Feb 19 2007
Possible Libby Closing Argument
bumping to the top for Tuesday’s finale
As we await the actual closing arguments on Tuesday, it is worth speculating on how Team Libby will argue that Fitzgerald did not make his case. So here is my layman’s suggestion on how to argue this point. [Note: I am actually blogging from the backseat of our car, so the typos will be more numerous for a bit – but this is cool!]
Fitzgerald has perjury counts on Libby’s recollections/statements regarding his conversations with Russert and Cooper (two each, one count for his testimony to the FBI and one for him repeating his statements to the Grand Jury). In addition there is still some obstruction count left on his talks to Miller, though that may be thrown out if not extremely weakened. The point in all of these counts is Fitzgerald is claiming, and must prove beyond a reasonable doubt, Libby deliberately lied regarding his recollections. And Fitz has made claim on the specific motive for the lies. Now this is important because the indictment is as much a straightjacket on the prosecution as the defense. In other words, Fitz cannot change his claim of motive, and definitely cannot change his presentation of fact to support other possible motives.
This is important for all the liberals out there, because the indictment is clear on what motives Fitzgerald has promised to prove. And anything beyond this is not relevant. For example, claiming Libby lied to protect the VP from bad press is not a valid charge or rational for guilt. Fitz neither made this claim in the indictment nor proved, with evidence, Libby had done this. There is not any record of this being Libby’s intention. So first thing I would do is go through a wealth of popular liberal fantasies that are outside the scope of the indictment.
The scope of the indictment hints that Libby lied because (a) he was part of an administration effort to punish Wilson (as opposed to correct Wilson’s claims), (b) to that end he and others in the administration were out to leak Plame’s identity to the media en masse and (c) that Libby feared the DISCLOSURE of Plame’s identity was illegal and needed to be hidden from authorities. Note that nowhere in the indictment does it say Libby was not allowed to know about Plame’s identity, or HOW he learned it. And this distinction is key to his defense. How Libby learned of Plame’s identity was NEVER under investigation, and was not the concern of Fitzgerald’s investigation. So Libby was reasonably not too concerned about how he learned of Plame’s identity, just his contacts with the media.
This goes back to Fitzgerald’s ‘state of mind’ comments – which can be used against him in closing arguments. Since it was legal for Libby to know about Plame and Fitzgerald was s(supposedly) trying to determine who leaked to Novak, Libby was not focused on how he learned of Plame. This is clearly a reasonable ‘state of mind’. Fitzgerald, on the other hand, is pretending to read minds, so his leaps of illogic is Wilson was out to get Plame because he read about Wilson and helped the administration respond to Wilson. Talk about fantasizing!
So Libby’s counsel should identify what is in the indictment per Fitzgerald’s claims as mind reader (and I would use that term to deliberately to belittle Fitzgerald’s claims). Then I would go through what is not at question. There is no claim by the prosecutor Libby tried to defend the VP from the media, so that cannot be the basis of a guilty verdict. Neither is the idea Cheney and Bush used forgeries to get Americ into Iraq, and Libby was trying to cover that up. And so on. It is important to remind the jury of what is off limits and all of these scenarios are off limits.
Then I would point out and tear down the three assumptions in the indictment.
(a) Punishing Wilson: Fitzgerald never provided one bit of evidence of an administration effort to punish Wilson. Prosecution witnesses, in fact, demonstrated just the opposite. No notes or talking points or anything demonstrating there was an effort to punish Wilson. I would go through everything that pointed to just the opposite, then list all the evidence submitted by Fitzgerald to support that conclusion. It shows even Fitz’s case points away from his own claims.
(b) Leaking Plame’s Identity: Again, there is no evidence Libby tried to leak Plame’s identity to the press. Of the 7-8 journalists who testified, most – including Russert (under less than believable terms)- claimed Plame never came up in their discussions with Libby. Two excpetions: Cooper testified he brought up Plame and Miller cannot recall clearly one way or the other. In addition, there are no talking points or directions or any other evidence of a coordinated effort to out Plame. There were officials who did expose Plame’s identity to the media, but they were not Libby and Fitzgerald never once proved Libby was covering for Armitage or Fleischer. So only one witness claims, with doubt, Libby mentioned Plame.
