No Easy Answers

Monday, January 15, 2007

Predictions Relating to the Libby Trial

My off-the-cuff predictions for the course of the Libby trial and following events.

Voir dire - at least the full week of January 15, maybe the full week of January 22 as well. The defense will aim to build an appeal based on inability to obtain an unbiased jury.

Voir dire completed Monday morning, January 22

Prosecution case in chief. This will be loaded with news reports as government witnesses appear, including Russert, Cooper and Miller. However, the meat of the case lies, in my impression, not with reporters and the trading of rumors that circulate among reporters, but with government witnesses who will testify that they told or heard from Libby, "Wilson's wife works at the CIA." Libby will be damaged if the jury thinks he was telling or hearing accompanied with the aura of knowledge with official basis. Karl Rove is a possible surprise witness for the prosecution.

Prosecution rested in the afternoon of February 7, after concluding testimony by Tim Russert, and admission into evidence of some asserted documentary exhibits.

Karl Rove did not appear as a surprise witness. Trial observers on both sides remain in their respective "camps."

Following the prosecution's case in chief, Libby will make a Motion for a Judgment of Acquittal, on the grounds that the prosecution case fails to establish that the alleged lies were material. The Court will rule against this.

I was wrong on this one. The defense asked and obtained that the Judy Miller July 12 event not be required in order to "make" the obstruction charge, but did not make any Motion to dismiss the case or a charge, following the prosecution case in chief.

The Defense will put on its case, which is mostly a memory defense. The "big news" witness will be Cheney. Other witnesses that observers are itching to hear from, Wilson, Andrea Mitchell, Armitage, Tenet, etc. will not appear, as the Court rules that their testimony is not relevant.

I was wrong on parts of this one too, although it might be argued that a "memory defense" was put on by showing the defective memories of all the government witnesses.

The bulk of the defense was a fairly directly challenging of the facts as presented by government witnesses, plus a heaping helping of diversionary testimony that aims to confuse the jury into predicating conviction on finding that Libby was the first or the only leaker.

Also, Neither Cheney nor Libby took the stand.

My prediction that Mitchell, Armitage and Tenet not take the stand was correct. Libby could have called Mitchell as a reporter who did not hear of Mrs. Wilson, Plame (whatever), from Libby, but the defense opted not to call her at all and called a few other reporters instead.

The Defense will again move for a Judgment of Acquittal, this motion on the grounds that no reasonable jury could find for the prosecution "beyond a reasonable doubt," given the powerful defense and tremendous amount of doubt it creates. The Court will rule against this and will give the case to the jury.

This prediction was also wrong. The defense seems willing to let the case go to the jury, rather than argue it is unfit for a jury.

This stance precludes part of the prediction below, the part where defense "renews the arguments previously made."

The jury will deliberate, and will return a guilty verdict. [Add a bit more detail to this, on Feb 20, before the jury is instructed and deliberates. I predict conviction on from 3-5 counts, with obstruction being one. As for which counts he might escape conviction on, I dither between the two Cooper counts, or the two perjury counts (one Cooper, one Russert). In other words, if the jury convicts on three counts, they might be 1-2-4 (not convicting on the Cooper-call Counts) or 1-2-3 (not convicting on the perjury counts)]. I have no cogent rationale for putting the five counts in order of their relative strength.

The jury began its deliberations before noon, Wednesday, Feb 21.
My prediction for returning with a verdict: Monday, Feb 26.

No verdict on Monday, the 26th, so chalk up another "wrong." One juror was dismissed on account of failing to avoid learning about the case via sources other than the courtroom, otherwise the deliberations are moving with virtually no visibility. Absence of visibility naturally causes an increase in speculation. ;-)

Here's a flavor of speculation I haven't read today. The dismissed juror isn't of a different mind from the others - they are all inclined to convict, and maybe have a few counts already chalked up in the "guilty" column. But the jury does NOT want their verdict tossed on account of juror misconduct, they are taking their charge seriously, and are self-policing those who reach outside of the court procedure to obtain validation or a comfort level.

Mind you, that is PURE speculation on my part. I have no reason to believe it - and at the same time, it is just as believable as the other speculations that have been rampant on righty and lefty blogs. I just wanted to join in the fun.


A guilty verdict was handed down on Counts 1,2,4 and 5 at 12:06 p.m Tuesday, March 6, 2007. Judge Walton initially set sentencing for June 15.

Ted Wells is requesting the sentencing be moved to a later date, asserts that he will move for a new trial, and further asserts that if that motion is not granted he will pursue a new trial (of course he plans to appeal the outcome of the trial). He asserts that Scooter Libby is innocent of the charges in the indictment. He doesn't say it, but if Libby is in fact innocent, the conviction is a miscarriage of justice.

