Below The Surface…
There have been a lot of motions flying back and forth this weekend in the Libby trial, and there is some interesting speculation regarding the "will he or won't he" line of thought on Libby's testimony. Thought we could do with a bit of an update this morning on all of this, and wanted to include some peeks below the surface.
First, a reminder: this afternoon, we have a fantastic Book Salon guest. Elizabeth de la Vega will be here to discuss "U.S. v. Bush," which outlines a whole lot of the machinations that led up to the Iraq mess — the very issues that were questioned directly in Joe Wilson's op-ed regarding the lack of credibility of the public sales job on the war that the Bush Administration had done. For folks who have been following the Libby trial only sporadically, and who aren't well versed in the ways of the WHIG, the Vice President's office and the political undercurrent that dragged all of this along back in the summer of 2002, this is a Book Salon you do not want to miss. So please join us at 5 pm ET/2 pm PT for what, I am sure, will be a fantastic discussion of a lot of information that needs much wider and more thorough oversight and accountability. Hope to see you there!
The NYTimes has a profile of Ted Wells today, going into the start of the defense case tomorrow. It's an interesting tiny glimpse into the background of Wells, including information about how he has handled a number of high profile cases in the past. Coming into this trial, I had heard a lot about Wells' litigation prowess and jury rapport — but the week that I was in DC covering the proceedings, my entire view of Wells was clouded with this single incident, which happens to be part of the NYTimes profile as well — that moment when Wells overstepped regarding Cathie Martin's notes. This was all done outside the purview of the jury, but it has smacked of some level of desperation in the case in the back of my mind ever since, and I keep wondering why Wells would have pushed things to that extent over something that he clearly knew was a bluff that was to be easily called. As I said at the time:
In order to introduce the "memory defense" that Libby's legal team wants to use to defend Libby — the "my difficult job made me lie and forget" defense — Mr. Libby himself will have to take the stand because it is ultimately his memories which are at issue in terms of his state of mind and his alleged falsehoods to the FBI and the grand jury. During Mr. Schmall's testimony, the Libby defense team is trying to slip that memory defense and the national security information which has already been ruled, in part, to be very limitedly admissible, if at all, into the minds of the jury through a back door and a completely unrelated witness.
In effect, as prosecutor Patrick Fitzgerald argued this morning, to "bootstrap" the evidence and the arguments into the case.
I can certainly understand wanting to defend your client with every legal weapon in your arsenal. I can also understand feeling constrained in terms of your defense because national security considerations require you to be circumspect in how you can or cannot introduce certain evidence into the trial proceedings. But the CIPA hearings in this matter occurred over a series of weeks, months even, and the Libby legal team has had quite some time ot work out their witness questions and other strategies to overcome this obstacle.
In fact, Judge Walton has bent over backward in a number of his rulings, pressing the government repeatedly for more expansive summary information to be provided as evidence for the jury's consideration — so much so that Fitzgerald and his team, and attorneys from the CIA had to start from scratch and re-draft and re-redact documents in order to fulfill the judge's orders.
To pull this sort of stunt during trial is a slap at the authority of the court and its very detailed, very specific orders — and the judge's very careful and thorough consideration of the defendant's rights to this very closely guarded, very difficult to obtain information regarding some highly classified national security matters. Judge Walton was clearly not happy, but was still leaning toward a ruling that left the information somewhat on the table for Team Libby until Wells could not stop himself from "gilding the lily" — Wells started arguing that CIA witnesses "should not be believed" because of their biases toward the Vice President's office, and that he should be able to argue that to the jury based on Schmall's briefing notes. Judge Walton informed Libby's legal team that he would not permit an argument on a memory defense at closing absent testimony from Libby, because otherwise the memory defense was not relevant to the proceedings…and that ended the argument, and the judge agreed to issue a terse cautionary instruction on the CIPA information and questions that Mr. Cline had asked, and we went on to the next legal argument.
Which was a mistake for Libby's legal team.
Ted Wells, lead trial counsel for Libby, completely overstepped in making an argument regarding some handwritten notes of the government's witness, Cathie Martin. Libby's trial team had been given copies of these notes a year or more ago, but just got around to asking to see the originals of the notes this past Saturday. Wells was arguing that the copies given by the government were illegible (Fitzgerald countered that they were not and that, were there problems reading any pages, Wells' team had had a year to notify the government and request a better copy, and had failed to do so until last Saturday). Wells then argued that they had not had enough time to read the notes, due to the number of documents which needed review — Wells made a big deal about the sheer volume of documents.
As it turned out, the sum total of all of Cathie Martin's handwritten notes in their original form totaled less than an inch of paper, most of which were not relevant to the proceedings at all. Those documents which corresponded with the government's intended exhibit proffer were a grand total of six pages. In making an argument which was built on a foundation of very hot air, Wells lost credibility with the judge, with the government, and worse for his client, with those in the media and public gallery.
In a town where reputation and power is everything, Libby's entire legal team was diminished in a matter of minutes with this one, petty, groundless and unnecessary stunt.
And so it has gone since that day in terms of arguments and counter-arguments and attempts to get the memory defense information in around the edges of testimony during the cross-examination.
