The Testimony Dance

by emptywheel

Understand this. Libby's team is playing a big game with their witnesses, throwing a bunch of names out there--Cheney, Bartlett, Rove, Libby, Wilson, Woodward, and about 12 journalists to be named later. I really have no idea who will testify--remember that, even if Libby's subpoenas someone, they don't have to call that person as a witness. They may have subpoenaed these people just in case, for publicity reasons, to pressure the WH for a pardon--any number of reasons that may or may not mean they'll testify. But here are some thoughts on the big four: Libby, Cheney, Rove, and Bartlett.

Libby
I love when I voice a speculation and Fitzgerald comes along a day later and agrees with me. I speculated on Wednesday that Libby's team was trying to introduce all of the CIPA material without making Libby take the stand. Later in the week, Fitzgerald validated my suspicions by expressing the same concern.

Here's why this is important. The two sides wrangled for four months to find appropriate substitutions for the classified information in the Daily Briefs which, Libby claimed, he wanted so he could demonstrate how busy he was which therefore made him forget all the leaking he was doing that week. Wells was fairly generous in his interpretation of CIPA, arguing that Libby needed anything he wanted to mount a defense. But the entire CIPA process was premised on the claim that Libby would take the stand and present it. Walton has only ruled this classified information admissible in the context of Libby explaining what the events depicted therein did to his state of mind. Throughout the rulings--such as one from November 15 that Typepad won't let me link--Walton emphasizes the centrality of Libby's testimony to the Very Important Defense.

However, the defense has affirmatively stated that the defendant intends to testify in his own behalf. It will therefore be the defendants testimony about what he was focused on and that his workday was consumed by the information [redacted--probably references Morning Daily Briefings] that makes the classified information revealed in this documents admissible under Rule 401.

This stuff is only supposed to be admissible if Libby testifies. Wells has already made it a central part of his opening statement. But, as Fitzgerald noted, they did not mention that Libby would testify, and they seem to be speaking for Libby.

As you learned a few days ago, my name is Ted Wells. And I speak for Scooter Libby. Scooter Libby is innocent. Totally innocent.

Their tactics suggest that either something has come up that has made it problematic to put Libby on the stand--or they never intended to put him on the stand, and only claimed they would to justify their graymail attempt. If Walton--who hates when people waste his time or the government's money--learns it's the latter, he will not be happy.

Cheney
Which brings me to Cheney. First, let me acknowledge that one of my recent speculations--that Cheney would refute Cathie Martin's testimony--was incorrect (though it was based on inaccurate reporting). It had been reported, remember, that Martin, Cheney, and Libby were alone on AF2 and discussed a response to Cooper, and I suspected that Cheney would come to discredit Martin. But as it turns out, Cheney and Martin were in different rooms of AF2 at the time. And Martin kept getting sent out of the room when Cheney was strategizing with Libby on July 8. So he probably can't directly refute her.

So then why call Cheney?

I think it may well be an attempt to have Cheney do Libby's "Very Important Defense Masquerading as a Memory Defense" for him. Libby attended Dick's briefings during this period, so he knows what Libby was briefed.Are they putting Dick on the stand to "stand in" for Libby. Cheney plays Cheney's Cheney to Cheney's Cheney? 

There is one other reason we've seen that Dick may take the stand--the words that Cheney wrote on Libby's sonnet explaining why Scottie had to exonerate Libby:

Not going to protect one staffer and sacrifice the guy that was asked to stick his neck in the meat grinder because of the incompetence of others.

Note, both teams mentioned this in the opening statement. Fitzgerald clearly believes it is damning in some way, since he brought it up. If it is damning, then Libby's team needs to find a way to spin it. Perhaps, in fact, the notion that this note refers to Rove--and just Rove--is total spin. What if it refers to Ari, not Rove? Ari, after all, was the one who admitted on July 7 that the uranium statement shouldn't have been in the SOTU. And someone really botched the statement to Pincus in suggesting they had gotten Wilson's report. So it may well be several people--people working on the orders of Libby--who were "incompetent." But Team Libby wants to claim it referred solely to Rove. If they feel the need to make this claim, they're going to need Dick to make it.

