Libby's Jury Instructions

by emptywheel

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There's a Libby filing (in addition to the four or five or six last-ditch bites at the greymail apple he filed) attracting a whole bunch of attention. Here's my take on it.

Immunity Deal
The filing confirms something we've long suspected--at least one of the witnesses against Libby has an immunity agreement. Odds on favorite for this witness is Ari Fleischer. (I speculated that Cathie Martin might have been granted immunity the other day, but I agree that Ari is still the most likely candidate, with Martin being second most likely). The question is--what would he have immunity for?

On that, speculation is mixed. He may well be Pincus' source (if he is, though, I'll owe Swopa a beer, so it would suck to be me), and it remains unclear how forthcoming Pincus' source was about revealing Plame's identity when he first testified. So, the argument goes, Ari (if he is Pincus' source) may have gotten immunity for a false statements crime in exchange for substantive testimony against Libby. In most statements, Pincus leaves details about the timing of his source's honesty ambiguous. Though he does say in this CJR article his source was "cooperating" with prosecutors, which would seem to suggest that he had already 'fessed up to being Pincus' source, whoever it was.

In mid-2004, Patrick Fitzgerald’s office issued subpoenas to Pincus and the Post, demanding details of the 2003 conversations. Pincus initially refused to cooperate, but Fitzgerald soon made clear that Pincus’s source was cooperating with the investigation, and that the source was willing for Pincus to speak to the prosecutors.

Ari would face slightly more jeopardy than Armitage in leaking to Pincus, having been told by Libby that Plame's identity was "hush hush," so it is possible he simply wanted immunity from any IIPA prosecution. The same is true regarding the comments to John Dickerson, pushing him to look into who sent Wilson--though I doubt it, since Dickerson was never asked to testify as to the the content of that conversation (that is, Fitzgerald never checked Ari's story, if in fact Ari admitted to this).

There is one more possibility (one I don't really understand very well). Recall that one of the things Fitzgerald had to subpoena was the July 12 press gaggle (and he did so in the same batch as he subpoenaed the Air Force One phone records). I have never seen a convincing explanation of why it was subpoenaed--the most suspicious passage in it was this one:

In fact, in one of the least known parts of this story, which is now, for the first time, public -- and you find this in Director Tenet's statement last night -- the official that -- lower-level official sent from the CIA to Niger to look into whether or not Saddam Hussein had sought yellow cake from Niger, Wilson, he -- and Director Tenet's statement last night states the same former official, Wilson, also said that in June 1999 a businessman approached him and insisted that the former official, Wilson, meet an Iraqi delegation to discuss expanding commercial relations between Iraq and Niger.  The former official interpreted the overture as an attempt to discuss uranium sales.

This is in Wilson's report back to the CIA.  Wilson's own report, the very man who was on television saying Niger denies it, who never said anything about forged documents, reports himself that officials in Niger said that Iraq was seeking to contact officials in Niger about sales.

While Ari's insinuations that Wilson was the Iraq-Niger go-between are nasty, they are not illegal. Unless, of course, the Wilson trip report really does say that Wilson was the go-between (in which case, they botched the report even further than I think). In which case, Ari would be leaking illegally. In any case, the conjunction of this subpoena with the one for Air Force One call records suggest Fitzgerald may have gone after Ari early.

Finally, one more possibility. If there were open discussions about leaking Plame's identity (as descriptions of Adam Levine's and Dan Bartlett's involvement in Hubris seem to suggest), Ari may have wanted immunity from being involved in any conspiracy. We know Ari was getting talking points on this issue. If he got a talking point related to Plame, if he was in discussions related to outing Plame, he may have sought an immunity deal to avoid any implication from simply hearing of a deliberate campaign involving Plame, then pushing Dickerson to inquire about her.

The Scope of the Investigation

Apparently, Libby will argue at trial that, when he was interviewed by the FBI (October and November 2003), the scope of the investigation was different from what it became.

