Fitz Closing in Libby: Cheney is Under a Cloud

By Jeralyn, Section Lewis Libby Trial Coverage
Posted on Sat Feb 24, 2007 at 01:10:15 PM EST
Tags: Libby Trial Coverage (all tags)

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Jason Leopold has reviewed Patrick Fitzgerald's closing argument in the Scooter Libby trial, and points out these comments:

Rebutting the defense's assertion that Cheney was not behind the leak, Fitzgerald told jurors, "You know what? [Wells] said something here that we're trying to put a cloud on the vice president. We'll talk straight. There is a cloud over the vice president. He sent Libby off to [meet with former New York Times reporter] Judith Miller at the St. Regis Hotel. At that meeting, the two hour meeting, the defendant talked about the wife [Plame]. We didn't put that cloud there. That cloud remains because the defendant obstructed justice and lied about what happened."

More...

Fitzgerald's impassioned presentation to the jury Tuesday suggests that he strongly believes Cheney instructed Libby to leak Plame's identity to Miller in July 2003.

"If you think that the vice president and the defendant 'Scooter' Libby weren't talking about [Plame] during the week where the vice president writes that [Plame] sent [Wilson] on a junket, in [Wilson's] July 6 column, the vice president moves the number one talking point, 'not clear who authorized [Wilson's Niger trip], if you think that's a coincidence, well, that makes no sense," Fitzgerald told jurors.

Fitzgerald squarely blames Libby for putting the cloud on the Vice President. Another quote from his closing:

He's put the doubt into whatever happened that week, whatever is going on between the Vice President and the defendant, that cloud was there. That's not something that we put there. That cloud is something that we just can't pretend isn't there.

Fitzgerald reminded the jury of Cheney's actions in cutting out the Wilson op-ed and putting handwritten notes on it.

The Vice President cuts out the article, the guy he works for. That's important. The Vice President makes the note about the wife. That's important. Government Exhibit 412, he makes the note, the Maureen Dowd column. That's important.

Fitz puts Cheney and Libby's actions together in this comment:

Let's assume the best-case scenario, the Vice President asked the question, not Mr. Libby, since he did most of the talking. This is a fingerprint that says on July 14th, the Vice President has read the Novak column. The other exhibit shows you, around July 14th, the defendant read the Novak column. And this is a fingerprint that says the brains of the Vice President and defendant Libby are wrapped around the Novak column on July 14th.

So, what happens to Cheney now? I think the answer if Libby is acquitted is likely nothing. But, what if Libby is convicted? If Libby has been promised a pardon, it's unlikely he'd take a deal with Fitz. But, maybe Fitz will feel emoldened by a conviction of Libby regardless of whether he can get Libby's testimony. I wonder if Fitz has other immunized testimony -- from those who didn't testify at Libby's trial that he could use against Cheney. If he immunized others who didn't testify at Libby's trial, we wouldn't know about it.

The mainstream media seems to think Fitzgerald is done. I'm not sure he isn't holding something in his back pocket against our Vice President.

Update: As to whether a sitting vice-president can be indicted, I think the answer is yes. Here's the Office of Legal Counsel 2000 Memo to Attorney General which takes that position after analyzing the Solicitor General's 1973 brief that discussed the issue in the context of Spiro Agnew.

On October 5, 1973, less than two weeks after OLC issued its memorandum, Solicitor General Robert Bork filed a brief in the United States District Court for the District of Maryland that addressed the question whether it would be constitutional to indict or criminally try a sitting President. Then-Vice President Agnew had moved to enjoin, principally on constitutional grounds, grand jury proceeding against him. See SG Brief at 3. In response to this motion, Solicitor General Bork provided the court with a brief that set forth "considerations based upon the Constitution's text, history, and rationale which indicate that all civil officers of the United States other than the President are amenable to the federal criminal process either before or after the conclusion of impeachment proceedings."

....In explaining why, as an initial matter, the Vice President could be indicted and tried while still in office, the brief argued that indictment would not effect the de facto removal of that officer. SG Brief at 11.

"[I]t is clear from history that a criminal indictment, or even trial and conviction, does not, standing alone, effect the removal of an impeachable federal officer." Id. at 11-12. The brief noted the past constitutional practice of indicting and even convicting federal judges during their tenure, as well as the fact that Vice President Aaron Burr "was subject to simultaneous indictment in two states while in office, yet he continued to exercise his constitutional responsibilities until the expiration of his term." Id. at 12.

