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Libby to Testify at His Criminal Trial

Following the Judges ruling on classified information Thursday in I. Lewis "Scooter" Libby's criminal case, on Friday his lawyers filed a pleading entitled PRETRIAL MEMORANDUM Concerning Admissibility of Documents on Consolidated CIPA Section 5 Notice (pdf). In it, Team Libby says:

  • Libby will testify in his defense at his trial
  • Libby will introduce a powerpoint presentation at his trial
  • Libby will seek to introduce his notes made during pertinent times
  • Libby will seek to introduce classified documents, including documents pertaining to Joseph Wilson's trip to Niger, which he asserts fall under four exceptions to the hearsay rule.

The AP reports on Libby's motion here.

It's probably no surprise that Libby will testify, but just a few weeks ago, when Fitz filed his opposition to Libby's motion to introduce a memory expert at trial (pdf version here), Fitz wrote (page 17, footnote 11):

Notably, defendant has not committed to testifying on his own behalf, and declines to identify which events or conversations he will claim he got right and which he innocently got wrong.

For all those who argue that with Richard Armitage's disclosure that he was a source for Robert Novak on Valerie Plame Wilson, and with no one else charged with a crime, Libby did nothing wrong and the case should be dropped, they might want to read Fitz's opposition memory brief for its statement of what Libby is charged with and why the Government believes he did commit these offenses.

Defendant is charged in the indictment with obstruction of justice, perjury, and making false statements to investigators, in violation of 18 U.S.C. §§ 1503, 1623 and 1001, in connection with an investigation concerning leaks to reporters of classified information regarding the employment of Valerie Plame Wilson, the wife of former Ambassador Joseph Wilson.

The indictment charges that, in an effort to mislead the investigators and the grand jury as to how and when he acquired and disclosed to reporters information concerning the employment of Ms.Wilson by the CIA, defendant told federal investigators, and testified before the grand jury that (a) on July 11 or 12, 2003, he was told by Tim Russert of NBC News that "all of the reporters" knew that former Ambassador Wilson's wife worked at the CIA; (b) he was surprised by Russert's comments because, even though he had been advised of Ms. Wilson's employment by the Vice President in early June 2003, he had forgotten that fact; © on July 12, 2003, he confirmed to both Matthew Cooper of Time Magazine and Judith Miller of The New York Times that "reporters were saying" that Ms. Wilson worked at the CIA but he did not know whether this information was true; and (d) he did not discuss Ms. Wilson or her employment during a meeting with Miller on July 8, 2003.

The indictment charges that defendant's statements were untrue, as demonstrated by the facts that (a) defendant was advised of Ms. Wilson's employment by the Vice President in early June and, during the following five or six weeks, defendant spoke with at least six government officials concerning the issue, and (b) that defendant informed Miller and Cooper of Ms. Wilson's employment without qualification on or about June 23 and July 12, 2003, respectively, and never spoke with Russert regarding Ms. Wilson or her employment.

In deciding whether the government has met its burden of proving the charges beyond a reasonable doubt, the jury will be required to determine: (a) whether any or all of the charged statements were false; and, with respect to any statements found to be false, (b) whether defendant innocently erred or, instead, deliberately lied when he made the charged statements.

Yesterday, the Judge issued this order (pdf) on the issue of classified information. The MSM picked up on the Judge's correct statement that one of the remedies available to the government if it thought the classfied information was so top secret it shouldn't be admitted at trial is to dismiss the case against Libby.

As the Supreme Court recognized almost fifty years ago, the Government can invoke its evidentiary privileges only at the price of letting the defendant go free . . . .[S]ince the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense. Jencks, 353 U.S. at 670-71 (internal quotation marks and citation omitted).

Accordingly, this Court is compelled to employ the standard rules of evidence in assessing admissibility of the classified information throughout the Section 6(a) proceedings it will conduct. To conclude otherwise would be contrary to Congress' clear mandate and potentially compromise the defendant's right to a fair trial.

