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December 19, 2006


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

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.

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.

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.

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 ???

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?

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.

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?


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.

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?

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.

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.

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.


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.


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?

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.

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.



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.

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.

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.

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

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

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.

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:


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


AFAIK, it will NOT be televised.

No Federal Trials are on TV. None.

The only thing you get from the Feds is the audio of Supreme Court Arguments some-of-the-time.

Evidently, Bush was the only one Fitzgerald interviewed, deferentially, unsworn, on the leak of the spy's name.

As other commenters agree, it was the 911 interview that was both Cheney and Bush and unsworn; see the second article on that webpage, including a few 911 commissioners in the photograph greeting the president and vice president.

on the subject of video depositions-

IANAL but I am in law school now. And I've been a spectator in a few courtrooms. Wikipedia has a short page about depositions but it doesn't really address a few important points:

pdaly:doesn't this give Libby's lawyers something previously off limits in this criminal case--a new found permission to converse with the VP?
AFAIK, if Big Time will return their phone calls, they're free to talk all they want, even without calling him as a witness. But I can't think of a single reason for him to want to talk to them that doesn't involve him planning to commit perjury or them conspiring to influence testimony. And it has been suggested that Cheney may in fact be hostile to Libby's cause- if Fitz is able to make Dick choose between saving Scooter and saving himself, Dick is going to look out for #1. A heartbeat away and all that, you know.

Sara and ReaderOfTeaLeaves: [paraphrased]what about teleconference?
Sure it's possible, but I bet it won't work like that. However, it's not going to be like Big Time's interview with Limbaugh. If Cheney gives testimony by video deposition, the way I've seen it work is that attorneys for both sides get stuck in a tiny room with the witness... but NOT the accused, the judge, or the jury. Someone sets up a video camera and tapes the whole thing. The witness gets interviewed by the defense, and the prosecution has a chance to object to questions. Then they trade- the prosecution asks questions, and the defense has a chance to object. They both go through all of their questions, and I think there is even a chance to rebut cross-examination... and then they shut the tape off, both sides get a copy, and everyone goes home.

Note- just like in a real courtroom, your attorney can't tell you when you should take the 5th.

The judge later reviews the tape, decides which objections have merit, and which ones don't, and if the case goes to trial the bits where there are valid objections may even be edited out of the tape before it is played back to the jury.

What's missing from this is the whole equalizing factor of being called as a witness- if Big Time was forced to come to court and sit in the little box like a regular person, and swear to tell the truth, the whole truth, and nothing but the truth, the jury might actually see him as more human. If he's just a talking head on a videotape- well, most of us have already learned that people on TV tell us nothing but lies... so that should work out pretty well for Fitz too.

Also missing is the potential for a Colonel Jessop moment, at least in front of a jury. And odds are if Cheney tells Fitz to go fark himself, Walton won't let the jury see it...

ew, I have a request prompted by your 3rd update.

Given that Cheney's overall approval poll numbers are in the low teens, how likely it is that Team Libby will be able to find even one person to sit on the jury who is not openly hostile to Big Time? If Libby asks their "How do you feel about Dick?" question, and all the potential jurors say "I hate his pro-torture undead zombie ass and want to see him hung by his feet from a lamppost," and then Libby's lawyers move to strike for cause and Walton says no... they're kind of screwed, right? They would be forced to treat him as a hostile witness, or not call him at all, because if Libby's defense is that he was joined with Cheney at the hip, and the jury hates Cheney, that means the jury should hate Libby too.

Here's the request. Can we have a post about the DC voire dire rules? I'm thinking: how big is the initial pool of jurors, how many peremptory strikes, is the voir dire open to the public, etc etc etc. I'd be willing to spend some time (and use my fully-paid educational westlaw and lexis accounts) doing the research if you have more interesting things to think about.