....The brief therefore determined that "[c]ertainly it is clear that criminal indictment, trial, and even conviction of a Vice President would not, ipso facto, cause his removal; subjection of a Vice President to the criminal process therefore does not violate the exclusivity of the impeachment power as the means of his removal from office." Id. at 13.

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Fitz Closing in Libby: Cheney is Under a Cloud | 29 comments (29 topical)

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Pardons (5.00 / 1) (#11)
by expertlaw on Sat Feb 24, 2007 at 03:07:18 PM EST

Absent a preventive pardon of Cheney, if the White House believes that Fitzgerald may be at all inclined to indict Cheney it would not make sense for Bush to pardon Libby. At present Libby can still assert his Fifth Amendment rights. After a pardon, what would stop Fitzgerald from compelling his testimony?

i know i may be grasping at straws (4.00 / 1) (#3)
by profmarcus on Sat Feb 24, 2007 at 02:14:03 PM EST

but there still hasn't been any explanation of the "sealed vs. sealed" brief that fitz filed with the court... surely there's something in there that prompted fitz to take that extraordinary measure...

And, yes, I DO take it personally

: Actually (5.00 / 1) (#6)
by Deconstructionist on Sat Feb 24, 2007 at 02:23:07 PM EST

There has never been the slightest evidence that Fitzgerald had anything to do with the filing of the legendary sealed indictment. All that is known is athat a sealed indictment was filed in the district court of DC(and the case remains sealed last I heard). There is no evidence known to anyone suggesting the indictment was sought by SC Fitzgerald in the course of this investigation.
Pretty much every insinuation beyond that is the product of the completely unsubsantiated assertions of Jason Leoplod, one of the least credible people in the world.

: It's not extraordinary to seal an indictment (none / 0) (#5)
by Jeralyn on Sat Feb 24, 2007 at 02:19:09 PM EST

there could be any number of reasons, including that the defendant is a fugitive.
We don't know that the sealed indictment pertains to this case, although I suspect it does. But I no longer think it pertains to Karl Rove in the Plame case.
And yes, it's still sealed.

That's a lot of words (2.00 / 1) (#1)
by Deconstructionist on Sat Feb 24, 2007 at 01:30:20 PM EST

but nowhere do I see anything suggesting what the statute is that it might be alleged Cheney violated.

If we are still talking about violation of IIPA and Cheney as accessory or conspirator aren't we still lacking any known evidence?

If you are talking about something else, what?

Perhaps (5.00 / 1) (#2)
by Jeralyn on Sat Feb 24, 2007 at 02:00:55 PM EST

it would be for making a false statement about whether he directed Libby to leak the nepotism charge regarding Valerie Wilson to the media when he was interviewed by the FBI or Fitzgerald. False statement under 18 USC 1001.


: this may have legs even beyond fitzs' indictments (none / 0) (#10)
by the rainnn on Sat Feb 24, 2007 at 02:56:36 PM EST

exactly, jeralyn. exactly.
in fact, yesterday, the wall street
journal began to acknowlege that even
if scooter is acquitted, this debacle
may end in sam-ervin-style hearings -- with
the vice president of the united states
being called to explain himself. the senate
armed services committee has openly
asked for renewed hearings -- and the
appearance of one scooter libby, at them:
quoth the wall street journal:

".. .Already, the Senate Intelligence Committee
has requested documents and interview transcripts
from the Inspector General's office, while the
Senate Armed Services Committee seeks further
interviews with Mr. Libby, the former chief
of staff for Vice President Dick Cheney. . ."
now, once the trial is over, either way -- up
or down -- scooter will have a-far-more-limited
fifth amendment privilege to assert, as a shield,
before congress. his fifth amendment rights
will arguably attach only to statements that
might constitute evidence of new crimes,
crimes for which he hasn't yet been tried.
and that may prove very dicey for his old boss,
dick cheney -- either scooter will be a convicted
felon (and likely working his way through the
appellate process -- all while looking to cut deals
for favorable sentencing recommendations from the
the office of special counsel -- patrick fitzgerald),
or he'll be acquitted, and the special counsel
won't be able to re-try him, under the one of the
other main protective provisions of the fifth
amendment, the "double jeopardy" clause. . .
either way, he could face contempt of congress
charges, and ultimately, jail, if he doesn't
cooperate, at least as to unprivileged matters.
so, dick, if your people are reading this -- do
the honorable thing, and resign,
before your spiro agnew moment arrives, front
and center, in the committee chambers of the
armed services committe of the united states
senate -- avoid a constitutional crisis:
more here. . .

that would be really tough in the absence of (none / 0) (#4)
by Deconstructionist on Sat Feb 24, 2007 at 02:18:42 PM EST

direct testimony from Libby not merely that Cheney instructed him to discredit Wilson close to the time they talked about Plame but that Cheney expressly told Libby to use the fact Plame was a CIA agent who selected her husband as means to discredit.