(c) Libby Feared Exposure: Well, Libby did say he talked to journalists. So he exposed what was supposedly to be feared. But the indictment is not about talking to journalists about Plame – it is about how Libby learned of Plame’s identity! And this is where Fitz is screwed. Libby can claim his knowledge of Plame was never an issue since it was not illegal for him to know about her role. So he never thought much about it, and never worried about accuracy, regarding this aspect. And that led him to misremember or conflict events, etc. And this leads into the final claim – memory is a tricky thing.
This is the dicey part. You could point out at this stage there are reasonable explanations as to what led to where things are today. And the defense can review that all Fitzgerald demonstrated is reasonable people remember things differently. You could spend an hour going through the discrepencies between the journalists and other witnesses, Wilson and reality, and stories that changed as memories were ‘prodded’. There is no reason to claim Libby’s faulty recollections are any more sinister or illegal than Miller’s changed testimony, Armitage’s, Woodward’s, Fleischer’s, Bonds, etc. In fact, Libby has remained the most consistent (which is why he has two perjury counts for giving the same story to the FBI and to the Grand Jury.
Clearly Fitzgerald has not proven intent to lie. He has not proven a motive to lie. And he has not shown any of HIS mind-reading assumptions Fitzgerald claimed he would prove to prove the indictment. All he has is evidence that represents a wealth of possibilities – not the one Fitzgerald claims happened. The DC jury will not convict because, no matter how liberal, they have a deep distrust of law enforcement and out of control prosecturs.
One final point on the case. The judge is obviously and ex-prosecutor whining about how unfair it is to Fitzgerald he has to prove his case against a defense claiming innocence. Too bad, so sad. Walton forgot that Fitz had unchecked power of subpoena and unlimited budget. That was unfair. And Fitz screwed up with all those advantages. The truth is the judge let Fitzgerald screw up. He, unlike the jury, is reading the press and seeing what a disaster this case has become. And he is looking like a dupe, which he is. But his natural allegiance to the prosecutorial side is clouding his thinking.
This is the time when the prosecutor’s powers are supposed to be checked by our constitution and the right of an individual to a fair trial. Walton has not wanted a fair trial, he has just wanted to limit it to the point Fitz had his best shot to win. Fitz and Walton have really screwed up their reputations on this waste of a case. Check out more “pre game” speculation over at JOM.
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Good post AJ but I really like this part. I think it is very important to hit these things head on and help the jury settle the legal issues. This entire fiasco is too complicated for a non-lawyer. The judge lets in articles by the MSM but they are suppose to ignore ‘covert and classified’. They are suppose to ignore ‘the crime that might be or might not be’ but listen to a prosecutor grill for 8 hours about it. No way. Sure hope Libby’s lawyers take your advice.
Victoria Toensing’s article in the WaPo today was excellent on this. I also agree with her list of who the grand jury should indict. Would rearrange the list but for sure Fitz would top it. It should be criminal for a prosecutor to blackmail the WH for 3 years while he hides the fact that he knows who told Novak. He allowed his witnesses to sway public opinion with lies for 3 years.
I call that a load of sand.
Because the Left *wishes* it were so, they believe it *is* so. They wish to label Libby a liar and conspirator to harming Wilson. When in fact it is Wilson who is the liar and one who conspired against a sitting president.
They believe the vilest things about this administration…not personally knowing the President or VP…
It is what they call in the psych world, Projection. The mirror is a witch, donncha know.
Enforcement this guy is Ken aka Mohamed.He left Wikepedia now into Lawkepedia.
yea, he’s been soothsayer for about 3 weeks now, that’s almost a record for him in persona.
Even soothy’s first post here acknowledges intent must be proven for perjury conviction. And obviously, Fitz didn’t come close in this sham trial. Most of the “witnesses” in this charade intentionally mislead in their testimonies, but not Libby. Victoria Toensing had an excellent opinion piece on this fiasco, as usual.
Have you guys not been paying attention to the evidence: Libby’s handwritten notes say that Dick Cheney told him Plame’s identity. A CIA briefer, and a White House aide both testified THEY had told Cheney and Libby about Plame’s identity BEFORE Libby talked to Russert.
Libby repeatedly lied, both to the FBI and before the Grand Jury. Now, I understand that’s what Republicans do – lie – but what part of perjury don’t you understand?
but what part of perjury don’t you understand?
he said as his head was spinning.
