The Defense Makes Its Final Desperate PR Bid

by emptywheel

Update: In a second post on this, I trace how Team Libby uses this bad PR to good effect to undercut some of the government's argument. So this is all bad PR, but it is bad PR used to very deliberate effect.

I can't speak to the legal argument presented in Libby's Response to the government's presentencing memo. But I can say this: It appears to have been written by Barbara Comstock. That's the only explanation I can think of for why this document repeats all of the half-truths Comstock has been peddling for three years.

It's Not All About Bob

For example, there's the old claim that this investigation pertained solely to Bob Novak:

Valerie Wilson’s employment at the CIA was disclosed publicly in a column by Robert Novak published on July 14, 2003. There is no doubt that Mr. Novak’s column triggered the government’s investigation. After the CIA referred the matter to the Justice Department, an FBI investigation began in late September 2003. It is undisputed that, as the investigation swiftly uncovered, Mr. Novak’s two primary sources were Richard Armitage and Karl Rove, and that CIA spokesperson Bill Harlow also confirmed information about Ms. Wilson’s CIA employment to Mr. Novak. Mr. Libby had nothing to do with this leak. He was not a source for Mr. Novak, and he was not acting in concert with any of Mr. Novak’s sources. The government has never suggested otherwise.

Obviously, this is irrelevant to the question of whether, by leaking Plame's identity to Judy before Armitage and Rove spoke to Novak, Libby violated the IIPA. Moreover, the Defense is just plain wrong when it says Libby was "not a source" for Mr. Novak, in spite of the fact that Libby and Novak hid and at times lied about their July 9 meeting for three years. And as I've shown, there's a big fat OVP talking point right in the middle of Novak's column (read through the comments--Maguire even concedes this point, though he argues with my point more generally). Seeing as how Libby was Novak's source from OVP, and how he used some of Libby's talking points for his column, I'd say he was a source for Novak.

Ignoring Libby's NIE Lies

And then there's misdirection on the question of whether or not Libby told Fitzgerald that Cheney may have been behind the leak.

The government repeatedly claims that Mr. Libby has stated that his “disclosures of information regarding Ms. Wilson’s employment may have been sanctioned by the Vice President.” Gov’t Guidelines Mem. at 6-7; see also Gov’t Sent. Mem. at 12, 14. This is a misleading characterization of Mr. Libby’s statements to the FBI and his grand jury testimony. Mr. Libby repeatedly told both the FBI and the grand jury that the Vice President had not instructed him to disclose any information regarding Ms. Wilson to the press, and his notes of discussions with the Vice President corroborate such statements and testimony. Only after repeated questioning by an FBI agent and the Special Counsel about whether it was possible that the Vice President had recommended such a disclosure did Mr. Libby allow that it was possible, although he had no such recollection.

They're pretending, of course, that the government was referring exclusively to the July 12 conversation, not the July 8 conversation where Libby's notes make it crystal clear that Cheney ordered Libby to leak information to Judy Miller. Yes, Libby has claimed that he was ordered to leak the NIE, but that story falls to shreds if examined by anyone with an ounce of logic. Which is precisely why the Defense fought so hard to keep the NIE evidence out of trial--because Libby's story about it just didn't make sense. (And FTR, I've been told the jury realized Libby's NIE story made no sense; they didn't deal with that, because it wasn't relevant to the Perjury charges, but if they could figure it out, even with half the record proving it to be baloney not revealed to them, you'd think that maybe Libby's highfalutin' lawyers could.)

Putting Words in the Jurors' Mouths

Then they introduce some absolute baloney regarding the charges.