It would also require a statement from Cheney in unambiguous contradiction of that.

Even then we would have to assume that a jury would find Libby (presumably a convicted perjurer and/or obstructor in this scenario) credible.

I wouldn't hold my breath waiting for any prosecutor to bring that case against the VP of the USA, although i do agree with the analysis that VP does not enjoy immunity from prosecution.

You underestimate the hatred of Cheney (3.00 / 1) (#7)
by Dadler on Sat Feb 24, 2007 at 02:45:16 PM EST

If there is a VP no one would have a problem going after, it's this wretched sack of crap. A more corrupt and lousy human being in the last fifty years of American politics you're unlikely to find. At least Nixon had the decency to resign in disgrace. No one likes this Cheney, no one, I don't even think his family likes him, they're all simply so co-dependent they don't have any identiy aside from his dominating presence. He is a classically abusive personality. A thug. You could not, in short, find an easier punk to go after than this butter-in-his-veins glutton and tyrant.


Fitzgerald (4.50 / 2) (#9)
by Deconstructionist on Sat Feb 24, 2007 at 02:52:36 PM EST

is not going to bring a case because someone is hated-- no matter how deep or broad the hatred. One of the main reasons Fitzgerald has respect (and I think will retain most of it even if he loses the Libby trial despite what some are saying) is that he impresses as someone with abiding respect for fail and equal enforcement of the law who disdains using judicial processes for political purposes.

I also think people are reading WAY too much into his close. It can easily be interpreted as simply establishing Libby's motive of protecting Cheney from political fallout for being exposed playing "dirty" but not criminal tricks. Juries liike motives-- even though motive is not an element of the offense-- and there is no real reason to view it as setting the stage for a next act by Fitzgerald.


: maybe the sealed matter is not related. . . (none / 0) (#14)
by the rainnn on Sat Feb 24, 2007 at 05:25:18 PM EST

fair enough -- but i am
inclined to disagree about
fitz -- he is very cagey. . .
i think he is headed north
in the chain of command, next. . .

Even better... (2.00 / 1) (#8)
by Dadler on Sat Feb 24, 2007 at 02:46:42 PM EST

I think going after him criminally would kill him, literally. His heart would finally give out. And that would be one glorious day for this nation.


All Bush (none / 0) (#27)
by ding7777 on Sun Feb 25, 2007 at 05:01:00 PM EST

has to do is pardon Cheney. If not, Bush can find a way to let Cheney be acting-President for a couple of hours (like he did in 2002) and Cheney will pardon himself.


: Something like: (none / 0) (#28)
by squeaky on Sun Feb 25, 2007 at 05:49:24 PM EST

Pardon me sir?

the direct testimony of libby. . . (none / 0) (#12)
by the rainnn on Sat Feb 24, 2007 at 05:21:01 PM EST

hey decon. --

libby's testimony may be offered/
compelled, post-conviction, in return for
a reduced sentence, or post-acquittal,
at the hearings of the senate armed
services committee -- now chaired by,
yep(!), sen. levin -- as it renews its
scrutiny of the "pre-fabbed" (or should
that be "pre-fibbed"?) intel that drew
us into the iraq war. as i pointed out
earlier, scooter's claim to any fifth
amendment privilege will be curtailed
in either scenario. . .

so, i say -- bring dead-eye on!

arrrrgh, blow the man down!


sort of (none / 0) (#16)
by Deconstructionist on Sun Feb 25, 2007 at 09:23:51 AM EST

His testimony cannot be compelled even after conviction as long as he even potentially faces jeopardy for these or other potential offenses. The 5th Amendment right against self-incrimination would not be extinguished merely by a conviction in the district court. He can appeal seeking a new trial and these convictions and failing in that he can then file a §2255 seeking to have his convictions declaredunconstitutional. that process can take years. Even after he has exhausted all direct and collateral avenues of relief he could still assert that his testimony might incriminate him for acts or omissions for which he was previously convicted.

