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June 05, 2007


thank you, Marcy, for today and all you do. . .

I think we're going through a bit of a lull just now. The Jefferson scandal will taint Republicans as well as Dems and the presidential campaign is just going to trudge on without many big surprises.

I see Obama and Clinton feeling a bit of tension and reaching out in various directions. I don't know if that means they're just fighting one another or if it is an indication of some distress. In any event that goes on and only occasionally appears on teevee. Fourth of July might bring some surprises, but probably nothing monumental.

The war goes on and on and on and the numbers just keep piling up in spite of the fantastic reportage of firedoglake.com and this site. Republicans should be made to feel the pressure all across the board.

So, what's the Dem strategy just now? IMHO Hold tight, observe closely, don't over-react to anything, stress honesty and morality in our united Front against the Repubs and bring the public to our big Patriotic Fourth of July tent.

Dems are winning, we just have to be sure and pick the best candidate to be the next prez.

EW, just wanted to pop in for a minute to say thank you so much for your amazing work. I followed the liveblogging you and Jane did this morning (pining for a live stream on CSPAN-3 the whole time ;) And then I watched the SJC hearing this afternoon and was tickled to see you there at the end. I am not a blogger myself and have no desire to be one, but I am so very thankful that you folks are here. You are a tremendous resource of information and a national treasure. So again, I thank you.

Thanks, Marcy. Excellent analysis and reportage when no one else would do it. Except, of course, Murray Waas.

Also, I see there's some misunderstanding of Walton's stance on bail. He says no. He has given the Defense a last ditch attempt to convince him that the appeals have merit....

Just to get some double-super clarification on this: Does team Libby have to persuade Walton that their planned legal appeals (i.e. appeals of the guilty verdicts) have merit? Or is this about begging for bail just because Scooter's such a great guy?


Also, this thing at TIME ticked me off:

[P]re-trial maneuvering found the prosecutor, Patrick Fitzgerald, insisting that this was not a case about a leak and fighting defense requests for documents about whether Plame was ever a covert agent....

good reporting

with details and insights you'll never see in the wapo or nytimes.

Let me join in saying: Thank you for your live blogging. As you related it, Team Libby was underwhelming. My mind strays to a thought: what did Team Libby get paid for today? And just what were their services worth? I feel not one twinge of sorrow for Libby, but can Team Libby just laugh off their shortcomings because they "just do it for the money?"

I think Libby has been pulling the strings (or Cline the anonymous one) for some time for the defense and has completely buggered this up. Wells and Jeffress may not be Gerry Spence or F. Lee Baily (in his prime), but they are way to good and to experienced to have made this much of a hash of it. You are exactly right on the bail issue, and it literally took the TV folks hours to get a grip on this. I said this at FDL, and I am pretty convinced I am right, Walton only allowed this little remand briefing/determination thing to specifically take the wind out of the sails for any effort by Libby to try this at the Circuit Court of Appeals level. This appears to me to be a done deal, Walton is just covering bases and locking it down. Lastly, you are dead right about Judge Walton's little inference. I might even, after haveing a chance to think about it, go one step further and say he was also giving Fitzgerald a subtle nudge and cover to continue THIS investigation and, given the circumstances, that means Cheney. I draw no conclusion here, just an educated thought.

The Republican debate now getting into "Should GWB pardon or would you pardon Scooter Libby?"

Per everyone else, thanks so much emptywheel, for the liveblogging and everything else. I hope we can make it profitable for you to do a lot more of it.

i hung on every sentence typed by
you two all day today! -- thank you
so so much -- history will thank you,
as well. . .

but now -- i am in full hair on fire
rant mode -- the sitting vice president
just put out a government press release,
using our dollars, and our whitehouse.gov
website -- lauding libby's integrity.

all while seeking to influence the
outcome of the appeals. . . SCREAM with me!

SCREAM about this one, please!

for the love of goddesses -- scream!

here is the white house press release.

my take on it is here.

oh -- and above. flame-off. . .

One of Walton's most telling statements came when he said that Fitz' appointment must be proper, because if it weren't there'd be no way to hold anyone in DOJ acountable if they broke the law. You think he has someone(s) in mind?

Sorry, I must be slow tonight. Can somebody spell this out for me?

Thanks . . .

nolo --

I probably should have screamed, but I confess that Big Dick's reference to the administration of justice a "tragedy" really just made me laugh.

Wow!! I have never been more happy to be wrong about something in my life. I pray the work that has been done here and at FDL goes down in history. Being part of this little world changed my life. I felt powerless, and alone before finding these sites. I feel I walked hand in hand with greatness and felt such an honor to bear witness to the inner story behind the Libby case. Unbelievable.

Thank you so much for all you did to tell the truth Marcy!!

Great job liveblogging, Marcy. You caught some great statements, especially the one where Wells said Libby was "alone" in the White House in having integrity (that's a paraphrase, not an exact quote).

Shooter sez: we hope that our system will return a final result consistent with what we know of this fine man.

"our system" meaning georgie porgy pardons Scootie-poot?