The part that you don’t understand, obviously
Yes, we have been paying attention to the evidence. We have been paying attention to the blogged version of the court transcripts. We have been discussing the evidence in great details over at JOM.
Russert testified in the court room that Libby did NOT tell Russert about Valerie Plame or Valerie Wilson or Valerie Wilson Plame or Joe Wilson’s wife. Libby’s lawyer asked Russert specifically the question whether Libby specifically told Russert about Valerie Plame in any way, shape, and form.
All Libby and Russert covered was about Joe Wilson’s trip to Niger and complaining about what Russer’s newsreporters were discussing about Libby on TV.
Enforcement is right. You’re the one that’s not paying attention to the evidence as testified in the court room from an unbiased perspective. Most of the MSM reporters are not reporting the case accurately, either.
Are you this clueless?
This testimony actually supports the prosecution. One of the charges is that Libby lied when he said Russert was the first to tell him about Plame (when according to Libby’s own handwritten notes – it was Cheney who told him). Fitzgerald never charged that Libby told Russert (Russert has maintained that he and Libby never discussed Plame at all) – all Fitzgerald alleged was that Libby lied when he said he heard it first from Russert – and his own handwritten notes confirm that.
Enforcement:
This is totaly off topic, but I think You would want to read this. Check it out:
http://www.tucsonweekly.com/gbase/Tools/PrintFriendly?url=%2Fgbase%2FCurrents%2FContent%3Foid%3Doid%253A92554
As for Libby, I hope he is set free. This whole trial, along with the Border Patrol Agents, and the Duke “Rape” case, have had me steaming.
Time to catch Daytona 500 pre race. I love NASCAR! Enjoy your day folks!
snip/”One of the charges is that Libby lied when he said Russert was the first to tell him about Plame (when according to Libby’s own handwritten notes – it was Cheney who told him). Fitzgerald never charged that Libby told Russert (Russert has maintained that he and Libby never discussed Plame at all) – all Fitzgerald alleged was that Libby lied when he said he heard it first from Russert – and his own handwritten notes confirm that. ”
Told him what? That Valerie worked at the CIA? That she was in on sending her husband to Niger, NOT Cheney?
What’s the crime?
Being mistaken about a phone conversation THREE YEARS PRIOR is no crime. Geeze. Or is that the America YOU want to live in?
And frankly, who the hell is Tim Russert anyway? Why should ANYONE BELIEVE him, pray tell?
Hadit:
I know it’s real hard for Republicans to be consistent, but if you think back real hard, you may recall impeaching some guy named Clinton because he lied about oral sex; this lie here deals directly with the falsified claims that led this nation into invading Iraq, leading to the deaths of 650,000 Iraqis, 3,500 US troops, 20,000 wounded and the present mess we’re in.
A bit more serious than a blow job.
Meanwhile:
Way to support those troops, George.
If you want to call intelligence assessments “falsified claims” and “lies” when they are wrong..be my guest. It’s not much different from your legal assessment of the Libby trial.
What triggered the invasion of Iraq was that Saddam 1) had never satsfied the requirements of his disarmament issues post Gulf1 and as well did not met the new requirements set out in 1441 and 2) the UN was failing to put that back on track and France threatened to veto anything further on the matter.
Both of those things, together, satisified the requirements setforth in the authorization for use of force. The President could have waited none the less (even though he was otherwise authorized). However, given that Saddam had plenty of information/answers he could have given but simply chose not to….one has to take that into consideration in this. Had Saddam turned over those remmants of his nuclear program, notes, rusted out lab equipment, etc..all the stuff that was found after the war (not to mention the massives amounts of documents, and whatever they did in fact manage to destroy), had Saddam done that, as he was required to do, as he was obligated to do under the agreement he entered into via the UN under 1441, I believe there would have been a reassessment of some of those questions (ie..time).
