Libby: Can I Get a Witness?

By Jeralyn, Section Lewis Libby Trial Coverage
Posted on Thu Feb 08, 2007 at 12:44:13 PM EST
Tags: Libby Trial Coverage (all tags)

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I have an op-ed in the Washington Examiner on why Libby wants to call Cheney as a witness, particularly if Libby doesn't testify.

Tim Russert is still on the witness stand and there was lots of legal wrangling over Andrea Mitchell's statements going on. The Judge ruled this morning Russert can't be questioned about her statements.

The defense wants to call her as a witness and Fitz has filed this brief (pdf) seeking to preclude them "from eliciting testimony regarding her knowledge, prior to July 14, 2003, that Valerie Plame Wilson worked for the CIA, for the purpose of attempting to impeach her with a prior statement that would otherwise be inadmissible." Fitz argues such impeachment is improper and should be excluded.

The other fight coming up is over the defense plan to call Jill Abramson of the New York Times to impeach Judy Miller. Fitz' brief is here, Libby's is here.

Firedoglake is live-blogging the proceedings. Tom Maguire has background.

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Libby: Can I Get a Witness? | 16 comments (16 topical)

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Fitz! (5.00 / 1) (#1)
by MiddleOfTheRoad on Thu Feb 08, 2007 at 02:11:33 PM EST

I don't think that Libby or Cheney will appear on the stand.

I think they will grill the reporters just as they did Russert.

I don't know how the jurors would react, but to my biased mind I thought the the Russert grilling would backfire on Wells (not that I am a fan of Russert). Any comments on the Russert cross examination Jeralyn?

: Juror questions (none / 0) (#5)
by sphealey on Thu Feb 08, 2007 at 04:56:58 PM EST

After those questions from the jury, I would think that Mr. Libby should be considering his options in terms of a plea bargain.
sPh

2 memory defenses (4.00 / 1) (#14)
by Jeralyn on Thu Feb 08, 2007 at 09:08:21 PM EST

There are two memory defenses, one subjective and one objective. It's only the subjective one, that he was too busy with NSA matters that requires him to testify.

The other is an objective, reasonable doubt argument -- everyone's memory is lousy, so there's a reasonable doubt. That's the one I suggested they go with from day one.

: I see (4.00 / 1) (#16)
by squeaky on Thu Feb 08, 2007 at 10:13:27 PM EST

Thanks for clearing that up.
As regards to the second type of memory defense, I still think that all activities do not stimulate the same memory response. Fitz has deftly convinced the jury that even though the underlying crime is not to be considered being part of the case it would be hard to forget the details of that crime if you were as involved in it as Libby was.
The calculated lies that underline the case are not as easy to forget as something like Russert forgetting something from one of his TV shows. Russert argued that point himself, when he said had he known about Plame when he talked to Libby he certainly would have remembered it.
Wells attempts to show bad memory were not analogous to Libby's bad memory in that his examples were not about plotting crimes, but relatively everyday stuff.
Fitzgerald showed that even though people forgot stuff they all remembered that there was a campaign to discredit Wilson.
So far it seems obvious that Libby is lying because he thought he could get away with it.

Swopa (none / 0) (#2)
by squeaky on Thu Feb 08, 2007 at 02:20:19 PM EST

As swopa points out Fitz's succinct redirect was rather devastating.

[It] demolished hours of questions about Russert's feelings and memories (or lack of same) before the Libby indictment with this exchange:

Fitzgerald: Which is bigger news, a possible indictment or an actual indictment?
Russert: An actual indictment.
Fitzgerald then elicited Russert's clear memories of things that happened after the indictment was announced.

: I guess Russert (none / 0) (#3)
by Deconstructionist on Thu Feb 08, 2007 at 02:22:37 PM EST

either didn't follow the blog frenzy over the "Rove indictment" or has different standards.

impeaching her with a prior statement (none / 0) (#4)
by diogenes on Thu Feb 08, 2007 at 04:24:44 PM EST

Please educate me-is Fitz saying that she her testimony can be impeached but unfortunately the jury shouldn't be allowed to hear evidence of that because the evidence is technically "inadmissible"?

Swopa (none / 0) (#6)
by Tom Maguire on Thu Feb 08, 2007 at 05:39:49 PM EST

Partly to be contrary, but mainly because I believe it, I think Fitzgerald's redirect was a disaster (for the prosecution) in which he stepped exactly on the landmine the defense planted for him.

Reflect - Russert's testimony, as elicted by Fitzgerald, is that it is perfectly normal to forget unimportant things when more important things are going on.

Well, fine, but... isn't that what Libby's memory expert would have told us?

Thanks you, Tim and Patrick - they ought to submit a bill at whatever the going rate is for expert witnesses; I am sure the Libby Defense Trust will be happy to pay them.

: Well yes but (4.50 / 2) (#8)
by squeaky on Thu Feb 08, 2007 at 06:07:32 PM EST

Fitz has shown that Libby was quite preoccupied with very important things during the time period in question. These very important things, on a daily basis, related to discrediting Wilson and outing Plame aka traitorgate.
If Wells were able to show that Russert was as busy as Libby was regarding traitorgate, before Fitz's press conference where he handed down indictments, then your argument would hold water.
That was not the case.