Even a blanket pardon from the President would not necessarily remove his right to refuse to testify. It's far more likely it would here because I'm not aware of any act he may have committed that would be subject to prosecution by a State (and for which a President cannot pardon) because everything happened. it seems, in DC, but you can't be sure.

As for Congress yes it can compel his testimony so long as it grants HIM immunity and that immunity would not protect those he testifies against.

Of course, in any scenario he could still refuse to testify and simply submit to being jailed for contempt (as with MacDougal in Whitewater) and defy all orders to protect others.

Regardless, of how all that works out, though, the essential problem is that Libby would be a very easy witness to impeach under any of them. Whether voluntarily testifying in pursuit of a substantial assistance motion post conviction or testifying before Congress under a grant of immunity he would still be not just a convicted felon but one convicted FOR LYING UNDER OATH.

That's a thin reed uon which to build a case against a very powerful political figure and one most prosecutors would likely find too weak. Unless he could give the prosecutor information which led to excellent corroborating evidence (such as documents which have been withheld) it woulkd be very unlikely the mere addition of Libby testimony to the mix would alter a decision not to prosecute.


oops (none / 0) (#17)
by Deconstructionist on Sun Feb 25, 2007 at 09:25:28 AM EST

this sentence :

"Even after he has exhausted all direct and collateral avenues of relief he could still assert that his testimony might incriminate him for acts or omissions for which he was previously convicted."

should end "for which he was NOT previously convicted."


ooh -- nicely-researched! (none / 0) (#19)
by the rainnn on Sun Feb 25, 2007 at 10:32:20 AM EST

yours are good counterpoints to
bear in mind, as we watch all of
this unfold, and i'll not let this
smooth dialog fall into quibbling
over a few of your finer points,
with which i might disagree, but i
do want to make clear[er] what i
meant by "compel" in mine.

mine was an imprecise use of the word.

i meant that scooter libby would
feel "compelled" to cooperate, given
the possibilty of 30 years. . .

i do agree that he would face a tough
time refusing to testify before the
senate armed services committee.

i hope i am not misreading you, but
are you suggesting, with your final
paragraph, that if cheney is out of
office (1/19/08 -- never too soon!),
none of this matters? [i do think the
nixon, and agnew, precedents suggest
it does matter. much of the open govern-
ment reform laws of the late-70's were in
direct response to abuses by those two.

that may ultimately be cheney's legacy -- more
check and balance oversight of the office of
the vice president -- and that would be one
delicious irony to befall a small/no government guy.]

cheers!


: OK (none / 0) (#21)
by Deconstructionist on Sun Feb 25, 2007 at 11:36:34 AM EST

I agree that Libby might "feel compelled" to seek a substantial assistance motion and voluntarily provide testimony which could not necessarily be legally compelled (
He is likely not looking at anything close to 30 years in reality-- even if convicterd of all counts. the counts would be grouped under the guidelines as being part of the same course of conduct and it seems to me that his offense level would likely be 17 at most (14 BOL + 3 for substantial interference w/administration of justice -- i don't think he has to worry about § 2X3.1 because it is unlikely it can be applied and even if it is it is unlikely it would result in an offense higher than the 17)
17 and criminal history I results in a sentencing range of 24-30 months. It is possible that Chapter 3 adjustments might be found applicable but even that would be unlikely to result in an increse of more than a year or two at most to the sentencing range. the court might find grounds for upward departure or a variance sentence under 18 U,S.C. § 3553 (a), but that is probably unlikely and would almost certainly not result in a sentence any where near the potential statutory maximum. (and, who knows, he might be just as likely to get a variance below the advisory guideline range as above)
Still, prison is prison and he might cooperate to try to avoid going at all- not at all unlikely if he cooperates and can "deliver the goods" so to speak.
I'm don't understand where yo got the impression i suggested none of this would matter after Cheney was out of office. I never intended any such suggestion. Perhaps you misinterpreted my opinion that the analysis that Cheney could be criminally prosecuted while still in office to mean he couldn't after. That was not my intent i think everyone agrees the law is clear that a President or VP can be prosecuted after leaving office for any acts committed while in office as long as the SOL has not run; that question was never even raised and i was not addressing it.

erh -- nothing. (none / 0) (#13)
by the rainnn on Sat Feb 24, 2007 at 05:21:54 PM EST

n o t h i n g.

i think you are right, expertlaw.

Libby pardon problems (none / 0) (#15)
by chemoelectric on Sat Feb 24, 2007 at 05:53:41 PM EST

expertlaw writes:

It already doesn't make sense for Bush to pardon Libby, at least not till Bush is ready to leave Washington for good, because a pardoned Libby could be forced to testify to Congress.