BUt be sure to check out the photo of scootie at the NYT website when he left the court today. Maybe it is finally sinking in to his thick skull.

"because if it weren't there'd be no way to hold anyone in DOJ acountable if they broke the law. You think he has someone(s) in mind?"

I read that as referring to AG Alberto Gonzales.

The whole Plame-blog experience, since June-July 2005 for me as an observer, has just been great. It's a revolutionary change in how society gets personally involved with the news and with topical experts: Marcy, and Jane, and Christie, and Jeralyn, and many more, were high-profile pioneers of this new approach to covering important political disputes. I am very enthusiastic about the future of TNH, FDL, and all the blog community.

i am honored to read you.
you are a great american.
thank you.

Thank-you EW for all your great work, especially the liveblogging today.

I have a sorta dumb legal question. What would happen to his sentence if libby were to decide tomorrow to have a heartfelt confession with Fr. Fitz and disassemble the obstruction, so to speak. If he flipped, and gave up what he really knew to be the facts. I doubt that the prosecution could drop or do anything to revise the obstruction charges, now that he has been sentenced. But, could Walton actually vacate the obstruction conviction itself? My guess would be that Walton would reduce the obstruction sentence for cooperation, but the conviction is noncommutable, except by appeal or pardon.

Post sentencing, what do you think Libby could hope to get if he flipped? (I mean, besides peace of mind and the redemption of his very soul... *g*)


a pleasure to read a second interesting and insightful opinion on this post.

having read your comment, it occurred to me that maybe libby and company already have walton's reputation accounted for, and are setting up for an appeals court decision (thus sparing the prez the necessity of a pardon).

i seem to recall that the d.c. appeals court has a preponderance of right-wingers.

am i wrong on this?

if not, maybe this appeal to authority by libby will go far among the authority-loving and national-sacrifice approving right-wingers on the appeals court or, if necessary, on the supreme court.

the way this admin, including its judges (bush v. gore) operate,

i would not put it past them to have already arranged an appeals decision in favor of libby.



jjk - Much more difficult now; but there may well be a window until Thursday June 14. It is hard to tell from what I have seen so far, but it is possible that the sentence has not truly been formally entered and will, technically, not be entered until that final determination is made at that time. If that is the case, that would open the window for better possibilities. past the point of formal entry, it is not impossible to re-address, but much more difficult.

All I can say is WOW! Your reporting throughout the sentencing hearing was spellbinding! It was a good thing that I did not have to be real attentive at work today ;-)

To our friend BMAZ, I have had the feeling for a long while that Mr. Fitzgerald was dotting his i's and crossing the t's... and waiting... and waiting some more. I have been terribly curious about the "Sealed vs. Sealed" indictment that supposedly came out of the grand jury -- and wondering when it might come into play.

If I were either Karl Rove or Dick Cheney, knowing how diligent Pat Fitzgerald is in his work, I would have a hard time not looking over my shoulder constantly. In fact, I would be downright worried! And I would start having anxiety attacks thinking about Jane and Emptywheel blogging about my trial from the courtroom...

I really think it would make my rectum pucker up...

Emptywheel, it was a marvelous day thanks to you and Jane!

Orion - Huh? I don't recall saying anything insightful; I just ramble. You are correct about the makeup of the DC Circuit Court of Appeals. But Walton made a heroic effort to keep appealable, especially reversible, error out. I, for one, think he was pretty successful in this regard. To a varying degree, these circuit judges think about their overall judicial legacies a lot. And they are scrutinized. Also, keep in mind that they have ruled somewhat bravely (against what right wingers wanted anyway) and correctly in their prior decision on the Judy Miller contempt issue during the grand jury stage. We'll see.

Don't forget that Libby may still dance away scot-free. He will be appealing on the basis of Walton refusing to call his expert witness on memory.

And a strong case can be made, since there seems to be an epidemic of RFS going around Washington. [That's the Republican Forgetfulness Syndrome, which was probably brought in over the border by some raghead/wetback, and has infected almost all of the DOJ hierarchy.]

how come no comments from those ignorant pieces of sh*t tom maguire or that bunghole jodi ???


cheney next !!!!

then rove !!!



I previously asked:

because if it weren't there'd be no way to hold anyone in DOJ acountable if they broke the law. You think he has someone(s) in mind?"

somebody answered: I read that as referring to AG Alberto Gonzales.

My response: yeah, I get that part, but I don't see how it connects to Walton's statement that "Fitz's appointment must be proper."


The gist here is well taken. But am I mistaken that Walton basically ruled that the cross-reference applied (at least for some of the counts), thereby bumping up the guidelines, and then he went on to give Libby a sentence at the low end of the guidelines? Am I mistaken about that?

Part of my point would be that Walton's impatience when Wells or Jeffress started reading the letters was not because he was unimpressed - apparently he was, to some degree - but because he knew that the defense was grandstanding for purely pr purposes, since they knew very well that he was familiar with all the letters.

MW, I'm glad you are on the case. I've seen sharp minds and I've seen sharp minds. I was thinking, you would make a great prosecutor and then I was thinking, I'm jealous of all the good people from Slugo, Ireland.