Because the focus of the investigation at the time Mr. Libby was interviewed by the FBI will apparently be a disputed issue at trial, the Court should not instruct the jury in accordance with the government's view of the investigation alone.

This accompanies a lot of discussion over the meaning of the word "material" with respect to Libby's alleged lies. Thus, it seems that Libby's team is preparing to argue that:

1. When Libby was interviewed in Fall 2003, the focus of the investigation related exclusively to the Novak leak
2. Therefore, lies relating to leaks to Judy and Cooper are not material to the case, and therefore not worthy of False Statements or Obstruction charges

I don't blame Libby for this tactic. If he did, in fact, lie to obstruct the investigation, he did so to shield an IIPA charge. So he's probably pretty bummed that lies he told (if they are lies) to shift his own knowledge past the time when Novak learned of Plame are now getting him into trouble wrt leaks to other journalists. It's a tough game, I guess, trying to anticipate which lies you should tell...

The NIE

Libby continues to try to hide that even he did not know whether, when he leaked to Woodward and Sanger, he was authorized to do so. He is trying to rule out any evidence relating to the pre-July 8 leaking.

As explained at the December 19th hearing, Mr. Libby will not offer any evidence that he discussed the contents of the NIE with reporters prior to his July 8, 2003 discussion with Judith Miller [ed. No, really? I'm so surprised] ... the government has indicated that it is very unlikely to raise pre-July 8 discussions either. ... As both sides agree that pre-July 8 disclosures have no real relevance in this case, and to avoid any further confusion or conflict on this issue, Mr. Libby requests that the Court issue a pre-trial ruling that evidence regarding pre-July 8 disclosures is inadmissable at trial under Fed. R. Evid. 403.

He goes on to try to strike the language from jury instructions that they should not speculate whether the NIE leaks were "proper or improper." Effectively, they are trying to rule out proof from Libby's own testimony that the earlier leaks may have been improper, and then strike "improper" so as to give the impression that all earlier NIE leaking was proper. But then Libby goes further in his attempt to pretend all his NIE leaking was legal. Here's his proposed instruction:

You have heard evidence regarding discussions Mr. Libby had with reporters about material contained in the October 2002 National Intelligence Estimate. There is no dispute that the President has the power to declassify previously classified material and to authorize its disclosure to the press. Nor is there any dispute that the President had exercised that power with respect to the NIE at the time Mr. Libby had those discussions. In other words, there is no question Mr. Libby acted properly in having those discussions and you are hereby instructed not to speculate otherwise.

Notice that swift application of uncontested facts regarding the July 8 leaking to all the leaking? Nice try, Scooter.

FWIW, I suspect Fitzgerald may only want to keep the NIE available in case Libby is able to call Woodward as a witness. Libby, of course, would love to have Woodward, because it gets him to testimony about Armitage. But he'd be a lot safer calling Woodward if he didn't risk having to admit that he was leaking stuff to Woodward he may not have been authorized to leak, so I suspect this is the core of the disagreement.

Later Misrecollections

Finally, Libby seems to want to exclude any discussion relating to later misrecollections. They're asking to strike the following instruction:

False or inconsistent statements that a defendant makes in explanation or defense, after a crime has been committed, do not create a presumption of guilt. You may consider evidence of such false or inconsistent statements, however, as tending to prove the defendant's consciousness of guilt. You are not required to do so.

Libby rejects this, explaining,

Given that Mr. Libby is charged with making false statements and perjury, and the chronology of events of this case, this instruction unnecessarily risks confusing the jury. Mr. Libby told investigators and the grand jury more than once that Mr. Russert mentioned Mr. Wilson's wife. To the extent that Mr. Libby's recollection of this point is incorrect, he argues that it is due to a perfectly innocuous reason--a natural failure of memory. This instruction would mislead jurors into thinking that Mr. Libby's subsequent misrecollections to investigators and the grand jury may be considered as evidence of consciousness of guilt.

