Feb 19 2007

Possible Libby Closing Argument

Published by at 7:27 pm under All General Discussions,Plame Game

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.

88 responses so far

88 Responses to “Possible Libby Closing Argument”

  1. lurker9876 says:

    Wow!!

    Libby lied to protect the VP to retaliate Plame and discredit Wilson? Huh?

    All they were doing was to correct Wilson. All they did was to find out who sent Wilson to Niger. Turned out that it was Plame that sent Wilson. Why did Bush Adm declassify the NIE report?

    Turned out that Wilson was WRONG and a liar.

    The lies about yellowcake? The 16 words in the SOTU turned out to be accurate by more than one source: Butler Report, Zawahie, and A. Q. Khan. Saddam did indeed SOUGHT to buy yellowcake. Exactly what those sixteen words said.

    WMDs were found. Captured Iraqi documents, translated by Jveritas, also proved Saddam had WMDs as an additional source.

    Strong connections existed between Saddam and AQ. Captured Iraqi documents, translated by Jveritas, proved this as an additional source.

    No, Bush did not lie to get a gullible Congress and public onboard for a war. So what a US President plan a war? Each and every US President have every right to plan a war. They are commander-in-chief.

    Libby’s lies did not protect the lies that led to the war. They were no lies. There were no motive for Libby to lie about the war. Have you already forgotten about the 1998 Iraqi Liberation Act, unanimously voted by a Congress, a gullible Congress led by Clinton, and signed by Clinton, which led to a failed Operation Desert Fox?

    Have you forgotten what all of those Democrats said about Saddam BEFORE and AFTER Bush used UN 1441 resolution to invade Iraq.

    Most of them said how dangerous Saddam was to the entire world. They all said Saddam had WMDs. They all said Saddam had every intent in building WMDs once those sanctions were lifted.

    How can you claim Bush lied without considering what those Democrats said in the last few years?

    While Bush used WMDs as an argument, he used UN 1441 as the real reason to invade Iraq. We did not invade Iraq because Saddam had WMDs. We invaded Iraq because Saddam failed to meet 12 years of UN resolutions, including UN 1441.

  2. lurker9876 says:

    Libby lied to protect the VP to retaliate Plame and discredit Wilson? Huh?

    They were correcting Wilson. All they did was to find out who sent Wilson to Niger. Turned out that it was Plame that sent Wilson. Why did Bush Adm declassify the NIE report?

    Turned out that Wilson was WRONG and a liar.

    The lies about yellowcake? The 16 words in the SOTU turned out to be accurate by more than one source: Butler Report, Zawahie, and A. Q. Khan. Saddam did indeed SOUGHT to buy yellowcake. Exactly what those sixteen words said.

    WMDs were found. Captured Iraqi documents, translated by Jveritas, also proved Saddam had WMDs as an additional source.

    Strong connections existed between Saddam and AQ. Captured Iraqi documents, translated by Jveritas, proved this as an additional source.

    No, Bush did not lie to get a gullible Congress and public onboard for a war. So what a US President plan a war? Each and every US President have every right to plan a war. They are commander-in-chief.

    Libby’s lies did not protect the lies that led to the war. They were no lies. There were no motive for Libby to lie about the war. Have you already forgotten about the 1998 Iraqi Liberation Act, unanimously voted by a Congress, a gullible Congress led by Clinton, and signed by Clinton, which led to a failed Operation Desert Fox?

    Have you forgotten what all of those Democrats said about Saddam BEFORE and AFTER Bush used UN 1441 resolution to invade Iraq.

    They all said how dangerous Saddam was to the entire world. They all said Saddam had WMDs. They all said Saddam had every intent in building WMDs once those sanctions were lifted.

    How can you claim Bush lied without considering what those Democrats said in the last few years?

    While Bush used WMDs as an argument, he used UN 1441 as the real reason to invade Iraq. We did not invade Iraq because Saddam had WMDs. We invaded Iraq because Saddam failed to meet 12 years of UN resolutions, including UN 1441.

  3. lurker9876 says:

    Huh? Libby lied to protect the VP to retaliate Plame and discredit Wilson? Huh?

    All they were doing was to correct Wilson. All they did was to find out who sent Wilson to Niger. Turned out that it was Plame that sent Wilson. Why did Bush Adm declassify the NIE report?

  4. lurker9876 says:

    Turned out that Wilson was WRONG and a liar.

    The lies about yellowcake? The 16 words in the SOTU turned out to be accurate by more than one source: Butler Report, Zawahie, and A. Q. Khan. Saddam did indeed SOUGHT to buy yellowcake. Exactly what those sixteen words said.

  5. lurker9876 says:

    Turned out that Wilson was WRONG and a liar.

    The lies about yellowcake? The 16 words in the SOTU turned out to be accurate by more than one source: Butler Report, Zawahie, and A. Q. Khan.

  6. lurker9876 says:

    Saddam did indeed SOUGHT to buy yellowcake. Exactly what those sixteen words said.

