No Easy Answers


Wednesday, March 07, 2007

Libby Trial Pleadings Archive

I never intended this space to focus exclusively on the Libby trial, but for whatever reasons, it took on being primarily a Libby-case pleadings presentation site.

If you're interested in retrieving the Libby-case pleadings, bookmark this: Link to Libby Trial Pleadings.

I'm apt to edit that page (as opposed to making entries at the top of the blog) as the grounds for retrial are asserted and argued, the issues on appeal are clarified, etc.


Comments:
Could you address the materiality issue in the Libby indictment? If the prosecutor knew all along that no leak crime had been committed, was Libby's testimony material? How would Libby address that now-- is that material for appeal, or did he lose his chance because he didn't make a motion to challenge the indictment on those grounds?
 
I spent quite a few moments discussing materiality on Free Republic and at Just One Minute. I'd guess a total of 20-50 posts over a period of 15 months.
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One post at Just One Minute
One post at FreeRepublic
"Index" to my FreeRepublic Posts
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If "the system" is designed so it must overlook lies for want of being able to prove the underlying crime, it would create additional opportunity or incentive for targets of an investigation (and witnesses as well) to risk lying.
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The defense never made a direct challenge on materiality grounds, which would have required them to assert that the questions asked by the investigator were immaterial to the investigation of "who leaked?" The defense did attempt to obtain a not guilty verdict on the unstated "no harm, no foul" theory. The question of "materiality" will not appear in the motion for retrial or the appeal brief.
 
Thanks. Your point is good that even if an investigation is inconclusive at time T, and forever after too, it is important that anyone who lies at time T ought to be punished; his lie is material.

That is what everyone would have thought a year ago. But now, we discover that the investigation was not inconclusive when Libby was indicted. Rather, Fitzgerald knew then that it was Armitage who leaked, and, presumably, whether Valerie Plame was covert and whethe the statute was violated. Not knowing this, the defense couldn't challenge on materiality back then. Can they now?
 
The punish or not question is a matter of prosecutorial discretion - my point is that to take it entirely off the table unless/until all the other elements of a crime can be assembled, or until/unless an indictment is brought on the underlying crime, changes the lie or not calculus pretty seriously.
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-- Rather, Fitzgerald knew then that it was Armitage who leaked, and, presumably, whether Valerie Plame was covert and whethe the statute was violated. Not knowing this, the defense couldn't challenge on materiality back then. Can they now? --
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In a word, no. It creates the same dynamic I noted above. That is, a witness would be able to lie on a gamble that the prosecutor wouldn't be able to bring a charge for some other reason. That's not a free license to lie, but it would reduce the chances of being charged with lying.
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Miller and Cooper raised an argument on the motion for an en banc (full court, 9 or 12 judges) rehearing of the appeal on their efforts to quash the subpoenas to testify before the grand jury. They argued that the prosecutor should have to prove Plame was covert before they should be compelled to testify. The Court did not address this argument, but denied, without opinion, rehearing the case en banc.
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I bring that up just to say that Libby could have raised the very same argument at any time - asserting that the prosecutor should be forced to prove that Plame was covert before being permitted to try to prove that Libby lied.
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In general terms, a so-called materiality challenge in the form advocated in the Libby case doesn't depend on what the defense knows. It's a put-up or go-away challenge to the prosecution, regardless of what the defense knows. You can't challenge the truthfulness of my statements, unless and until you prove Plame was covert.
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Separately, the fact that Armitage was a leaker doesn't end the inquiry. It's a good bet that there were at least four leakers. Armitage, Fleischer, Libby and Rove. "If this had been a real leak," all of them are potentially culpable.
 
My impression is that materiality has some limits on it. If you lie about something in a murder trial, and we find out later that the victim never died (but your lie was relevant and important to investigation of the alleged murder, if it had happened), you will still go down. You have still committed an important offense.

IANAL though. Would think there would be some basic definitions and explanations here. Wonder what MCM says. It is often very logically written and useful. (I know UCMJ is a different code, but I want to see a basic explanation).
 