I'm really fascinated by this. It's like Libby is trying to prevent the same lie from being used as evidence that he told it. But I also suspect this has to do with later, contextualized references to Russert. Therefore, if asked if someone else mentioned Plame, and Libby reverted to the Russert story, he doesn't want that as being taken as evidence of guilt. Curious.

Please Don't Mention the Former Hill Staffer

This is, IMO, the funniest request. He asks the court to read this instruction:

You have heard testimony that Mr. Libby and other witnesses spoke to reporters under various conditions, such as "off the record," on background" and where one's comments are to be attributed to a particular job title. There is nothing improper with a person being interviewed to request, or a reporter agreeing to grant, these interview conditions in order to maintain the confidentiality of the person speaking with the reporter. [my emphasis]

This instruction would effectively bar the jury from considering the fact that Libby asked--and Judy agreed--that their July 8 conversation be attributed to a "former Hill staffer" as evidence of guilt. Because, you know, I should be able to attribute illegal information to whatever attribution I want. Next time I leak highly classified information, I suppose I'll just attribute it to "someone who might be named Scooter Libby." Because Scooter Libby sees no problem with giving misleading attributions to leaks, you know.

All in a days work.

Comments

[emptywheel]

Btw, the reference to the Adam Levine and Bartlett involvement in Hubris is as follows. First, Levine directed Novak that the two people pushing the Wilson campaign were Rove and Libby (this is after they describe the way Rove launders leaks).

Novak called Adam Levine, the White House press aide who had become something of a Rove protege, and complained that Rove wasn't calling him back. Levine promised to talk to Rove and see what he could do. In the course of the conversation, according to Levine, Novak asked him, "What do you make of the Wilson thing?" Levine replied, "I'm not working on that. You've got to talk to Scooter or Karl." (262)

Effectively, this shows that the Wilson thing had been discussed, and it was clear that Rove and Libby were the pointpeople.

Later (after his return from Africa), Bartlett talks about shifting away from a focus on Wilson and Plame, reflecting a knowledge that she did play a part in the response:

In a White House meeting that week [after the Novak column], communications director Dan Bartlett, just back from Africa, talked about redirecting coverage away from Wilson and his wife--and stopping the Wilson bashing. It was unproductive and demeaning, he suggested. Bartlett, according to Adam Levine, was "against the idea of the wife as a talking point." (291)

[njr]

thanks again ew,
needing to take your work in small steps...
does Team Libby know whether the government witnesses have immunity?

[perris]

I'm thinking rove could be the person with immunity guys, I can't really think of any other reason fitz didn't indict

[emptywheel]

njr

Yes, this comes from a Libby filing. They got Jencks (all the details regarding the testimony of government witnesses) on December 22. And they mention the Jencks, saying they discovered there that at least one immunized witness will testify. Though they've suspected this for a long time, since at least April, I think.

perris

It is possible it is Rove. But back in the spring (admittedly before Rove got off), Fitz said he wasn't calling Rove. He also said that Ari would be the only WH witness he would call (so no Adam Levine, and no Rove, and no Hadley--at least not called by the government). So for it to be ROve, Fits would have had to change his mind about calling Rove and communicated that to Libby's team. Also, if Rove were to testify, it probably would have come up in the December 19 hearing--and no journalists have reported on it.

[perris]

good points emptywheel, I guess it's just wishfull thinking for me to think rover rolled over, though I can see some scenario's where fitz would try to get scooter to call rove leave immunity on the table for information rove and continue to gather information from him without expecting to call as a witness

rove might have earned immunity even though he's be scheduled to testify for the "just in case it comes up", so long as his information proves accurate

[freepatriot]

how does the focus or the investigation have any bearing on the truth of scooter's testimony ???