On March 6, 2007, Mr. Libby was convicted on Count 1 (obstruction), Count 2 (false statements), and Counts 4 and 5 (perjury). Mr. Libby was acquitted on Count 3, which charged that he had made false statements about his conversation with Mr. Cooper. Thus, it appears that Mr. Libby’s conviction rests principally on the jury’s determination that he lied to the FBI and the grand jury in saying Mr. Russert told him that Ms. Wilson worked at the CIA, and in saying that he thought, when he talked to other reporters about Ms. Wilson, that he was only passing on information from reporters and did not know if it was true.2

2 Although the jury convicted Mr. Libby on Count 5, which also alleges false testimony about his conversation with Mr. Cooper, the instructions permitted the jury to convict on that count based solely upon Mr. Libby’s testimony that “the only thing I had, I thought at the time, was what reporters are telling us.” Accordingly, the conviction on Count 5 appears to be based on Mr. Libby’s characterization of his state of mind subsequent to his conversation with Mr. Russert, rather than on Mr. Libby’s account of what he actually said to Mr. Cooper. This is consistent with the jury’s decision to acquit Mr. Libby on Count 3, which only alleged that Mr. Libby lied about his conversation with Mr. Cooper.

Um, no. This doesn't even accord with what Denis Collins described, about either the second Cooper charge or about the Russert-related charge. Libby was convicted because he lied about knowing that Plame worked at the CIA (and existed) before July 10. You know, as in he lied about whether he knew of Plame's identity when he leaked it to Judy on June 23 and July 8.

Adopting the Position of the Discredited Victoria Toensing

And if that's not enough to prove that this memorandum is more about PR than law, they're still disputing Plame's status.

We are necessarily hampered in our ability to counter the government’s assertions regarding Ms. Wilson’s status under the IIPA because the Court ruled – at the government’s behest – that the defense was not entitled to discovery of the information necessary to challenge them. But even a review limited only to the publicly available information suggests that the conclusion the government touts as “fact” is subject to significant doubt.

Mind you, this is one giant headfake. The question of whether Valerie Plame was covert remains irrelevant to Libby's conviction. But the reason the government argues it can cross-reference Libby's conviction with the IIPA statute is because that is unquestionably the crime which the government was investigating (I'll get into this dispute, as well as I am able, in a later post). Valerie Plame could be a giant blue dinosaur and it would remain irrelevant, at least according to the government's argument. It only mattered that Libby knew that they were investigating the IIPA and chose to obstruct the investigation into the IIPA. (And it doesn't hurt that Libby told lies designed precisely around the IIPA statute.)

This filing is so embarrassing that they actually adopt Toensing's language from her WaPo extravaganza, as when she threw "stationed" into statute that doesn't use the word.

Further, it is not clear that engaging in temporary duty travel overseas would make a CIA employee who is based in Washington eligible for protection under the IIPA. In fact, it seems more likely that the CIA employee would have to have been stationed outside the United States to trigger the protection of the statute. To our knowledge, the meaning of the phrase “served outside the United States” in the IIPA has never been litigated. Thus, whether Ms. Wilson was covered by the IIPA remains very much in doubt, especially given the sparse nature of the record. [my emphasis]

But let me reiterate, this is all a headfake. It is irrelevant to the government's cross-referencing issue, as I explained nicely to Byron but apparently have to explain to these guys, too. (Again, I'll try to deal with the cross-referencing issue in another post, but the point here is that the Defense is completely misrepresenting the government's argument so as to refute the claims that Plame was covert. PR, not law.)

The Defense Kills Three Witnesses to Pretend Testimony Corroborates Libby's Story

Well, not exactly. They mention Judy, Ari, and David Addington, all of whom testified that Libby treated the information he gave them as very sensitive. They just pretend that wasn't really evidence.

The government also called five witnesses who said that Mr. Libby had mentioned or referred to Ms. Wilson in conversations during June and July 2003: Craig Schmall; Ari Fleischer; David Addington; Judith Miller; and Matthew Cooper. None of these witnesses (nor any other trial witnesses) testified that Mr. Libby said Ms. Wilson was covert. None of them testified that they believed Mr. Libby had been communicating classified information to them.

Remember, Libby "shushing" David Addington? Remember him asking Addington how he would know if someone were covert? Remember him telling Ari Plame's identity was "hush hush"? Remember all the extraordinary measures he took with Judy like meeting at the St. Regis and telling her to attribute his leak to a "former Hill staffer"? Nope, not evidence, at least not according to the Defense.

All of these arguments are really very nice. But they don't address the key legal issues, and instead address issues that are still being debated by wingnuttia and the minority of the minority. Perhaps they figrue they've rolled the Probation Office so thoroughly they don't have to address the government's argument. Or perhaps they've just already moved onto the "Winning the Pardon" phase of their defense strategy. But seriously, this is embarrassing. I mean, I hate to be a no-good mocking blogger. But this is bad PR and even worse law.