If this thing is really going to trial, I think we could benefit greatly if people actually go and sit in the gallery and liveblog the damn thing. For an example of a passionate public getting involved in a corporate civil case, you should take a look at Groklaw if you've never seen it before- great community, all over the US, making sure that Microsoft doesn't get to have its way with Linux.

And I'll be in Kalamazoo over the Christmas holiday, so greetings from a (former) fellow Michigander ;-)


I sent it along to Christy and Jeralyn, since they're the lawyers. I'll try to link to any response they make...

Cool blog. By the way, I read your entry on Forever Blue. If you want to watch it again, I recently uploaded it onto megauploads. The link is on my blog (kurblickDOT blogspotDOT com).


re: Cheney and videotaped testimony, one thing that occurs to me is that it would feed into Libby's presumed VIP defense - "See? This man is the Veep, much too important to actually testify in person, and I worked for him, ergo I must be really important too; so you really shouldn't worry about any little misstatements I might have made."

I will start by making these statements:

Dick wants to help his employee and friend Libby.
Dick's testimony will help Libby.
Dick is not stupid enough to do anything that puts him in jeopardy, and Fitz knows it.
Dick's testimony will not hurt Dick.
Dick will be able to handle Fitz easily.

Most here had built up strawmen of what they expected.

e.g. Dick hiding, being afraid, being taken apart by Fitz, Dick not being able to help Libby, Dick being ineffectual (aside from some politic things), etc. All that fit the pattern you have also built of terrible deeds done by the White House to Plame and Wilson.

So thus far in this sordid sequence, you have Libby being tried for a memory fault, and Dick on the stand (wow) testifying for his friend.
Not very much, I would say.

Most of this turmoil has been wishful thinking, and the usual case of a special prosecutor prosecuting on something other than his mandate.

Wake up folks! Dick might be made fun of for shooting a man who was in the wrong place, for having a bad heart, for having a daughter that is somewhat out of sync with the WH position on Lesbians, but I notice that few attack him as being slow.

Now I will do what none here will. I will say I could be wrong, because the game must still be played out in the courtroom, and on appeal, and so on, and no one really knows what might happen. And then if I am wrong. I will smile, and say "Golly you were correct. Great Game!"

Anyone here brave enough to do that?

emptywheel, any chance in your opinion that DeadEye's attempting to force Bush into pardoning Scooter? "I'll pull you down too junior."

Re: Questions about video in the courtroom.

The newer federal courthouses are all wired for remote video testimony. There are screens (big screens) for the judge, jury, spectaors and court reporter.

The witness sits in a remote video conference center and usually, eveybody else is in the courtroom.

This trial is in an old courthouse. They woul have to bring in temporary eqipment to do it.There a tons of companies which have been certified by the Office of Court Administrtion to this.

One of the problems that comes up in old courthouses, is electricity and broadband cable availability. Currently OCA is in the process of doing asbestos abatement and retrofitting the wiring in old courthouses. For example right now the old courthouse in the SOuthern District of NY is completely shut down and everyone has been shoehorned into the new courthouse whill the old one is being renovated.

I don't know where in the renovation cycle the Prettyman Courthouse might be.

So, there may be problems doing a true remote. Also, there may be space issues because of the bulkiness of the temporary equipment.

Lastly, the Federal Rules of Evidence do allow deposition testimony to be used at trial in lieu of live testimony, so that may be the plan in this case.

Re comments suggesting Cheney will be intimidated. I doubt it. Have you EVER seen Cheney intimidated?


Thanks, that's helpful.

John Casper

I'm rather alone in this opinion, but I don't think they intend --or want--to pardon Libby until they have established certain issues looking ahead to the trial. One of the most important, by far, is to establish that, whatever Scooter did, he was just doing his job. If they can establish that in this trial, the civil case is MUCH more likely to be thrown out. But if they don't and Scooter is found guilty (or, if he admits guilt, which a pardon is considered to be, admission of guilt) then it makes it easier to go forward with the civil trial. One of the reasons to have Dick testify, it seems to me, is to emphasize precisely this point: Libby was ordered to do these things by his superior, therefore it was all in day's work.


