No Easy Answers


Tuesday, February 20, 2007

Comments on Libby Trial Closing Arguments

    Closing arguments have a way of crystallizing the difference between opposing sides. Ted Wells laid it all out in several sentences, paraphrased here by Marcy Wheeler ...

I also told you this was a case about he said she said. Case about different recollections between Libby and some reporters.

There is no charge in this indictment about Libby's conversation with Grossman, Fleischer, Martin -- that's all background evidence. In terms of what you have to decide as jurors, it relates to Libby's conversations with reporters, Set forth in detail in the jury instructions. Those are the charges.

    As I've pointed out ad nauseum, it's to the defense advantage to make this case about conversations with reporters, and ONLY about conversations with reporters.

    But as the indictment goes, the prosecution aims to charge Libby with lying to investigators about the extent of, or presence of (or absence of, as Libby asserts) knowledge that Mrs. Wilson worked at the CIA, where that knowledge came from an official source. Libby said he had no recollection of having ANY official source for such knowledge, he forgot his talk with Cheney, for example. The only source he remembered, insists he, was reporters (my off the cuff paraphrase).

    And so, it is a powerful defense to continue to make this entirely about the reporters, he-said/he-said between reporters and Libby, and to convince the jury that nothing further, nothing outside of the conversations with reporters need be reviewed. The conversations with others? Mere background.

    But Ted Wells is wrong. The charges in the indictment are very much, in fact MOSTLY, about conversations with Grossman, Fleischer, Martin, et al. Wells is skillfully manipulating perception. Reporters can be made to appear to be singularly central to the guilty-innocent decision, because Libby's alleged lies came out in the form of his descriptions of his conversations with reporters. The structure of the charges in the indictment (having information ONLY from reporters) reflects Libby's testimony - not the alleged "true facts" as set out by the prosecution.

---===---

    Wells is impeaching Russert, and will easily plant the thought that Russert could have told Libby. See, again, making the narrative all about the conversation with reporters, and not about whether or not Libby attempted to deliberately mislead investigators to the conclusion that Libby had no recollection of an official basis for knowing Wilson's wife worked at the CIA. Wells is setting up a strawman, one that is easy to craft reasonable doubt around.

I'm going to talk you through this, most important testimony in the whole case. The govt's timeline is wrong. Came out on AP wire, by 2:00 on July 11, if you lived in the world of media, you could get access to it, people could call you, talk about it.

    The strawman being, that if Russert knew (that Wilson's wife worked at the CIA, by reading the Novak piece on the wire on July 11, or by hearing from Mitchell) at the time of the Libby conversations, then Libby's version of the conversation may be correct. Fine, as far as it goes.

    But even if Libby's version of the Russert conversation is correct, Libby's denial of recall of all his knowledge via non-reporter channels (unless he honestly forgot all of that) would still amount to an attempt at obstruction.

    The opposing sides are arguing two different cases, just as the amateur observers have been since the indictment was handed down. And the grounds of argument at closing, at the end of February 2007? They are exactly the same grounds taken by opposing sides at the end of October, 2005. The defense holds firm that the case is nothing more than he-said she-said between Libby and reporters. The indictment and the prosecution say otherwise.

---===---

    Parts of Jeffress's closing argument are much much more persuasive than Wells's. He challenges motive, memory, and (not that I agree with the argument as an excuse for lying, but quite a few people do) there's no evidence that Plame was covert. Just the same, he is more focused on what reporters knew (from the rumor mill) than on debunking the evidence adduced from government witnesses. His delivery also has a tendency to cause the listener to think in terms of "Did Libby leak?" rather than "Did Libby lie?" He spends considerable time on memories of Cooper and Miller, again tending to make the case into a he-said she-said between Libby and reporters.

---===---

    The disconnect between defense and prosecution is real, and it is stark. A trial observer reports an exchange at the courthouse ...

We were released for lunch after Wells's first presentation. In the elevator, a man from the peanut gallery asked my friend and me what we thought of Wells's closing. My friend and I remarked that we thought he did a fantastic job. The guy was utterly perplexed: "But he didn't address all those 8 or 9 people that the Prosecution had listed in his closing!"

    The defense did address those 8 or 9 people, but in a tangential way rather than directly. The defense used their imperfect memories to impeach their testimony, and as "memory parallels" to lead the jury to have a reasonable doubt that Libby remembered that Mrs. Wilson worked at the CIA. Neither connection is logically valid.

    However, the testimony of one CIA briefer rested entirely on his notes, making his memory irrelevant to the evidence he brought to the trial. And Cathie Martin clearly recalled learning, clearly remembered "Wilson's wife worked at the CIA," and clearly recalled telling Libby this fact. Her memory, while imperfect in other regards, honed in on and retained the "Wilson's wife at the CIA" fact - and that she shared that fact with Libby.