Thank you for suggesting we write Judge Walton. I did and he got it doc359

hey all -- i still need to
count the letters, one by
one, to figure out if more
than six self-identified as
non-republican, and came out
in support of libby. . .

my sense, having read them
all once through, now, is i
don't think so. . .

so -- instead -- i'll offer
a late-night treat: the
victoria toensing letter,
and, in lurid pink
, to boot

so, let the bloggers' mockery
begin! -- from the sublime,
to the ridiculous!

g'night all!

EW, I echo everyone else's thanks for keeping on top of this.

Nolo, I think the key is that Cheney has a different theory of justice than you. Consider this. Yesterday Omar Khadr and Salim Hamdan had their charges dismissed after about five years detainment at Guantanamo Bay. I searched in vain to find a Cheney word of sympathy about the inconvenience to their familes. But I did find this from the BBC from two years ago:

Mr Cheney says that those prisoners who remain [in Guantanamo] are "bad people" and "hardcore".

So, comparing what Cheney said about Libby and the Guantanamo detainees, Cheney's theory of justice appears to be good guys, even if they are guilty, should NOT be inconvenienced by going to prison, but bad guys, even if they are innocent, should rot there.

I missed everything til just now. This was a busy day.

Ok. Libby lost on the sentencing like he did on the trial.
Some of us had predicted low, on the number of counts he would be found guilty of, and now on the number of months. We were wrong.

By the way, with parole, good behavior, etc., what does 30 months come out to be?

My main observation on the trial and on the sentencing is that Wells isn't such a great lawyer. Many here commented the same on that. I would like someone I didn't like to be represented by him.

On the appeal, Judge Walton's refusal to allow the memory expert, etc., could be decisive for an overturn.

I don't know if Judge Walton's bringing into the sentencing things that were not proven at trial will affect an appeal. The lawyers here will have to answer that.

I still think (66%) that Bush will pardon Mr Libby even after time in prison.

You rock, Marcy!

"On the appeal, Judge Walton's refusal to allow the memory expert, etc., could be decisive for an overturn."

A Grilling to Remember

"But when Fitzgerald got his chance to cross-examine Loftus about her findings, he had her stuttering to explain her own writings and backpedaling from her earlier assertions. Citing several of her publications, footnotes and the work of her peers, Fitzgerald got Loftus to acknowledge that the methodology she had used at times in her long academic career was not that scientific, that her conclusions about memory were conflicting, and that she had exaggerated a figure and a statement from her survey of D.C. jurors that favored the defense.

When Fitzgerald found a line in one of her books that raised doubts about research she had cited on the stand as proof that Libby needs an expert to educate jurors, Loftus said, "I don't know how I let that line slip by."

"I'd need to see that again," Loftus said when Fitzgerald cited a line in her book that overstated her research by saying that "most jurors" consider memory to be equivalent to playing a videotape. Her research, however, found that to be true for traumatic events, and even then, only 46 percent of potential jurors thought memory could be similar to a videotape.

There were several moments when Loftus was completely caught off guard by Fitzgerald, creating some very awkward silences in the courtroom.

One of those moments came when Loftus insisted that she had never met Fitzgerald. He then reminded her that he had cross-examined her before, when she was an expert defense witness and he was a prosecutor in the U.S. attorney's office in New York.

Libby's defense team declined to comment."

For those who are criticizing Ted Wells, please keep in mind that he had a lousy case to work with. His client was convicted of repeatedly and consistently lying his ass off. His client couldn't even bring himself to say, "You know, now that Judy Miller has spent 2 1/2 months in jail to protect me, and half a dozen people have testified in open court that we discussed Valerie Plame long before my conversation with Tim Russert, it's sort of jostled my memory a bit, and I do sort of have this hazy recollection of betraying a CIA agent's identity. But it was totally an innocent mistake. It just LOOKED like a well-orchestrated scheme that I subsequently had to lie about. I'm REALLY sorry about all this. My bad."

Despite all the Republican spin, the bottom line is that two reporters testified in open court that Libby betrayed Plame's identity to them. That's what this whole case was about from the very beginning. And Libby screwed himself so badly with his lousy lies that he couldn't even take the stand in his own defense. (By the way, while I'm ranting, what ever happened to the the long-held right-wing belief that only guilty people won't take the stand in their own defense?)

I see one of Libby's letter writing supporters is the wife of one of Wapo's Iraq correspondents. Jane Atkinson is I think the wife of Rick Atkinson.

" National Institutes of Health researcher wrote that she had met Mr. Libby 17 years ago after her husband was invited to join a Sunday morning football game. "Scooter has always cared for his friends for who they are, rather than for what they do, who they know or how much power they have," wrote the researcher, Jane Atkinson.

In an interview, she said, "I'm not a Republican but it's never made any difference in our relationship." She said that when her husband, a Washington Post reporter, was sent to cover the Iraq war, Mr. Libby "would call me" to check in."


EW, you're the only source I consult for information on this important trial. You've been stellar throughout. I can't thank you enough.

