The Defense Rests (Almost)

by emptywheel

We're waiting to see whether the ice sheet blanketing DC prevents the trial from restarting at 11:30 today--Libby's team is supposed to complete their defense. The defense was short--really short. But to counter a lot of the claims that Libby didn't do anything in his defense, I'd like to lay out what they have done. For a review of the charges that might serve as useful background to this discussion, see these three posts: charges relating to Cooper, charges relating to Russert, obstruction charge.

So here's what Libby has tried to do to beat these charges:

The Libby Headfake and Greymail
Libby knew what he was doing when he hired John Cline, who IMO has been the most impressive lawyer for the defense. Cline, of course, is a noted greymail specialist--which means he digs up a truckload of classified documents, claims the defendants needs them to mount a defense, then makes it very hard for the government to come up with substitutions for classified information in the documents, thereby forcing the government to back off its case.

They had to go through some hoops to make this attempt work. Since Fitzgerald had scoped the charges so narrowly--perjury rather than IIPA--there wasn't much classified information directly related to the charges (unless you count the multiple notes that Cheney's office had stamped with "treated as Top Secret/SCI." So they created a ruse to be able to claim there was a lot of pertinent information.

The ruse was to say that Libby would testify, that he would claim he was so busy doing Very Important Things that he just forgot that he had outed a CIA agent. Cline argued that Libby would need all these documents--including VP daily briefings, which BushCo guards like the crown jewels--to explain to the jury what his state of mind was when he forgot leaking Plame's identity.

It is my opinion they never intended to put Libby on the stand--there are just too many lies he told in the grand jury that Fitzgerald could pursue if he were on the stand. But by saying Libby would testify, Team Libby got many more classified documents than they otherwise would have. The whole ploy almost worked--the greymail was their best attempt. But, alas for Libby, the CIA pulled through with substitutions and we actually got a trial.

The Cheney Headfake and Voir Dire
Early in the discovery phase of this case, Team Libby talked as if arguing the Iraq war would help their case. It was Fitzgerald, and not Libby, who fought to keep the war out of the trial. But somewhere around about November 7, it became clear that Libby couldn't win on the war (no one is winning on this war). So they pulled another headfake to make sure they got a jury that included almost no one from the majority of the country that thinks this war is a terrible mess. They said that Dick Cheney was going to testify. That gave them the opportunity to ask every potential juror whether they could take Cheney seriously. And an easy way to identify the people who would never take anything this administration believed at face value.

It is my opinion that they never intended to put Cheney on the stand. We saw plenty in the evidence submitted in the trial to show that there was almost no way they could scope a Cheney appearance and not put him at risk for perjury or worse. Furthermore, the evidence shows Cheney was even more obsessively involved in this than I believed. There was no way The Neocon Scooter Libby Defense Fund was going to expose Cheney in that way. But by saying Cheney would testify, they got to ensure they'd get a jury that was unusually neutral about the administration.

The Materiality Defense
The Libby team also went to great effort to argue that when Libby was first interviewed in the case in October and November 2003, the case related exclusively to the leak to Novak. And so, they argued (and probably will argue again on Tuesday), the lies that Libby told about Cooper, Judy, and Russert were not material to the investigation, and therefore not chargeable.

Fitzgerald clearly saw this coming. They spent a lot of time showing that document requests and the like always requested more than just Novak documents. But given that many in the press still believe this case was all about Novak, who knows--this might succeed (note, I think only the two false statement charges are related to this question of materiality).

The Judy Headfake
I'm not sure I entirely understand this one, since it all went down the week I was gone. But here's what happened. The indictment is clear: the only lying charge related specifically to Judy was the second perjury count, the one relating to Matt Cooper, in which Libby said he told Cooper and other journalists that he didn't know if Plame really worked at the CIA. But somewhere along the way, the lies Libby allegedly told about Judy on July 12 somehow got treated as a charge unto themselves. And somewhere between Fitzgerald's questioning and Judy's answers, there was no sufficient detail about that conversation to merit the mention unto itself. Libby's team argued, successfully, that this part of the charge had to be thrown out.

Now, I think this just means that the jury can't consider anything about the July 12 Judy conversation in their considerations of whether Libby lied. But the real use this serves Libby's team, IMO, is that it allows them to make a big show of saying that Judy doesn't count.