Play the materiality game in reverse. Have the CIA lie to the investigator and say that the fact Plame was employed by the CIA was classified - Plame was covert, here is the paperwork and affidavits to support it. In short, set the stage for an IIPA violation.
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A person must have actual awareness that a person's very association with the CIA is classified information, in order to commit a violation of IIPA. As it turns out, Libby in fact lacks this awareness. Therefore there is no violation, and never can be a violation - whether the fact that Plame is an employee of the CIA is classified or not. Even if Plame was covert (she's not in this hypo, remember, the CIA lied), it would be IMPOSSIBLE for Libby to violate the IIPA.
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Would that make the CIA lie immaterial in a charge against Libby?
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If the rule becomes "materiality depends on finding the elements for the underlying crime," ALL of the witnesses get the same protection.
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I'm literally amazed at the number of people who advocate the above form of materiality rule - they are cherry-picking the application of a rule to this situation, and would dispense with the rule (or mount a "but there's a difference" argument) when the tables are turned.
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This can be illustrated with a real-life example. Paula Jones had no legally-recognizable damages. Her civil case against Clinton was dismissed because Jones had no legally-recognizable damages. Further, the evidence that Clinton gave in deposition (even if it had been truthful), while discoverable under statute, was excludable from the Jones trial. By two measures -- Jones loses because she has no damages; and false testimony not-admitted cannot impact a trial -- Clinton's lies could not possibly impact the ultimate outcome of the underlying case. True that Clinton's lies to investigators were "different" from Libby's - but what is the "materiality rule" that excuses one liar and not the other? The statutes say "tell the truth," and leave it at that. The reason SHOULD be obvious -- it is to me -- but many people insist on tinkering with the rule to get the outcome they desire.
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For example, many Fitzgerald detractors (recalling a person objecting to my casually-applied label "Libby defender") earnestly persist with the argument, "even if Libby lied (most won't concede that - the OVP and Libby's formal defense publicly deny any leak of "Mrs. Wilson's wife works at the CIA," even if that leak is not illegal), the lie is immaterial (and Fitzgerald is a skunk) because Plame was not covert." Even if he lied, there is no foul because Plame is not covert (there can be no ILLEGAL leak), and the investigators were charged only with finding ILLEGAL leaks.
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At what point should thumbing one's nose at the investigator be punishable?
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"I never had sex with that woman." v. "I couldn't tell a reporter that Mrs. Wilson in fact worked at the CIA, because I didn't recall that myself."
 
Another example of "play materiality in reverse," but this time where the lying witness isn't the CIA. The CIA example is too easily cast aside as inapt, because it is in the nature of a false report in the first place.
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So let's pretend the reporters are lying to investigators. They say "Yeah, we heard that from Libby. He's been blabbing to all the reporters - he told us he got it straight from the CIA himself." Maybe a frame-up, big as day. But, since Libby can't be guilty of a criminal leak (because, for example, there is no evidence that Libby knew her classified status), do the reporters skate on the false statements? Are the lies immaterial because there is no underlying crime?
 
But my point is that we shouldn't have to analyze this so much as if it were the first time. Would think a concept like this would already be well-established. What does a basic perjury textbook say?
 
The so-called "basic textbooks" don't help. Opposing sides cite to them (same exact cites) as standing for opposing propositions. These aren't "textbook," but they are pretty basic.
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Criminal Resource Manual 1748 Elements of Perjury -- Materiality
Criminal Resource Manual 911 Materiality
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In general, a fact is material so long as it is "significant or essential to the issue or matter at hand."
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What is the matter at hand? Is it asking if AN element of a crime is present? Or is it asking whether ALL of the elements of the crime are present? Or is is something else altogether? The finding of materiality can hinge on which of those three is taken as the matter at hand.
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The third choice is the correct one, correct in that case law does not limit a finding of materiality to either of the first two. The middle choice is clearly incorrect, for purposes of an investigation.
 
