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The Media Counterpunch


Let me start by saying that I haven’t heard a peep about any grand jury doings as yet this morning.  But since they generally are not scheduled to begin until at least 9:30 am, that’s not a shocker.  Will report in the minute I hear anything.  (And I’m hoping that Matthews didn’t get it wrong yesterday.) 

Spent some time last night reading through the various response briefs from the media entities to Team Libby’s big response.  And I have to say, it was a fun read through in terms of lawyering, but also in terms of the level of snark that the lawyers managed to slip into their counterpunch at Team Libby and their evolving defense theories.  (A huge thank you goes out to Jeralyn for hosting all these docs at TalkLeft.  Gracias!)

I previously discussed the Team Libby filing in The Miller’s Tale and Other Legal Wranglings, Part I, Part II and Part III.  (Man, am I wordy or what?  Sheesh.)  Jane covered the Judy Miller response to Team Libby in Drama — let’s just say La Diva Judy is not so happy with Scooter these days.

The other media responses:  from NBC News and on behalf of Andrea Mitchell and Tim Russert; from Matt Cooper; and from Time Magazine — well, they are just a hoot, and I’m especially fond of the NBC response.  All of the media responses to Team Libby can be summed up thusly:  you are reaching, you don’t get to go on a fishing expedition to save your client’s behind, and we aren’t handing over anything that isn’t material to the case without the judge ordering us to do so, and we doubt that he will.

Here’s a prime example of that sentiment from the NBC/Mitchell/Russert response brief:

Defendant’s case rests entirely on serial speculation — i.e., if Ms. Mitchell knew about Ms. Wilson and her employment prior to July 11, and if Ms. Mitchell shared that information with Mr. Russert before he talked with Defendant, and if Mr. Russert then shared the same information with Defendant, then her testimony would "be important to the defense."  (p. 4 of brief) (emphasis NBC’s lawyers)

Here’s a rule of thumb — you can’t call a witness that you know is not going to be favorable to your case solely to raise questions about that witness to confuse the jury. It’s called bootstrapping, and judges do not like it.  Let alone the fact that it is not allowed under the rules.  (A good review of the law concerning this "bootstrapping" technique is on pages 5 and 6 of the NBC brief.)

The bottom line is that oral arguments are scheduled for all of this on May 16, and it ought to be a lively discussion.  Team Libby is not likely to win a lot of this, and I can’t help but wonder why ask for the entire enchilada instead of asking that the judge review potentially relevent materials in camera — why ask for everything publicly like this?  And it comes back to trying the case in public to influence…whom?  Donors to the defense fund?  To keep wingnut supporters happy?  To rattle the cage of someone in the Administration?  It’s an odd tactic, and one that I would welcome discussion on — because they are not entitled to information that is not relevant, not admissible and which is cumulative of discovery they have already received from Patrick Fitzgerald and his team.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com