Rove
Here's one of the things that is--so far--totally unclear in Libby's excuses. He wants to argue that BushCo exonerated Rove in Fall 2003, but not Libby. But so far, they haven't explained what Rove did. They've argued Armitage was the Novak leaker, they've avoided all mention of Rove's leak to Cooper (and given events, it seems more likely that someone in DC--Rove or Hadley--was the Pincus leaker than Ari). In other words, they seem to want to simultaneously show that Rove was leaking ... but that he wasn't. And they've been looking for the evidence on Rove's leaking since last May, as this bit from the May 5 2006 transcript reveals. Fitzgerald argues that, so long as he doesn't call someone who now clearly appears to be Rove, then Libby doesn't get the details on his conversations unrelated to Libby.

MR. FITZGERALD: Okay. If the defense is calling a witness and, with all due respect, he's not bound to call a witness so at a pretrial discovery phase defendants often decide to call lots of witnesses that don't appear. My understanding is that under the law, 3500, Jencks and Giglio, we don't have obligations to turn over materials pertaining to defense witnesses and so my point is --

But Libby wants it anyway, to know how much they can argue about Rove.

Wells: But if they have, let's take Mr. Rove, if they have emails and other documents dealing with Mr. Rove's activities, I have a right to get that material.

Honestly--it's not clear whether they've every gotten this information. If Libby's team calls Rove, they do so with some real blind spots as to how he'll testify, I think.

But I think they need Rove for some of their timeline on July 11. But first let me talk about Bartlett:

Bartlett
They need Bartlett to impeach Ari. Remember, Libby wants to say that Ari, in an attempt to get out of having leaked to journalists, made up a story about learning from Libby (why, Ari) and therefore can't be trusted when he says Libby was talking about Plame's hush hush identity three days before Libby says he learned of it. So Libby will call Bartlett up to explain about how he told Ari of Plame's identity on July 11, after which point Ari leaked it to David Gregory who, they want to argue, shared it with Tim Russert.

They have the same risk here as they do with Rove. After all, according to Hubris,  Bartlett will testify that  Plame was part of the smear:

In a White House meeting that week [after Novak's article], 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."

[snip]

"Scooter and Karl are out of control," Levine told Bartlett at the meeting. "You've got to rein these guys in." Bartlett rolled his eyes at and looked exasperated, but agreed. "I know, I know." (291)

In other words, Bartlett appears to be able to testify that Rove and Libby were part of a smear campaign that included Plame.

But here's what I don't understand about the narrative. These are the events that are supposed to have transpired on July 11, placed in the only chronology I can imagine being helpful to Team Libby. [And it's worth noting that Libby has tried to get a ton of stuff in on CIPA for July 11, even though Walton considers it only of secondary importance to Libby's memory defense.] Note: I don't think this is an accurate timeline, but it seems to be the one Libby is proposing.

Rice sticks the shiv into Tenet

Bartlett tells Ari about Plame's identity

Ari leaks that information to David Gregory (note, he pushed Dickerson to find out who sent Wilson sometime early morning ET, but he did not mention Plame directly)

David Gregory purportedly calls Russert with the news on Plame

Tim Russert talks to Libby, purportedly leaks Plame's identity (note, Fitzgerald seems to think he can prove this happened on July 10, which would blow Libby's story out of the water, but I'm seeing if I can make this work)

Libby and Rove speak about Novak -- and possibly Russert

Rove leaks to Cooper

Tenet makes his statement

In other words, there are several issues, all of which Libby would be trying to reconstruct or cast doubt on, with both Rove and Libby. First, did Bartlett learn of Plame from the INR memo on board AF1? Or did Rove call him and tell him to leak Plame's identity? Second, did the Ari to Gregory conversation happen before Russert? That's some pretty tight timing, particularly since Gregory doesn't work with Russert, to insinuate Russert learned of Plame from Gregory. Did Rove and Libby talk about Russert (I don't know why, contrary to reports and his own book, Isikoff claims they have)?

Here's something else nonsensical. In a January 2006 letter to Libby's lawyers, Fitzgerald said;

we were not aware of any reporters who knew prior to July 14, 2003 that Valerie Plame, Ambassador Wilson's wife, worked at the CIA, other than Bob Woodward, Judith Miller, Bob Novak, Walter Pincus, and Matthew Cooper.

