Getting Up to Speed for Monday's Libby Trial

For all Plameologists, and those that want to make heads or tail of the Scooter Libby trial, Marcy (Empty Wheel), who has been live-blogging the testimony at Firedoglake, has a terrific diary up at Daily Kos on Libby, potential witnesses, and problems with Libby's timeline.

Marcy agrees with me that Rove's testimony may be more problematic than helpful for Libby. And, she raises the possibility that since Fitz isn't calling Rove as a witness, he may not have turned over all of Rove's statements. Fitz has taken the position since day 1 that he's not obligated to turn over statements of defense witnesses, only those of witnesses he intends to call. (That wouldn't be acceptable in my federal District, which has a more open file policy, but each District is different.)

From the May 5 hearing transcript:

MR. FITZGERALD: Okay. If the defense is calling a witness and, with all due respect, he's not bound to call a witness so at a pretrial discovery phase defendants often decide to call lots of witnesses that don't appear. My understanding is that under the law, 3500, Jencks and Giglio, we don't have obligations to turn over materials pertaining to defense witnesses and so my point is --

To which, Ted Wells replied:

Wells: But if they have, let's take Mr. Rove, if they have emails and other documents dealing with Mr. Rove's activities, I have a right to get that material.

As Marcy points out, it's not clear from the public filings whether Team Libby ever got this information.

I'm becoming more and more convinced Rove will be a walking time-bomb for Libby if they call him.

This is my last post before arriving in D.C. to attend the trial this week. I'll be staying at FDL's Plame House, with Marcy, so I'm sure we'll be going round and round in circles about Libby's defense.

As of now, I'm still thinking Wells should keep it simple and keep his defense focused to no one remembers anything today the way they remembered it in June or July of 2003 or even when they testified before the grand jury. If everyone's memory is untrustworthy, that alone is a reasonable doubt that Libby intentionally lied, as opposed to simply having a faulty memory like everyone else. The burden of proof is on the Government to show Libby knowingly or intentionally lied and that his misstatements were material, not the other way around.

I don't think Team Libby knows yet who they will call as a witness in the defense portion of the case. It all depends on what the prosecution witnesses say, who hurts them and who doesn't. Sure, they have everyone under subpoena, but that's a precautionary measure, it doesn't mean they will call them.

As for why Libby would call Cheney, I think it's just to reinforce that Cheney told Libby to discredit Wilson, not his wife, and that his wife was not part of the equation. Cheney clearly didn't want people thinking Wilson went to Africa at his request, even though that's not what Wilson said.

Unfortunately for Libby, other witnesses remember events differently. Then again, memory is not like a video recorder, it changes over time, particularly when those involved in events have discussions amongst themselves and when they receive post-event information, whether from their lawyers, the media or from access to documents. Their memories then become an amalgam, of what happened at the time and what happened after. Their original memory of the event is more or less gone, never to be regained. What's left in its place is a blended memory.

For these reasons, I think most people's memories are inherently unreliable.

This case is even more problematic, because everyone seemed to be playing the game of telephone about Valerie Plame Wilson. The problem for Libby is that documents, phone records and e-mails seem to belie his memory as he recalled it to investigators just months after July, 2003.

To be continued from Washington.....

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    Jarober (4.50 / 2) (#9)
    by Che's Lounge on Sun Jan 28, 2007 at 02:07:30 PM EST
    With Libby, we have a case that's supposedly about leaking of classified information

    This trial has nothing to do with leaking classified information. It's a perjury trial.

    This is why your comments are greeted with such eye rolling. Don't you get this law stuff yet?

    A vast well of silence (1.00 / 1) (#3)
    by jarober on Sun Jan 28, 2007 at 11:09:30 AM EST
    Wall to wall coverage of Libby, a vast well of silence about Sandy "classified papers in his socks" Berger.

    Mommy (none / 0) (#4)
    by squeaky on Sun Jan 28, 2007 at 11:26:35 AM EST
    Gosh Jarober, you sound like a helpless little baby birdie waiting for mamma to drop a worm in your flightless little mouth.

