The Worst Argument for Libby's Acquittal

Former prosecutor Victoria Toensing has an op-ed in the Washington Post today (debunked nicely by Larry Johnson) outlining her case for Scooter Libby's acquittal. In two words: jury nullification.

(Thanks, Victoria, for attempting to personally smear the prosecutor on the eve of closing arguments. I bet if a true criminal defense lawyer wrote an article like that you'd accuse him or her of trying to influence the jury pool.)

Toensing is playing to the court of public opinion here, not the court of law. By setting forth her grounds for indicting others in the case, she's advocating exactly what Patrick Fitzgerald has said he's on guard against: the defense playing the jury nullification card, arguing that it's not fair Libby was charged while others weren't.

I don't think Team Libby is going to make that argument, at least not directly. They know Patrick Fitzgerald would repeatedly interrupt Wells' closing to object and there's few things worse than losing your rhythm and the jury's undivided attention in closing because of objections from the other side.


I suspect Wells will argue reasonable doubt. He will tell the jury there is a reasonable doubt that Russert, Cooper, Miller, et. al. are accurate in their recall of conversations while Libby is not. He will tell them that even if they believe the Government witnesses are accurate, they must have a reasonable doubt that Libby intentionally lied or tried to mislead the grand jury, as opposed to being mistaken. All Wells needs for a not guilty verdict is for the jury to weigh the evidence and conclude one of these eight scenarios apply:

  • Based upon the evidence presented, we the Jury find that the defendant is absolutely 100% innocent
  • Based upon the evidence presented, we the Jury, cannot be absolutely sure that the defendant is innocent.
  • Based upon the evidence presented, we the Jury are confident that the defendant is innocent
  • Based upon the evidence presented, we the Jury believe that the defendant is probably innocent.
  • Based upon the evidence presented, we the Jury are not really sure one way or the other if the defendant is guilty or innocent
  • Based upon the evidence presented, we the Jury believe it is more likely that not that the defendant is guilty.
  • Based upon the evidence presented, we the Jury believe that the defendant is probably guilty.
  • We the Jury believe that the defendant is guilty but the evidence falls a little short and we cannot find that the defendant is guilty beyond a reasonable doubt.

Wells will go through each of the Government witnesses and show where and how their memories likely were inaccurate,inconsistent or not credible. For example, Ari Fleischer denied he was a source for Walter Pincus while Pincus testified Ari was one of his sources. Wells will not argue Ari Fleischer should have been charged with perjury. He will argue that both Fleischer and Pincus can't be correct and that if Fleischer's memory failed him on the Pincus conversation, maybe it also failed him on his conversation with Libby -- the one in which Libby told him about Joseph Wilson's wife working at the CIA and having a role in sending him to Niger and that it was "hush, hush" and "on the q.t."

While Libby isn't charged with lying about his conversation with Fleischer, it's another example of how faulty everyone's memory is in this case.

With Matthew Cooper, Wells will argue that Cooper misconstrued his sloppily typed notes, which read:
"had somethine and abou the Wilson thing and not sure if it's ever."
Wells will ask the jury, given the examples they saw of Cooper typing the letter "r" for "n" in other notes, and using the word "and" as a pause between sentences, how can they be certain Cooper's note wasn't a reflection of Libby saying:
"heard something about the Wilson thing and not sure if it's even true"?

Cooper says his recollection now is that Libby said "Yeah I've heard that, too or words to that effect." But it's not in his notes. Which is more trustworthy, Wells will ask the jury, what he wrote then or what he remembers now, or neither, since his notes are fairly undecipherable? How can the jury conclude beyond a reasonable doubt that Cooper's current memory is correct while Libby's memory as contained in his grand jury testimony is wrong?

Wells will tell the jury to use its common sense, particularly when it comes to memory. They will be instructed that a reasonable doubt is one that is based on reason and common sense. The jury is allowed to take its common sense, gathered from their lifetimes of experience, into the jury room.

He will ask them to remember times they have been certain they said "x" when it later turned out they said "y." Were they lying? Or simply mistaken? How can they not have a doubt that Libby too, was mistaken rather than lying?

I am not arguing here for Libby's acquittal. I'm not predicting an acquittal. (Personally, I think Wells has a Russert problem, and unless he argues that Libby mixed him up with another reporter, perhaps Novak, whom he spoke with on the 9th, just a day or two earlier than Russert, I'm not sure how he gets around it.) I'm merely pointing out what I think Wells' best arguments are and that he isn't going to go for a jury nullification argument, no matter how much Toensing wishes he would.

In fact, I can't think of a worse argument to make to the jury.

[cross-posted at Firedoglake and Huffington Post.]

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    i read ms. toensing's op/ed (none / 0) (#1)
    by cpinva on Mon Feb 19, 2007 at 01:07:10 AM EST
    and was astonished that the WP published it. it's well beyond mere opinion, and falls into the realm of outright lying. anyone who's even half-way kept up with the news for the past few years would recognize her deliberate factual inaccuracies. that the post's editors didn't is a black stain on their competence.

    i guess she's counting on the jury to be completely composed of hermits.