Understand, the obstruction charge is about a lot of things. But it's basically about Libby hiding the conversations with Judy, because he clearly leaked information that, evidence suggests, he knew was classified.The Judy conversations are what tie Cheney informing Libby of Plame's identity to the leak. So in many ways, the Judy conversations are what the obstruction charge alleges Libby was hiding. By making a big show of saying Judy doesn't matter, Libby's team is going to try to confuse the jury about whether the June 23 and July 8 conversations do matter.

There was a good deal of wrangling about this, so I don't know how much the jury will see and hear about Judy's irrelevance. But it is a way the defense plans on confusing the jury into believing there was no obstruction.

The Memory Defense
Ah, the memory defense. It really needs no explanation. But I'll just say that this is--and I think the defense considers it--one of the weakest parts of their defense. Ari and Judy have their credibility issues, but they have come off as sufficiently credible to make his "learned it on Thursday after leaking it on Monday and Tuesday" story look like total BS.

The Very Important Man Defense
Rather than the memory defense, I think they're relying, instead, on the Very Important Man defense, the notion that Scooter was such an important man that he should be excused for leaking a spy's name. Oh, and did I mention terror terror terror? Given some of the cynical comments coming from the jurors--particularly yesterday's question whether, since Libby was so forgetful, is it possible he wasn't very effective on his [Very Important] job?--that I don't think the jurors are wowed by this shit.

Throwing Rove Under the Bus
This concept of course relates to Wells' opening statement, where he said that the whole prosecution of Libby came because the White House sacrificed Libby to save Rove. I think this was done for two reasons--to explain away a pretty damning note in which Cheney got personally involved in forcing Scottie to public exonerate Libby. But I also think it relates to an attempt at jury nullification.

Jury Nullification
Throughout this trial, Wells has stated that Armitage and Rove were the leakers, in spite of the fact that Libby, too, had a conversation with Novak in plenty of time to leak Plame's identity and in spite of the fact that Libby clearly did his share of leaking. In dealing with Ari, Jeffress clearly suggested that Ari should be charged with perjury for not admitting that Pincus is his source. Fitzgerald has charged that this is an attempt at jury nullification. That is, he is suggesting (and it's a very serious charge) that Team Libby is trying to get the jury to believe that it was wrong for Libby to be charged and that, in spite of all the instructions they will get about the seriousness of obstruction and lying, he should not be found guilty. Fitzgerald is suggesting that Wells is planting the notion that, since Armitage is the big leaker, Libby shouldn't go to jail. Or that, since Ari didn't face charges, neither should Libby.

IMO, there is a big risk this will be successful. I have no idea what Wells will say in his closing statements, but he's sure to bring up Armitage and Rove and Ari again. Add in Wells' statement that "the only way my client is found guilty is if you violate your oath," and I think Fitzgerald's harsh charge is totally fair. Wells appears to want the jury to find Libby innocent because of all the bright shiny objects out there. After all, they only need to pick off one juror.

The Impending Appeal
And finally there is the all the careful work Libby's team has made to ensure they'll be able to appeal. After all, Wells has already said, "we'll probably be arguing this after the trial." Which sure sounded like a concession that he will lose at least some of the counts, and will thereafter appeal the verdicts. He has promised to appeal decisions about Andrea Mitchell, Russert, newspaper articles and more. Presumably all he has to do, after all, is stall for 2 years until the pardon. Right?

Comments

[mickey]

Thanks for laying it all out and for the live blogging. It's a "kitchen sink" defense. Not being a lawyer, it makes it hard to evaluate the impact of such a smorsgasboard on a jury. It seems to me that people don't mount such defenses when they have a real one.

When they say "the defense rests," I think they really mean it - they need a "rest." They've worked their asses off.

May it come to naught, prayed the commentor.

[Haralambos]

Thank you so much for your very clear explanations. They have helped me immensely to keep track of this story over the past 15 months. I read you daily and often send a link to friends.

[katie Jensen]

EW,

Does the fact that neither Libby or Cheney testified mean that conspiracy charges are now unlikely?? There have been serveral post and comments that suggest that without a chance at tripping Libby or Cheney the whole thing is over. Is there any meat left, in your opinion, to possible conspiracy charges or other charges?? Are there any possible options at this point??