Kudos to Judge Walton, too, who appears to be emulating his Pittsburgh Steelers.

I thank EW and everyone for their bringing the courtroom to the world. I read several of the letters sent to Judge Walton extolling Libby's character. I think someone should follow up on that, or point me to the post where an analysis was sketched. His obstruction of justice notwithstanding, Libby is obviously a man of character. I think he intentionally threw the case, in essence saying, the buck perhaps doesn't logically stop here, but it will if I can make it so. E.M. Forster said:- “If I had to choose between betraying my country and betraying my friend I hope I should have the guts to betray my country”. And Cheney is almost certainly the friend he's protecting.

Jodi, you are wrong about the so called "memory expert" and Frank Probst is correct. The historical precedent on admissibility of scientific opinion testimony is contained in two cases, Daubert v. Merril Dow and Frye v. US. The proffered testimony of Elizabeth Loftus didn't meet the standards of either. You should know that Loftus has been precluded from offering this type of testimony before. The standard for appellate review is abuse of discretion. In layman's terms, the appellate court would have to find that there was no reasonable basis possible that could support Walton's determination in this instance. If there was a chance in hell that such a standard could have been met to start with, and there is not, it was removed by Libby's refusal to take the stand and laty an evidentiary basis for such a consideration. This is a non-starter. Lastly, I don't believe under the relevant standards that "memory recollection analysis" is a cognizable subject for expert witness testimony; but if it was, Loftus is not the proper expert (exactly why she has been precluded before). I know Liz Loftus, I have retained her as an expert witness on criminal cases before. Her field of expertise is in eye witness identification. She and a collegue literally wrote the book in that narrow field. She is very bright, but has never been a particularly good live witness on the stand; she is much stronger in affidavits and in simply preparing attorneys themselves to cross-examine critical eyewitnesses. After decades, she tried, quite unsuccessfully for the most part it has turned out, to branch this out into a new little sub-niche of memory recollection. It was, and is, bogus.

In the West Wing, Pardon Is A Topic Too Sensitive to Mention


The sentence imposed on former White House aide I. Lewis "Scooter" Libby yesterday put President Bush in the position of making a decision he has tried to avoid for months: Trigger a fresh political storm by pardoning a convicted perjurer or let one of the early architects of his administration head to prison.

The prospect of a pardon has become so sensitive inside the West Wing that top aides have been kept out of the loop, and even Bush friends have been told not to bring it up with the president. In any debate, officials expect Vice President Cheney to favor a pardon, while other aides worry about the political consequences of stepping into a case that stems from the origins of the Iraq war and renewing questions about the truthfulness of the Bush administration.

The White House publicly sought to defer the matter again yesterday, saying that Bush is "not going to intervene" for now. But U.S. District Judge Reggie B. Walton indicated that he is not inclined to let Libby remain free pending appeals, which means the issue could confront Bush in a matter of weeks when, barring a judicial change of heart, Cheney's former chief of staff will have to trade his business suit for prison garb. Republicans inside and outside the administration said that would be the moment when Bush has to decide.

If Mr. Libby goes to prison, he will be the first senior White House Republican official to do so since the days of Watergate, when several of Republican President Richard M. Nixon’s top aides, including H. R. Haldeman and John D. Erlichman, served prison terms.


An intriguing question for many is what role Mr. Cheney will play in pressing Mr. Bush to grant a pardon.

John Casper

I don't know if the memory thing could have been used effectively or not. Aren't we supposed to have a trial by our peers, not by Judges and Prosecutors. It seems not inconsequential that Mr Libby was denied a Memory witness when he was being tried on whether his memory on these events was a lie.

If the Judge and the Prosecutor then want to take on the Memory Witness at the trial and make fun of her, then fine.

Irrespective of what you petulently think, Jodi, there exist long lines of statutory and case precedent on how courts are to procedurally administer justice. Until told otherwise, trial courts are obligated to follow this rule of law; on this issue, in this case, Judge Walton meticulously did so. That is how it is supposed to be; that is how it was. End of story.

good work, keep positive and roll up your sleeves and strike while the iron is hot.. Bush is scared dafur/global warming holding putin's hand never never ever give them a break or they like jason will kill us all

Judge Walton's use of "stepping over the line" reminded me of Goodlings' "I crossed over the line".

Libby's " peers " found his treasonous lying ass guilty and now he is going to prison as a convicted felon.

Marcy, great as always. I agree, Wells has his work cut out for him for his final plea on the bail issue. I understand Judge Walton wasn't exactly ecstatic while Wells was reading Libby's love letters. Had to laugh when he snapped out something like "I've read them." Just who was Wells trying to impress? (Like, the media?)

Great Coverage, EW! Thanks!

Thanks for the excellent comments, BMAZ!

My only regret is that Mr. Libby didn't get 10 years, real time for his herculean yet bumbling efforts to coverup the WH criminal conspiracy in outting an American undercover agent.