Fitzgerald's brief (none / 0) (#7)
by Tom Maguire on Thu Feb 08, 2007 at 05:51:19 PM EST

Shorter Patrick: I never asked Ms. Mitchell these questions under oath so its no fair of the defense does.

Seriously, I would be delighted to see Jeralyn's opinion of this, but Fitzgerald's notion that Mitchell's various public statement allow us to perfectly anticipate her sworn testimony is, well, intriguing.

The defense wins this round hands down - if Libby can't confront the NBC cabal that collectively is accusing him, why bother with a trial?

But then again - if Mitchell does not take the stand so the jury can see for himself how weak her denials are (she was nearly laughed off of Imus), The Decider will pardon Libby tomorrow.

(That's hyperbole, but - us righties will never, ever accept a conviction if Mitchell doesn't take the stand. Count on it. And that is serious. Although maybe it should be "we righties".)

: Hearsay (none / 0) (#9)
by squeaky on Thu Feb 08, 2007 at 06:09:53 PM EST

Shorter Patrick: I never asked Ms. Mitchell these questions under oath so its no fair of the defense does.
I thought it had to do with hearsay evidence rules and if he allowed Mitchell where would it stop.

Libby's memory (none / 0) (#10)
by Tom Maguire on Thu Feb 08, 2007 at 07:46:33 PM EST

Fitz has shown that Libby was quite preoccupied with very important things during the time period in question.

Well then, four of his witnesses were a waste of time and credibility - Martin, Grossman, grenier, and Schmall all told Libby about Plame around June 11-14, unless they didn't - Grenier only remembered in 2005, after telling the FBI and the grand jury he was not sure; Grossman told Libby by phone (FBI version), unless it was face to face (trial version); Schmall has no memory at all of telling Libby, but it is in his notes so he is sure he did.

Martin was quite credible about telling Libby on June 11, but - neither she nor anyone else remember Libby reacting or commenting, and she never heard Libby refer to the wife again (even on July 12? Hmm...).

So why were they even there? Three lacked credibility, no one testified that they thought it was an important fact or that Libby thought so - why couldn't Libby have done a Russert/Fitzgerald and just forgotten?

Fitzgerald's real case is that something else happened on July 6/7 to jog Libby's memory, after which Libby talked about Plame with Fleischer, Addington, and Miller before Rove told him that Novak had the story on July 10.

And presumably, Fitzgerald thinks that Cheney waved the marked-up op-ed and asked about the wife and the junket on the 7th as the memory prompt.

But Cheney was never called, and the prosecution is done, so when does he present that case?

: Libby's memory (none / 0) (#11)
by MiddleOfTheRoad on Thu Feb 08, 2007 at 08:23:05 PM EST

Each incident by itself may appear insignificant, but taken together they do not. You have to look at the totality of the situation, and also consider that Libby was far more involved with responding to Wilson than the prosecution witnesses.
Nobody but the hard core Republicans believe Libby. So much for notions of "personal responsibility" and "strong on law and order"!
Even the MaineWebReport blogger live bloggin from the courthouse (who did not look like he had an axe to grind) said: "My opinion is that neither Libby nor Russert are credible with these statements. IF they are being truthful, 1) Our country is in a sad state of affairs if someone with near-amnesiatic fits like Libby has anything to do with our national security apparatus"

: July 6/7 (none / 0) (#12)
by MiddleOfTheRoad on Thu Feb 08, 2007 at 08:39:33 PM EST

Fitzgerald's real case is that something else happened on July 6/7 to jog Libby's memory, after which Libby talked about Plame with Fleischer, Addington, and Miller before Rove told him that Novak had the story on July 10.
That assumes that something had to "jog" Libby's memory. Not so. Libby met Judy on June 23 and told her about Plame. Or is Libby constantly flip flopping between forgetting and remembering as if new.
Even the Cheney note seems to be backdated from June 18 so as to buttress the amnesia defense.
And as emptywheel points, the Novak-Libby angle has not been fully explored.

crediblity (none / 0) (#13)
by squeaky on Thu Feb 08, 2007 at 08:53:52 PM EST

The memory defense seems to be off the table because Libby is presumably not going to testify. So the defense focus on showing how bad most witnesses memory in general is not going to work. In fact I think it will backfire. Jurors will see through it as a trick.

What rings out from all the testimony is that the campaign to discredit Wilson was very organized and not business as usual. Cheney was running the job and Libby was his front man. That Libby didn't want to get shot in the face, is motive enough to perjure and obstruct.

It is easy to forget the day to day minutiae, but when you plan a crime you remember the order of things three month later and most likely for the rest of your life. That Libby would forget any of the main points of the Wilson hit job is not plausible.

: credibility and Libby's lack of (none / 0) (#15)
by MiddleOfTheRoad on Thu Feb 08, 2007 at 09:53:01 PM EST

Since Cheney/Libby were peddling as a talking point "did his wife send him on a junket", it is not plausible that they simply forgot the critical detail of how they came to know about the wife.
Especially since within a month the Plame leak became a major national issue.