[margaret]

Madame EW, did you notice whether the jury looked bored during all the rather tedius questioning, or do you think they were impressed with being in the same room as TV and newspaper celebrity reporters? Libby's lawyers risk confusing the jury so much that Fitz's summation (or whatever you call it) will be the brightest, shiniest object in the room and thus, on their minds....blinded by the truth, one would hope!

BTW, Washington doesn't need to worry about terrorism when the whole city collapses under the weight of snow and ice....such weather amateurs!

[Dismayed]

And while we'e all watching the trial. He's an excerpt from an ABC report.

"U.S. officials have said that Iran helped on attacks on troops in Iraq, an assertion denied by Iran's president, Mahmoud Ahmadinejad.

More important, Bush said in his first news conference of the year, is protecting U.S. troops against the lethal new threat. "I'm going to do something about it," Bush said."

Sounds so like the type of direct comments he made before the Iraq invasion. Congress had better get their act together, or these guys are going to pull the trigger on Iran.

Great reporting on the Libby trial. I hope Fitz pulls a guilty, seems like he should, but as any lawyer knows there is no predicting a jury.

[&y]

emptywheel --

From Fitzgerald's announcement of the Libby charges:

And as you sit back, you want to learn: Why was this information going out? Why were people taking this information about Valerie Wilson and giving it to reporters? Why did Mr. Libby say what he did? Why did he tell Judith Miller three times? Why did he tell the press secretary on Monday? Why did he tell Mr. Cooper? And was this something where he intended to cause whatever damage was caused?

Or did they intend to do something else and where are the shades of gray?

And what we have when someone charges obstruction of justice, the umpire gets sand thrown in his eyes. He's trying to figure what happened and somebody blocked their view.

I reread that and end up wondering about some stuff. Let's assume, for the sake of argument, that the jury finds Libby guilty on all counts. What then? How does knowing that Libby lied to investigators help the broader criminal investigation that his lies obstructed? What, if anything, would be the next step in the investigation? If the jury rules that Libby lied about x, can Fitzgerald's version of the lied-about events be entered into evidence as "ground truth" in any subsequent legal proceedings--in the event, say, that Libby later finds himself charged with IIPA and refuses (wisely) to testify about these events because he'd either have to lie again, or incriminate himself?

Also. Do you think it's fair to assume that Fitzgerald has put all his cards on the table that might help prove the current perjury and obstruction charges, or is it possible he has further evidence that could help prove Libby lied, but he's not presenting any of in in this trial because (a) he thinks he can convict Libby without it, and (b) he doesn't want Libby (et al.) to know that he knows what he knows?

(whew... that last question is a rambler)

I ask about this because this is all anybody ever wants to know here at work when the CIA leak case comes up. The typical conversation goes something like, "They: Anything new in the leak thing? We: Fitzgerald made Cheney's current COS look ridiculous during cross yesterday. They: But what's the point? What happens if Libby's convicted? Nothing, right? We: I have no idea what happens next. Maybe nothing. Probably nothing. Appeals and a pardon? Sorry, I just don't know."

[Nan]

Thanks for another terrific post, EW! Like others here, I appreciate your background knowledge and clear explanations. (And of course, your liveblogging!)
Nan

[emptywheel]

&y

I don't think he put everything on the table--In fact, I'm sure of it, because he didn't even put all of the NIE stuff on the table. Why, I can only guess.

[&y]

Thanks ew. I apologize for hassling you on a trial day--I don't know how it got into my head that today was a day off. I wouldn't have droned on with such a long string of questions if I'd checked fdl first and seen that the tedious legal arguments were a-flyin' and that emptywheel was busy typing it all out.

Re: Tedious Legal Arguments
1. I'm a bit disappointed that Fitzgerald seems not to have anticipated that Libby--a man on trial for allegedly lying to investigators--was lying to investigators and the court when he said he planned to testify. The government should have been a separate set of binders all ready to go in the case that Libby welched on his non-promise to take the stand.

2. I don't get why Team Libby feels the need to go through all this rigamarole to impeach Russert's credibility--they could accomplish that just by showing the jury a few episodes of his TV show. [pause a beat; ba-dum, splash cymbal!]

[&y]

Correction: "The government should have had a separate set of binders. . . ."