    The Post's Opinion Page Editors... (none / 0) (#2)
    by TomStewart on Mon Feb 19, 2007 at 01:24:52 AM EST
    Don't seem the read the news section of their own paper. This isn't the first time they've published something that is contradicted by their news reporters.

    I wonder (none / 0) (#3)
    by Che's Lounge on Mon Feb 19, 2007 at 09:53:38 AM EST
    how many innocent people were sent to prison because of this persecutor's lies? If she'll lie to 300 million people, why wouldn't she lie to get some convictions?  Maybe after SHE is arrested for fraud and conspiracy to commit fraud, they can open some case files. The writing and printing of such malicious lies should be a capital crime. Maybe that will get them to stop defrauding the country into destruction and decay.

    Agree/disagree (none / 0) (#4)
    by Tom Maguire on Mon Feb 19, 2007 at 10:00:42 AM EST
    1.  I agree that the "This is unfair" argument can't be made directly.  As a subtext, it works fine.

    2.  You are embarrassing yourself, or at least annoying me, with that link to Larry Johnson.  Mr. Johnson engages in his usual foot-stomping that Ms. Plame was "covert" without ever addressing the basic problem created by the Intelligence Identities Protection Act - having classified status is just one criteria for being "covert".  Other requirement were quite probably not met in Ms. Plame's case.  

    For example, to be covert one must have served abroad in the previous five years.  Johnson would argue that a flight overseas to Jordan would count as "service"; Toensing would argue (and there is more support for her side) that "service abroad" refers to a specific overseas posting, not an ocassional trip.  Something other tahn "Not so" would be helpful, and I have a suggestion:

    CIA officers get an upward bump in their pension for service abroad.  (Link).

    So let's see if Wilson's advocates can get enough of her pension info released to prove she got credit for service abroad in her last five years.

    I wold trust Ms. Merritt to sort this out; David Corn, as an example, not so much; Larry Johnson, not at all.

    Except it's irrelevant (5.00 / 1) (#5)
    by Jeralyn on Mon Feb 19, 2007 at 10:18:08 AM EST
    to the trial whether she was covert. You know that the Judge has said that many times.  Her status is simply not an issue.

    According to a brief the Government filed this weekend, the Court has agreed to allow the defense to reopen its case Tuesday morning to put a copy of the IIPA (and only the IIPA) in evidence to avoid the need for a jury instruction on it.

    The Government writes:

    Given the likelihood that the defense will focus on the IIPA statute in closing, and on the defense's arguments during opening that suggested that others should be on trial instead of him, the government proposes that the following instruction be given:

    You are here to decide whether the government has proved beyond a reasonable doubt that the defendant is guilty of the crimes charged in the indictment. The defendant is not on trial for any act, conduct or offenses not alleged in the indictment. Neither are you concerned with the guilt or innocence of any other person or persons
    not on trial as a defendant in this case.

    Please don't make personal insults on TalkLeft (none / 0) (#6)
    by Jeralyn on Mon Feb 19, 2007 at 10:20:39 AM EST
    to Larry Johnson or to me.  They are not allowed, see the comment rules.  In fact, I'd appreciate it if you would delete your comment and repost it without the insult, since I have no ability to edit it.

    I respect Larry Johnson.


    Lest I Forget (none / 0) (#7)
    by Tom Maguire on Mon Feb 19, 2007 at 11:00:39 AM EST
    More on Larry Johnson; from his post:

    Vice President Cheney asked his briefer about the claim on 12 February 2002 and the CIA convened an interagency meeting with Ambassador Joseph Wilson one week later, February 19, 2002.

    Oops!  The trial evidence was that Cheney asked his briefer on Feb 13; since the memo suggesting/endorsing Joe for the trip had been sent on the 12th (and written by his wife), that strongly suggests that the CIA was reacting to questions from the INR and DIA about the Feb 12 DIA report.

    In fact Scooter Libby was the one who told Bush press flack, Ari Fleischer, about Valerie's covert status.

    Please - that "fact" is obviously in dispute.  Since Walter Pincus (under oath) and John Dickerson (in print) have contradicted other parts of Libby's story, maybe Ari is wrong about this, too.

    And why not?  This was his last week on the job, he had the big Presidential trip to Africa, reporters were gnawing on him about the 16 Words - why shouldn't it all be a blur to Ari?

    Au contraire (none / 0) (#9)
    by Repack Rider on Mon Feb 19, 2007 at 11:55:33 AM EST
    that "fact" is obviously in dispute.

    One guy said it happened, and the other guy said he doesn't remember anything from that year.  The schedule shows that the two guys had lunch together at the time Ari says Libby told him, at Libby's request, for the only time during the period that they worked together.  This two hour lunch took place during a time when Libby claimed he had so many important things to think about, yet he takes two hours off to talk about...The Miami Dolphins?


    I don't see the "dispute."