This morning's LATimes asks whether we can expect to see Libby testify at all, something that we asked earlier as well based on some of the hints that Team Libby has been dropping in court and in motions filings over the past couple of weeks. From the LATimes:
The jury already has heard from Libby, through an audiotape of his grand jury testimony that the government played in court last week. The eight hours of testimony showed Libby sometimes struggling to answer questions from Fitzgerald, and may have left an impression that the defense wants to counter.
"The jury thinks it has a sense of who Libby is based on his grand jury testimony," said Dan Richman, a professor at Fordham Law School in New York and a former federal prosecutor. "Whether that could be changed is an open issue. [But] that testimony does put some pressure on Libby to testify."
Richman said that although jurors are not supposed to draw conclusions about a defendant's decision not to testify, it is inevitable that some will.
But he also acknowledged Libby's dilemma. "Given that the defense rests on a lack of recollection and a preoccupation with other matters, cogent, clear testimony from Libby now will sound odd," Richman said.
Some lawyers said that for Libby, the downside to testifying is too great. The government would be able to attack his credibility by introducing other evidence of alleged misstatements he made to investigators during the case, even if they were not included in the indictment. Fitzgerald is considered a formidable interrogator whose command of case material is tops among federal prosecutors.
"Pat Fitzgerald has a black binder 4 inches thick," said Joshua Berman, a Washington lawyer and former federal prosecutor who once worked with Fitzgerald on a terrorism case. "He is going to take big chunks out of Libby's credibility."
Not an easy choice, either way, but I agree with Richman that a lot of clear testimony from Libby on the stand at this point is going to raise a whole host of questions in the minds of the jurors, not the least of which is "why now, and not before the grand jury — what was Libby trying to hide then?" — and that is something that Team Libby's lawyers definitely do not want them thinking in an obstruction case. Not at all.
On the memory issue itself, the WaPo has an intriguing read about memories and the collective lack of historical understanding within the Beltway. Readers will recall that the Libby defense team lost on their attempt to get an expert witness to testify on the memory issue in motions prior to the start of the trial, and so we are left with the question asked by the LATimes: will Libby or won't he testify and, if not, how does this memory issue ever really get to the jury at all?
And, honestly, even if it does, how does the Libby defense overcome so many witnesses all having decidedly different memories about the repeated, intense conduct of Scooter Libby over pushback for the Wilson allegations? You can explain away a difference of opinion from one or two witnesses — but not a passle of witnesses all pointing toward the same, calculated, intense scrutiny and pushback from Vice President Cheney and his right-hand man, Libby, over a discreet period of time when this appears to have been a focus of their collective efforts: clearing the Vice President's name and reputation by whatever means were necessary.
Jeralyn has a couple of great updates on the trial as well. One on Andrea Mitchell — who has a LOT to answer for in her conduct surrounding this case, but I agree with Jeralyn that Judge Walton is not at all likely to allow the defense team to try and turn her into a bright, shiny object of distraction just because they feel like it. Motions flew over the weekend regarding what is and is not relevant with regard to Mitchell's testimony and the Libby indictment, and we'll likely see quite a bit of argument on these motions early in the week. As Jeralyn says:
I think the Judge won't let Wells ask Mitchell about her October, 2003 statement. It's too speculative: that the statement may have been true, which means she may have discussed it with Russert, which means Russert might have said something to Libby about Joseph Wilson's wife. Juries aren't supposed to pile inference upon inference in arriving at a conclusion.
I think this is correct, but the arguments on this particular set of motions ought to be both interesting and illuminating. And I still think that we have heard far too little from Ms. Mitchell on what was driving all this blather on her part. I look forward to some of the theories on that from Team Libby and Team Fitz.
The second bit of Jeralyn's was one that RevDeb pointed out to me yesterday afternoon, but I was swamped in working on other matters and couldn't get to it until this morning. There is a question about one of the portions of the indictment as it related to Judy Miller being dismissed as a part of the charges. Jeralyn points to some analysis that Tom Maguire did — parsing from the NYTimes article on the matter — and I think Tom is correct in pinpointing the likely portion.
Jane and I have long discussed here what a thorn Judy Miller was going to be for this case. Frankly, the word credibility doesn't even come close to being paired with La Diva Judy, so if any portions of the case were going to have difficulty, it would be the ones in which she was involved. This goes back to my earlier caution for everyone that "you don't find swans swimming in sewers," and that you work with the witnesses you have, not the ones you wish you could get from central casting in the best of all possible trial worlds.
What this means is that when you, as a prosecutor, have someone you believe to be a lying weasel of a human being, you can expect their cohorts in the alleged crime to exhibit the same behavior — you don't generally get testimony from righteous nuns or priests or saintly grandmother types in criminal trials. When you are dealing with high level politics and the DC Beltway crowd, what are the odds? Really?
Is this fatal to the entire case? No. It simply means that the particular segment in question will be taken out of the jury verdict consideration, and that everything else will remain intact for their consideration. Given the amount of material the jury will have to sift through in order to reach a verdict when the trial concludes, odds are that they won't really notice all that much, if at all, because this may never be pointed out to them in any substantive way. One tiny "part (c)" (as Tom refers to it), won't have a substantial impact considering the totality of the whole of the evidence.
There is a lot more out there about the case today. What has caught your eye?