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Libby’s Defense Strategery Through the Looking Glass


The NYObserver has an article about the Libby defense strategery, and it includes a number of quotes from shifting perspectives in and around the case.  It makes for an intriguing read, if for no other reason than the back and forth between the Libby supporters and the folks who aren’t so Scooter — and then the quotes thrown in as "realistic assessment" perspectives for color.

It is quite a fun read.  Most of it is not going to be news to Plameologists in the audience, but it does weave together a narrative that asks some interesting questions about where Team Libby may be going with Scooter’s defense.  And why.  And how — and more importantly, how far.

From the beginning, the author, Anna Schneider-Mayerson, hits Team Libby and the Bush Administration where it counts for them — in their credibility

Now, as the pre-trial jousting in Mr. Libby’s case picks up momentum, the onetime loyal West Wing confidant—Dick Cheney’s Dick Cheney—will have to choose between protecting himself and protecting the White House. Specifically, insiders say, he will have to choose between a not-guilty verdict and a Presidential pardon.

“It does put him in this difficult situation of putting the administration on trial,” said a lawyer in the case. “Things are coming out that would never have come out, solely because he’s going to fight the charges.”

As Mr. Libby’s lawyers serve demand after demand for evidence that they hope will exculpate their client, special counsel Patrick Fitzgerald rallies back with briefs seeded with less-than-flattering assertions about Mr. Libby’s bosses.

Responding to Mr. Libby’s lawyers in a May 12 filing, for example, Mr. Fitzgerald included what many considered to be a shocking and revealing document: a copy of The New York Times Op-Ed column “What I Didn’t Find in Africa,” written by former ambassador Joseph C. Wilson and calling into question some of the Bush administration’s claims regarding Iraq’s nuclear-weapons program, annotated in Mr. Cheney’s script with the question: “[D]id his wife send him on a junket?”

On Friday, Mr. Libby’s lawyers filed a response with the court, saying their client hadn’t seen the clipping until the F.B.I. showed him a copy—an argument that served to distance himself from the Vice President, if not exactly contradicting him.

But more importantly, this exhibit painted a picture of a Vice President angered by the column, and with clear knowledge of the relationship between Mr. Wilson, his wife and the circumstances of his trip to Niger.

This is the second time that Mr. Libby’s lawyers have been slapped in the face with information that they themselves requested to aid in his defense.

As I said, nothing that we haven’t discussed before — and this sounds a bit like what looseheadprop was saying the other day, doesn’t it? — but the subtle snark is delicious and the narrative weave of the three page article is tightly done and well-written.

My favorite part of the article was the discussion of the defense strategy of trying to broaden the discussion to confuse the jury (the smoke screen) versus the tighter stick to the indictment charges prosecution, which seeks to constantly narrow the focus of the case.  This is pretty typical as the intial fight — but the stakes in this particular case are so much higher, simply due to the players involved.

One obvious tactic for defendants is to argue that they were simply executing orders. Yet Mr. Libby’s team is taking a more nuanced approach, trying to strike a balance between painting a portrait of Mr. Libby as charged with massive responsibilities in his role as Mr. Cheney’s deputy, and not pointing the finger at his boss. In other words, a consistent defense that is still not embarrassing to the White House.

Lawyers said it was impossible to know whether there were lines of inquiry that the defense was not pursuing at the behest of Mr. Libby….

“There are some times people might go down and say, ‘I’m not going to raise this, I’m not going to do this’—friendship, family, employers, it could be a whole host of facts that could enter into a decision,” explained a lawyer with a small involvement in the case.

But some with experience in these types of fraught situations said that while clients will typically comply with their lawyers’ suggestions, sometimes that resolution is hard-won.

“There is a real tension there, because you’re doing your utmost to defend your client, who has extreme loyalty,” said a Washington lawyer familiar with independent-counsel investigations. “It takes a lot of convincing with a client to let you do your job to complete the defense.”

The lawyer added: “It’s going to be very, very difficult to get Libby to point the finger to one or two above him—if that, in fact, occurred.”

For everyone who has been griping about why this case takes a long time to prosecute and to investigate, this is why.  When you are working a case where loyalty to the higher-ups is an ingrained part of the culture — mafia, certain gangs and drug environments, etc. — you have to draw out the time a bit to allow for the potential of incarceration, what that means to the family, to the defendant, to others under investigation — all of that has to sink in a bit.  Libby has to take a step through the looking glass to the other side — one where he realizes that all is not what it has seemed, that loyalty is only valued to a certain point, and then it becomes all about saving someone else’s ass by sacrificing your own.

What this means in terms of Scooter’s willingness to flip is anyone’s guess.  Thus far, he’s seemed to stay fairly loyal to his former boss, Dick Cheney.  But that doesn’t mean that it will always be so — especially if things keep dribbling out from discovery that show that Cheney has been cooperating quite a bit.

Or if poll numbers keep going down, down, down for President Bush — making it next to impossible for a pardon to remain a potential on the horizon.  At that point, it becomes every man for himself.  So how about it, Scooter — why not save yourself and everyone else the agony — spill now before you are too late.

As an aside, David Shuster said earlier on MSNBC that Hardball will have some former US Attorneys and an update on the Fitzgerald investigation, Rove, and the Libby prosecution, among other issues, this evening at 5 pm ET and 7 pm ET.  I’m not certain that it’s break out the popcorn time just yet, but I’m gonna check my supply just in case.  It pays to be prepared.

(H/T to reader T- for the heads up on the NYObserver article.)

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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