firedoglake Archive Site

A Word on Pre-Trial Motions

Before your client goes to trial, there are a number of items that have to be done to protect your client's rights, to be certain that you have all of the information you need to defend him from the charges he faces...and to cover your ass you have to do them all or you worry about being sued for committing malpractice for inadequately representing your client's interests.

Today, we see that the Libby defense team has filed a motion to require a determination that Plame was, in fact, a "classified" employee of the Central Intelligence Agency. They argue that the answer is not yet clear ---well, of course they do.

Plame's classified status would be an element of any further legal action for Libby, should charges of IIPA or Espionage Act or Conspiracy be filed down the road. No attorney worth anything is going to concede that fact unless and until they are forced to do so. And of course they are going to try and force the government to produce documentation on this fact...because in those documents might be other information that can be used to muddy the waters.

Attorneys for Vice President Cheney's former chief of staff urged a court yesterday to force a prosecutor to turn over CIA records indicating whether former CIA operative Valerie Plame's employment was classified, saying the answer is not yet clear.

The defense team for I. Lewis "Scooter" Libby also asked that the court require Special Counsel Patrick J. Fitzgerald to turn over any informal assessments conducted by the CIA to determine whether the leak of Plame's identity in July 2003 damaged national security or agency operations.

Oh, look. We have the throw spaghetti at the wall and see what sticks defense maneuver!

Sure, whether or not Plame was classified is an important point. But, well, in my mind, that was kind of resolved when the CIA filed its initial request for the DoJ to look into her disclosure to the press -- you know, the one where they asked for action based on their employee having been classified?!? But, what do I know...I mean, you can't expect the Director of Central Intelligence to know who may have been on the NOC list or anything, now can you? (/end sarcasm)

You want more evidence that we have a spaghetti defense going on? How about this:

The defense said it also is seeking records of daily briefings from the Office of the Vice President to show that Libby was immersed in national security matters from dawn to dusk every day.

"These documents are material to establishing that any misstatements he may have made were the result of confusion, mistake and faulty memory . . . rather than deliberate lies," according to the papers.

Awww, poor Scooter Libby. His job was hard, and he got confused and called multiple reporters to plant a deliberate story about a covert operative who just coincidentally happened to be married to Joseph Wilson who pissed off the boss, Darth Cheney, by saying that Cheney and his fellow war-aggrandizing cronies were lying sacks of dung.

Apparently, it was an accident that Libby compiled a notebook full of information on Wilson. It was an accident that he expressly called Judy Miller numerous times to chat with her about Wilson's wife, let alone all those other pesky reporters, fellow Administration employees and WHIG members to whom Libby bared his soul about the pain of Wilson being married to a NOC. (Never mind that this isn't the sort of information that you just share around the water cooler, even if the water cooler is in the West Wing.) It was a complete coincidence that Scooter Libby opened his mouth and lies fell out. Just a coincidence, that's all.

But the biggest thing about pre-trial motions to keep in mind is this: attorneys file them, because they get paid by the hour to do so. It's their job to think of every potential contingency that might be a chink in the other side's armor and, even if they think it has a snowball's chance in hell, to file the motion anyway in triplicate. (Did I mention the getting paid by the hour thing? The CYA against a malpractice claim? Yeah, I thought I did.) You don't protect your client by sitting on your hands -- you file motions, you make a paper trial so that you have a record for appeal later when your client has been convicted.

Scooter hired good attorneys. They are going to protect his rights and file all the appropriate motions. Because that is what attorneys do for a living. Attorneys file motions all the time -- on every subject that might even be tangentially related to their client's interest.

But that doesn't mean they have any real chance of winning those motions. That's a scooter of a different color altogether.

NOTE: Just to clarify, I'm going to pull this up from one of my comments responses to be sure people understand what I'm trying to say here. I'm only on my second cuppa coffee this morning, so perhaps it wasn't clear enough above, so I'll take another stab:

[T]here is always a flurry of motions. That was the point I was trying to get across. I've gotten so many panicky e-mails from people lately "OMG! Libby's team filed a motion! What does it mean?" -- thought I'd try and explain that there are ALWAYS motions. It's what lawyers do -- that's their job. They have to make a record, even filing the obvious clunkers, just in case of conviction to preserve the issue for appeal.

But the fact that a motion is filed on a particular issue doesn't mean squat in terms of whether the motion is actually an issue that merits further exploration -- it simply means that the lawyer is making a paper trail.

All this to say, there are going to be a lot of motions in this case. And in every criminal case. Because that is what lawyers get paid to do when they represent their clients -- file motions, protect issues, raise questions, posture, poke holes, whatever -- but filing a motion and winning a motion are two very different things. That's all.

posted by ReddHedd @ 2/01/2006 06:25:00 AM