Comments

[P J Evans]

If that's the best the defense can come up with for arguments, I'd say Scooter is in for three years in orange jumpsuits. But IANAL.

[pdaly]

Thanks again, emptywheel. You are on a roll. Actually you are always on a roll--this month justs seems like a faster and steeper hill. Glad you are the one navigating it for us.

SusanUnPC at NO QUARTER has copies up of the complaint submitted to court today by Valerie Plame Wilson along with her publisher Simon & Schuster, Inc. Valerie Wilson is suing the CIA to release her book or more officially she's filed a "complaint for declaratory and injunctive relief."

[emptywheel]

PJ Evans

The Defense may well be right on the cross-reference issue (also NAL), so it may still mean they get the lower numbers. My point on this is just that, all questoin of law, the first part of this document (before the cross-reference discussion) seems designed precisely to be a PR document, not a legal document.

[looseheadprop]

EW

I know lawyers, criminal defense lawyers, who do not seem to grasp the crossreferencing provisions of the guidlines as well as you do.

Shorter version of the post Marcy's gonna do:

If you obstruct an investigation into penny anti paper clip theft you do not get as big an enhancement as you do if you obstruct an investigation into large scale theft of thermo nulclear fissionable material.

Even shorter version: the bigger the crime you obstruct, the bigger the sentening guidelines enhancement you get.

I only got as far as page 8 before I was laughing so hard I had tears blurring my vision. So, I prointed it out to read before bedtime so I will have laughter in my dreams

[emptywheel]

Well, perhaps in your abundant spare time you can do a post on cross-referencing for FDL. Because it is too weedy ultimately to determine whether Bonamici (if it was her) is right or the Defense, based on the cites that Bonamici used.

In any case, we'll be treated to a nice argument between Bonamici and Jeffress next week, I'm sure.

[Woodhall Hollow]

They really don't see how foolish they look do they? This paragraph is worthy of a John Stewart episode.

The government repeatedly claims that Mr. Libby has stated that his “disclosures of information regarding Ms. Wilson’s employment may have been sanctioned by the Vice President.” Gov’t Guidelines Mem. at 6-7; see also Gov’t Sent. Mem. at 12, 14. This is a misleading characterization of Mr. Libby’s statements to the FBI and his grand jury testimony. Mr. Libby repeatedly told both the FBI and the grand jury that the Vice President had not instructed him to disclose any information regarding Ms. Wilson to the press, and his notes of discussions with the Vice President corroborate such statements and testimony. Only after repeated questioning by an FBI agent and the Special Counsel about whether it was possible that the Vice President had recommended such a disclosure did Mr. Libby allow that it was possible, although he had no such recollection.

Erm, Mr Wells and Mr Jeffress, you haven't forgot, have you, that your client is a convicted liar. So why should the Court give any credence to anything which Scooter told the grand jury or the FBI?

[freepatriot]

this is off-topic (I ain't read the post yet)

William Ockham may have just blown the palast story wide open on a past thread

see the tail end of the "Don't Let the Door Hit You..." thread

does anybody else know about this "Consent Decree" ???

sounds like a straight case of Contempt Of Court against the r n c and timmy grifith

book em danno

[Miles Archer]

Walton to release sentencing letters?
http://www.foxnews.com/wires/2007May31/0,4670,CIALeakTrial,00.html

[emptywheel]

Hey Miles,

No offense, but you might check the site before you provide a (Fox!) link to news that I posted about six hours ago.

Thank you--don't mean to be snide, but please do check the site first.

[freepatriot]

if the jury could see thru scooter's bullshit, what are the odds that Judge Walton is fooled

in fact, given that the Honorable Judge has been witness to scooter's "clown act called a defense" for a few years, how do we know Mr Walton isn't laughing as hard as we are ???

has a Judge ever had to recuse himself because he couldn't keep from laughing at the defendant's counsel ???

we might be seeing history here

is the ruling in O'Liely versus Franken usable as prescedent in a criminal trial ???

