Will I. Lewis Libby Testify?

" …. appellate judges are less likely to overturn jury verdicts if the jurors had seen the defendant testify and concluded he was lying on the stand." – Hurricane; James Hirsch; pages 153-154.

Late yesterday, Team Libby filed a "Brief of Defendant I. Lewis Libby on Admissibility of State of Mind Evidence Without Defendant’s Testimony" (Document 264). At issue is if Judge Walton will allow the defense to enter into evidence the same amount of supporting evidence, regardless of if Scooter takes the stand, to prop up their claim that "any misstatements he made were the result of confusion, mistake, or faulty memory, rather than deliberate lies." (Doc.264; page 1)

"We emphasize that at this point Mr. Libby has not decided whether he will testify," they write. "He will make that decision, as defendants customarily do, on the advice of counsel after having the opportunity to assess the full prosecution case and other evidence presented during the defense case. …. In keeping with the pretrial notice requirement of CIPA 5, the Court and the parties assumed during the CIPA proceedings that Mr. Libby would testify. But as we demonstrate below, that assumption does not mean that evidence of the matters commanding his attention will be irrelevant if he ultimately exercises his right to remain silent.

"1. At the outset of the CIPA proceedings, defense counsel observed that it was ‘very likely’ Mr. Libby would testify but did not commit to such testimony and noted that aspects of the memory defense might be presented through cross-examination of government witnesses and through defense witnesses. … The Court as well has recognized the possibility that Mr. Libby might not testify. …. for example, the Court declared that ‘the defendant will therefore be permitted to introduce documentray proof or testify with some degree of detail, if he chooses to testify, about the events and activities he was engaged in during those relevant time periods. …"

It is interesting to note that while the prosecution’s case has remained focused on proving the specific charges against Libby, the defense’s tactics tend to shift. First there was the idea that it was a matter of a few people remembering things differently: perhaps Mr. Russert was the one who "misremembered" the conversation with Scooter. As the prosecution made clear that there was overwhelming evidence that Scooter had known about Plame’s identity long before his conversation with Russert, Team Libby shifted to a "memory defense." Shortly after Judge Walton rejected the defense’s memory "expert," it was announced they were planning to call VP Dick Cheney to testify for the defense.

In their "Proposed Theory of Defense Instruction," the defense attorneys claim, "Mr. Libby denies that he intended to or did obstruct justice, make intentionally false statements to the FBI, or make intentionally false statements to the grand jury. He contends that he told the FBI and grand jury his honest recollections at the time, and to the extent any of those recollections were incorrect, his mistakes were innocent." (Document 249) In theory, that is a valid defense. And even if we know that Scooter is guilty on all of the charges he is faced with, we appreciate that he has the Constitutional right to a fair trial – including putting on as strong of a defense as possible.

Scooter has the right to have his attorneys put on that defense, even if he decides not to testify. But it seems clear that, if it were true that "any conversations he had about Ambassador Wilson’s wife during June and July 2003 were so brief, and the information so incidental to the issues he was dealing with, that he honestly did not recall them when he was questioned about them," he would want to get up on that witness stand and look the jurors in the eye, and tell them the truth. It would seem that his attorneys would want him to, also. If the prosecution’s case were so weak that they did not feel he needed to, it would be one thing. But few people think that Mr. Fitzgerald’s case can honestly be described as "weak."

Thus, it seems possible that the strength of the case Mr. Fitzgerald is presenting is what troubles Team Libby. I suspect that it may be the decisions Judge Walton made yesterday about the Libby tapes and the newspaper articles, that are the most significant factors. Let’s again look at what Team Libby state in Document 249: "Mr. Libby further contends that when the investigation began, he was confident that he had not provided any information about Mr. Wilson’s wife to Robert Novak, and that he had not disclosed classified information about Mr. Wilson or his wife to any other reporters."

"The day of his interview with the FBI, I. Lewis ‘Scooter’ Libby hand-marked copies of two Washington Post articles about the breadth of a criminal-leak investigation, and underlined were key passages suggesting any official who told reporters about a CIA officer could be in legal jeopardy …. Government prosecutors argued that the October 2003 articles show Libby … had a motive to lie about his secret conversations with reporters and knew he was in potential trouble," wrote Carol Leonnig in a 2-4-07 Washington Post article. (Prosecutor: Libby kept articles on leak risks)

The significance of this is apparent when added to Scooter’s grand jury testimony. Team Libby had argued to keep "any portion of the transcript other than those that reflect the false declarations with which the defendant has been charged" from being admitted into evidence. However, as Mr. Fitzgerald noted in the Government’s Memorandum of Law in Support of Admission of Complete Transcript of Defendant’s Grand Jury Testimony," Team Libby did not cite any cases "in which the Court has precluded the government from introducing the complete transcript of a defendant’s grand jury testimony in support of perjury charges."

Mr. Fitzgerald noted that "the defense has indicated that it intends to contest the materiality of the charged false declarations by arguing that the focus of the grand jury’s investigation was the leak of information regardingValerie Wilson’s employment to Robert Novak, rather than leaks to other reporters (or that the defendant believed the scope of the investigation to be so limited),…." Team Libby wants to argue that Scooter didn’t tell Novak – that it was Armitage and Rove. But, Mr. Fitzgerald notes, "The government is entitled to demonstrate through all of the questions asked of defendant that the scope of the grand jury investigation included: (a) identifying all individuals involved in leaking information concerning Ms. Wilson’s employment to any reporters; (b) determining the circumstances under which information regarding Ms. Wilson'’ employment was learned and leaked by such individuals; and (c) determining whether false information was provided to the FBI or the grand jury. ….

"Second, admission of the complete transcript is necessary in order to establish that the defendant made the charged false declarations under non-coercive circumstances, and in response to careful. Thorough, and fair questioning. …

"Third, in light of the defendant’s planned ‘memory’ defense, it is critical for the jury to have an opportunity to assess the quality of defendant’s memory as reflected in his testimony throughout both grand jury appearances. …."(Doc. 231)

The new Team Libby filing indicates that it is possible the defense will not call Scooter to testify. They note they will, regardless of if he takes the stand or not, attempt a memory defense. That will include providing information in three areas outlined in the document: (1) the "statement admitting relevant facts" made by the government, which was the substitution(s) made by Mr. Fitzgerald that were allowed under CIPA; (2) testimony by persons Libby worked with; and (3) the morning intelligence briefing materials.

They write, "Mr. Libby also proposes to present testimony from persons with whom he worked closely at the OVP. Those witnesses -–potentially including Vice President Cheney and one or more of Mr. Libby’s then-deputies – will testify, based on personal knowledge, that certain national security matters consumed Mr. Libby’s attention during the period at issue."

Will Team Libby call Scooter to the stand? Or will they advise him to sit quietly? Perhaps more interesting, will Team Libby call VP Cheney to testify about his "personal knowledge"? It’s going to be interesting to see how this all plays out.