The Cirque du Soleil Defense, Part II
There are some very interesting tidbits contained within this May 5th hearing transcript (which you can read at TalkLeft — Jeralyn has graciously hosted it for everyone’s perusal). One of the most interesting to me, anyway, was the bit about the Vice President’s office response to the Wilson op-ed on July 6, 2003 — wherein they immediately sent out talking points to Ari Fleischer from the OVP on July 7.
Pretty rapid response for a group of people who had their minds on weightier issues — or was it people who were focused on a full court press against Wilson. I get so confused when they switch defenses on me like that.
Then there is what I like to call the Shuster and Olbermann bit on page 20:
One of the articles that came out in the New Republic in June of 2003. There was some discussion in there. After that article a witness spoke to Mr. Libby by telephone who was describing what it is that some of the problems were about Mr. Wilson’s trip and the person said, can you make some information public, and Mr. Libby said, we can’t because there are complications at the CIA which he didn’t further explain, and he said, we can’t talk about it on an open telephone line.
So the issue of potential damage from discussing it may come up. In a different conversation that Mr. Libby was present for, a witness did describe to Mr. Libby and another person the damage that can be caused specifically by the outing of Ms. Wilson. It was before the grand jury. It was back in July of 2003.
So it goes directly to his [Libby’s] state of mind as to being is there a motive to lie…. (Trans., p. 20)(emphasis mine)
That’s a fairly interesting piece of transcript right there, isn’t it? We knew about the initial conversation from the indictment, but the second conversation where Libby and another official are told specifically what damage would be caused by discussing Valerie Plame Wilson is a big, fat lightning bolt from the sky. And while Shuster reported that it was Wells who said this, it is reported in the transcript to be from Fitzgerald’s courtroom statements.
No word in the transcript as to the timing of the warning — hoping we can find that out at some point, because that would be useful in terms of before or after Novak, before or after the Cooper and Miller conversations — after the revelations but as a CYA maneuver — what exactly.
If it was after the Novak article, but before the FBI investigators spoke to Libby and before his grand jury testimony, that would be a potent motivation to lie to do some post-disclosure CYA — especially if you thought that WH crony Ashcroft was going to head the investigation, instead of a more independent, boy scout sort like Patrick Fitzgerald, and hence you had that initial feeling that the investigation wouldn’t be all that in depth. Anyway, I hope we can get an answer on the timing on this, if for no other reason than to just satisfy my curiosity. Tough to know on the outside looking in, but it sure does raise some questions, doesn’t it? And it just makes me wonder what other cards Fitz is holding, doesn’t it you?
Well, here’s a potential other card: Fitz alludes to the hypothetical that there may be a cooperation agreement out there somewhere. Doesn’t say there is, doesn’t say there isn’t — it’s just a hypothetical for the purposes of a courtroom argument on the evidentiary issues for discovery. But it does raise the eyebrows on just why he picked this hypothetical. (Signal to a wavering potential cooperation candidate? Signal that he has a few in his pocket? Just a convenient hypothetical since it fit the fact pattern and is common in federal criminal cases and all the attorneys and the judge can easily be on the same page with this one without getting into classified material in public?)
It starts at the bottom of page 22/top of page 23 — take a read and see what you think. I don’t want to start a huge rash of speculation on this, but it is a tantalizing possibility. (And it does make for a fun weekend game of "Who May Have Flipped on Karl and Scooter" doesn’t it?)
There is an extended discussion about the media articles that Fitzgerald and his team may or may not introduce into evidence and why. It ends with the Judge asking Fitz to submit proposals on those articles, including areas which might be redacted, etc., for the jury that would not be relevant to the case — all at the behest of Team Libby’s vehement demand that he do so, for their defense preparation (even though they clearly have copies of all these articles since each and every one of them is in the public domain and many of them, apparently, were annotated in detail by Scooter when he found them.)
Emptywheel does an exceptional job (and has a copy of the latest Fitz response on this and attachments for persual — thanks SO much for hosting these, and you know what I’ll be doing with my Saturday night now…) going over the latest Fitzgerald filing and attachments with regard to media articles which may or may not be introduced as evidence by the government in its case in chief. One of the most intriguing bits in this is the level of annotation — and the details contained therein — on these articles. Annotations made by Libby and by Dick Cheney, which contain things like this particular annotation of Cheney’s:
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?
At the time that Cheney is writing these margin notes, he has already been informed of the answers to these questions — so the big question becomes, are these Dick’s talking points — his marching orders to Scooter and others — as to what the Administration’s push-back on Wilson ought to be? And if so, doesn’t it sound awfully familiar in terms of what was said to Judy Miller, Matt Cooper, and Bob Novak, at a minimum?