This was long after Ari gave his immunized testimony, yet it doesn't mention David Gregory. Which says Ari either lied when he first testified and has since revealed that he told Gregory of Plame's identity (in which case he would have lost his immunity, I'd imagine), Fitzgerald just plum forgot to mention Gregory, or Fitzgerald does not believe that Ari told Gregory of Plame's CIA employ.

So here's what I think is a more likely chronology for July 10-11, which should mean that Rove and Bartlett aren't all that helpful to Libby.

July 10 Libby talks to Russert

July 11

Rice sticks the shiv into Tenet

Bartlett tells Ari about Plame's identity

Ari tells David Gregory and John Dickerson and others to find out who sent Wilson

Libby and Rove speak about Novak -- and possibly Russert

Rove leaks to Cooper

Tenet makes his statement

See, in this case, the July 11 conversation between Libby and Rove becomes much less helpful for Libby--because he may well testify that Libby didn't mention the Russert conversation.

I suspect there's more, that Libby knows or suspects. Like that Rove told Bartlett to tell Ari to push journalists to look into Plame's identity. But I agree with Jeralyn. It's not clear that Rove would be of much help to Libby.

Comments

[Patrick J. Fitzgerald]

Happy Saturday! :D

[vachon]

Thanks for this post. Could you clarify something for me regarding CIPA and discovery?

If Rove really is called to testify, does there have to be CIPA hearings again pertaining to Rove or have his potential CIPA issues already been hashed out? I get the impression from your post that Fitz didn't give Wells everything he (Fitz) had re: Rove. I assume, if this is the case, that Rove would have to turn everything over at some point. What is the time frame for this?

[emptywheel]

I doubt Rove would testify about anything classified. He'd be asked to admit that he tasked Bartlett to start pointing people to Plame, and that he spoke to Libby about yadda yadda. What Libby got through CIPA was stuff on terrorism and whatnot.

[pol]

Emptywheel, with all the news we've heard about the firing of federal attorneys and replacing them political operatives, why do you suppose the Bush/Cheney bunch has allowed Fitzgerald to proceed? It seems as though Fitz is turning over a lot of big rocks that they would rather leave unturned.

[LabDancer]

Emptywheel –

Nothing like watching a real live big time trial to learn about trials, is there? I suspect you’re even with Libby.

I have a comment or two on your speculation about defense witnesses - but first, I need to know whether you think that Team Libby has made an ABSOLUTE and IRRETRIEVABLE COMMITMENT to Libby taking the stand.

Here is why.

Among prosecutors, the practical test of the case for the prosecution is whether it forces the defendant to the stand.

The reason for that test is broader than just in criminal cases. As all trial lawyers come to know, their weakest case is the one they have to call themselves, for their clients. That is due to the Perry Mason factor: The nature of cross-examination.

To illustrate, I note a lot of disappointment how frail have been the memories of the witnesses called so far. It takes some getting used to, but that’s pretty typical in court cases. It’s mostly a function of collision of two natures, that of humans and that of cross-examination.

Witnesses, particularly those inexperienced at testifying in court settings, tend not to perform very well on the stand. We run our lives on ‘sliced information’ and assumptions about conversations. Many of us have never experienced, most of aren’t used to, and few except lawyers, are trained in exercising that level of precise discipline in running and recording our communications precision which is most compelling in a court setting. That becomes most obvious when a witness is ‘tested’ on cross examination, and even more so when the witness is ‘tested’ on cross examination by someone who has talent, skill and experience in shaking people on the stand on their beliefs in their memories – which would be Cline, Jeffress, and especially Wells.

And of, of course - Fitzgerald.

In civil actions, lawyers pretty much always have to call the defendant – or else the other side is allowed to argue that the reason the defendant didn’t take the stand is because he or she is hiding something. Not putting a civil defendant on the stand allows the other side to ask the jury to draw the conclusion that the defendant is hiding something that hurts the defendant’s case. It even allows the jury to conclude that the defendant is hiding the worse possible thing for them consistent with the rest of the evidence. And that can be pretty bad.