Again, I've said this before, but you seem to believe you've read all of the plame entries on this blog--but you clearly haven't, neither the ones where we admit this is all speculation nor the ones where we proved very prescient.

That said, I will agree with lhp that Dick doesn't get intimidated. However, I will say that in interviews he always adopts a studied nonchalance, but incredibly inflexible approach. He's a very discipline interviewee, but in a court he won't have the same ability to set the terms of the interview, which will make all his normal coping strategies moot. ANd, as many have pointed out, when he loses control of hte situation, when someone says something he doesn't like (as he did with Pat Leahy) he loses all this discipline. Will he pull off the trial appearance? Maybe--but the possibility of a major fuckup is there.

And as to being slow? Well, I will insist--because all the evidence is there--that he is wrong, inflexible in his thinking. THat's a little different from being slow, but will affect his testimony nevertheless.


What about putting Cheney on the stand and then his refusing to answer questions based on executive priviledge. Could this issue cause a pause in the whole process as they revisit the executive priviledge issue, and could this then be used to stall. Like could the Libby defense try to bring up some "sensitive" material (not outside the lines of the agreement-grey mail wise) and then could dick just say "I can't answer that". Some on other blogs have suggested that this might be the advantage to calling Cheney to the stand. What say you to this?? (it's funny, no theory counts until I run it by you...sorry)

It's not that Cheney will be intimidated on the stand.
It's that, for the first time in his life, he will be cornered.

Thanks emptywheel.

Leslie:See? This man is the Veep, much too important to actually testify in person...

Right. But the Jury will HATE Big Time. Everyone who is not Barbara Comstock has a strong visceral revulsion to the man. So if Big Time says nice things about Scooter... the jury thinks, "This bad man likes Scooter! So Scooter must be a bad man too. GUILTY."

That is, unless the jury thinks "If I don't acquit, that bad man will SHOOT ME IN THE FACE."

I'll not spend any more time factoring in the option that Scooter gets pardoned before the trial is over. Besides that it gets in the way of meaningful discussion about things we all can learn from, I'm convinced that at this morning's discursive press conference, President Bush threw Libby under the bus.


Smiley and lhp, thanks very much for the info on how the video testimony works -- and lhp, I absolutely follow all the network and electrical power issues involved 8-p

Labdancer- I missed the presser. Links? Is it up at C&L? (goes to look)

A question for the more legally-astute. My boyfriend is concerned that if Cheney is listed as a defense witness but then not called by the defense, he cannot be called by the prosecution. Please tell me he's wrong?

Notice Cheney administered the oath of office to Gates; ordinarily that would be a presidential function. Clearly this maneuver must have something to do with Cheney's appearance in the Libby trial, don't you think? establishing some sort of presidential aura or standing?

This will be a cross-examination for the ages. Of this trial were broadcast, I would be glued to the tube.

iheartfitz: please tell me he's wrong?

Again, I don't think it matters to the instant case. Remember- the only stated goal is to convict Libby for obstruction of justice. That's it. Sure, we want to see this trial bring the whole circus to a grinding halt, but that's not necessarily Fitz's job. His job is to get a conviction in the case he's trying right now.

Since Fitz announced that he wouldn't call Cheney, he must not need Cheney's testimony to convict Libby. Cheney's testimony certainly can't exonerate Libby- all it can do is implicate Cheney in the conspiracy. So I'm forced to two conclusions:

1. If Cheney actually testifies, he will lie, lie, lie, lie. And claim executive privilege, and then lie some more. If he testifies. I think ultimately that he WON'T testify, becuase he can't say anything truthful that will help Libby's cause, and having your star witness tell obvious and bald-faced lies on the stand probably won't help either.

