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.