Will Rove be a Witness at Libby Trial?

I think it's too soon to say whether Karl Rove will be called as a witness at Scooter Libby's trial. Michael Isikoff of Newsweek has a new scoop up telling us Rove and Dan Bartlett have been subpoenaed by Team Libby, but it's not known whether either will testify. Isikoff think it got more likely Rove will testify after Ted Wells gave his opening.

The possibility that Rove could be called to testify would bring his own role into sharper focus—and could prove important to Libby’s lawyers for several reasons. Rove has said in secret testimony that, during a chat on July 11, 2003, Libby told him he learned about Plame’s employment at the CIA from NBC Washington bureau chief Tim Russert, a legal source who asked not to be identified talking about grand jury matters told NEWSWEEK.

If Rove repeats that story on the witness stand, it could back up Libby’s core assertion that he honestly, if mistakenly, thought he had heard about Wilson’s wife from the “Meet the Press” host—even though Russert denies he knew anything about Plame, and more than a half-dozen officials (including Cheney) have said they passed along the same information to Libby earlier than that.

But the Rove account could cut in other ways. Fitzgerald would likely argue that Libby’s comment to Rove merely shows that the vice president’s top aide “was even lying inside the White House,” according to the legal source.

I don't see Rove as being a friendly witness to Libby, and I can't imagine Wells would want to take him on as a hostile witness. However, Rove has had memory troubles of his own in this case. Perhaps Team Libby just wants the jury to consider that everyone has had memory problems when it comes to who told who what with respect to Valerie Plame, but only Scooter has been charged with intentionally lying. If the only evidence Libby intentionally lied is witnesses' admittedly faulty memories, how can they find proof beyond a reasonable doubt?

On the other hand, that's why motive is so critical in this case. While it's not an element of any of the charged crimes -- meaning it's not something the Government is obligated to prove -- it could tip the scales for the jury one way or the other on credibility.

Update: On Ari Fleischer, Isikoff writes that "in the past, Fleischer has denied he had an attorney." I'm not sure what period he's talking about, but I remember reading that Fleischer had a lawyer but wouldn't give out his name to the media. I just found the quote in the July 28, 2005 NY Daily News (available on lexis.com),

LOWDOWN'S ALL-POINTS BULLETIN: For Ari Fleischer's mystery attorney. I hear that the former White House press secretary - who's been a grand-jury witness in the CIA- Karl Rove-Robert Novak leak brouhaha - refuses to reveal the name of his bill-by-the-hour legal adviser. Fleischer recently told a Washington reporter, "I'm not going to give you the name. It'll end up costing me money." I urge Fleischer's lawyer: Come forward and identify yourself. I want to have a long conversation with you.

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    good point (5.00 / 1) (#1)
    by scribe on Fri Jan 26, 2007 at 11:21:04 PM EST
    I thought the whole "Rove and Bartlett under subpoena" headline a bit overblown.  My first reaction to the news was "Ok, get the guys under subpoena so, in case you decide you need them, they can't skip town on you.  And, do it early enough (the defense case won't be for what, another week or two?) so you Leave Time For Trouble."  

    In other words, Trial Practice 201.

    Of course, as so many have noted, this case is "Political" and "Takes Place In A Larger Context".  But I'm not reading much more than prudent trial practice into it.  That, and some schadenfreude;  one wonders where the process server tagged them.  At home?  At work?  Probably through their counsel....

    It seems to me the thrust of Wells' cross of the government witnesses, to date, has been along the lines of "this witness forgot, so Scooter could have, too".  This, of course, obscures the fact that Scooter's "forgetfulness" was contemporaneous with the government witnesses being quite un-forgetful.  The gov't witnesses' purported memory deficits are three-plus years after the fact - and what I've read of Wells' cross has been less than convincing (though actual transcripts might give a different impression).  If I were Fitz I'd make a point of at least considering, if not actually doing, redirect of the gov't witnesses subjected to Wells' defective memory cross as I've described, to make the point that the gov't witness remembered much more clearly three-plus years ago, when the investigation was going on full force.  Then, I'd be able to argue later that Scooter's own cross highlighted his falsity - when measured at the same time, the gov't witnesses remembered, but Scooter claimed not.

    As to the aspect of Rover's story that Scooter told him on 7/11 that Russert had passed that information about Plame along, I think it shows a coordinated line of bullsh*t coming from OVP - a coordinated cover story.

    It would be nice, though, to get his GJ testimony out in the open, and his deal(s), if any....

    Mise en abime (none / 0) (#2)
    by squeaky on Fri Jan 26, 2007 at 11:58:49 PM EST
    I thought the whole "Rove and Bartlett under subpoena" headline a bit overblown.

    Me too. It would be really ironic if it were a planted story just like the one Cathie Martin described.

    Admissibility of evidence (none / 0) (#3)
    by Sailorman on Sat Jan 27, 2007 at 07:06:30 AM EST
    I quit practicing law a few years back and never did much in the way of criminal law.  But this self-serving hearsay statement by Liddy does not seem admissible.

    Moreover, it could be used rather artfully by the prosecution as an early and obvious indicia of guilt.  The defendant was setting forth an alibi at a very early stage.

    Very interesting trial and strategies.

    Sailorman, you're showing your age (5.00 / 2) (#4)
    by scribe on Sat Jan 27, 2007 at 07:33:48 AM EST
    But this self-serving hearsay statement by Liddy does not seem admissible.

    Libby, not Liddy.

    I know, I know.  It's pretty hard keeping all these Republican scandals separate in one's mind.  I keep finding myself doing the same thing.


    Ha Ha (nm) (none / 0) (#5)
    by Sailorman on Sat Jan 27, 2007 at 07:46:04 AM EST
    disagree (none / 0) (#6)
    by Deconstructionist on Sat Jan 27, 2007 at 10:28:25 AM EST
      Frst, it's probably directly admissible under Rule 801. It would not  be admitted to prove the truth of the matter asserted (that Russert did tell him) but to show his state of mind (that he thought Russert told him). It's very similar to the hoary "I am Napoleon" example from 1st  year Evidence.

      Second, if Libby did testify and Fitzgerald attempted to impeach him (which he certainly would), it would be admissible as a prior consistent statement to rebut an allegation of recent fabrication.