2. Therefore, Cheney is a red herring of the first water. He's simply a distraction. Why BushCo would want to draw more attention to the Libby trial is beyond me, but maybe this is part of a larger strategy to run out the clock on something else... what is the statute of limitations on conspiracy charges in DC? How about in the federal statute? What about treason? Is there a statute of limitations on charging someone with treason?

I guess the only real limit that matters is whether they can drag things out until Christmas 2008, when 43 can issue pardons for everyone involved without fear of the resulting impeachment. So in that sense at least, it's a horse race- can we persuade Congress to impeach 43 before he can pardon Libby?

As for calling a witness the other side has named, if that side has declined to do so- that's the point of the conference that happened this past Monday. I don't think you are required to call every witness you name, but I'm pretty sure you can't call a witness you haven't named prior to trial.

Again, I'm not a lawyer, yet. I'm sure that Christy will have something fantastic up on the topics of discovery, witnesses, and cross-examination soon at FDL, as she has promised to put something together for the firepups.

I've been waiting, apparently in vain, for ANY more substantive information about what transpired during the apparently hours-long motions in limine (and status reports follow-up) hearing yesterday, from those (apparently numerous) members of the "press" who were present... Nope, we get the news of about 1 minute flat of the proceedings: Prosecution won't call Cheney, Defense will. PERIOD. [The motion hearing was scheduled to start at 11:30 a.m., and the breathlessly brief AP report about Cheney came out at about 3 p.m., I believe.] Because that one development qualifies as "big news" does that mean that all the other developments of the day's hearing are relegated to the trash bin by the editors and reporters...? I don't get it. Even if nothing else of significance happened, why not point that out, in a brief summary of the arguments the press witnessed...

If this is the standard we can expect from the corporate media during the trial, the coverage from any bloggers who manage to get into that courtroom will blow the lid off the paid media's version of the proceedings.

I did finally find two references to developments from the rest of yesterday's hearing, FWIW:

1. The defense will not be calling Joe Wilson to the stand. [That's from Joel Seidman's NBC version of the story.]

2. From The New York Times (David Johnston's article, thanks to Christy's FDL link this morning):

William H. Jeffress Jr., one of the defense lawyers, said he planned to call Mr. Libby as a witness, along with several reporters who interviewed him in mid-2003, to show that Mr. Libby had encouraged the reporters to testify or give depositions in the case.

This NYT excerpt, if accurate, seems to indicate that Andrea Mitchell would not be one of those being called by Libby, as she has never testified in the case. Probably Glenn Kessler, Robert Novak, and Walter Pincus qualify (I haven't yet discarded the idea that Libby is the anonymous Pincus source, based on the way I read the information in one of Libby's in limine filings, despite the fact that Pincus has asserted publicly that Libby was not his source). Then again, this could be a reference to a different trio of reporters, I suppose, from those mentioned in the Libby status report.

Finally, a couple of reports have mentioned that the trial is "expected" to last six weeks - that seems to have been a development from yesterday's hearing as well.

P.S. I believe the new "Annex" to the Prettyman courthouse has just been dedicated and opened for use. If so, it seems possible that this trial may have first priority to a courtroom in that facility, and thus the modernized infrastructure would all be in place for the Big Time show.

Found link at Jeralyn's 2 years ago, TChris provides ample information Cheney interviewed with Fitzgerald's investigators; TCh says it was unsworn.
In the present, a depo is different from the rigorous meaning of witness; yet, Fitzgerald has demonstrated readiness to set bounds, as Fitzgerald did with the GJ topics Judy would agree to discuss after she left the jail.
I kind of demur on the square jaw caricature of the vp, though. The way I recall IranContra there were times Lee Hamilton's determination seemed superior to Cheney's, and usually the reasons for disparity between the two panelmembers' presentation had a lot to do with the strength of their respective backstories; each was under ample pressure to compromise, Hamilton to lessen his initial reputation for incisive investigation, despite the broadly compromising qualifications he brought from the speakership epoch; and Cheney, well, same then, but perhaps less so: as the neoCons were fairly germinal, and other Republican influential people were exercising various pressures on his reshaping strategems.
I thought Libby's mistakes were nervous, far from forgetful; we have reviewed that here before; if it is just a leak program, coordinating it gets haphazard.

pow wow

Thanks for those developments. I'm trying to decide whether it's worth braving the pre-holiday court room to get the transcript to FedEx a check so as to get a transcript. I agree, the reporting on this is appalling.