[freepatriot]

yo, emptywheel, google video SUCKS

I'm on dialup here, with a POS (piece of shit) computer, and this new video format really fucks up my computer's preformance

here's a request. could you go back to using YouTube videos, or find a way to make this new format friendly for us people using stone aged computers ???

thanks in advance

your most loyal fan

[QuickSilver]

I hardly think Fitz is doing this on the fly, so I'm not sure about the 'other set of binders' accusation. Also, I can't fault Fitz for failing to signal before the trial which way the evidence pointed. In light of what this trial has shown (and unless Fitz has other charges to follow), it is incumbent on the American public to register its outrage over what Libby's bosses ordered him to do, then hold those bosses to account. Congress will not act otherwise.

Paradoxically, perhaps, the Libby trial may deliver the CIA leak case into the court of public opinion. Does the public care about the cover-up? (I think the answer is 'yes.') Does the public believe that the President and Vice President should be called to account? I think bloggers have to make that case; it's clear the media is otherwise too muddied up or complicit to move the debate.

[Jeff]

Why, I can only guess.

I presume now we can say wrt the NIE stuff that Walton ruled against Fitzgerald using the pre-July 8 disclosures, at least using them at will.

[pdaly]

If Libby is convicted and if Fitz has more to prosecute in this CIA leak case, I have to assume Libby will be useless to Fitz as a now discredited witness. This leads me to guess Libby would be Fitz's next case: indictment for IIPA violation? IANAL.

[Jodi]

I thought from the trial that Libby would get convicted, though he had lots of appeal type material built up...

Now there seems to be a hint about a non-unaminous jury already?

[azportsider]

Wonderful summation, EW. I applaud all the efforts you, the Firedoglakers, and Ms Merritt have put in to keep us apprised of the goings on at the Libby trial.

Here's a question that I haven't seen addressed:

Whatever happened to the second indictment the Grand Jury returned? You may remember this curious event: the Sealed vs Sealed Document labeled 06 cr 128. Has it ever been opened? Did it disappear down the rabbit hole? Is it still lurking behind the scenes like a time bomb?

[&y]

I hardly think Fitz is doing this on the fly, so I'm not sure about the 'other set of binders' accusation.

My comment wasn't meant so much as an accusation, just disappointment at reading the liveblog and sensing what Swopa would describe (better than I) as, "[Fitzgerald's] increasing exasperation at the obvious game-playing and posturing."

In my "other set of binders" fantasyland, Fitzgerald would have responded to each bit of game-playing and posturing with something along the lines of, "OK then, if that's the game defense wants to play, I think we can accommodate them [followed by the "thud! thud! thud!" of binders full of backup plans hitting his table]."

My thinking was way more Perry Mason than reality.

[Canuck Stuck in Muck]

caveat: remember that I can be, at times, a bear of little brain. So if none of this makes any sense, please spare me your derision, and merely ignore me. Many thanks!

wrt azportsider at 6:57. I don't know why I keep hearing the words Fitzgerald uttered at the time we first heard about Sealed vs. Sealed, and the putative hours-long meeting with Rove in his lawyer's office, etc. Fitzgerald, I think, can be counted on to choose his words carefully when making statements such as these, so there must be something to his admission a while back to the effect that, although his investigation is ongoing, 'he anticipates bringing no charges against Mr. Rove "at this time".' I live in hope that Sealed vs. Sealed contains an indictment of the whole lot of them, for (at a minimum) causing classified information to be revealed to those not cleared to hear it... i.e. Bush to Cheney to Libby to Fleischer to Pincus. It's an arrow straight line of criminal activity. Unfortunately, since Fitz needed Fleischer to nail Libby, he can't hang a crime on Ari. Thus, he needs the Libby conviction to provide the 'evidence' that crimes were committed in the process of causing the classified info to be passed to unauthorized ears. If Libby is convicted, and still refuses to name names, the next indictment is for Rover, because on the basis of the findings in the Libby case, he can now no longer cling to the story that he was merely confirming what 'all the reporters' already knew. Rover will then meet the same fate as Libby. Even if he refuses to flip, Fitz can nail the top dogs, because the Libby and Rove trials will allow him to triangulate on the timing of the NIE leak, which was in fact leaked before Cheney illegally laundered it on July 8.