    Sorry Judge (none / 0) (#8)
    by Che's Lounge on Mon Feb 19, 2007 at 11:49:49 AM EST
    It's all a blur!

    Spme thoughts (none / 0) (#10)
    by jimakaPPJ on Mon Feb 19, 2007 at 12:03:49 PM EST
    for my friends....

    I thought that jurors were not supposed to read, watch or listen to news/opinion articles/shows about the case they are considering.

    Are you saying that this jury is incapable of doing this?

    Are you saying that all jurys are incapable of this?

    If so, do you condemn all news reports about all cases during the trial phase?

    And if you say that all jurys are capable of this,
    should all juries be sequestered?

    And if your concern is poisoning the jury pool, shouldn't all news reports be forbidden, including those before the trial??

    Well Jim (none / 0) (#11)
    by Che's Lounge on Mon Feb 19, 2007 at 02:41:33 PM EST
    We're stuck. We have freedom of the press, and then we have irresponsible journalism in the WaPo's decision to print such garbage just before final arguments. I think the jury knows this also.

    Che (none / 0) (#12)
    by jimakaPPJ on Mon Feb 19, 2007 at 04:38:36 PM EST
    Well, if you want to try and censor the press by claiming it is not being responsible, I am sure you are ready to march on the LA times, or perhaps fly to NYC to make a personal comment on the NYC.

    And of course you want to forget all those false claims made before the trial....


    jim, being intentionally obtuse yet again? (none / 0) (#13)
    by cpinva on Tue Feb 20, 2007 at 06:47:29 AM EST
    op/ed's aren't "news", they are opinion. surely you can distinguish. it was clearly directed towards the jury. whether or not they will strictly abide by the judge's instructions remains to be seen.

    tom, the "facts" in ms. toensings op/ed are demonstrably not. they have been disproved, by the actual evidence, time and again. ms. plame's status with the cia, as noted by jeralyn, is irrelevant (although the cia itself has stated she was in a covert position at the time), with respect to the current trial. in fact, most of the issues she cites are irrelevant, with respect to the trial. they are relevant only with respect to the credibility of the current administration.

    they are basically republican "talking points", distributed for the sole purpose of attempting to confuse the masses. apparently, it worked on the editors at the post.

    cpinva (none / 0) (#14)
    by jimakaPPJ on Tue Feb 20, 2007 at 09:09:28 AM EST
    I don't care if they are news pieces, opinion pieces or cooking recipies. What they are is not the point.

    As to whether or not they are factual, I will say that the facts are that Fitzgerald should have dropped the investigation as soon as he knew that that Armitage was the leaker, and that there was no underlying crime. I think that was just as he came on board.

    The issue is that because you disagree with those who defend Libby you want to silence the press.

    Just as I can say to the Repubs that they should be happy they couldn't change the rules about the fillibuster, I tell you that you should be happy that you can not silence the free press.


    More support for Plame and Wilson (none / 0) (#16)
    by Dadler on Tue Feb 20, 2007 at 12:24:24 PM EST
    Larry Johnson, a former classmate and CIA co-worker of Valerie Plame, offers a rational insider's view -- and I'm sure he'd love to hear from PPJ how incorrect, and what a surrender monkey, he is.

    Sorry (none / 0) (#17)
    by Tom Maguire on Wed Feb 21, 2007 at 02:59:26 AM EST
    My apologies for insulting Larry Johnson here - obviously, I should be doing that at his blog or mine, and I had every intention of doing just that, but my internet crashed over the weekend.

    However, tomorrow is another day.

    That said, I have no idea how to either edit or delete my comment, but if I can figure it out I will strike "engages in his usual foot-stomping" and substitute "provides his customary level of insight".

    ms. plame's status with the cia, as noted by jeralyn, is irrelevant (although the cia itself has stated she was in a covert position at the time)

    It goes to Libby's state of mind - if he had no reason to fear job loss or prosecution for leaking classified info, what was his motive?  And since Fitzgerald emphasized that in his close (improperly, one might argue), I'm not sure how one might sustain the view that it is not relevant.

    BTW, the CIA has never said she was covert - they filed a routine request for an investigation into a leak of classified information.  And we are all clear on the difference between "classified" and "covert", since we have looked through the IIPA.

    While on the topic (none / 0) (#18)
    by Tom Maguire on Wed Feb 21, 2007 at 06:40:03 AM EST
    Let me just cite the lead to the Johnson piece:

    Congratulations to Victoria Toensing, former Reagan Administration Justice Department official, for plumbing new depths of delusion and crazed fantasies in her latest Washington Post op-ed.  Ms. Toensing's piece--Trial in Error--should have been titled, "I Am Ignorant of Basic Facts"...

    Somehow I mistook that for foot-stomping rather than reasoned debate.  My bad.

    DA (none / 0) (#19)
    by jimakaPPJ on Wed Feb 21, 2007 at 06:23:37 PM EST
    No one has said that.

    What is said is this:

    After Fitzgerad knew there was no crime, why didn't he just stop?

    His job was to paint the house. He decided to paint the barn, the garage....