Why is it that one can lie and obstruct justice to keep hidden a crime or set of crimes that would result in a very long prison sentence but by covering up the underlying crimes one only has to pay a token penalty? Given this situation, doesn't it benefit most criminal enterprises to engage in the coverup and do the short time? Why admit to the major crime and do more time? The risk/reward ratio is off-kilter. The only way to get to the underlying acts is to make the punishment for concealing them more costly than the punishment for revealing them.

"But as things stand, the default is Libby gets no bail (though it'll take the prison system some time to get him into jail--perhaps 45-60 days)."

Well, yes, they need time to hire and train his very own personal chef, get those tennis courts and golf course back up to "presidential shape" and enlarge his cell to acommodate the king-size waterbed and 48" TV. I mean, priorities, man.

"But as things stand, the default is Libby gets no bail (though it'll take the prison system some time to get him into jail--perhaps 45-60 days)."

Well, yes, they need time to hire and train his very own personal chef, get those tennis courts and golf course back up to "presidential shape" and enlarge his cell to acommodate the king-size waterbed and 48" TV. I mean, priorities, man.

". . .So, comparing what Cheney said about Libby and the Guantanamo detainees, Cheney's theory of justice appears to be good guys, even if they are guilty, should NOT be inconvenienced by going to prison, but bad guys, even if they are innocent, should rot there."

Posted by: Steve | June 05, 2007 at 23:48

thanks steve, i think
that is entirely correct.

if we call yours "cheney's rule #1", then. . .

it is only one-half of his whole,
but secreted, theory -- the second half
easily referred to as cheney's rule #2:

"in situations otherwise covered
by cheney rule #1, EVERYONE should
go to prison to protect me -- the best,
of the very best, of the good guys. . ."


I just like to say this out loud. Libby lied to protect Cheney and the Bush administration from the discovery that they outted Plame to shut her up because she knew that Iraq had no WMD.

She and her husband wanted to prevent an unneccessary war. Not a game, not a strategy, but a situation in which thousands of innocent Iraqi men, women and children would die, and thousands of American soldiers would die. And now the republicans continue to focus on how they were the bad guys. What a bunch of authoritarians...do as I say not as a I do, pedaphiles, violent loving, greedy bunch of folks. Not one is an example any where near the Jesus they profess to believe in.

Die. Dead. Forever. Using death and destruction to make a change in the world that this administration deemed would be profitable. It makes me sick. I hope the world never forgets that the republicans only use the pro-life movement as a shiney object so that we won't notice when they are killing or allowing our loved ones to die.

Facts: war and no WMD. Chaos and failure in Iraq. Sudan-ignored. Katrina. The surge that has led to more death. Invitro fertilization where the embryos that are too many can be destroyed...that's okay according to the law and to most pro-lifers.(they ignore death wherever it works for them). (it's only wrong when a woman chooses not to have a child for their war machine.)

They are the opposite of pro-life and the facts bear this out. Sing it loud.

In my family, lying was considered worse than, and punished more than, the original 'bad act'. I learned if I confessed I got off a lot lighter than if I stalled or obfuscated. Maybe perjury and obstruction sentences should add 20% to the underlying crime. That way there would be a lot more confessions.

Jodi sez : By the way, with parole, good behavior, etc., what does 30 months come out to be?

As a result of the 1984 Sentencing Reform Act, parole was eliminated from federal sentencing.* Several recent bills have attempted to reinstate a parole system for the federal prison system, but so far they've all been non-starters.

However, federal prisoners can have their sentences reduced for good behavior -- by up to 54 days per year served.

*caveat : the 1984 Sentencing Reform Act was not retroactive in this respect; cases where the offense was committed prior to 01 November 1987 were exempt from this provision under a grandfather clause, so there is still a federal parole system servicing those cases. Obviously, that doesn't apply in the instance currently under discussion.

Poor Jodi. There's always an excuse. Now she wants to re-write criminal procedure and decide how trials should be conducted.

I don't know if the memory thing could have been used effectively or not. Aren't we supposed to have a trial by our peers, not by Judges and Prosecutors. It seems not inconsequential that Mr Libby was denied a Memory witness when he was being tried on whether his memory on these events was a lie. If the Judge and the Prosecutor then want to take on the Memory Witness at the trial and make fun of her, then fine. - Jodi

Her gambit reminds me of Dr. Bill Frist and the Republic Party's decision to re-diagnose Terri Schiavo as if only their judgment - and without any actual first hand knowledge - was the right judgment. It was brain-dead wrong.

Prehaps Jodi "misremembers" what happened to convicted liar and justice obstructor felon Scooter Libby's memory defense at a pre-trial hearing.

WaPo 10/27/6

...Elizabeth F. Loftus, a professor of criminology and psychology at the University of California at Irvine. For more than an hour of the pretrial hearing, Loftus calmly explained to Judge Reggie B. Walton her three decades of expertise in human memory and witness testimony. Loftus asserted that, after copious scientific research, she has found that many potential jurors do not understand the limits of memory and that [Libby] should be allowed to call an expert to make that clear to them.
"In the Libby Case, A Grilling to Remember"

NBC News, 10/26/6

Special Counsel Patrick Fitzgerald vigorously cross-examined Dr. Elizabeth Loftus, a memory expert and defense witness at the procedural hearing. Loftus, the first witness to appear in the case, testified in support of a motion by Libby's attorney that Dr. Robert A Bjork, the chairman of UCLA'S psychology department, should be admitted as an expert witness at trial.