    Start your own blog.


    OFF TOPIC TROLL POST (none / 0) (#5)
    by Sailor on Sun Jan 28, 2007 at 11:32:15 AM EST
    Off Topic? (1.00 / 1) (#6)
    by jarober on Sun Jan 28, 2007 at 11:54:16 AM EST
    With Libby, we have a case that's supposedly about leaking of classified information - but isn't really, since - if it were - Armitage would be the one in trouble.

    Berger actually stole classified papers, and no one seems to think it's important.  Which means, the partisans here don't actually care about national security, per se.  They care about scoring points against the opposition.

    Which is exactly what the right was doing during the entire Whitewater investigation.  Look in a mirror - the house impeachment managers are staring back.

    Classified Leaks (1.00 / 1) (#8)
    by jarober on Sun Jan 28, 2007 at 12:30:47 PM EST
    The trial is supposedly dealing with the leak of classified information (but it's actually not).  There is a case of actual classified information being stolen by a former high official - and TL is all over the Libby trial like a bad suit, but has been completely silent about Berger.  

    All I'm asking is this: are leaks (or thefts) of classified information only relevant when there are political points to be scored?  Because it looks an awful lot like that from here.

    jarober (none / 0) (#12)
    by ding7777 on Sun Jan 28, 2007 at 06:17:19 PM EST
    The difference would be between admitting(Berger)one's offense and denying(Libby)it.  

    Hmm (1.00 / 1) (#10)
    by jarober on Sun Jan 28, 2007 at 04:06:59 PM EST
    The larger topic is protection of classified data.  Aparently, TL and the posters here only care about such things when there are points to be scored against the political opposition.  If there are bad acts by partisans on their side of the fence - dead silence.

    Fitz-Disclosure (none / 0) (#1)
    by IHOivins on Sun Jan 28, 2007 at 05:31:48 AM EST
    Please correct if wrong. I understand Fitz's argument to be that he is required to hand over any exculpitory material re. none (his) witnesses.
    How is that different from your jurisdiction?

    Does Fitz have to paint a picture? (none / 0) (#2)
    by roxtar on Sun Jan 28, 2007 at 07:08:16 AM EST
    By declining to turn over any of Rove's statements, isn't Fitz saying, in effect, "Rove's statement contains no Brady material, no Kyles v. Whitley material, no exculpatory material, no impeachment material."  Or, in other words, "Your boy is already under the bus, whether he knows it or not." Does Orville Redenbacher sell stock? Look for popcorn sales to skyrocket!

    Troll (none / 0) (#7)
    by squeaky on Sun Jan 28, 2007 at 12:15:11 PM EST
    From Wikopedia:

    In Internet terminology, a troll is a person who enters an established community such as an online discussion forum and intentionally tries to cause disruption, often in the form of posting messages that are inflammatory, insulting, or off-topic, with the intent of provoking a reaction from others.

    Let's see. The topic is about TL going to DC to report on the Libby trial.

    Sandy Berger has as much to do with this as:

    A report that a chimp bit a child at the zoo

    A story about Ghandi traveling to Japan.

    An article describing the hindenberg disaster.

    The spy case of Aldrich Ames

    A blow job.

    A snow job.

    Jarober is limited to four comments a day (none / 0) (#11)
    by Jeralyn on Sun Jan 28, 2007 at 04:32:17 PM EST
    Jarober has turned into a chatterer (see site comment rules) -- s/he is limited to four comments a day, all in exess will be deleted.

    Fleischer's deal (none / 0) (#13)
    by along on Sun Jan 28, 2007 at 07:23:06 PM EST
    Hi Jeralyn,
    Thanks for your great coverage, of the Libby trial and everything else.

    A question about Fleischer's immunity deal: Does it seem standard or normal to you? There have been things written about it saying normally prosecutors demand a proffer, and one was not secured in this case. And Fitzgerald's comment in court was that he didn't want to do the deal, and that he was buying a 'pig in a poke'. So: Why wouldn't Fitzgerald have demanded a proffer? Didn't he have all the leverage?