I don’t need to tell all of you that this is potentially HUGE.
And it comes out in response to Team Libby’s pushback in court on demanding that Fitzgerald reveal what articles he does or does not intend to use at trial. This is another one of those grenades that gets lobbed back in response. And there can’t be any whining about it, because they asked for it themselves. Priceless.
A few notes on criminal court and discovery issues for the non-legal minds in the audience, and even for the legal minds that do no criminal work.
In a few places, Patrick Fitzgerald refers to not turning over a "302." (See, e.g., p. 22.) This is a specific reference to a report filed by the FBI of an interview conducted by FBI agents of a witness. That is a work-product sort of report — a summary, if you will, from the investigators to the prosecutors. It’s not a transcript of the interview, but the FBI agents’ thoughts on how the interview went. It’s generally not discoverable unless and until you have a matter of impeachment that comes up or something else.
There are a number of times that the terms "Brady," "Giglio" and "Jencks" are brought up in the context of discovery. All are different issues — dealing with either case law or actual law passed by Congress, which deals with when and how certain materials are to be given to the defendant. Suffice it to say that some material (Brady) is given to the defendant prior to trial to assis in the preparation of a defense, some material (Giglio and Jencks) is held back for impeachment purposes, and given over only when such material becomes relevent during trial. (See here for some basic thoughts on all of this.)
Obviously, there are always arguments between the government and the defense counsel as to what category is appropriate for the discovery material — you wouldn’t expect anything less on something this important.
One other term — a motion in limine — is just what it sounds like: a motion to limit disclosure of something to the jury. Usually used to limit portions of documents or other pieces of evidence which might be considered prejudicial to the defendant, while allowing in another portion that is valid evidence in terms of the case.
There is an interesting argument beginning on page 24 regarding the timing of any Rove indictment, if any, and the continuing investigation into the leak, and how that might be played by the government in order to delay discovery turn-over. And Fitzgerald’s response is, I think, appropriate there. Although it is fair to say that, were I in Team Libby’s shoes, that would certainly be a concern of mine. It’s a tight line to walk for both sides when you have an ongoing investigation.
There is an entire segment of argument on the NIE disclosures that begins around page 28 and continues on for several pages. I’m not going to excerpt extensively here, but Libby’s argument seems to hinge on "whatever you say we did, it was at someone higher up’s behest, and you aren’t pinning this behavior on Scooter." And Fitz’ response appears to be "We know, and we didn’t say we were."
I’m sure some other legal readers may have more insight on this particular point, but that’s what it all boils down to in my mind. I would say that Team Libby’s problemw ith this is that the selective NIE leaking makes the entire Administration — Scooter included — look like smarmy, lying weasels trying to bolster their case for war by only telling part of the truth. Well, if the shoe fits…but this case isn’t about whether they lied to go to war. It’s about whether Scooter lied, and the judge has made that point very clear over and over and over again in this transcript as he reins in the Team Libby gusto for hoovering documents onto the discovery pile.
Obviously, the changes in defense tactics are problematic from our vantage point — we’ve seen the tap dance switch over to some sort of intricate ballet or some such. But for the jury who will ultimately hear this case at trial, that tap dance will get refined before they ever hear the evidence in the case.
I can’t help but wonder what else Fitzgerald is holding in his hand that we haven’t yet seen. And what Team Libby is going to do next that gets him to toss out another card. The contortions continue from Team Libby, but I’m not sure it is getting them anywhere except tying themselves further in knots.
And all the knots in the world — tied or untied — don’t get around the ultimate questions: did Scooter Libby lie to the jury under oath? Repeatedly? Did Libby lie to the FBI during the investigation? Repeatedly? Did he do so to obstruct Fitzgerald’s investigation? Repeatedly?
That’s what the jury will be asked to answer. And that’s where the smokescreen doesn’t hold up for Scooter and Team Libby. None of the smoke has anything to do with whether Scooter lied and why. If he did not out Valerie Plame Wilson — why bother lying to the FBI and the Grand jury in the first place? Now that’s a question I’d love to see answered.
And one other item: how happy do you think Karl and Dick and all the lovely folks in the WHIG and the President himself are that Scooter has strayed into the "we were all trying to rebut Wilson" area of defense? I don’t know about you guys, but I’m expecting some push back on that from somewhere any day now. Or have we reached the point where it’s all individual "duck and cover" mode? Guess we’ll see, but, like I said, this is a transcript worth the reading.