    The case soon goes to the jury. Whatever their ultimate conclusion, I bet that the group will break down on exactly the lines described above, where some jurors will be inclined to think in narrow terms of accuracy of accounting for the contents of Libby-reporter conversations. Others will get to the question posed by the indictment - was Libby telling the truth when he insisted that the only memorable contact he had, was his contact with reporters?


Comments:
I think you are right regarding where the defense wants the jury to be looking. I don't think they were able to get the job done.

Zeidenberg did a very good job of showing how and why the testimony of the government officials is critical to understanding that Libby did not learn as new on July 11th.

You've heard witnesses testify, you've heard witness after witness, you've heard them testify about one or another conversation with Libby about Valerie Wilson during the time period that Libby claimed he had no memory of Wilson's wife.
EW at Firedoglake


I also thought Zeidenberg was very efective at knocking down the Libby has a terrible memory defense (which seemed to me to be poorly presented).

Polly
 
Good job. I agree that even after the reporters are washed away by reasonable doubt, there is still the puzzle that Libby claimed not to rememebr hearing about Plame from Cheney even *after* talking to Russert.

Bonus Query - Libby must have been a pretty busy guy - he gets that bombshell from Russert and then does - well, not much except chat with Rove. Wouldn't it be a bit more natural to double-check that? It does seem like a great answer to the question of who sent Wilson? Yet not calls to State, or the CIA, or anyone. Seems odd.
 
Ok
 
Lets say that Fitz is right ...Dirty Dick Cheney went after poor Valerie Plame by sending his "henchmen" out to do the job of telling the press that she is a CIA operative and she sent her husband to Niger and not Dick Cheney.
Then they did a pisspoor job because Armitage beat 'em to it...he's blabing like crazy . So it comes time for the dastardly coverup. Everyone gets the memo but Scooter to cooperate and make a deal with Fitz....(hes giving out deals like a used car salesman) But Scooter,a lawyer says I guess I'll lie to the Grand Jury so I dont get in trouble. ....It makes no sense, all he has to do is say "my Boss did it" ...he's off the hook,(dont tell me he cant get a plea bargain for that)He gets to write a book and make millions...But no, according to Fitz ,he says I will lie like hell,and protect Dick Cheney and Karl Rove and Bush etc.Moonbats need a course in psychology 101.
 
'...he gets that bombshell from Russert and then does - well, not much except chat with Rove. Wouldn't it be a bit more natural to double-check that?'

Well, he apparently never put much stock in the info. Cathie Martin couldn't remember him having any reaction at all when she told him. Nor Grossman, Grenier, Schmall.
 
Her memory, while imperfect in other regards, honed in on and retained the "Wilson's wife at the CIA" fact - and that she shared that fact with Libby.

Or she misremembered, and never told him anything. (And her memory was jogged, more than a month later, by news reports that it was a big deal.) How can one know?

Zeidenberg did a very good job of showing how and why the testimony of the government officials is critical to understanding that Libby did not learn as new on July 11th.

That's not really the issue, however. The question is whether he could plausibly have remembered it that way when trying to recall it three months later. (Since, of course, the moment of learning of Plame's identity would have been seared into his memory . . . or perhaps not.) And sorry, but if that was supposed to be the only possible conclusion one could draw from the evidence presented, I think the prosecution failed miserably to prove its case.

Bonus Query - Libby must have been a pretty busy guy - he gets that bombshell from Russert and then does - well, not much except chat with Rove. Wouldn't it be a bit more natural to double-check that?

Why is it a bombshell on July 7-12? Does it really add to their talking points? (And if so, why didn't they write it in on any of the iterations of that document?) They already had Tenet saying CPD sent him, so it's hard to see what "his wife" adds . . . except a gossipy tidbit, not really suitable for pushback.
 
However, the testimony of one CIA briefer rested entirely on his notes, making his memory irrelevant to the evidence he brought to the trial.

Isn't that because he couldn't remember the conversation himself?

If he couldn't remember it correctly, why should we expect Libby to?
 
"the only memorable contact he had..."

The operative word is memorable. We're I the defense attorney, I'd make darn sure to separate the different "thens" -- pre-Russert, Russert, and GJ-investigation -- because Plame was unimportant, surprising, and only after the fact central.

Then I'd say "Libby's an attorney experienced with grand juries and no fool. He knows enough not to risk all fibbing during eight hours of grueling, repeated cross examination."