But that argument can’t be made against a defendant facing criminal charges.

As criminal lawyers gain experience (and generally it’s those who are the most successful in court who get the most opportunity to gain more experience – I hope that’s clear), they come to learn that NOT calling a client can be among the most powerful tools in saving the client from conviction.

Further, in the peculiar circumstances of U.S. v. Libby, that experience might become the governing principle, ASSUMING the object of the exercise in defending is to do the best one can do WITHOUT putting the defendant on the stand, hoping for the best scenario of acquittal, but being prepared to settle for a back-up scenario of encouraging the judge to make controversial rulings to argue on appeal, while advancing, or at least preserving, the best possible case for presidential pardon.

And while I think it is possible that you, who so often reminds us “IANAL”, may have every bit of criminal trial experience as Libby has, Libby has it all over you on working a pardon.

[ken]

ew,
not being a law type, I am under the impression since Fitz is not going to call Rove as a witness, then Libby has not seen Rove's grand jury testimony. I think the best way to impeach Rove's credibility would be to present his ever changing testimony he gave in five appearances before the g.j. I think that Wells wants to call Rove and try to get an opening so he can get access to Rove's g.j. testimony and use it to discredit Rove and/or support Libby because I believe Rove was spinning the "reporters told me tale" and the "I've been having senior moments defense" to the g.j. too. I think that Libby feels that Rove's final truthful testimony to the g.j. has something damning about Rove and or Bush, and that Libby can make the white house believe that this info will come out in public court, that it might frighten Bush enough to give Libby a pardon.

[pow wow]

Boy, did you do a good job of staying outwardly cool, calm, and collected, Marcy, on C-Span's Washington Journal Friday. You have a charming television presence, and a very clear manner of speaking. [I was wondering if you thought to ask WJ to answer their "Independent" phone line that morning, or to at least put their "Democrat" phone line back on the hook...!] I sure couldn't tell that you were a sleep-deprived first-time guest.

There were two main myths that York was able to promote without interference, thanks to the format, starting with his opening stab at pretending that the investigation was initiated solely as a hunt for a singular source who leaked to Robert Novak, and that even though that mystery was supposedly solved on Day One of the investigation, the investigation nevertheless continued - the reason for which the audience is seemingly invited to speculate about...

The second myth is of course the complicit media's favorite chestnut, that the Special Counsel has set some sort of horrible precedent by pursuing testimony from Cooper and Miller. This, despite the fact that the Special Counsel has demonstrated obvious and principled restraint with regard to charging offenses under the Espionage Act, to the benefit of every government official who discussed classified information with reporters in this affair. [A fact which was made clear a year ago in Fitzgerald's press conference.]

You were nevertheless able to get a very good explanation of the IIPA obstruction issue out, and called York's bluff with regard to the Novak-Libby conversation the week of July 6th (which appeared to ruffle York's studied nonchalance of a Very Serious Person manner). I also appreciated your description of the months-long CIPA process and the hours of work it meant for the Intelligence Community, in addition to those directly involved in the trial. All in all, very well done.

[luke]

hey labdancer
you are a LOON!

LOON!

LOON!

[clueless]

Ari seems to be a bit of a mystery. Why was he given immunity under circumstances that Fitz may have considered "high risk", as one pub called it.

Any chance Ari wore a wire or made tapped phone calls, for Fitz, to any of his ole buddies at the WH?

This speculation/question is based on no information whatsoever - it's 100% made up! But any chance it could be true? Yes? No? Wouldn't that be a bit of a story!

[Swopa]

Great post, EW... plenty of facts & guesses to mull over.

Here's my question about the whole David Gregory thing -- how does Team Libby "know" that Ari leaked to him?

As far as we know, Gregory didn't testify -- NBC fought the subpoenas for Russert and Mitchell, but we never heard a peep about Gregory. And hasn't Fitz succeeded in not sharing Ari's grand jury testimony? So.... who's left to tell Libby's attorneys about Ari's supposed leak to David Gregory?

The funny thing about Team Libby's quest for Rove and Fleischer's GJ testimony, by the way, is that they're trying to find some way to have Fitz turn over what they almost assuredly already know -- but, because of Scooter's alibis, have to pretend they don't.

