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Tuesday, November 22, 2005

Pressure Tactic? But Who Is Being Pressured?

Scooter Libby's defense team has hired John Cline, an attorney at Jones Day and an expert in classified information cases, as an additional legal representative. The SF Chronicle has a short write-up on this today, and says:
"This is about as subtle as a sledgehammer to the government," said Robert Weisberg, a criminal law expert at the Stanford Law School. "This suggests they are going to use a very concerted and aggressive strategy."

Although Libby was investigated on suspicions that he or others in the Bush administration might have illegally leaked to journalists the identity of a covert CIA operative, Valerie Wilson, the actual crimes Libby was charged with have nothing to do with the misuse of government secrets.

But Cline's involvement suggests that a defense strategy may be to try to bring large volumes of classified information into the trial to demonstrate the many things Libby was dealing with as a senior national security adviser when he spoke with journalists and later testified to the grand jury.

If Libby's defense can show his thinking might have been obscured by the many sensitive issues he was dealing with, it could potentially weaken the case against him.
I can buy that, to some extent. In a high profile, high stakes case like this, you want to signal to the US Attorney that you are willing to go to the mat, if necessary at the front end. Puts you in a better negotiating position -- you never want to begin negotiations from a point of weakness, especially with an indictment that is as specific as Libby's is.

But here's my question: does a signal that Libby is going to aggressively pursue his case at trial put pressure on Fitz? Or is this a signal designed to perk up the ears of the folks at the White House?

I think you can make a strong argument for the latter, given how badly the politicos allied with the Administration want the whole stench of this to go away as soon as possible, given the already bad poll numbers and horrible implications that a full-blown trial could have for the 2006 elections. Who is Libby really trying to pressure at this point?
The law governing the use of the classified data is called the Classified Information Procedures Act, or CIPA. It sets up strict procedures for attorneys to review classified data with their clients in special rooms and for how the defense can request the disclosure of such secrets during a trial.

The arguments can be critical. If a judge agrees to permit the use of the information in open court, then the prosecutors are faced with having either to allow the disclosure of sensitive government information or to consider dismissing the charges.

"In this case the defense doesn't have to win on every element of their claims, they just may want to scare the daylights out of the government at this stage," said Weisberg.
Yes, but which part of the government? My guess is that Fitzy doesn't scare easily. In fact, given some of the cases he has prosecuted -- Sheik Omar, Osama bin Laden, the Gambinos -- I'd say it is likely pretty tough to scare him at all at this point.

Frankly, he's the premiere terrorism prosecutor in the country, given the magnitude of the cases he's tried. At this point, I doubt threatening him with a flurry of motions hearings on classified information means much of anything, other than another day and another late night at the office. He's clearly already got a pizza delivery service on speed dial, and some spare socks at the office, so what's the big deal for Fitz?

But for Bushie and his cronies? Life is not looking so sweet these days. Their poll numbers are in the toilet and sinking. Republicans who aren't under investigation are outnumbered by those who are these days (or, at least, it sure as hell seems that way, doesn't it -- between Fitz and the Abramoff mess and Delay's indictment?).

Oh, and the strategy to talk about all the classified information on Libby's plate as a means to show how important, distracted and busy he was? Well, that could backfire as a legal strategy in a big way if they open the door too wide for Fitz on cross-examination.

Does Libby and his legal team really want to open the door to Libby's veracity -- and his bosses (both the VP and the P)-- on national security matters? Is that truly the way you'd want to go were Libby your client? Especially given the fact that close to 60% of the American public now thinks the Administration lied to them about...well, just about everything.

By threatening to go to trial, what is Libby really angling for -- and from whom? Dunno, but let me join the "no pardon, no way" chorus. As if it wasn't clear all along that I felt that way, anyway, I just wanted to be on the record.

UPDATE: Reader Mamayaga makes an excellent Occam's Razor point in the comments: "Actually, I'm thinking this might not be an aggressive signal at all, but rather just shoring up the defense for expected new charges of disclosing classified information." True -- why not grab the good attorneys, so Karl doesn't get them?