In some cases, materiality is a close issue. Materiality isn't a close issue in the Libby case. Those who argue "materiality" in the Libby case are misusing the term. Their complaints could be properly expressed with some other terminology.
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Some people remain attached to arguing the Libby case in terms of materiality, even after being exposed to concepts like "the investigation never should have been called" and "the investigator asked the questions in the wrong order, he should have asked the CIA first." I tend to blow off the people who persist in arguing "Libby's lies (if he lied) weren't material."
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Those alternative phrasings of complaint about the investigation don't have the baggage of misusing the term "materiality." To argue that the thrust of questioning Libby was subjected to was "immaterial to the investigation" is just flat out wrong as a matter of simple, basic, black-letter law and common sense.
 
Anybody still hanging around this joint should bother to click here and read Beldar's take on materiality. It's as good as many a textbook explanation.
 
The CIA example-- "suppose the CIA had falsely told the prosecutor that a crime had been committed"--- isn't apt. Of course, if the investigation is in good faith, lying is material to it. But here, the prosecutor already had all the facts available, and his motives for continuing to investigate are dubious.

In terms of incentives, we must worry about the prosecutor's incentives as well as those of the witnesses. Indeed, we should worry more about prosecutors. If they are free to keep investigating nonexistent crimes in the hopes that some enemy will tell a lie, none of us are safe.

We *do* want people to thumb their nose at this kind of prosecution. Indeed, it would be wise to criminalize this kind of prosecution, not lack of cooperation with it.

It also isn't a matter here of the prosecutor having to investigate the elements of the crime in a particular order, e.g., the prosecutor should have to show that a crime was committed before he issued subpoenas. The question here is whether the prosecutor's subpoena was valid if he wasn't uncertain-- if he knew that a crime had *not* been committed.
 
-- It also isn't a matter here of the prosecutor having to investigate the elements of the crime in a particular order ... The question here is whether the prosecutor's subpoena was valid if ... he knew that a crime had *not* been committed. --
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The investigator isn't born knowing a crime has not been committed, or more precisely, that the "covert" or "classified" element is absent. He has to ask or otherwise obtain that information.
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You can argue that this isn't an "order of knowing" issue, but that's mighty pedantic.
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Read the posts at Beldar and Patterico (starting link in a previous post). They cover this ground well.
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I do agree, and have said so over a year ago (elsewhere) that once an investigator knows that a particular crime is impossible, continued investigation of THAT crime in unethical.
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In the Libby case, there is both the underlying investigation into the allegation of leaking classified information, and an investigation into whether or not a witness lied to investigators. Fitz can drop the leaking investigation yet ethically persist in the investigation into false statements. The suspected (now proved to a jury) false statements came before Fitzgerald was appointed.
 
What is your take on Libby, his ethics, his fundamental intelligence and the implications in terms of the rest of the admin workers?
 
-- What is your take on Libby, his ethics, his fundamental intelligence and the implications in terms of the rest of the admin workers? --
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I don't have much to go on, but I figure he's a generally decent fellow, hard working, clearly he is intelligent. My take on his ethical lapse? Tough to express, but I don't really hold it against him personally. It's understandable (any leak of Plame was an inherently political act), and the calculation that he'd probably get away with it doesn't surprise me. If he was friend of mine, I think I'd trust him enough to lend him money or material, or care for my kids, I guess is one way to look at it.
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I hold it against the legal system when it allows itself to be used as a political tool - and I hold it against the administration to attempt to so use the judicial branch. But that's a pretty narrowly focused beef.
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I don't see implications in terms of the rest of the admin workers, one way or the other.
 
I see it a bit different, having served at sea. I agree that any of us are capable of lapses--that is human weakness. But I expect a higher level of character as an objective. I want to follow leaders who laugh like Indians when tortured for information. I see Libby as a sign of general weakness of fiber.

I also doubt that he is that sharp. Given the Aspens letter. Give who he worked for. Given his defenders.

I may just have higher standards though. Things are different in the Rickover Navy.
 
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