[SharonW]

Understand this. Libby's team is playing a big game with their witnesses, throwing a bunch of names out there--Cheney, Bartlett, Rove, Libby, Wilson, Woodward, and about 12 journalists to be named later. I really have no idea who will testify--remember that, even if Libby's subpoenas someone, they don't have to call that person as a witness. They may have subpoenaed these people just in case, for publicity reasons, to pressure the WH for a pardon--any number of reasons that may or may not mean they'll testify.

Apparently you are right again, EW. It looks like the legal leaking source on the Rove subpoena is expanding his repetoire. I wonder what prompted the additional information that sort of emasculated Isikoff's exclusive? ;)

"NBC News has also confirmed that White House deputy chief of staff Karl Rove has been subpoenaed to appear as a witness, according to a source familiar with trial. According to the source, who asked not to be identified due to the sensitivity of the case, the subpoena sent by Libby's lawyers is a "standard action," and it does not mean that Rove will be called to testify. "In fact, it is unlikely," according to the source."

http://www.msnbc.msn.com/id/16823477/

[John Forde]

If Rove testifies and then Cheney does too, how hard would it be for Fitz to recall Rover to the stand to make Cheney's perjury even more vivid ?

[oldtree]

thanks Marcy, the coverage is just great!
I don't follow the issue about Gregory and the likely leak source, I haven't been following closely enough, what are the options here?

another question I had, is this trial going to further taint the jury pool for the future indictments?
two questions; do we know of any other immunity deals like Ari's, or of limited scope?
ooohh, three questions, has the information so far led to speculation about other similar charges to perjury, obstruction, lying to the FBI, etc..? It does seem we have some contradictions likely with a couple of these key witnesses. don't even want to consider IIPA charges, but it does seem as though folks are about to confirm that conspiracy with their testimony

[Sara]

EW -- I have a question about Precedent, current rules of Federal Practice, and, essentially whether Judge Walton is anything like Judge Sirica.

If we remember, at the verdict stage of the first Watergate Trial, (Jan, 1973, the Miami Burglers, Hunt, McCord and Liddy) Sirica had a number of Guilty pleas, plus two convictions, (McCord and Liddy), and at that point he took custody of all eight defendants, laid on very high bail, sent them to the DC Jail, and issued Provisional Sentences, which more or less began at 40 years. He made clear that final sentences would depend on cooperation with the Grand Jury, and he ordered the prosecutors to make regular reports to him. In essence, he did not believe the case had come anywhere near getting at the truth, and with guilty pleas and convictions, he was using his leverage to get additional truth.

We all know that except for Liddy who never cooperated, they all broke and answered GJ questions like crazy, and then McCord completely broke, wrote the letter to Sirica claiming perjury had been committed during the trial and named names, and that broke Watergate wide open.

So the question -- Is Walton getting into the frustrated mood that Sirica achieved during the first trial -- and would he do something similar? Are the Federal Trial rules today similar so as to allow the use of such leverage? Is Libby a Liddy or a Hunt-McCord? Looking at a maximum Provisional sentence and a stay in DC Central Jail while on appeal, would he Sing as Hunt and McCord did, or would he tough it out G. Gordon Liddy style?

I also would like to know if there has been any talk in the press room or around the court house about the Watergate Precedent regarding pardon talk. One has to remember that one of the impeachment charges against Nixon was Obstruction of Justice, and some of the statements of fact in that charge had to do with the promises of pardons made through lawyers to the defendents in that first Watergate trial. Any discussion of a pardon, to be valid, has to seem to come from the only person who has the power of pardon. Just observing and remembering that some folk around Bush ought to remember this stuff as well as I do.

If you remember, the pardon talk went from Nixon to Colson to Bittman who was Hunt's lawyer, and attorney for a couple of the Miami Burglers. The McCord promise went from Colson to one of McCord's phone tappers and then to McCord.

Just a few years ago I discovered how F. Lee Bailey got paid off for defending McCord at trial. It is in the extended version of Halderman's Diary. Nixon through Halderman let F. Lee know that he intended to let the price of Gold float from the 32$ per oz. to market rate. Halderman estimated Flee made about 850 thousand on that little secret. For that he was expected to keep McCord well shut up till pardon time. (too bad Rodino's Impeachment Committee did not have access to Halderman's Diary.) Anyhow, talk about Pardons if it seems to come out of the WH can be very very dangerous to No. 1.