But, at Thursday's hearing, according to Libby's brief, the Court also wanted to know which classfied documents Libby wanted to introduce at trial and how he intended to get around the hearsay rule. Hence, the filing of Libby's brief today. While not being specific, Team Libby said the CIPA documents Libby intends to introduce at trial include:

  • Documents pertaining to the weeks of June 9 and July 5
  • Others they believe will corrorborate Libby's memory defense
  • Wilson/Niger documents

Libby says the Wilson/Niger documents are necessary to show he "innocently forgot, confused or misremembered snippets of conversation mentioning Ms. Wilson when asked about them months later."

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  • Re: Libby to Testify at His Criminal Trial (none / 0) (#2)
    by jimakaPPJ on Sat Sep 23, 2006 at 06:31:26 AM EST
    If you believe that this whole case was a tempest in a teapot, which I do. And if you understand that Armitage was the leaker, who, I understand was never even put in front of the GJ. And if you understand that the SP/DOJ knew from the beginning that Armitage was the leaker, then the question is simple. Libby should never have been questioned in the first place. And if he was, then he should have been told that Armitage had admitted to leaking her name.

    Re: Libby to Testify at His Criminal Trial (none / 0) (#7)
    by Talkleft Visitor on Sat Sep 23, 2006 at 09:02:33 AM EST
    Fitz was doomed to fail the moment his case was miraculously "assigned" to Walton --- ‎who has a penchant for dismissing charges against lawbreaking Republicans because of ‎super restricted top-secret documents, documenting classified information that ‎if disclosed would pose the gravest threat to our national security --- irregardless that said ‎documents were declassified 30 years ago due to their recently classified status...‎ Just ask FBI whistleblower Sibel Edmonds who had the unfortunate misfortune of being ‎‎"randomly reassigned" to Judge Walton --- three times after the court granted her ‎motions for recusal. ‎

    Re: Libby to Testify at His Criminal Trial (none / 0) (#6)
    by John Forde on Sat Sep 23, 2006 at 09:07:16 AM EST
    JimakaPPJ "a tempest in a teapot"? Bushco used a forgery to start a war. It doesn't get more serious than that. Fitz is only charged with investigating the leak. But clearly the leak was designed to conceal or destroy evidence about the use of the forgery. Armitage has admitted to leaking only that Wilson's wife worked at the CIA, not that she was covert and not that her name is 'Plame'. We don't know that Armitage leaked first. Others, inclulding Libby, may have leaked prior to Armitage. Fitz has plenary powers meaning he can pursue any crime he uncovers. He has years of work ahead of him.

    Re: Libby to Testify at His Criminal Trial (none / 0) (#1)
    by Talkleft Visitor on Sat Sep 23, 2006 at 09:15:43 AM EST
    On reading the opinion, it's really analytically unremarkable. Right down the middle. IMHO, the only reason(s) we're paying any attention to is is (A) it's Scooter as defendant and (B) the idea a defendant might be entitled to something resembling a fair trial has been so battered by, uh, Scooter and his bosses, colleagues and their Senatorial lackeys that seeing someone, anyone get something resembling a fair trial is like a ladle of cold spring water on a hot dusty summer day.

    Re: Libby to Testify at His Criminal Trial (none / 0) (#3)
    by Talkleft Visitor on Sat Sep 23, 2006 at 09:15:43 AM EST
    Libby was questioned, and he's been charged based on his answers. Why, at the time, would the SP/DOJ assume that Armitage was telling the truth about innocently leaking Valerie Plame's name without further investigation? Are you saying that the SP/DOJ should immediately believe everything they hear, and based on that, cease further investigation? Are you saying that informing Libby what Armitage had alleged would have prevented Libby from testifying falsely?