Fitzgerald's ... questioning of Loftus caused her to admit that some of her own findings about what juries know about memory were faulty and that some of her own research may have been flawed.
"Memory expert taken to task in Libby hearing: Special counsel causes witness to question her own research"

Congratulations, EW--your work is just outstanding. And hats off to all the commenters here--you make this THE site to go to for clear thinking and perceptive observation. Thanks to you all.

bmaz & Neil,

Free advice is usually worth what you pay for it, but I'm going to give you some anyway. Don't get involved in arguments with anyone who believes she is entitled to her own set of facts. I've found that the best approach is simply to ignore the existence of such comments, except when the disinformation needs correcting. In that case, I've found that simply posting the correct information without acknowledging the existence of the disinformation is adequate. For the most part, the community here is intelligent enough to assess the credibility of the various commenters.

Obviously, others here have different approaches. To each his own. Although I do worry that freepatriot enjoys his self-appointed duties a little too much.

john casper



thanks for the very instructive details. they fill out the abstract (general) statements about memory defense very nicely.

well, the New York Times got the story wrong, so I wrote to the Public Editor, and got back a note saying that it was being sent on to the Corrections Editor..

Here's the letter...

Dear Public Editor:

In a June 6th article entitled "Libby Given 30 Months for Lying in C.I.A. Leak Case" (http://www.nytimes.com/2007/06/06/washington/06libby.html?_r=1&hp=&adxnnl=1&oref=slogin&adxnnlx=1181126004-SNx036lOyNfW3IKpYlhUeg ) reporter Neil A. Lewis states:

"The sentence was several months longer than the minimum recommended by federal sentencing guidelines, based on what Judge Walton said was his agreement with prosecutors that Mr. Libby’s crimes obscured an investigation into a serious matter and that his lies obliged the government to engage in a long and costly investigation that might have been avoided had he told the truth."

The clause "[t]he sentence was several months longer than the minimum recommended by federal sentencing guidelines" is false. The process for determining sentences under the guidelines for obstruction of justice cases include what is called "cross-referencing" -- i.e. determining whether a convicted defendant's "crimes obscured an investigation into a serious matter and that his lies obliged the government to engage in a long and costly investigation that might have been avoided had he told the truth."

This was made abundantly clear during the first phase of the sentencing hearing, which was literally all about which guidelines were to be used in this case. The defense argued that cross-referencing should not apply in the case, and that the appropriate sentencing guidelines would result in a term of 15-21 months for obstruction. The prosecution argued that "cross-referencing" should apply, and that the term under the guidelines should be 30-37 months for the obstruction charge.

After hearing arguments, Judge Walton ruled that the "cross-referencing" guidelines were the appropriate ones to use. The "30 month" sentence was thus at the LOW end of the sentencing guidelines for the obstruction charge.

For reference, I will cite both the prosecution's sentencing memo:


and the defense's response to that brief


which states, "The government contends that the Probation Office incorrectly determine the offense level for the crimes of which Mr. Libby was convicted, and that the Court should apply either of two enhancements under the Sentencing Guidelines." (i.e. "enhancements" are part of the determination of what the appropriate sentence is under the Sentencing Guidelines")

Bottom line... The paragraph should read something like

"The sentence was was the lowest possible recommended by federal sentencing guidelines, based on Judge Walton's determination that Mr. Libby’s crimes obscured an investigation into a serious matter and that his lies obliged the government to engage in a long and costly investigation that might have been avoided had he told the truth."


Paul Lukasiak

Ironic, that "conservatives" like Jodi want to replace centuries of legal practice with their opinions whenever a ruling doesn't go their way.

Most of the true-believing wingnuts I've met wouldn't last one semester in law school, let alone pass the bar.

EW, thanks once more for all you do. get an agent, stat, and start getting on the TEEVEE more . . . I'm so sick of seeing hacks fumble into the hands of Toensing, Babs, et al.

William Ockham - That is sage advice and is generally a rule I try to follow. Unfortunately, I brain freeze, senile out, whatever the affliction is, every now and then. I did think the memory expert appeal winner tripe ought to be addressed because I had seen it start popping up other places as well. The last comment, however, noting the petulence of the one who shall go unamed, falls directly in your category of useless waste of time. I repent.

Posted by: William Ockham | June 06, 2007 at 10:25

You are of course correct.

Posted by: p.lukasiak | June 06, 2007 at 11:01

Paul, thank you for posting your letter to the NYT here. I agree with your reasoning and it's an important distinction I would not have noticed.