[tnhblog]

More thoughts on the CM testimony. Wasn't one of the problems people have pointed out, is the he said/she said nature of the case. If this is the case, then shouldn't Fitzgerald have attempted to clarify this matter by asking Martin to confirm whether Libby said that he was hearing from reporters or whether he merely said "I've heard that too"?

[emptywheel]

Lab

I agree with everything you're saying--and that's why I think they're not putting Libby on the stand. Also understand that there are new details likely to be admitted into evidence--Libby's meeting with Novak and his obstruction with Judy--that would offer keen incentives for not getting on the stand. There is risk of further charges, beyond the incrimination of going on the stand in this case.

But I do think that Walton will make mightily sure that if Libby wants to make a memory defense, he's going to have to take the stand. I didn't include it in the post, but Walton said, "It would be suicide" to attempt a memory defense w/o calling Libby. And I think it not unimportant that Walton would be personally angry that Libby's team had misrepresented their intent to call Libby. Fitzgerald will try hard to prevent Libby from entering any details of the memory defense if Libby doesn't take the stand, and I think at this point, Walton is sympathetic to Fitz' position.

So the answer is, am I sure they're going to call Libby? No, I think it quite likely they'll try to avoid it. But I am sure that if they don't call him, the memory defense becomes largely moot, which may be why Libby's team appears to be thinking in terms of appealing the case rather than winning it here on trial.

[emptywheel]

ken

I agree on all counts--though coming in as a defense witness, Libby's team wouldn't have the same access to Rove's testimony. That's what I mean when I refer to blind spots. They DON'T get the testimony if Rove is their own witness.

[emptywheel]

Swopa

No, Libby's team got Ari's testimony on December 22, which is also when they learned the details they now know about Ari's immunity deal. This would explain the delayed discovery of Gregory. The implication in all the discussions about Ari's testimony is that he admitted to leaking something to a bunch of journalists. My point is just that it's not clear that he told them Plame's identity--and there's reason to believe not, given Well's fast and loose with facts.

But they are not so entitled with Rove, since he would be coming in as a prosecution witness. They're only entitled to thinks that are directly incriminating/exculpatory to Libby. There was one or two case in Iran-Contra, where the most damaging evidence against a defense witness was brought in by the defense who hadn't seen the witness' testimony and therefore didn't know of some damning comments the witness had made.

[emptywheel]

oldtree

Contrary to reports, there has been no other discussion of deals that I've seen. The MSNBC that Armitage got a deal is, in particular, unlikely at best, given that we know Fitz told Armi he would not face charges in February 2006 (implying he did not have immunity) and also given that Armi himself said that he figured if he were punished he deserved it.

WRT Gregory, Libby's team wants to use him in their attempts to impeach Russert's testimony. So they're using the fact that he learned SOMETHING about Plame (though I'm rather convinced Wells oversold this)to suggest that Russert would have learned of Plame from him. But to do that, they seem to be playing with the date of Russert's conversation.

[emptywheel]

Sara

Brilliant question (of course).

First, the difference here will be that, if Libby is convicted, he will not have plead guilty. So he will still be entitled to an appeal. And the sense is that he will get that appeal. I strongly believe Libby will be able to stretch out this thing, at least until such a time when he might get a pardon.

As to explicit talk of pardon, interesting question. If there has been such talk, I'd bet it was Dick doing the pardon which introduces a nice wrinkle. Shrub has not, AFAIK, written an EO that also gives Cheney pardon power. So there would have to be a campaign of persuasion from Cheney to Bush.

[MayBee]

What is the source for the Novak speaking to Libby the week of July 6th? I can't find it.

[LabDancer]

Emptywheel – Thanks for your clarification.