As to the 6 weeks--that's been something Walton has said since the trial was scheduled. Every time Libby's team invented some new shiny object, Walton would admonish--6 weeks, boys.

And as to Novak being one of the journalists--I think not. He is said to have testified WITHOUT a personal waiver to do so, at least wrt his meeting with Libby. Which would leave Kessler and Pincus (we know he encouraged Pincus to testify about their pre-June 12 conversation, so the question of whether he's the source or not is moot). Actually, he might be getting Woodward in for that dodge, too--since Woodward interviewed him on June 23 (mid-2003) and testified with Libby's encouragement.

I know Libby badly badly badly wants Woodward on the stand, but wants him there in such a way that he can introduce Armi without having to admit that when he leaked the NIE to him he wasn't yet authorized to do so.

After thinking about it some more and reading everybody's comments, I adhere to the comment I made at the beginning -- calling cheney makes no sense to Libby. It is a gigantic risk, which I am sure the defense, in the end, will not be willing to take.

First, I don't see any way that the prosecution will be restricted in what it asks Cheney. Even if Libby only asks Cheney about the NIE, Fitzgerald will be given wide latitude to cross-examine Cheney on matters that he has personal knowledge about related to this case. In addition, assuming that Cheney is not called as a hostile witness, Fitzgerald will have wide latitude to attack his credibility. Once again, this could open up a huge can of worms for the administration.

Cross-examination 101 says you do not ask a witness a question for which you do not know the answer. Unless Cheney decides to make a change from his earlier statements, Fitzgerald knows precisely what to expect from Cheney. Fitzgerald also has presumably received all of cheney's e-mails and papers. Calling Cheney would be a gigantic gift to the prosecution. There is probably a well-spring of material (beyond the stuff that we know -- cheney told libby about plame, the annotated op-ed) that is hugely damning to libby.

Libby does not know what fitzgerald knows. Even Cheney does not know what Fitzgerald may know about him. That's why this is such a risk. I don't understand it at all.

Once again, my guess is that this was just blunderbuss or a strategic maneuver to throw off Fitzgerald. In the end, my guess is that the defense will not call him.


Right. But the Jury will HATE Big Time.

I'm not saying it won't backfire; we here know that these people are not as brilliant as they're often given credit for. But it may nonetheless be part of their thinking.

Along the same lines, as to the overall purpose of Cheney testifying - I agree with you that Cheney's testimony is unlikely to exonerate Libby. But I'm not sure that Cheney and Libby agree with us on that point. Cheney may very well think he can go in there and lie with impunity to get Scooter off the hook. He's not lacking in arrogance, after all.

EW - It's probably not worth bothering to try to get the transcript at this point (it's possible it won't even be available till after the New Year, for starters). The upshot of the hearing yesterday will no doubt show up soon in the Judge's in limine motion rulings, and perhaps Walton will also issue a couple of orders about procedure to clarify where things stand, with the trial now fast approaching.

[In addition, re Robert Novak: I know I sure wouldn't want to have to vouch for his credibility on the stand, come cross-examination, from the Libby defense team's perspective...]