When Libby was interviewed in Fall 2003, the focus of the investigation related exclusively to the Novak leak Therefore, lies relating to leaks to Judy and Cooper are not material to the case, and therefore not worthy of False Statements or Obstruction charges

is there some alternate universe where the truth is subjectively based upon the focus of the investigation ???

doesn't really matter what Patrick Fitzgerald was investigating

scooter libby lied, no matter what the investigation was about

there might be a question of materiality if Fitz were investigating the price of tea in China, but given that Fitz was investigating the leaks, and scooter was testifying about the leaks, the fact that scooter lied about the Cooper leaks instead of the novakula leaks doesn't really change anything

[Stephen Parrish, CPA]

ew - Is a complete list available of the passengers in July 2003 on Air Force One and Air Force Two? Who preceded Susan Ralston as Karl Rove's assistant? Was Susan Ralston or her predecessor on either AF1 or AF2 in July 2003?

[emptywheel]

I've never seen such a list, Stephen. Are you thinking of the rumor that a former AO saw Ari reading the INR memo? Or something else?

[emptywheel]

I'm trying to think through how Ari could be immunized and be Pincus' source, without Dickerson having been asked to testify (oh Swopa! Where are you!?!?!). Here's my thinking:

One scenario is that Ari didn't tell about Pincus at first. Fitz had a notion that Pincus could be the WaPo leak recipient, but Libby had (apparently) told him that he had told Kessler. So he interviewed Kessler, found out that Libby had lied about Kessler (he didn't tell him), so knew that Pincus was the WaPo leak recipient. At that point, Ari buckled, told about being Pincus' source, got immunity, and told about the orders he had to push toward Plame. But still--you'd think Fitz would make Ari ask Dickerson to testify, so as to clear up any confusion about that conversation (as well as FIneman and others). Unless, of course, Fitzgerald had a way to know for sure that Ari had been ordered to push the leak as he did with Dickerson (Bartlett's similar move seems to suggest it was a talking point).

The other alternative is that Ari came clean early on, admitted to being Pincus' source. So why interview Kessler? To catch Libby in a lie? Then why not charge it, as it would be a more significant lie than the Cooper one? And there's still the likelihood that you'd want to talk to Dickerson, to rule out any funny business.

I may be over-thinking this (No!), but I can't think of a scenario where Ari gets immunity unless it's 1) not about Pincus, or 2) gets Fitzgerald to a whole lot more deliberate leaking strategy than we've seen so far.

[Stephen Parrish, CPA]

ew - I wasn't thinking of that rumor; I was thinking instead of parties to any conversations about the Wilsons on AF1 and/or AF2.

[looseheadprop]

freepatriot,

The scope of the investigation has to do with the matriality of the false statement. Not every false statment is perjury. The false statement has to be one that would tend to prove or disprove a crime.

So, if I am in the GJ and I am asked if Sam was the guy I saw commit the murder on January 25th and I aswer "yes, I saw Sam commit the murder on January 25th and I rememeber it was that day because it was my 29th birthday"

And the truth is 1) I did see Sam commit the meurder
2) I saw it on Jan 25th
3) January 25th is my birthday
BUT
4) It was my 49th birthday.

Why would it be perjury for me to lie about my age?

This goes back to why I was SOOOO angry at Clinto for not pursuing all his appeals for lying about fooling around with Monica.
Whether or not he had a consensual relationship with Monica was not material to civil case where he was accused of sexually harasssing (what's her name again?--the one who rushed out to get a nose job? The little one with the long dark hair?)

You know who I mean.

[freepatriot]

Thanks LHP, but that doesn't realy claer up my question

I understand the concept of materiality (I've been a defendant once or twice in my lifetime)

what I don't understand is how the concept of materiality affects this case

the way I see this claim, scooter thought that Fitz was investigating the novakula leak, so scooter felt that he was okay to lie about the Cooper leak ???

that doesn't make any sense

scooter is admitting that he lied about the Cooper leak, and claiming that Fitz can't prosecute because it isn't material to the novakula leak

that doesn't make any sense, especially when Fitz' mandate was to investigate the leaking of a NOC agent, and not the novakula leak specifically

IIRC, Fitz asked for a definition of his mandate, and was given a written order to investigate the leaks and any ancillory crimes that may have been committed during the leaking process

prior disclosure doesn't extinguish classified status, so ANYBODY who discussed Plame with ANY reporter falls within Fitz' mandate

scooter may have THOUGHT that he was safe lying about Cooper, but the scope of Fitz' investigation clearly includes the Cooper leak

so is scooter the dumbest person ever accused of perjury or what ???