Wholly Without Merit

ROTFLMAO

[bmaz]

This is what they were 5 days late, without leave from the court, for? With a couple of exceptions, and yes, the cross-referencing of categorized crimes is one of them, they would have been better off submitting a one page statement with a caption and the words "Have Mercy on Scoots". Perhaps they were emboldened by the, apparently, slanted PSR. That is sure not a document I would ever have presented to this court, and certainly not five days late. For a couple of pretty well thought of and experienced defense lawyers, Wells and Jeffress have conducted an absolutely bizzare defense since they stood up to make their closing arguments. They are simply not THAT goofy, I am stumped as to what is going on.

[scarecrow]

lhp -- If I assume the defense attys are not incompetent, then why do the provide a filing that is so transparently PR and not a strong argument on behalf of the client. I the main point here that they no longer care about what happens at the trial level, because they have a solution to their client's problem outide the courts. I'm just having trouble with the idea that the entire defense team would be indifferent to the need for a strong, convincing filing.

[freepatriot]

Yo, bmaz, I think you're confused because your background is in Law

try studying "Stoogophilia" next time

don't ya know a comedy act when you see one ???

Moe pokes Curly in the eye. Curly swings at Moe but hits Larry. Larry tries to hit Curly but Moe slaps Larry first. Curly dances a few steps and says Nyuk Nyuk Nyuk

I knew all those years of watching Stooges reruns would come in handy some day ...

[earlofhuntingdon]

As EW notes, Libby's conviction relates to obstructing justice and lying to federal officers pursuing an investigation into a leak of national security information. Regarding his convictions, that should be case closed.

Assuming the issue of the leak of Ms. Plame's identity remains relevant, it shouldn't legally or practically matter if a dozen people told Bob Novak something they shouldn't have. Any release of national security information by Libby to anyone not authorized to receive that information is a separate violation.

The apparent ruse here is a kind of circle jerk that claims that because so many other senior WH officials also leaked the subject information, none of them did. That Three Stooges defense shouldn't distract a first-year prosecutor.

Further, any statement by Libby - one of the most important members of the Bush administration - that corrobates or disproves information leaked by others accomplishes a separate wrong. It makes the information more or less credible - assuming Libby is deemed credible - which is an important pointer in interpreting intelligence.

Libby's actions also violated his comprehensive non-disclosure agreement, which would justify his dismissal for cause - a circumstance that should lead to him losing his license to practice law. The only way off that hook is to prove that he was ordered to disclose what he did by someone with authority to issue that order, ie, Bush. (Not the NIE data, but Plame's identity.) But this WH apparently doesn't take violations of non-disclosure agreements seriously, unless you disagree with the Chief.

[joysness]

I think Libby's defense is in its last throws....

They just keep throwing stuff out there hopin' something makes sense.

[AZ Matt]

"Further, it is not clear that engaging in temporary
duty travel overseas would make a CIA employee who is based in Washington eligible for protection under the IIPA. In fact, it seems more likely that the CIA employee would have to have been stationed outside the United States to trigger the protection of the statute. To our knowledge, the meaning of the phrase “served outside the United States”
in the IIPA has never been litigated."

Same old BS. They are grasping at straws with this.

[desertwind]

If I were a suspicious person, I'd imagine they're just going through the motions. (IANAL but I made a law joke?)

Does this mean Libby's been guaranteed a pardon? And, that, said pardon will come before he steps foot in jail even if Bush has to do it now?

[Dismayed]

These guys are smart enought to know Walton won't buy their BS. This is material for Wingnuttia to cycle through brainwash radio. They want the pardon to go down with an easy swallow for the minority of the minority.

Their base needs a constant IV drip of disinformation. Otherwise they might get disoriented and see things they don't want to see.

[looseheadprop]

bmaz

For a couple of pretty well thought of and experienced defense lawyers, Wells and Jeffress have conducted an absolutely bizzare defense since they stood up to make their closing arguments. They are simply not THAT goofy, I am stumped as to what is going on.

Scarecrow

If I assume the defense attys are not incompetent, then why do the provide a filing that is so transparently PR and not a strong argument on behalf of the client.