Well... We won't be hearing that "soon" after all, about the motions in limine. The Judge has deferred ruling on all four motions, and scheduled a new motion hearing for January 10th at 9:30 a.m. Meanwhile, in accordance with DCD Local Criminal Rule 57.6, he has set a filing date of January 4th for:

"Any news organization or other interested person, other than a party or subpoenaed witness, who seeks relief relating to any aspect of the proceedings in a criminal case shall file an application for such relief in the Miscellaneous Docket of the Court. The application shall include a statement of the applicant's interest in the matter as to which relief is sought, a statement of facts and a specific prayer for relief. The application shall be served on the parties to the criminal case and shall be referred by the Clerk to the trial judge assigned to the criminal case for determination."

From Rules of the USDC for the District of Columbia, revised 10/12/2006

I wonder how much of this the corporate media learned yesterday, but couldn't be bothered to tell us... There are also some supplemental exhibits that were filed today by Libby in support of his reporter litigation Motion in limine. Perhaps they shed some new light on the status of things - I haven't yet looked at those exhibits.

Nothing of interest in the new Libby exhibits (they are completing the record with letters to and from Miller in 2005, a NYT article about Miller, a July, 2006 Novak column, etc. - 21 pages of same).

With regard to the preceding post, here is the language of the actual Order that illuminates the use of that rule:

"On January 10, 2007 at 9:30 a.m., this Court will hold a further status conference in this matter. As part of that hearing the Court anticipates discussing whether the public and the press should have limited access to portions of the voir dire process consistent with Cable News Network Inc. v. United States, 824 F.2d 1046 (D.C. Cir. 1987). Specifically, the Court anticipates limiting the number of journalists who can be present in the Courtroom for the voir dire process [Footnote] and pursuant to Cable News Network, 824 F.2d at 1048, conducting portions of the individual voir dire in camera. To ensure that all parties are heard on this matter, it is hereby,

ORDERED that any interested party who wishes to be heard on this matter shall file as Application for Relief pursuant to Local Criminal Rule 57.6 by January 4, 2007.

SO ORDERED this 19th day of December, 2006."

- Judge Reggie B. Walton

[The (two) footnotes state that two journalists are anticipated to be in the courtroom, with other reporters viewing the proceedings on a closed circuit video feed in a media room. This is the same arrangement the government's status report mentioned as meeting with its approval.]

So - the upshot of the hearing yesterday seems to be a deferral to an unknown date of rulings on the motions in limine, and making formal provision for the media to object to being restricted to watching a video feed during voir dire. And further loose ends will be getting tied up at the January 10th status conference. Sounds like maybe yesterday's hearing went pretty smoothly. At least, as far as can be gleaned thus far from the case docket.

Just to capture it for the record, here's Joel Seidman of NBC News, writing yesterday for MSNBC:

"Libby's attorneys also indicated today that they did not intend to call Wilson as a defense witness."


From the context, Seidman is referring to Joe Wilson, not Wilson's wife. And yet, Chris Matthews (of the same network) today is apparently saying that Wilson has been subpoenaed by the defense and is attempting to get the subpoena quashed.

Talk about the media not being able to get or keep the story straight...

[The money line of the Order I typed above should read "an" Application for Relief, not "as" Application for Relief.]


Libby commanded Joseph Wilson to appear in Courtroom 16 at the D.C. District Courthouse at 9:00 a.m. on January 16, 2007, by way of a subpoena dated December 13, 2006 - one week ago.

Today, Wilson's attorneys filed a motion to quash, and Judge Walton has established a briefing schedule ahead of oral argument on January 10 (which will apparently be in addition to the status conference that day).

CREW (Wilson's attorneys) have all the information up on their website, including PDFs of the documents in question:


At a minimum, Mr. Wilson appears to be calling Mr. Libby's bluff...

First, I don't see any way that the prosecution will be restricted in what it asks Cheney. Even if Libby only asks Cheney about the NIE, Fitzgerald will be given wide latitude to cross-examine Cheney on matters that he has personal knowledge about related to this case.

jk - why do you think that Judge Walton would let the Prosec. go beyond the scope of direct in cross-x, particularly when it is the Pros. that has over an over requested narrow adherence to the charges before the court?

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