Also helpful were your response to ken and SharonW’s link to the MSNBC story. With due respect to SharonW [thanks], to me the most important passage in that story is this:

“Libby's attorneys argue that the jury should consider whether Fleischer's immunity deal gives him a reason to provide testimony that "will curry favor with the government. … Lead defense attorney Ted Wells argues Fleischer is in a "different position than any other witness in this case," and "may have issues where his credibility should be questioned because he has an arrangement."
Again: “Fleischer is in a different position than any other witness in this case.”

Those words are attributed to Wells, Libby’s lead trial lawyer – NOT some anonymous source, or a barely-disguised “lawyer on the case” over comp’d scotch and calamari.

Translation? Every witness in this case who isn’t named Lawrence “Ari” Fleischer please stand: No soup for you!

It’s on life support, but I’m almost dead certain Action Armitage never raised it. I come up well short of that with the Artful (Draft) Dodger Rove, but it’s possible even he neither offered nor sought it.

[I’m thinking Charlie Reigle’s idea of bringing back the draft has some merit, if for nothing else then for early detection of hypocrites posing serious risks to national security.]

Why not? Ask not ”Why not?”; rather, ask, “Why”?

Why would an able prosecutor offer immunity to a guy who, when he realized on reading Thing’s October 2003 story Thing may be about to nominate him as one of the “two senior administration officials” Thing wrote were his “original sources” for learning about Valerie Plame Wilson being a CIA “operative”, went straight away to his boss, Powell, who with him then called Taft, who in turn called Abu G, [who then told Bush, who then told Cheney, who then told Libby, blah, blah] never hired a lawyer, and said publicly he’s “ashamed” for his “gossip”? I sure can’t think why he’d get immunity.

Equally, why would an able prosecutor offer immunity to a guy whose testimony before the grand jury was so stinky the prosecutor ‘invited’ him back three times, who then had his lawyer wrangle one last chance, whose lawyer finally succeeded in getting him to tell the grand jury something that, as his lawyer thereafter successfully argued to the prosecutor, hardly an easy mark, was either (1) the truth, (2) close enough to the truth to suit the prosecutor’s purposes, or (3) a lie maybe, but if so, a lie so plausible that pursuing him before or while pursuing an easier target might not suit the prosecutor’s purposes, and in any event would immunize the prosecutor’s case from being undercut by anything he might do or say, cuz Lord knows that boy can spin a yarn! I sure can’t think why the word “immunity” would cause a single glia in my brain to flutter.

I wouldn’t dare attempt to get into the head of either Armitage or Rove, but here’s a thought:

It was Thing which spun a visit from CIA spokesperson Bill Harlow, a visit Harlow is reported to have made for the sole purpose of dissuading It from naming Plame, into a “source” for It’s naming Plame.

Oh so YOU say, waterdog! [I think he might have passed out, so far gone he couldn’t tell canine from waterfowl.]! What do you say? It admitted to doing that? How … diabolical! And It has the nerve to calls Itself a journalist, you say? Why, it’s nothing but … a … a cad! Is nothing sacred to this Thing? Egad … how low might It go?

So low that It even might take advantage of a so-called longed-for opportunity to interview with someone who considers It loathsome - like Armitage?

So low that It even might take advantage of an old acquaintance, even a Rat F**ker like Rove?

[I claim legitimate use pejorative, with full credit to its original publishers, Woodward and Bernstein in their “All The President’s Men”; and to reports repeated in the link which follows, suggesting that Rove graduated (magna cum laude, I would think) from the Donald Segretti School of Political Black Ops, a.k.a. rat f**king. Presumably Bartlett knows of the graduation ceremony.]

http://rightweb.irc-online.org/profile/1343

In practical terms for followers of U.S. v. Libby, since the defendant calling either Armitage or Rove to testify would ensure Libby’s conviction, obviate any illusion of legitimacy to appealing on the various esoteric grounds his defenders are cobbling up, and render him too toxic to appear even on a mere list of those presidentially pardoned, to say nothing of effecting a significant change to his romantic life, is committing suicide, I think Libby calling Armitage or Rove will not happen.

As I have posted before, the value of grand jury testimony at trial is chiefly [though not exclusively, as perhaps now may be brought home to Ms. Martin] to the lawyer conducting cross-examination. Both Armitage and Rove testified before the grand jury. If Libby were to call either, and either were to deviate in the slightest from what he said to the grand jury, before Fitzgerald asked his first question on cross-examination, the first thing he would do is reach for the transcript of the witness’ grand jury testimony - his spare hand poised over an indictment for perjury.