Boys, I just don't know. Both Wells and Jefress are supposed to be among the best of the best. I admit I have not seen much of it.

I think they might have stuck with a teary "send him back to me!", but what do I know. I almost never represent criminal defendants, and the few I do represent it's because they WANT to ccoperate with the government. I save the gov't the trouble of having to flip them and bring them in pre-flipped. My whole representation consists of getting them the best deal possible for their wholehearted cooperation and doing some serious kickass in the pre-sentencing phase.

I have no clue why this particular document could not be delivered on time considering the resources of the firms invovled. Maybe somebody critical had the flu?

It does seem that the interests being protected, as laways, are not necessarily Scooter's. But I don't see him filing an ineffective assistance of counsel motion. He is being screwed with his own active consent, that is obvious.

The Bush Mafia practices better omerta than La Cosa Nostra

[looseheadprop]

I second what dismayed said. I think this IS just a piece of PR.

[AZ Matt]

Perhaps they are assuming that they can keep Libby out of jail while on appeal. They know he will be sentanced but if they keep him out of jail then they probably think they can carry-on till Bush pardons him in January of 2009.

[freepatriot]

I have to disagree LHP

how could scooter NOT be tryin for an "Incompetent Council" appeal ???

I could do a better job of defending scooter without even trying

in the interests of full disclosure, I have to say that I predicted it was either an insanity defense of an "Incompete Council appeal waiting to happen" about 18 months back, so I got a betting interest here ...

(wink)

[nolo]

[cross-posted to the
second thread, as well. . .]

okay -- i admit, like lhp -- that
trying to predict sentencing calculations
is an endeavour best left to experts. . .

but what IS NEW, and IS AVAILABLE,
already, from team-libby's OTHER
FILING, tonight -- is new details,
new tid-bits -- of what those support
letters contain. . .

like scooter's efforts on behalf
of another white house staffer
accused of leaking classified
information to a newspaper. . .

yep -- he's apparently been
here, before -- in the role of
pro-bono lawyer -- not client.

the letter from which this was
quoted may well be one deserving
of some redaction, so i will not
speculate about identities -- no,
as to the incident, i'll patiently
wait to match the above-quoted, to
whatever is made available on, or
after june 5, 2007. . .

that said. . . i think it permissable
to speculate about how this incident
might have influenced the arc of scooter's
later trajectory -- and his life -- since then. . .

so, i cannot help wondering whether
scooter "went to school" in some
measure on this case, especially
insofar as it might have helped
him learn where the absolute edge
of "a policy disagreement" becomes,
well. . . "a leak to a newspaper". . .

do take a squint. . .

[Jeff]

Come on people. You all seem to be missing something: the Probation Office made recommendations (or whatever they're called) very favorable to Libby's side, so of course Libby's defense, starting from a position of strength, is going to push things as far as it can. I'm not denying that any number of their assertions are completely ridiculous from the perspective of the real factual world. I'm also not saying that I have any sense of where Walton will end up. But Libby's defense is starting from a position of strength.

Jeralyn explains it better.

[Jodi]

So what are the preditions?

I would say 2 years, about 1/2 a year less than Fritz requested.
After that 1 1/2 years.

So then we have another question? I am just going to apply a little logic to this since I don't know the histories of what usually happens.

Will Walton consider the length of time of the sentence with respect to of Libby's freedom during appeal?

I think that the shorter the sentence, the more likely of freedom during appeal. It would look funny if Libby went to jail, and the sentence was overthrown, and he had already done his time.

So if it is a 1 1/2 year sentence, he should stay free, and if a 2 year term, prossibly free, and with a 3 year term, maybe not.

Of course then we have to have the lawyers tell us about parole.

[Neil]

Libby maintains he is wrongly convicted and did nothing illegal. The defense presentencing memo re-asserts widespread PR talking points that support (somewhat) Libby's position.

Libby's stance and the defense presentencing memo point to positioning Scooter and the public (opinion) for a pardon. The defense presentencing memo was written for consumption by the public and the president's advisers, not to make a compelling argument to Judge Walton.

[Neil]

It is my hope Judge Walton gives Libby 36 months, instead I think he'll give Libby 33.