true.
You have to have been on a witness stand, in a courtroom, to fully appreciate how little power a witness senses. At least in Grand Jury proceedings, there’s some feeling of at little privacy. But the overwhelming sense of witness emasculation is bound to be far worse at this trial, where one knows that there are millions out there in the cheap seats analyzing every turn of phrase, all of them knowing you are the only one who had to ante up – your freedom and dignity.
Reading the Grand Jury extracts of Libby’s examinations would convince any half-decent defense attorney that Libby came across as a liar. Mind you, that was just the transcript – my experience has been that such an impression is vastly more compelling when one gets to see lying liars lie.
It won’t help Libby’s pre-game jitters that his attorneys are under an ethical duty to tell him how he comes across.
Worse, Libby IS a lawyer, and he has at least some court experience, so he knows all about the importance of being earnest and the rest of the drill with witness demeanor. He acted for Armitage on a congressional hearing into Armitage’s nomination by Bush the First to a post that’s subject to confirmation – on which Armitage, who I would expect is a braver person than Libby (and possibly a more convincing liar, at least off the witness stand, based on his performance on 60 Minutes), performed so poorly, Libby advised him to withdraw from the process.
Before all this Plame unpleasantness, Libby was reputed to have a Steel Trap Memory, or, given the Neocon love for anagrams, STM. Other than for his ability to turn an elevator into a deep freeze, and for his writing propensities (not just the turgidly homophobic novelish“The Apprentice”, but both editions of the Neocon Manifesto, the First Edition, under the title ”Defense Planning Guidance”, produced in 1992 for his then-boss Secretary of Defence Dick Cheney, and instantly classified, presumably because it was too scary for Little Brains and too alarming for the sane, and the Second Edition, under the title “Rebuilding America's Defenses”, published in 1997 by the American Enterprise Institute, aka America’s Readin’ and Writin’ Room for the Right, a barely-disguised re-write, it’s only redeeming merit being in not having been paid for with tax dollars), that STM, that and being Cheney’s minder, was pretty much ALL which distinguished Libby from, say, David Frum.
Moreover, Libby had a well known reputation in Washington for taking great pride in possessing his STM, not just for what it might indicate about his intellect, but for its being readily available to haul out when most needed in the blood-spattered offices and anterooms of the Capital - to dazzle some would-be-independent-thinking congressman or to bully some wimpy soft-brained career type in State or the Agency.
Assuming his attorneys’ claim, that in recent years, more particularly since the end of May, 2003 through October 28, 2005, he suffered bouts of limited-subject amnesia and audio-hallucination on being confronted with the memories of those chilling days after invading Iraq, listening in as his boss channeled the Spirit of Even Bigger Dick (Nixon) for more misinterpretations of the world to spin into Bush’s right ear and trying to get them written down before Dick was left on for his extended brunch with a member of Halliburton’s board of directors, is just some lame-ass b.s. to keep the right wing bloggers and talk show hosts supplied with talking points until Pardon Day, then Libby’s STM is bound to cause him problems on the stand.

Labdancer

[emptywheel]

Katie

I don't think we know that CHeney and Bush were interviewed together. In fact, I think they were interviewed separately (they testified together to 9/11, but I think Cheney was reported to have testified back when Bush was just arranging counsel).

But it is not unheard of for people to not take an oath, particularly if they're the Pres and VP. THey can still be charged with false statements for it though.

[pdaly]

Thanks emptywheel and smiley. I began my commute shortly after commenting and missed your responses.

I think emptywheel's explanation explains better the Team Libby exasperation (not getting Fitz' discovery) but as you suggest Libby probably knows what Cheney is going to say. And by naming Cheney as a witness doesn't this give Libby's lawyers something previously off limits in this criminal case--a new found permission to converse with the VP?

I keep wondering about Cheney's annotated Wilson op-ed. Its somewhat improbable survival during the early investigation makes me wonder if it wasn't a red herring afterall--a post hoc ploy to get Cheney named as a prosecution witness from the beginning. I have no idea if that makes political or strategic sense.

[Sara]

On NBC News tonight, they said Cheney would testify by canned Video. I wonder how that was so quickly arranged if it has been.

What are the rules in Federal Court about how much latitude the Prosecutor has with a defense witness as to the subjects for questioning given the defense that has been put?

For instance, can a prosecutor seek to prove a witness to be a serial liar? Could Fitzgerald, for instance, introduce Cheney video and quotes about how certain he was that Atta had met with Iraqi Intelligence in Prague? Could Fitzgerald introduce all the reasons Cheney should have doubted that construct?

My hope is that NBC is wrong -- it will not be canned video, but it will be Witness on Stand, Jury in Box and Fitz doing his thing. Yea, one way to get the troops out of Iraq is to claim they are needed to protect the courthouse during Dick's appearance.

[Pilgrim]

Sara, I noticed that on NBC also, that Cheney would probably be "deposed" via video.

[lilnubber]

Can anyone tell us whether or not Scooter's trial is going to be televised?

[tnhblog]

The questions that I would like to seee Fitzgerald ask both Libby and Cheney are whether they were aware of Plame's NOC status, and if not, why? It will highlight either their guilt or their depraved indifference, incompetence and willful blindless and ignorance.

[readerOfTeaLeaves]

I have zero inside info about what Libby's team has planned, but just speaking out of my hat for the sake of commenters unaware of video conferencing technologies, there are several that would allow some kind of 'real time' questioning and testimony between Cheney's office and any court location. Businesses use this technology every day. I can't believe DoJ doesn't use these technologies... am I totally out in space here...?

I can't see any reason -- technically, at least -- that video testimony would be 'canned' (ie., taped ahead of time and not open to real-time interaction). That's ridiculous. People use video conference technologies frequently, and there's no **technical** reason the technology couldn't be applied in this situation to enable Fitz to ask questions, and have Cheney respond, in real time.

I don't understand all the ins-and-outs of court testimony, but from a technical perspective, Fitz could certainly talk into the camera, and require Cheney's responses televised to the courtroom during Q&A. Simply require at least one atty from each legal team to be physically in the same room with Cheney when he responds to questions after he's sworn, and throughout the entire videoconference.

It makes no sense that Cheney should have any right to 'mail in' his pre-recorded testimony. (Good grief, talk about Executive Privilege gone looney tunes -- now the man even gets to 'mail in' legal testimony??! Arghhhhh!)

From a purely **technical** perspective, the idea that Cheney's testimony would somehow "need" to be 'pre-recorded' or 'canned' is complete bullshit. The only rationale for that scenario would be an end run around Fitz: Cheney Appears To Cooperate While Actually Hiding Behind False, Bullshit Technology Excuses So That He Can APPEAR To Provide Full Cooperation While Actually Retainnig Full Information Control.

For more info on videoconferencing, here are several quick links:

http://www.adobe.com/products/breeze/index.html
http://www.webex.com/
http://www.microsoft.com/windowsxp/using/windowsmessenger/learnmore/version45/v45videoconf.mspx

To claim that Cheney's 'testimony' has to be pre-recorded is -- from a technical perspective -- utterly false.

[emptywheel]

lilnubber

AFAIK, it will NOT be televised.