    Re: Libby to Testify at His Criminal Trial (none / 0) (#4)
    by Ralphie on Sat Sep 23, 2006 at 09:15:43 AM EST
    Jimaka, this case isn't about the leaker any more than the Clinton impeachment was about whether "he had sexual relations with that woman." It's about Libby lying to investigators. It's not about what Armitage did, it's not about what other unnamed leakers did. It's solely about what Libby did. Maybe he shouldn't have been questioned. That's only a maybe. But he definitely shouldn't have lied. That's a definitely. If a jury of his peers decides that he did indeed lie to investigators, he should go to jail. It's very black and white.

    Re: Libby to Testify at His Criminal Trial (none / 0) (#5)
    by Talkleft Visitor on Sat Sep 23, 2006 at 09:15:43 AM EST
    unless, Jim, Fitzgerald was investigating a conspiracy to leak Plame's ID - where hiding and shaping the facts would be a high priority for the defendants, and where lying would obstruct an investigation.

    Re: Libby to Testify at His Criminal Trial (none / 0) (#8)
    by Sailor on Sat Sep 23, 2006 at 09:58:49 AM EST
    If you believe that this whole case was a tempest in a teapot, which I do.
    Of course this commenter believes that, to do otherwise he would actually have to confront the reality of an admin that is willing to sacrifice the security of the US to score political points.

    Re: Libby to Testify at His Criminal Trial (none / 0) (#9)
    by jimakaPPJ on Sat Sep 23, 2006 at 10:50:07 AM EST
    John Forde writes:
    Bushco used a forgery to start a war. It doesn't get more serious than that. Fitz is only charged with investigating the leak. But clearly the leak was designed to conceal or destroy evidence about the use of the forgery.
    And what might that forgery be?? As for Mrs. Wilson being covert, the lack of a charge against Libby dispells that out of date notion. Unles, of course, you believe Fitzgerald as screwed up. kim - If I remember correctly he was assigned to find out who the leaker was. The leakee, of course, is Novak.

    Re: Libby to Testify at His Criminal Trial (none / 0) (#10)
    by Sailor on Sat Sep 23, 2006 at 11:29:08 AM EST
    As for Mrs. Wilson being covert, the lack of a charge against Libby dispells that out of date notion.
    The CIA and the DoJ have established she was covert; the charge against libby is because he lied and obstructed the investigation to the point where other charges couldn't be brought. He fell on his sword and got tossed under the wheels.

    Re: Libby to Testify at His Criminal Trial (none / 0) (#12)
    by Che's Lounge on Sat Sep 23, 2006 at 01:43:16 PM EST
    And what might that forgery be?? Either you are stupid, or you are baiting.

    Re: Libby to Testify at His Criminal Trial (none / 0) (#13)
    by Sailor on Sat Sep 23, 2006 at 02:04:24 PM EST
    Either you are stupid, or you are baiting.
    Che, why not 'all of the above';-)

    Re: Libby to Testify at His Criminal Trial (none / 0) (#15)
    by Che's Lounge on Sat Sep 23, 2006 at 03:23:09 PM EST
    Jim, So you are just baiting.

    Re: Libby to Testify at His Criminal Trial (none / 0) (#16)
    by jimakaPPJ on Sat Sep 23, 2006 at 03:40:01 PM EST
    Che - I'm not the guy who made the claim. So how can I be baiting? Let's have some facts, if you have any. Pretty obvious you don't.

    Re: Libby to Testify at His Criminal Trial (none / 0) (#17)
    by Sailor on Sat Sep 23, 2006 at 04:16:28 PM EST
    Sailor - Libby hasn' been charged
    Uhhh, yes, he has been.
    She wasn't covert!
    ppj, the CIA and the DoJ disagree and you have been proven wrong over and over. Just like you were constantly wrong about Arar, even after Roy quoted from the Canadian commission. Face it, you have no facts on your side, even when proven wrong you'll just repeat your prevarications. ppj writes in bold:
    My, my what a tough talker you are. Trying to impress your boyfriends down at the pool room, eh?
    No facts, no proof, no links except to powerline and faux news ... just constant personal attacks on peoples' service, sexuality and patriotism. I promised TL I would no longer call you a liar, but that doesn't prohibit me from pointing out how often you are unable to write anything approaching the truth.