P. Lukasiak--Thank you for your clarification here and to the NYT. I read that article this morning and thought WHAAAAT is going on here? Is this the same hearing EW blogged. With mucho gratitude...

bmaz: you may have answered this, so I'm directing it to you. You said that the appellate standard of review is "abuse of discretion." That standard would apply to Judge Walton's decision to exclude the expert(hah!) testimony about memory for the defense. If the DC Circuit reversed on this point, would the remedy be a new trial, or would Libby go free becuase of double jeopardy?

I know the standard of review for finding of fact by a jury is "clear error." And I know that appeals courts are very reluctant to reverse a jury decision.

Has anyone gamed out the potential grounds for appeal, the respective standards of review, and what the remedies might be for reversal on those grounds? Not that I want to do Ted Wells' work for him, but we don't have to write the whole damn brief, just try to anticipate what they're going to say.

Marcy, Thank you, Thank you, Thank you ... for all that you have done, are doing and will do ...
Thank you for having this site, where the many brilliant minds can help us to understand what cannot be molded into a 10- second sound bite.
Thank you also to bmaz, Frank and all those who defend the laws of this great country.
I am a simple yoga/meditation teacher who sees the U.S. Constitution as one of the greatest things ever written and I am grateful to you all for defending it.

Tekel - I don't know what they are going to appeal on, and the type of error an appellate court could, or would, find depends very much on what they are petitioned on and how it is pled. Other than in capital cases, appellate courts don't really address any argument not specifically delineated in the notice of appeal. As a general matter, there is nothing possible that could lead to dismissal; a new trial would be the best they could hope for as far as I can tell. To be honest, I don't see any fertile grounds for appeal in the first place. Keep in mind also, the concept of harmless error; where an appellate court agrees on some minor point, but there is no way that it could have materially affected the eventual outcome. It is just my opinion, but I just don't see much hope at all on appeal for Scoots.

Petrocelli - You are very kind, but I am simply an idiot with a very portable laptop and some otherwise pretty useless knowledge and experience gathered along the way.

actually bmaz and others you doth protest to much

MT wheel and may other thinkers, writers bloggers have been and are performing an invaluable service to all of us through this dark and dangerous time precipitated by the 2000 election theft and the Bush administration.

Many of us have found like minded community in the left blogosphere when at times we have felt alone and often betrayed by this crminal administration, the republicans who support them and even our country.

all of you, MT wheel perhaps the most of all, rightly deserve our thanks gratitude and overall admiration for your work during these difficult days of strange times.

Others that I would personally like to thank include digby, Josh Marshall, Steve Soto, Jane Hamsher and reddhead, atrios, Mr. Clemons, Juan Cole, booman and kos.

1. Let me add my thanks to EW for her prodigious scholarship and brilliant analysis. Awesome.

2. Like sojourner above, I’m curious about possible sealed indictments vs. Rove or others. As I recall, those reports were not strongly sourced. Can anyone provide the current thinking on this? Thanks.

One of the most valuable things about your extensive coverage yesterday is the contrast it provides with the coverage by the "main stream media," and the opportunity it gives to conscientious souls like p.lukasiak above to call them on it.

We've seen that WaPo, NYT and others don't "self correct," despite Lil Debbie "best intentions," [snicker], and the sooner they learn that they'll get called on their shoddy laziness, the sooner we can hope they'll act more professionally.

hey shit stain, figured out that you believe a lot of shit that don't corospond to reality yet ???

once you do figure it out (if you ever do figure it out) you'll begin to see that you believe a lot of stupid shit

about 5 seconds of logical deduction could save you the embarrasment ...

or you cna be a shit stain all your life

Love the analysis and intelligence on the Board.

Trolls and flamers, not so much.

bmaz: I'm just trying to think about it from a lawschool perspective: if you were going to write the appeal, what process would you use to go about it? I agree that Judge Walton worked very conscientiously to keep from making arbitrary or capricious rulings, and that the outcome of any appeal would depend on how it's pled. And I don't have ew's encyclopedic memory so I don't remember all the rulings that were made off the top of my head.

But if I were going to try to do it, I guess I would start by combing through the FDL archives, compile a big list of all the rulings Walton made in the course of this case, rank them by "potential for reversal" and "severity of outcome if reversed." And then pick the three or four best ones and brief those.

My parents are coming out west for a visit next week, so I probably won't get around to actually attempting to do it. But Team Libby seem pretty eager to move forward with the appeal, so I guess we won't have long to wait. And even though Fred Thompson was calling for a pardon yesterday, it sounds like Bush ain't ready to give one out yet.

I really appreciate very much the clear insights that EW and others provide. TNH is must stop location on the net for me to truly understand the issues from a perspective that matters to me.

With the trial of Scooter over and a jury of his peers rendering a conviction and the prospect that he will serve time in short order it is a vindication that those who uphold the law can make the system work although many of the most powerful get away. I am disheartened that our politics is more about PR than about the constitution and making the system work for all citizens particularly those that are not part of the "chosen" few.

My hope is that the new media with blogs in the vanguard will help change the consolidation of power in the few - an oligarchy if you will - and bring about more democratization.

Say it loud:

The same ones proclaiming "NO UNDERLYING CRIME!" are the same ones that would be proclaiming "RULE OF LAW!" if Scooter was a Clinton staffer.

