Libby May Not Testify
It's official. Scooter Libby may not testify at his trial. His lawyers filed a brief tonight (pdf) in connection with yet another sealed request for classified materials, trying to convince the court that Libby's memory failure defense -- the part that is based on how busy he was due to the urgent national security matters he was involved in -- should come into evidence even if he doesn't take the stand. They say that making him testify in order to present his memory defense would force him to choose between his 5th Amendment right to remain silent and his 6th Amendment right to counsel.
They state in a footnote that on September 27, 2006, in connection with the fight over classified materials, Team Libby told the court it was "very likely" Libby would testify but did not promise he would. They point out that other courts have ruled that both sides can present circumstantial evidence as to a defendant's state of mind. They argue that Fitz has repeatedly presented circumstantial evidence at trial of Libby's state of mind.
They want to introduce three categories of national security evidence to show Libby was confused or mistaken, but did not intentionally lie:
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