The Defense will move to strike the jury's judgement, and to substitute the Court's Judgement, basically renewing the arguments they made in the previous two Motions. The Court will again rule against the defense.

I was all wrong on this prediction too. The defense opted for no post-trial motion, and instead to proceed directly to appeal.

The Defense will appeal the case, asserting multiple grounds for reversal of the verdict - from invalidity of the appointment of the prosecutor to error by the jury, and everything in between. Other grounds asserted for reversal may be: absence of materiality (i.e., failure of the Court to require proof at trial of the CIA referral and/or related material -- disclosure of the status of Valerie Plame as a "classified" agent was limited to ex parte and in camera review at the CIPA 4 stage); errors in Court rulings regarding admissibility of classified material that is essential to the defense (CIPA 6); it was an error for the Court to rule the memory expert inadmissible; defects in instructions to the jury; and failure on the part of the Court to render a directed verdict on the evidence.

I did okay on this prediction. The defense has telegraphed (in it's filings pertaining to remaining free on bail pending appeal) that it will appeal on grounds of defective appointment, exclusion of memory expert, exclusion of classified information necessary to mount a preoccupation defense, and exclusion of testimony by Miller.

I see nothing in the pretrial proceedings that I think represents reversible error. The trial itself presents the possibility of reversible error or mistrial, but it's my sense that Judge Walton will conduct a fair trial, and that there will be no grounds for reversal based on trial conduct.

The Court of Appeals will uphold the verdict of the trial court.

On December 10, 2007, Scooter Libby dropped his appeal, while maintaining his innocence. In dropping the appeal, Mr. Libby's attorney said that the best outcome he foresaw was a new trial. This indicates that the argument, "Fitzgerald's appointment wzs defective (and therefor the entire investigation was bogus)", was not seen as a winner.

This part of my prediction wasn't tested, although the effect is the same. The decision of the lower court stands, with sentence modification being the prerogative of President Bush.

President Bush will pardon Scooter Libby, thereby keeping the issue a political matter and keeping the focus on his administration. The pipe dream of adhering to the principle that the pursuit of justice requires truthful testimony will again, as it was in the Clinton case, be subverted and overpowered by the force of overt political partisanship.

On July 2, 2007, President Bush commuted the prison term portion of the District Court sentence. Part of my prediction then is true, and part of it is false. The "true" part is that the Libby affair remains a political matter, and has added some focus on the Bush administration.

But the commutation was accompanied by a presidential statement that said "[some] argue, correctly, that our entire system of justice relies on people telling the truth," and "I respect the jury's verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive."

So, my cynical prediction -- that the principle that the pursuit of justice requires truthful testimony will be subverted and overpowered by the force of overt political partisanship -- is false. President Bush upheld the principle by direct expression, and by respecting the jury's verdict that Libby did not provide truthful testimony.

P.S. For those readers who are wont to jump to false conclusions, none of the above represents my support for those liars Wilson, Russert and assorted reporters; or for the theories of various pundits and conspiracy theorists.

P.P.S. For those readers who spot technical errors in my terminology, I said this was off-the-cuff. It represents my quick, summary take on what represents the most vigorous defense that money can buy.

P.P.P.S. For those readers who predict my speculation is wrong, well, the nature of prediction and speculation includes a possibility of being wrong. Here's a bonus prediction that I can be wrong about. I still see a possibility of a plea bargain (less than 10%), albeit that prospect is fading fast.

Nice job.

Regarding the defense case:

I'd say that Libby put on a materiality defense:

(a) Libby believed that the investigation was attempting to find who leaked to Novak (that is, who caused classified information to be disseminated broadly).

(b) Libby demonstrated he didn't leak broadly through cross of Cooper and Novak and testimony of most other reporters to whom he spoke.

(c) Libby demonstrated that Armitage leaked first (to Woodward) and best (to Novak).

So, how could any mistatement by Libby be material to the purported purpose (as opposed to the reported (1x2x6) purpose) of the investigation?

Regarding predictions:

I agree it won't work with the jury. (I'm currently predicting conviction on perjury-Russert and obstruction).

I see Libby winning a new trial (probably on submission of articles with no indicia he had read them for state of mind and exclusion of briefing materials for the same purpose after undisputed testimony he had reviewed them and that they were the focus of his attention).

I see no pardon prior to the conclusion of appeals. And given Bush's reaction to his father's Presidency, I'm not certain he will pardon Libby.

If, however, he chokes on a cracker (more deadly than pretzels, they are), Cheney will pardon him soon after taking the oath of office.

^_~ ~_^

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