Then I'd parade how the investigation shows Fitz and the FBI contrived a mission from God to get Libby on the way to Cheney -- and he still wants to misuse this jury to get there.

Gee. Did I just run afoul of Walton?
 
Here, let's make it simple: please name one prosecution witness who you thought was a good, solid, anti-Libby witness.

Here's what I would consider a "good, solid anti-Libby witness":

1: No memory problems. Which includes:
A: No changes between testimony to FBI or grand jury, and testimony to court.
B: No learning things from notes that (s)he didn't recall without them.
C: No other witnesses disputing their accounts.
D: No ridiculous "I can't recall"s.

2: Now that we've eliminated all the press witnesses, a small little hurdle for the gov't briefers: Some contemporaneous indication that Libby actually thought the information about Wilson's wife was important.

Those are the things I would need to convict someone of perjury. Have they been provided?
 
"But even if Libby's version of the Russert conversation is correct, Libby's denial of recall of all his officially-based conversations (unless he honestly forgot all of them) would still amount to an attempt at obstruction."

Is it reasonable to expect Libby to remember a trivial detail (Wilson's wife) mentioned in conversations about Wilson's trip?

No, especially when Russert couldn't remember his TWO phone calls complaining about the negative story.
he gets that bombshell from Russert

How was it a 'bombshell'? Libby KNEW the VP's office didn't send Wilson, and Plame only recommended him.

And BTW if you believe (despite reality) that Wilson's wife was a big deal, then why hasn't Rove been indicted for revealing her status? The VP's office would be expected
to learn who she was while investigating the trip and discuss it with others. Why would Rove have any reason to talk to reporters about her?
 
If I were on the jury, I would be wondering why Rove wasn't called to confirm Libby's statement that he told Rove he had just "heard it from Russert."

Rove's testimony could have helped convince the jury that Russert was lying.

But since Rove wasn't called, perhaps that's NOT the way it happened at all. I have a feeling that this was indeed a story concocted in the belief that no journalist would ever be forced to testify.
 
If I were on the jury, I would be wondering why Rove wasn't called to confirm Libby's statement that he told Rove he had just "heard it from Russert."

The prosecution has talked with Rove, yes?

Think the prosecution would have called him to testify if he denied that conversation?

I do.
 
One last thought:

Assume you're trying to discredit Wilson to the press (who, being left wing themselve, sympathize with him). Rank the utility of these statements:

1: Wilson lied. The report he submitted supported the contention that Iraq was attempting to get Uranium from Africa.

2: Wilson lied. The OVP had nothing to do with his trip (it was put together by the CIA at the request of teh State Department), and we never even saw his report.

3: Wilson's wife, who works at the CIA, is the one who got him sent on the trip.

So, if you're Libby, which facts are you going to focus on? Which are you most likely to remember? #1 (which is a crushing blow to all Wilson's BS), or #3 (which only matters once you're already anti-Wilson)?
 
My guess is that the memory expert would have provided a framework for assessing our abilities to recall this type of information. My own surmise is that the memory functions on the basis of associations and creation of a "story" in our minds: a story once formulated is hard to reformulate. I think the issue with Russert is partly driven by the fact that Wilson appeared on Russert's show - though not when he was host. If Libby had a general sense that Plame had sent Wilson then it is a small step to attribute to Russert the same general information and generate a "story" about the whole Wilson episode being distorted by the media even though they knew that Wilson was a liar and a narcissist.

Plame is not really important to the issue that the WH was battling. As Greg above pointed out, the real issue was Wilson's conscious and deliberate lies about who sent him and his misrepresentations of what he found in Niger.
 
was Libby telling the truth when he insisted that the only memorable contact he had, was his contact with reporters?

Wrong formation.

Four months later is it possible that the only discussions about Wilson's wife Libby recalls were with reporters.
 
Here's the part from Zeidenberg's summation that I find convincing.

Consider how amazingly sharp the details are? Libby can remember 8 months after, every detail of conversation that Rove had with Novak and what Novak told Rove, but he can't remember out of 9 conversations that he himself has about Wilson's wife, bc it's a trivial detail? The same trivial detail he learned from Rove, and yet he can remember it with no difficulty and no notes.

When you consider Libby's testimony, there's a pattern of always forgetting about Wilson's wife. He remembers Ari conversation, talk about future, Miami Dolphins, Remembers the Dolphins, doesn't remember talking about Wilson's wife. Remembers talking about NIE iwht Judy. Not abotu wife. Remembers talking about declassification with Addinton, but not the wife. Convenient pattern. Is that purposeful.
EW at Firedoglake


I'd like to hear your take on the prosecution summation.