    WMDs were found. Captured Iraqi documents, translated by Jveritas, also proved Saddam had WMDs as an additional source.

  7. lurker9876 says:

    WMDs were found. Captured Iraqi documents, translated by Jveritas, also proved Saddam had WMDs as an additional source.

    Strong connections existed between Saddam and AQ. Captured Iraqi documents, translated by Jveritas, proved this as an additional source.

  8. lurker9876 says:

    No, Bush did not lie to get a gullible Congress and public onboard for a war. So what a US President plan a war? Each and every US President have every right to plan a war. They are commander-in-chief.

    Libby’s lies did not protect the lies that led to the war. They were no lies. There were no motive for Libby to lie about the war. Have you already forgotten about the 1998 Iraqi Liberation Act, unanimously voted by a Congress, a gullible Congress led by Clinton, and signed by Clinton, which led to a failed Operation Desert Fox?

    Have you forgotten what all of those Democrats said about Saddam BEFORE and AFTER Bush used UN 1441 resolution to invade Iraq.

    They all said how dangerous Saddam was to the entire world. They all said Saddam had WMDs. They all said Saddam had every intent in building WMDs once those sanctions were lifted.

    How can you claim Bush lied without considering what those Democrats said in the last few years?

    While Bush used WMDs as an argument, he used UN 1441 as the real reason to invade Iraq. We did not invade Iraq because Saddam had WMDs. We invaded Iraq because Saddam failed to meet 12 years of UN resolutions, including UN 1441.

  9. AJStrata says:

    Sorry Luker, not sure why all your comments ended up in my spam queue???? They are free now!

  10. Soothsayer says:

    Here’s the Libby timeline on Plame. After reading it, if you still believe Libby REALLY believed he first learned her identity from Rossert, I’ve got swamp-land for you . . .

    Libby Time-Line
    May 6: Kristof article on Niger trip.

    May 14: OVP begins response.

    May 29: Libby asks Grossman for information on the Ambassador who made the trip to Niger.

    June 3: Libby makes a note to talk with Cheney about Pincus’ upcoming article.

    June 9: The President expresses an interest in the Kristof column on the SOTU. That interest is shared with Libby by somebody, though he says he “has no recollection” that it was Cheney who discussed the interest Bush had in the Kristof article.

    John Hannah receives a report from CIA outlining the Niger claims–their notice to Congress that the Niger claim was no longer operative.

    June 11: Libby pulls Robert Grenier out of a meeting with Tenet to get information on Wilson. Grenier tells Libby that Plame works at the CIA.

    June 11 or 12: Grossman informs Libby that Wilson’s wife works at the CIA.

    June 12: A CIA report on the Niger intell is delivered to Hannah and Libby ASAP.

    Cheney also receives a document from the CIA on the Niger intelligence. On the first page, he writes, “prepared by the CIA.” In the same paragraph identical to one marked by someone earlier in the week, Cheney underlines…he believed Iraq was interested in yellowcake purchases when it sent a delegation to Niamey in mid-1999. And writes, “Wilson?” in the margin.

    June 12 to June 18 (date unsure): Cheney has learned more details about the trip. He informs Libby over the phone that Plame works in the functional office of counter-proliferation. According to Libby’s notation, the same person who informed Cheney that Plame was CPD also informed him that the trip was done at the behest of OVP. Cheney directs Libby to hold something until the agency admitted they State and Defense showed a lot of interest in the Niger intelligence, in addition to OVP.

    June 14: At his morning intelligence briefing, Libby asks Craig Schmall, why was the Amb told this was a VP question?

    July 6: Cheney saves Wilson’s op-ed. Probably at the same time, he writes the following on it.
    Have they done this sort of thing?
    Send an Amb to answer a question?
    Do we ordinarily send people out pro bono to work for us?
    Or did his wife send him on a junket?

    July 7: 6:45 briefing, Cheney and Libby asked Schmall about circumstances of trip.

    7:33 Libby prints out copy of Wilson op-ed and underlines it.

    8:45 Senior Staff meeting, Rove says that, we needed to get a message out about Mr. Wilson that the admin and the VP did not send him and that his report did not resolve the issue.

    9:22 Cathie Martin emails Ari talking points pertaining to OVP.

    9:36 Ari integrates those talking points into the gaggle.

    12:00 Libby has lunch with Ari and tells him that Valerie Plame (or Plam-ay, Ari suggested) worked in Counter-Proliferation at CIA and this was very hush hush.

    July 8: 7:35 Cheney directs Libby to leak something to Judy Miller.

    At Senior Staff meeting, Rove says the Wilson story is going right to the President’s credibility.

    Between 8:30 and 11:45, Libby meets with Judy Miller and tells her Plame works at WINPAC.

    3:30 Cheney dictates talking points to Cathie Martin. The talking points include a reference to leaking the NIE, which concerns Martin, as she believes them to be still-classified. In an edit, Libby mentions Wilson’s 1999 trip.

