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Thursday, February 23, 2006

The Team Libby Tap Dance, Part I

There is quite a bit of tap dancing from Team Libby -- and it has made for some interesting reading. I'm going to break this into two or maybe three posts today, because there is a lot of ground to cover between the news on the latest response filing and other courtroom matters, the actual filings themselves, the NIE revelations of "my superiors told me to do it" and the latest maneuvering from Dick Cheney to pass the responsibility buck, and the Scooter Libby defense fund bonanza.

Let's start with the latest news on the response filing. Carol Leonnig in the WaPo goes over the Team Libby filing and pulls out a few bits -- most of which we discussed yesterday here. In any case, Leonnig does get some new insights -- most likely from someone close to Team Libby (Barbara Comstock, is that you?):
Vice President Cheney's former chief of staff was so consumed with pressing national security concerns in 2003 and 2004 that he undoubtedly forgot details of conversations he had about undercover CIA operative Valerie Plame, his defense lawyers argue in new court filings.

Attorneys for I. Lewis "Scooter" Libby insist they need hundreds of pages of classified daily briefings prepared for President Bush to show that Libby did not intentionally lie about discussing Plame with reporters, as prosecutors allege. They contend that he was preoccupied with more serious matters when the conversations took place and when investigators questioned him months later.
While this is no doubt a lovely restatement of the filings by Team Libby, what Leonnig fails to inform the public of is that federal law enforcement officials and US Attorneys always (and I do mean ALWAYS) give the same litany to suspects who are being interviewed, deposed or subpoenaed for testimony.

It goes something like this: "You are only to tell us the truth as you know the facts. Do not speculate. Do not state your opinion. Only give us the facts as you know them to be true, and only the facts. If you do not know the answer to a question, please say 'I don't know.' Do not try to come up with an answer -- I would rather you tell me you don't know something if you truly do not know it. If you make a false statement, you can be charged with a crime. Do you understand?"

See Matt Cooper's description of his testimony to the Grand Jury for more on how Fitz handles this with Cooper:
Fitzgerald counseled me that he wanted me to answer completely but didn't want to force any answers on me or have me act as if I remembered things more clearly than I did. "If I show you a picture of your kindergarten teacher and it really refreshes your memory, say so," he said. "If it doesn't, don't say yes just because I show you a photo of you and her sitting together."
Witnesses have an affirmative duty to be truthful in statements made to federal investigators and grand juries. And they are informed of this, before they ever open their mouths, by federal investigators, US Attorneys and their own defense counsel -- repeatedly. Often, if you have a witness on the stand before the Grand Jury who is hesitant in answering a question, the prosecutor will again remind them of this duty, prompt them that if they are not certain, that they should say so and not try to just come up with an answer -- I've done that an number of times with witnesses whose memory was just not rock solid. You want the truth, not some embellished story -- and witnesses are reminded of that fact repeatedly.

Anyone who has spent time doing criminal defense work or prosecutorial work (or even police work) has seen grand jury transcripts and interview transcript that are littered with "I don't recall." or "I'm sorry, but I just don't remember." or "I'm not certain about that, sorry." Which is exactly what you want as a law enforcement person -- better to be honest than wrong.

The fact that Libby chose to answer as he did with false information -- repeatedly -- speaks volumes to me, and no doubt to Fitz and his entire team.
In announcing Libby's indictment last October, Fitzgerald accused Libby of displaying a detailed but selective memory with investigators. Libby told prosecutors he believed he learned that Plame worked at the CIA from NBC reporter Tim Russert in a telephone call in July 2003. But he forgot that Cheney had actually told him that information the previous month, and that three days before the Russert call, Libby passed it on to then-White House press secretary Ari Fleischer.
Yep, sure sounds like his busy job made him do it, doesn't it? *snerk* Color me unconvinced.

Leonnig also throw in this bit at the end:
Today, defense lawyers are also expected to file a motion asking U.S. District Judge Reggie B. Walton, who is presiding over the case, to dismiss all charges against Libby. On Friday, Fitzgerald and the defense attorneys are scheduled to argue at a court hearing whether Fitzgerald should have to provide Libby with classified material and information about reporters and administration officials questioned in the investigation.

Libby's trial is scheduled to start in January 2007, but many legal experts predict that legal battles over such questions could delay it.
A motion to dismiss charges is a standard defense motion -- you have to file it on behalf of your client at several points to protect their interest, to argue on their behalf any points that you think support this motion, and to preserve the motion on the record for the purposes of appeal, should your client be convicted.

At this stage, such a motion is rarely if ever granted -- especially with the amount of issues in controversy still to be decided with regard to factual arguments in this case -- so this is not something of concern for me. I thought the non-lawyers out there would appreciate some insight on this, though.

I will keep an ear to the ground regarding the hearing on Friday. Most likely what it will consist of is some argument on the motions and briefs filed thus far and, as a status conference, some detailing as to how disagreements over classified discovery will be resolved and how the judge will handle his own review process of the documents.

It's a standard sort of procedure to have the judge look at documents in dispute and determine relevency -- and, in this case, Judge Walton has requested additional staffing due to the sheer volume of documents that Team Libby is asking for that will have to be reviewed, so perhaps we'll find out if that staffing request has been granted or not on Friday.