Is that not the case? I'm the only person I know of who has mentioned this, so maybe I'm making a mistake.

Libby pardon problems (none / 0) (#18)
by Screwloose on Sun Feb 25, 2007 at 09:51:50 AM EST

a few thoughts

Cheney would get a pardon, too. I think I heard that Hunt's book said Nixon was the Numero Uno conspirator, yet he alone escaped criminal punishment, died rich from old age, and is now remembered glowingly to top it off. Ditto Cheney?

Isn't Cheney immune by the statute of limitations?

I haven't seen the final memory jury instruction, but I think the trial judge may give Libby an appeal bond for the exclusion of the memory-expert testimony itself, since that was the defense theory as it turned out. Any sentence would be served by the completion of appellate reviews. Bush/Cheney will be gone.

Finally, regardless, I'd love to see Libby sue Cheney for specific performance of a promised pardon based upon detrimental reliance, and have the truth come out before a jury in a public trial that way.


your mileage may vary. . . (none / 0) (#20)
by the rainnn on Sun Feb 25, 2007 at 10:33:27 AM EST

i don't think the nation
will stand for a pardon of
cheney -- or libby.


your mileage may vary (none / 0) (#22)
by Screwloose on Sun Feb 25, 2007 at 11:45:16 AM EST

why do you say that?

Nixon got away with it. Clinton got away with it. so, why wouldn't Cheney get away with it?

who's to protect the people? the entertainment media? we've seen that the reporter's/media act only in their own self-interest in this very trial. they're embedded with the politicians.

I thought the Founders said in the Sixth and Seventh Amendments only the people ourselves, in juries, can ultimately be trusted to protect the people's interest in a democracy.

that's all I meant by suggesting a civil trial after this for a public record of the truth regarding Cheney.


i agree (none / 0) (#23)
by Deconstructionist on Sun Feb 25, 2007 at 11:54:09 AM EST

Any pardons would be hot topic for a brief period but the majority of people would quickly lose interest in the pardons of people who no longer hold office.

I disagree though with the founders placing all reliance on Courts and juries. We placed the pardoning power, modeled directly on the power of the monarch in Britain, solely in the hands of the president. the founders did not have to do so. they could have created no pardoning power or they could have created a different or shared locus of that power. That they didn't strongly suggests that they believed that in all cases the verdict of a court should be thefinal word and that the President should have the power to grant relief in cases of perceived injustice or just a act of grace and act of mercy.


: Damn (none / 0) (#24)
by Deconstructionist on Sun Feb 25, 2007 at 11:55:32 AM EST

i'm having trouble with negatives today. i meant to write:
That they didn't strongly suggests that they believed that in all cases the verdict of a court should NOT be thefinal word

: I agree (none / 0) (#26)
by Screwloose on Sun Feb 25, 2007 at 12:14:48 PM EST

I think if we had jury sentencing, the topic of pardons - - and what Cheney's note re Rove AND Libby - - was intended by Cheney to mean/understood by Libby to mean, would've been on a public trial record for the people to examine themselves, and punish appropriately.
politicians don't punish politicians' crimes.
juries and judges punish politicians - - they'll even punish judges who commit criminal acts. ask the California judge who just fainted when sentenced to prison.

Huh???? (none / 0) (#25)
by Repack Rider on Sun Feb 25, 2007 at 11:56:08 AM EST

Nixon got away with it. Clinton got away with it.

Nixon was pardoned, but he didn't issue any pardons of corrupt administration officials himself.

Clinton did not pardon any corrupt administration officials.

So far the only person other than Gerald Ford who "got away with it" was Bush41, who pardoned Caspar Weingberger in order to keep his diary, which proved Bush was a liar, out of court and thus out of the public record.

Said diary was destroyed as soon as it was no longer "evidence," so it couldn't surface again.


sealed vs. sealed brief (none / 0) (#29)
by kspena on Mon Feb 26, 2007 at 12:23:53 AM EST

Not being a lawyer, I'm wondering: If the sealed vs. sealed brief is an indictment against cheney that's being held pending the outcome of this trial, would that have been brought because of some statue of limitations governing of the run of the grand jury and/or a statue of limitations of the law governing the offenses themselves?

Also, having followed the Nixon caper closely, I had to laugh at the ghost of Bork rising yet again, this time to define the law hovering around cheney.