Hypocrites. All of them.

Thanks for the great work throughout the case and in particular yesterday, EW. And Paul Lukasiak, thanks for posting that letter; without EW's live-blogging, I myself never would have heard of "cross-referencing" and I certainly wouldn't have noticed (like Paul did) that the NYT made a blatant journalistic error. Now to write a similar LTE ...

According to the prosecutors, the grand jury looked into whether IIPA or the Espionage Act were violated. Earlier on there was a sense among the blogs that the Espionage Act would be the one for which Rove and Libby would be found guilty. Why did they escape? Had too many officials leaked which made prosecution difficult? Was it the elapsed time and weak memories? Could it not be proved that Rove/Libby knew that she was covert? A combination of these factors? Something else?

The IIPA is often mentioned as very hard to prove. But the Espionage Act (from what I was led to believe) should have been easier to prosecute against. What is the consensus?

Similarly with conspiracy charges. If Libby testifies to leaking to Cooper while Rove does not, when infact it was Rove who leaked - doesn't that provide an element of conspiracy?

I have been so busy this week, I havent' had time to post.

Thanks Marcy for your liveblogging on the Libby sentencing -- it was great! And of course, thank you for all of the great work you do!

I love this sight and your writing. And the knowledable and thoughtful commenters here -- keep me coming back. I just wish I had more time to read and comment here. But work and a 3 year-old keep me too busy some days.

p. luke:

holding their feet to the fire.



how the hell could a reporter who had been in the room with the hearing going on or had looked at the transcript,

still miss the central evaluation of the sentence walton imposed on libby.

that's impressive "skull"ery:





Jeralyn Merrit of TalkLeft, the politics of crime, agrees with me.



then about 26 months.

Jeralyn Merrit of TalkLeft, the politics of crime, agrees with me.

It wouldn't be the first time Ms Merritt was wrong about this case. IIRC she thought that the defense had done a good job and introduced reasonable doubt.

Ditto for you.

First Tokyo Jodi, that was a big improvement over what you usually comment. You took a position, instead of sniping, and, gasp, found someone who agreed with you, (LMAO, that phrasing implies that Jeralyn jumped on your bandwagon.) and then provided a link. That's what I call blogging in good faith.

If you had read Jeralyn's comments you would have seen that she pretty much reversed herself:

"I make a distinction between the political and the legal. I think judges in other circuits would disagree with Walton, but Walton only has to be correct at this juncture for his circuit.

So, you are likely to have your wish. I don't think Libby will get the appeal bond, and then it's up to his lawyers to appeal the denial of the appeal bond to the D.C. Circuit Court of Appeals, which will decide the issue based on its precedents, not the other circuits' precedents.

Nonetheless, the issue that troubles me most from a legal perspective, is refusing to allow a memory expert to testify."

Bold is mine.

Pete at 8:44 is absolutely correct, Jeralyn disagreed with emptywheel throughout the trial. She was consistently wrong in predicting what would happen and emptywheel was consistently correct. IIRC, Jeralyn is a defense attorney. She's paid to provide the opinion of a defense attorney and she's advertising her services to prospective clients who need a defense attorney. bmaz's comments above are far more detailed than Jeralyn's about all the relevant issues of memory defense. Later on in Jeralyn's thread, commenters brought up a "Grilling to Remember." I have no idea why Jeralyn failed to mention that and I'll be interested to she if she replies.

Tokyo John Casper

first I am not a lawyer. If you want to talk hard science, mathematics, engineering, computers, innovation that sells, then you are sputtering around in my time-space.

I have known about Jeralyn's arguments. You diss' them for being those of defense attorney as if she is a pariah.

You speak of Emptywheel's track record as compared to Jeralyn's. Emptywheel has been correct about many things that happened in the trial. Sure. And a simple clock that doesn't work will be right at least once a day, if not twice.

Emptywheel has also been incorrect a substantial number of times on this whole Wilson-Plame-Rove thing. I admire her work ethic, but I perceive that she is driven to prove what she has already made up her mind about, and keeps going like the bunny with the batteries.

For all the fury and froth, the most this so called investigation has brought about legally is a 30 (or 26) month sentence for guy who make a mistake trying to keep his story straight.

Again, to repeat my own position. The guy muffed his story. Sure. It should have been at most one count of perjury and we could quibble on the obstruction because that seems more complicated and depends on presuming stuff.

I notice the lawyer types bmaz, Gary, Neil haven't yet tackled my bringing in Jeralyn's arguments. But maybe they are busy like I was yesterday.

In response to the above, it is hard to tackle a vacuum.


I understand you not wanting to tackle someone speaking the same leqalspeak you use.

"If you want to talk hard science, mathematics, engineering, computers, innovation that sells, then you are sputtering around in my time-space."

Tokyo Jodi, check out your 3:00, you pasted in an address without the HTML to make a link for it. You lie like a rug. What "hard science?" What "math?" What "engineering?" What "computers?" Please by all means be very specific and let us know where your expertise resides.

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