PS I hope you don't "wipe out the editorial". I think your editorial is on the money, and I want it in my bookmarks for reference.
 
Tom,

Yet not calls to State, or the CIA, or anyone. Seems odd.

I don't it's known if Libby attemped to make inquiries after he "learned from Russert"?
 
The question of Plame's "covert" status, or not, seems to me to hang over the entire question.

If Libby thought she was covert, he'd maybe be motivated to lie about saying something. If he was pretty certain she was not covert--him knowing anything about her at all meant her cover wasn't very good and perhaps didn't exist because she didn't need it--then mentioning her wouldn't be a big deal and there'd be no reason to fudge about it.
If he thought she wasn't covert and then heard she was, in the MSM's attempt to make hay, he's enough of a lawyer to know that he was innocent because the law requires intent.
So Plame's status goes to motivation and making the case that she was no more covert than the janitor would remove motivation.
 
It occurred to me today that part of the perspective difference comes from each side having different "facts".

The right remembers that Wilson reported that an Iraqi trade delegation had gone to Niger, and that the trade minister who Wilson talked to thought that the Iraqis had come to see if they could get Uranium from Niger.

IOW, the right knows that Wilson's NYT Op-Ed was a complete fraud. Thus

1: All you had to do to discredit him was point out the facts.
2: Since he's a lying sack of dog dung, discrediting him is a good, right, and proper thing to do.

For the left, however, he's St Joe Wilson, and therefore any attempt to discredit him must be dishonest, and sleazy. Libby was trying to discredit Wilson, therefore Libby must be dishonest and sleazy.

If you're allowed your own "facts", then the left's position makes perfect sense, and it's impossible to believe that Libby would have forgotten about "the wife".

If instead of being "reality based" you actually operate in the real world, then you're not allowed your own facts. And in that case, it makes perfect sense that Libby focused on the important details (Wilson's lies), and ignored the unimportant ones (like who it was in the CIA who picked him).

And thus we get our different perspectives.

BTW, I take it, from the lack of response to my query, that the prosecution didn't have any witnesses that met my (rather basic) standards for credibility. That's what I thought. Or does someone want to point out a gov't witness I missed?
 
Greg, I would agree that everyone shades the facts the way they'd want them to be shaded.

However, I don't get all of the second-guessing before any verdicts are rendered.. Presumably, the prosecution put on the best case they could, as did the defense. Neither side had to meet your arbitrary criteria for their witnesses. When the jury comes back with a verdict or verdicts, we'll all find out which side presented a better case.

I'd also add that the prosecution tried to make the case that attacking Wilson by outing his wife *was* very important to Libby. If they can convince the jury of that remains to be seen.

Let's see what happens...
 
Neither side had to meet your arbitrary criteria for their witnesses.

So, what's wrong with my criteria? Or is it just that you have to admit that none of the prosecution witnesses meet them?

Libby had to make his testimony w/o being able to review the other people's notes. And he is being prosecuted based on what he said to the FBI, and to the Grand Jury.

So, if the witnesses couldn't remember what they said to Libby w/o looking at their notes, why should we expect Libby to remember it? If we can't, then you can't (legitimately) charge him w/ perjury for not remembering.

If teh witnesses testified one thing to the FBI, and another thing to the Grand Jury, why in the world would we believe either? Most importantly, why would you fail to give "the benefit of the doubt" to the defendant in that situation?

The jury is going to make their decision. Whatever decision they make, we are entitled to make our own. Given the piss poor quality of the prosecution's case, why would any honest person think Libby deserves to be convicted?
 
Greg: -- what's wrong with my criteria?. --
.
In general, your criteria reject testimony unless it is based on recollection, perfectly credible in every detail. But no memory is perfect. All evidence has some degree of uncertainty associated with it. And not all details are important to the ultimate conclusion the jury is asked to find. An objective finder of fact will assign appropriate weight to each piece of evidence, and will judge the credibility of each memory recollection.
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An objective person will apply the same criteria to qualify prosecution and defense testimony alike.
.
If testimony is dismissed because of conflicts, the result is to dispose of the trial, because the very point of a trial is to choose between conflicting sets of evidence. A simple-minded defense advocate might argue purely from the presumption of innocence, discounting ALL the evidence, and proclaim "There is no evidence, therefore there is no guilt."
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It's plain error to reject a note just because there is no present recollection of composing it.
.
The jury has a fairly complex analytical chore in front of them. They are asked to be open minded, and to avoid playing the role of a biased advocate. I've yet to read an open-minded analysis of the various witness's testimony. The writers persist in the role of adversarial advocacy, using the same rhetorical and logical cheats that accompany presentation of the evidence.
 
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