    At Cheney’s direction, Libby starts to call journalists himself, possibly to leak the NIE. He speaks to David Martin and Andrea Mitchell.

    4:46 Novak calls Libby, leaves a message.

    July 9: Stephen Hadley complains that someone has spoken to Andrea Mitchell and blamed the CIA for the 16 words. He assumes it is Cathie Martin or Claire Buchan–and takes them out of the loop on the Tenet statement. Martin meets with Libby and Cheney to tell them she did not say that to Mitchell.

    Libby returns Novak’s call.

    July 10: Stephen Hadley, Libby, and Cheney meet. They have the following dialogue:

    Hadley: Tenet had declassified the Wilson report, but had not yet started to declassify the NIE [the same document that–according to Libby–Cheney had already insta-declassified].

    [Hadley says something that Libby doesn’t write down.]

    Hadley: Condi says that “The President is comfortable.”

    Hadley: No, it’s better if we leak the NIE.

    Cheney: Anything less that full and complete disclosure is a serious mistake.

    Hadley: I will–I told that to George Tenet.

    Libby talks to Mary Matalin on the phone. She advises Libby to go broad on the story, says that Wilson is a snake.

    Libby calls Russert.

    [Late into the night] Martin worked on strategy while Cheney, Hadley, and Libby negotiated the Tenet statement. Every time Hadley or Cheney called, Martin had to leave the room. Among the other suggestions she makes is to give an exclusive leak.

    July 11: 8:36 Novak calls Libby. The content of the call has never been revealed.

    Cheney declares Tenet’s morning draft of his statement, “unsatisfactory.” He, Hadley, and Libby work further on the statement.

    July 12: Cheney dictates a response to the media for Libby to deliver. He may direct Libby to leak Plame’s identity, though that is not written on the dictated message.

    October 3, probably in Jackson Hole: Libby and Cheney discuss the leaks. Libby claims he told Cheney that he learned of Plame’s identity from Russert, Cheney writes,

    Not going to protect one staffer and sacrifice the guy this Pres that was asked to stick his neck in the meat grinder because of the incompetence of others.

    October 14. Libby lies to FBI

    Nov 26 Libby lies to FBI

    March 5 and 24, 2004: Libby perjures himself before Grand Jury

  11. lurker9876 says:

    Why does it matter when Libby learned Plame’s identity? He had security clearance. None of Fitz’s witnesses testified that Libby was the source. As to whether he learned it from Cheney or from Russert, he did not leak it. He warned the FBI investigators and GJ that he is doing as best he can to recollect without referring to notes. Why is that a lie if he was not allowed access to his notes?

  12. lurker9876 says:

    Thanks, AJStrata! I couldn’t figure out why they ended up in your spam bucket.

  13. lurker9876 says:

    The case is not focused on the leak of Plame’s identity at all. This case has nothing to do with the war against Iraq.

  14. Soothsayer says:

    If Libby’s found guilty – Cheney’s next in line.

  15. lurker9876 says:

    No, the next in line is the appeal of this case along with a pardon.

    Cheney will not be next ever.

    The Libby Trial: Did Fitzgerald Prove His Case?

  16. lurker9876 says:

    Those pesky nonexistent Iraq WMD surface again

    “newly discovered intelligence documents confirm that Saddam did possess extremely active WMD programs for nuclear weapons development during 2002-2003. Saddam constructed four incredibly expensive underwater nuclear storage and production facilities under the Euphrates river during the last six months of 2002.

    After the invasion a few months later, Iraqi informants who had worked on the sites led ISG agents to all four plant locations. Apparently as a result of their inspections, the ISG agents were exposed to radiation leaks, as noted on their medical files.”

  17. Soothsayer says:

    Smoking the crack again, Lurker? You’re quoting the Iraq Study Group, dude. Their findings may be summarized as:

    The key findings of the Iraq Study Group as presented in the Report are:

    The Iraq Study Group called the situation in Iraq “grave and deteriorating” Wednesday and recommended a radically different approach from President Bush’s current policy, including the withdrawal of most U.S. combat troops by early 2008.

    In delivering its report to Bush and Congress, the bipartisan panel listed 79 recommendations for change in Iraq strategy, including direct talks with Iran and Syria as part of a “diplomatic offensive.”

  18. lurker9876 says:

    Nope, never smoked a day in my life. And sorry, this ISG report is not entirely right. We do not believe in talking to Iran and Syria either.

  19. lurker9876 says:

    I doubt that we will bring the troops home in ’08 either. After all, we are still in Germany since WWII and Kosovo since….

  20. lurker9876 says:

    As part of Fitz’s closing argument:

    “Fitzgerald noted that eight witnesses, including an undersecretary of state, two CIA officials, two top Cheney aides, two reporters and former White House press secretary Ari Fleischer said they discussed Wilson’s wife with Libby between June 11 and July 10 or 11 when Libby talked to Russert.”