[ocean]

Of course nothing seems guiltier than off-the-record-former-hill-staffer-double-super-secret-background.

Hope team Libby loses this instruction.

[looseheadprop]

Free patriot

Your analysis of both Scooter's position and reality are both, IMHO, correct.

SCooter is making the dumbest arguement in the owrld. He knows that the scope of Fitz's mandate was bigger than the Novakula leak, he is saying (in addition to misremebering things) that he misunderstood the scope of Fitz's investigation, thought it only had to do with the leak to Novak and therefore it is OK to lie UNDER OATH about all other leaks.

Insane. Crazy. Stupid.

[emptywheel]

Though I also think Libby's team realizes no one strategy will save Libby's ass. The memory defense probably won't be all that effective (except insofar as it allows them to talk about his very important job). So they need more to fall back onto. Materiality looks like it'll be a central strategy--they're trying to say that, even if Libby obstructed, he's a really nice guy, so he doesn't fulfill the evil aspect of corrupt. And they're trying to claim that the false statements were not material (they may also try to impugn one of the FBI people who will testify). They may even have the balls to argue that, since he first lied in a non-material way, but just kept lying the same lie, then those later lies don't really count. Voila, all five counts challenged in some way.

THe thing to remember, always, is that Wells is a brilliant courtroom lawyer. He has been able to do this before, so these are non-trivial attacks on Fitz' case, IMO.

[SaltinWound]

It's always bothered me that Fitzgerald didn't tie up the Dickerson thread. Trying to find a logic to justify it can lead to some contortions. Sometimes I fear the truth may be that this is a full time job, and Fitzgerald is already doing a full time job in Chicago.

[John]

I think you should consider introducing "Someone who might be named Scooter Libby" as a nom de plume for the second run of "Anatomy of Deceit".

[smiley]

lhp: Paula Jones?

[lemond54]

After reading through Libby's filing, it's looking more and more like the Twinkie defense, or, in Scooter's case, the Kool-Aid defense.

[Jeff]

I think it is as foolish to underestimate Libby's defense as it is for righties to underestimate Fitzgerald's case.

I can't figure out the Fleischer immunized scenario with Pincus and Dickerson.

[John Casper]

Thanks to all for the very enlightening discussion of materiality and the "focus of the investigation."

[emptywheel]

Stephen

AF2 was supposed to be just Dick, Libby, and Martin.

Ralston wasn't on AF1 because she testified to events that went on in DC surrounding Cooper's call.

[clbrune]

I wonder what would have made Ari (or whoever) enter into an immunity deal. I mean, why not just tell the FBI "I don't know, I thought everyone knew...sorry guys I wish I could help you out."

What occurs to me is that the gov't has some piece(s) of evidence that is/are really unequivocally damning. Like an email from Ari to someone-not-Libby.

From: Ari
To: Mom

Hi mom, hope all is well. It sure is hot in DC this summer! It's making the Vice President's chief of staff (you'd laugh if I told you his name!), crazy. He keeps obsessing about an ambassador's wife.

Wish I could say more, gotta run!

Love,
Ari

You know...something like that ;-)

[emptywheel]

Well, I do think with Ari you get some kind of evidence like that--yes. Though maybe not to his momma. Maybe to his lawyer?

[Carl Heylin]

Carl here from JOM. Question for the author. Have you been able to find out the details of the letter that fitz said he sent to Rove's attorney?

Do you know what it says? And does your book have new stuff in it that we didn't read in the news?