Life With the Liars

The strategy of the Libby defense team has been taking shape this fall. A central strategy involved having a "memory expert" attempt to convince the jury that not only could a busy bee like our Scooter simply forget conversations with VP Cheney about Valerie Wilson’s CIA employment, but he might remember a conversation with Tim Russert that never took place. Sad for Scooter, Judge Walton tossed that concept out of the trial.

Next, Team Libby has listed VP Dick Cheney on the list of witnesses it plans to call in the trial, which starts in January. Those who follow the pre-trial hearings and court filings suspect that Cheney will be used in part to counter one or more of the prosecution witnesses who are or were employed by the White House in 2003. Let’s take a moment to look closer at one of the court filings that is of interest.

On November 13, Team Libby filed a 12-page document, # 179-1. It is the "Libby Response to the Government’s Motion In Limine to Preclude Evidence, Comment, and Argument Regarding the Government’s Charging Decision." In the Government’s Motion, Mr. Fitzgerald noted that the defense should not be allowed to urge the jury to acquit Libby because he is the only one charged thus far, or because he isn’t charged with leaking Plame’s identity. Team Libby notes that these factors alone are not in dispute, but raises three related issues.

The first is that they want to clarify for the jury that Libby has not been charged with leaking classified information. The second concerns information concerning possible conflicts involving other witnesses who faced possible indictment. And third, they want to draw a distinction between Libby and Bob Novak’s sources. In a future essay, we will examine their cause for concern with issue #1. We need not bother expanding upon #3, which Mr. Fitzgerald has called a "strawman," considering the criminal investigation was not restricted to Novak’s sources.

In Section II (pages 4-8), Team Libby notes: "The jury is entitled to know what the case is and is not about. …. The Court may very well provide the jurors with a similar instruction. But on this crucial point, Mr. Libby is entitled to both the Court’s dispassionate admonition and his counsel’s emphatic advocacy. ….

" The government concedes that evidence concerning its charging decisions is relevant in certain circumstances. Specifically, the government admits that ‘information relating to its discussions with prospective witnesses, for example, is relevant on the issue of the witnesses’ motivantion(s).’ … The government is absolutely correct. But the relevance of that information is not limited to situations involving an immunity agreement. In situations where a witness faced potential criminal liability, the government’s decision not to charge that witness may be just as relevant as the government’s discussion with that witness. In the same manner, the fact that a witness has not been charged, but has reason to fear he or she could be charged, is also relevant. The defense should be permitted to cross-examine witnesses at trial about whether, for example, they testified in the grand jury or gave other information to the government in a manner calculated to curry favor with prosecutors and avoid prosecution. In such circumstances, it is undoubtedly pertinent that the witness in question was never charged by the government. …

"Further, even though the defense has not yet received any Jencks material, we are aware that certain potential witnesses have admitted they gave inaccurate information to the grand jury. We are also aware, based on information provided by the government in discovery, that potential witnesses gave testimony that directly conflicts with the testimony of other potential witnesses. The fact that these witnesses have not been charged, but have reason to fear charges, is undoubtedly admissible evidence because it bears on their motives to please the prosecution, which in turn reflects possible bias."

Who exactly does Team Libby have in mind? Catherine Martin? Ari Fleischer? Dick Armitage? Judith Miller? John Hannah? David Wurmser? Or possible Karl Rove?