    Re: Libby to Testify at His Criminal Trial (none / 0) (#19)
    by Che's Lounge on Sat Sep 23, 2006 at 05:29:26 PM EST
    And what might that forgery be?? Jim I don't mind playing this little game with you, as long as you don't mind getting beat again: Next, I post (again) the link to the forged Niger documents that Cheney, Tenet, and Bush used to catapult their propaganda about the attempted purchase of yellow cake by SH. Tenet knew (and IMHO so did Cheney and Bush) that the docs were forgeries. Then you recite, for the cajillionth time, your part about how all the other nations believed the docs were authentic too. (Yawn) Then I reply yes, up until they, and we, were told the docs were fake, well before Jan of 2003 and the 16 words. Tenet has admitted that he did it. You, on the other hand, cannot. Those forgeries. It's called denial, and you are wallowing in it like an Iowa bacon source. And you people wonder why I smoke.

    Re: Libby to Testify at His Criminal Trial (none / 0) (#20)
    by jimakaPPJ on Sat Sep 23, 2006 at 07:15:28 PM EST
    Che - First you didn't post a link. Secondly one link doesn't make a summer day. Thirdly, as I have posted to for so many times, with links that worked: 1. Even Wilson himself told the CIA that the Nigerian ex-PM said that Iraq tried to purchase yellow cake. Although he left that out of his NYT article... I wonder why? 2. The British have not withdrawn their claim. In fact, the Butler report re-confirmed it. Now. That there may have been a separate incident, I will not argue. But to claim that the war was based on these requires an imagination of unusual proportions... And I don't think I have never commented on the forged documents. Perhaps smoking has reduced your brain's oxygen level. Just sneak into an empty room in ER and give yourself a snootful. ;-)

    Re: Libby to Testify at His Criminal Trial (none / 0) (#21)
    by Che's Lounge on Sat Sep 23, 2006 at 11:12:45 PM EST
    So you know which forged docs we have been talking about all along.

    Re: Libby to Testify at His Criminal Trial (none / 0) (#22)
    by Che's Lounge on Sat Sep 23, 2006 at 11:15:22 PM EST
    As far as links go, just google Forged Niger uranium documents, and take your pick of any of the 252,000 articles.

    Re: Libby to Testify at His Criminal Trial (none / 0) (#23)
    by Sailor on Sun Sep 24, 2006 at 01:18:07 AM EST
    Special Counsel Patrick Fitzgerald said protecting the secrecy of CIA operatives is crucial to U.S. national security. "Valerie Wilson's friends, neighbors, and college classmates had no idea that she had another life. The fact that she was a CIA officer was not well known for her protection but for the benefit of all of us. It is important that if a CIA officer's identity be protected that it be protected not just for the officer but for the nation's security," he said
    Special Prosecutor Patrick Fitzgerald said during his news conference Friday (October 28, 2005) that the charges against Libby are a "very, very serious matter" and should not be dismissed simply because they do not deal with the underlying alleged crime of outing a CIA agent which started the process two years ago.
    "That talking point won't fly," Fitzgerald said flatly.
    Libby's series of lies to the FBI and the grand jury amounted to throwing sand in the umpire's eyes and prevented investigators from finding out the truth about how and why the name of Valerie Plame was leaked, he said. Obstruction of justice is a "very, very serious crime" and should not be regarded as less serious than the leak itself, he said, because "The truth is the engine of our judicial system."


    Re: Libby to Testify at His Criminal Trial (none / 0) (#24)
    by jimakaPPJ on Sun Sep 24, 2006 at 06:13:42 AM EST
    Sailor - You can complain all you want and the fact is that she wasn't covert, and no one has been charged. Read your own comment and note that the SP doesn't call her covert. This whole thing is a tempest in a teapot. I expect that Libby will win in court. Che - If you have a specifc link, provide same. Aint my job. Again. The forgeries prove nothing. We have the words and judgement of the ex-PM of Nigeria, and the fact the British have never said they were wrong. So it certainly looks like what we have here is a case of, "Fake but accurate." Don't you just love it when the birds come home to roost?