As it was, there was simply no reason to trust anything Saddam did or said. He filed a knowingly false declaration under 1441 understanding what the consequences would be if he did. Blix, etc…decided to move forward with inspection despite the fact that 1441 explicitly states that the before that can happen, Saddam had to at the very least, file something of a declaration that wasn’t knowingly false on it’s face.. This was the game Saddam always played….give here, take there..and keep the game on his terms. That’s why 1441 was written as explicitly as it was. It wasn’t followed. And it appeared the UNSC was not willing to do anything to set it back on course. At that point, the US/UK and others made it clear that they could not trust the outcome of “some other process”, as the president made clear before ever entering into agreement under 1441. And when tried to table another resolution to at least outline the areas of 1441 Saddam had yet to comply with, fRance threatened to veto anything further on the matter. With that, both conditions of Authorization for Use of Force in Iraq was met…and the president had authority to launch the invasion of iraq outside of the UN.
While Clinton was getting handled by Monica in the WH…Osama and company were planning and training for 9/11. Think about that.
Personally, I could care less what someone does with their free time. But, I would guess that if employees of the gov that carry security would have their security clearance yanked for being in such a situation (because of the possiblity of blackmail), that the POTUS might at least fall into that same category.
Some have a problem with the meaning of is,is.
🙂
And how many times did Hillary and Bill say, “I do not recall”?
Was it a lie for them to say, “I do not recall?” If Libby had said, “I do not recall”…would he have been lying?
And does the word mistake have any meaning…apparently not to the Left…who again are trying to craft a story to fit their template…
Always amazing to watch them in action.
BDS is an amazing thing…
Russert was caught in a perjury by falsifying his affidavit to his lawyers. So how do we know whether Russert is telling us the truth or not?
So what if Libby heard from Cheney? What is the crime here?
You didn’t notice how Fitz badgered Libby so hard? You didn’t notice that Libby admitted that he needed to access his notes in order to answer Fitz’s question? You didn’t notice that Bond refused to allow Libby access to his notes? How is this a lie versus the inability to recollect or remember without accessing notes?
Dc
You don’t know what you are talking about re Saddam. Hans
Blix in his book sums it up: Saddam was more honest than Bush
re WMDs—and if you use the UN apparatus, as Bush did, to
proceed on possible warring, you must cede to UN edict as
to initiation of the war, which Bush did not. Which is one reason
he is indictable for war crimes says the last surviving Judge at
Nuremberg .
As for false intelligence, intent and motive. Feith was exposed by Buchanan among others even before the war started as providing,
for the express purpose of Israel’s welfare. Feith has written
treatises calling for ethnic cleansing of Palestinians, and has
been active in ultra-right Likud Party politics, just the kind of
dual loyalist that gets America the reputation it deserves among
the Moslems and Arabs.
The CRIME is: Libby lied about hearing it from Cheney repeatedly; to the FBI, and to the Grand Jury, under oath. Even though his own handwritten notes confirm that Cheney told him. Ooops.
Additionally, a CIA briefer AND Cathie Martin, a former public affairs director for Vice President Dick Cheney and currently a White House staffer, testified under oath that THEY had told Libby of Plame’s identity BEFORE he talked to Russert. And then Libby swore, under oath, that it ws Russesrt who told him first. It’s IMPOSSIBLE for that to have happened the way Libby testified.
You can believe that Libby forgot that at least three people – including his boss – told him Plame’s identity. I’m not swallowing that cow manure – and I don’t think the jury will either.
The Left likes a good stalinist witch-hunt, as long as it is not against them.
Underlying this whole affair is the real story…that some are desperately trying to ignore-
Why was Joe Wilson in Niger in 1999 and what did his company actually do?
Some are just wanting to “get Bush” and apparently revenge for “Slick”. So juvenile.
Why is it a crime for Libby to tell Bond and Eckenrode that he’s doing it as best as he could without being allowed access to his notes?
Even if Cheney told Libby first, so what? Both have security clearance and can tell each other such things but the reporters lack security clearance so Libby had to be careful in what he can tell the reporters or not.
Did you read Libby’s GJ transcripts?
Fitz still failed to prove beyond reasonable doubt that Libby intentionally lied for “evil” reasons. This is still a case based on a missing crime.
Russert’s credibility is at question since he lied in his affidavit so how can he be trusted?
Exactly what is the crime?
Lassong,
There have been any number of people to hold mock trials or suggest that the POTUS should be indicted for any number of reasons. Some of those include Greenpeace, consumers for peace, etc..etc. hell even Rep. Conyers with Wilson as a “witness” holding mock trials. None of them amount to anything more than posturing and opinion (about the speed of some of the Libby trial legal analysis).
And I “do” happen to know what I’m talking about.