As someone here or elsewhere commented, when no one seemed able to get him for gangsterism, some bright light prosecutor nailed Capone for tax evasion. At this point, I foresee it taking many years before Fitzgerald tires of putting officials of the Bush administration in jail for perjury.

I don’t envy anyone on Team Libby; though well paid for what they do, they act for the trial lawyer’s nightmare client – a lawyer, publicly casting a green eye at a college drop out internationally infamous for prevarication, charged with perjury, rejecting any plea deal, in front of a judge who is telling him he is damned if he doesn’t go on the stand, and who knows he is damned if he does.

Parting shots:

(a) I’m convinced there was at least one conspiracy here, on the cover up. How does the saying go? Those who missed being indicted from Watergate are entitled to repeat their mistakes thirty years later and someone notices.

(b) Don’t you think it’s interesting that Woodward had in his list of questions for his interview of Libby on June 29, a list he sent to Libby June 23, a question on Wilson’s wife? I’m not terribly surprised Woodward hasn’t been able to recall what if anything Libby said in responding to that question; I’d be much more surprised if Libby failed to ask Woodward who on earth suggested such a thing to him.

(c) As loathsome as It is, you’d think that there would be someone out there who might see him as the Precious he really is, maybe someone in the State department who also had complete access to the CIA, someone with an interesting subject, some show and tell, a motivation, and a genuine fondness for spending time with such as It, thereby relieving the OVP of the prospect of a bill for fumigation.

(d) Horrible though he surely is, if for nothing else then for enabling his boss to “achieve power”, I think it is not at all necessarily the case that Rove leaked or conspired to leak.

(e) Horrible though he surely is, Rove is the prevaricater’s prevaricater, operating on the ultimate stage, so I think we’re as likely to all die from blue face as we are to see Rove facing charges from the cover up. If I’m wrong on one of these, please let it be this one.

(f) I’m having none of that “Ari told Gregory” crap. I’m not making bets on this [Betting is against my non-faith-based belief system.], but I can see Wells saying something like: “Did I say Gregory? I meant Dickerson. All those guys’ names sound the same to me. Damn, I made a mistake. Well, those things happen to the best of us. Did I mention I speak for Scooter?”

[p.lukasiak]

But I am sure that if they don't call him, the memory defense becomes largely moot, which may be why Libby's team appears to be thinking in terms of appealing the case rather than winning it here on trial.

I wouldn't say it becomes entirely moot -- Wells will still be able to argue that Libby "just forgot" while pointing to the "memory problems" of other witnesses. What Wells won't be able to do is use the "my client's memory failed on this detail and Plame and Rusertt, despite the evidence that my client pursued information about Valerie Plame, because that subject was so minor compared to all of these critical issues he was facing" defense.

But more to the point, Walton will instruct the jury to ignore all the various aspects of testimony related how important Libby's job was --- he will instruct the jury to use their common sense with regard to their own memory -- and Fitz will hammer home the fact that not only was Libby told numerous times about "wilson's wife", he also related that information to others and made inquiries specific to her before he alleged heard about Val from Russert "as if from the first time" and that he "didn't even know Wilson had a wife."

The memory defense is weak to begin with --- and well Walton instructs the jurors to ignore all the evidence concerning the "special" nature of Libby's job, they will get the message loud and clear.......

[pdaly]

If Libby does not take the stand and the memory defense is out of play for the trial, then I hope by extension Libby would not be able to argue about CIPA substitutions during any potential appeal motion.

Finally got the 1/26/07 C-SPAN Washington Journal videa to run on my computer. Nicely done, emptywheel. I agree with pow wow above that you appeared wide awake. Not even a yawn. I don't think I could have hidden my sleep deprivation.
Hope they let you do another taping this week--without Byron this time. His perspective on the case is already overrepresented by the MSM.

[Ruth]

But they are not so entitled with Rove, since he would be coming in as a prosecution witness.

emptywheel, in your January 28, 2007 at 04:19, I'm pretty sure you mean "defense witness", yes?