    Re: Libby to Testify at His Criminal Trial (none / 0) (#25)
    by Sailor on Sun Sep 24, 2006 at 08:23:10 AM EST
    "CIA operative" means covert, especially when he points out protecting the secrecy of said operatives is crucial. Your sheer inability to accept the truth make you too dense to argue with. No more candy for ppj.

    Re: Libby to Testify at His Criminal Trial (none / 0) (#26)
    by Che's Lounge on Sun Sep 24, 2006 at 10:14:45 AM EST
    I provided 252,000 links. You're cornered and you look stupid trying to lie your way out. If you are right, then the only logical conclusion is that George Tenet is a liar. Is that your thesis?

    Re: Libby to Testify at His Criminal Trial (none / 0) (#27)
    by Che's Lounge on Sun Sep 24, 2006 at 10:22:33 AM EST
    You can complain all you want and the fact is that she wasn't covert, Prove it. Name one person in the government who will categorically deny that Plame was a NOC. Why would Plame lie to all around her about her job? Don't prattle on, just give a name. Oh, I forgot, not your job. You only lie, you never check.

    Re: Libby to Testify at His Criminal Trial (none / 0) (#28)
    by jimakaPPJ on Sun Sep 24, 2006 at 04:57:57 PM EST
    Sailor - Nonsense. If she had been covert Fitzgerald would have said so. Parsing doesn't work. Che - First of all, you provided no links. Secondly, we have several claims and statements. The documents may have been forged. That has nothing to do with what the ex-PM of Nigeria said, which Wilson promptly reported to the CIA upon his return. Funny you want to believe Tennet on this, but not the other. Make that two hits on the old oxygen pipe. As for Plame, if she had been someone would have been indicted...say Armitage? Being covert has some rather specific qualifications. She didn't meet'em. Sorry. Make that three hits.

    Re: Libby to Testify at His Criminal Trial (none / 0) (#29)
    by Sailor on Sun Sep 24, 2006 at 06:29:25 PM EST
    Re: Libby to Testify at His Criminal Trial (none / 0) (#31)
    by Che's Lounge on Sun Sep 24, 2006 at 09:04:19 PM EST
    This is getting easier all the time.

    Re: Libby to Testify at His Criminal Trial (none / 0) (#30)
    by Talkleft Visitor on Sun Sep 24, 2006 at 09:17:25 PM EST
    excerpted from Isikoff Newsweek article from earlier this year:
    Lawyers for Libby, and White House allies, have repeatedly questioned whether Plame, the wife of White House critic Joe Wilson, really had covert status when she was outed to the media in July 2003. But special prosecutor Patrick Fitzgerald found that Plame had indeed done "covert work overseas" on counterproliferation matters in the past five years, and the CIA "was making specific efforts to conceal" her identity, according to newly released portions of a judge's opinion. (A CIA spokesman at the time is quoted as saying Plame was "unlikely" to take further trips overseas, though.) Fitzgerald concluded he could not charge Libby for violating a 1982 law banning the outing of a covert CIA agent; apparently he lacked proof Libby was aware of her covert status when he talked about her three times with New York Times reporter Judith Miller.
    He didn't lack proof that she was covert - "he lacked proof Libby was aware of her covert status".

    Re: Libby to Testify at His Criminal Trial (none / 0) (#32)
    by jimakaPPJ on Mon Sep 25, 2006 at 05:01:39 AM EST
    Sailor & Che - You keep living in the past. We now know Armitage had confessed. If Mrs. Wilson had been covert, he would have been charged. Now, aint that simple???

    Re: Libby to Testify at His Criminal Trial (none / 0) (#33)
    by Sailor on Mon Sep 25, 2006 at 06:18:25 AM EST
    Armitage said he didn't reveal here status, which is where they crime lay.