Scooter Libby & The Barber of Seville

[H2O Man]

June 2, 2006 was not a good day for Scooter Libby and his legal team. Just as people following the case will remember Scooter using crutches when he was indicted on October 28, 2005, yesterday may be remembered as the day Judge Walton knocked the crutches out from under his case. The Judge filed three documents that are worth taking a closer look at.

The first is Document 112, which is Judge Walton's Order, which outlines the Court's answer to Team Libby's Third Motion to Compel Discovery. This motion had led to Mr. Fitzgerald's Response and Team Libby's Reply, which allowed the public to have a far greater appreciation for the amount of evidence that the prosecutor has about the OVP/WHIG attempts to "discredit" Ambassador Joseph Wilson.

On May 5, the Court heard argument from both sides on the disputed issues. Team Libby had presented ten separate areas of information they argued were essential for his defense. Their goal is to make the case into a debate about the war in Iraq, and to argue about the president's state of the union address with his infamous "16 words," and about Wilson's trip to Niger.

But the judge isn't allowing that to happen. "Rather," Judge Walton writes, "the only question the jury will be asked to resolve in this matter will be whether the defendant intentionally lied when he testified before the grand jury and spoke with FBI agents about statements he purportedly made to the three reporters concerning Ms. Wilson's employment. The prosecution of this action, therefore, involves a discrete cast of characters and events, and this Court will not permit it to become a forum for debating theaccuracy of Ambassador Wilson's statements, the propriety of the Iraq war or related matters leading up to the war, as those events are not the basis for the charged offenses. At best, these events have merely an abstract relationship to the charged offenses."

Judge Walton explains in a footnote that this "reality is not altered" because Mr. Fitzgerald will introduce various news reports on the Wilson trip as evidence. He notes that Mr. Fitzgerald will not be introducing the full articles, that the Court "suspects it would not permit" the prosecution to introduce full articles if it attempted to, and that the truth of the articles is not at issue. Judge Walton defines the limited purposes that such evidence will be allowed to be introduced for. None of those purposes can be viewed as helping Team Libby.

Those limited purposes translate into seven of Team Libby's requests being fully denied. "For several reasons, and contrary to the defendant's position otherwise, the bulk of the documents which may be responsive to these requests are simply not material to the preparation of the defendant's defense," Judge Walton noted. Rather, they were attempts to dillute the prosecution's case by introducing evidence "without regard for whether the defendant or any likely witnesses even reviewed or ever knew about these documents."

And even in the case of the National Intelligence Estimate (NIE) that Scooter and other likely witnesses were aware of, Judge Walton correctly ruled that it is not at issue, because Mr. Fitzgerald is not claiming that it was "improperly" disclosed by Libby.

In the end, the Judge ordered the prosecution to produce a limited number of documents "to the extent it has not already done so" that relate directly to Scooter's role in the OVP/WHIG "effort to rebut the accuracy of Ambassador Wilson's" trip and findings, and related documents that are discoverable under Brady.

Document 113 is Judge Walton's Protective Order, in which he grants Mr. Fitzgerald's motion to withhold "discrete items of classified information from the defendant, and to provide to the defense, as substitutes for several items of classified information, summaries setting forth the relevant information contained in the classified documents."

A quick review of the types of classification may be helpful here. For those not familiar, these classifications are pursuant to Executive Order 12958, as amended by Executive Order 13292. National security information is classified in three ways: Top Secret; Secret; or Confidential. "Top Secret" is the designation of information which if improperly disclosed could reasonably be expected to cause "exceptionally grave damage to the national security." Next, "Secret" means the information's unauthorized disclosure could reasonably be expected to cause serious damage to national security. And "Confidential" designates information which when improperly disclosed can reasonably be expected to damage our national security.

Judge Walton writes that after careful review of the prosecutor's requests, "the Court finds the documents and information identified in the government's Section 4 CIPA filings are extremely sensitive and their disclosure could cause serious if not grave damage to the national security of the United States." Thus, he will allow Mr. Fitzgerald to provide "unclassified substitutions (which) are more than sufficient to address any obligation the government might have to produce the underlying classified documents and information to the defense."

This information includes a limited recounting of Valerie Plame's employment history with the Agency from January 2002 on; a review of "potential damage" created by the disclosure of her affiliation with the Agency; and the names of three individuals mentioned in classified documents previously provided to the defense.

The most significant issue, in my opinion, is that Judge Walton heard Mr. Fitzgerald's Motion in camera and ex parte, which means in chambers and with only the prosecutor there to present his side. Team Libby was particularly upset by the prospect of this being presented ex parte. There are a couple reasons why. First, Judge Walton is known for having strong beliefs on the need to keep classified information secret. His stating that the information Mr. Fitzgerald showed him "could cause serious if not grave damage" to our country if improperly disclosed indicates he has an appreciation for the full flavour of the OVP/WHIG operation against the Wilsons.

Further, although the classified information will not be introduced as part of the case for the jury to consider, Judge Walton now knows what the CIA knows about the case. It reminds me of when attorneys were preparing my friend Rubin "Hurricane" Carter's federal appeal, and they wanted to include what was known as the Caruso File. Leon Friedman, the Hofstra University professor who co-authored the definitive 5-volume history of the justices of the US Supreme Court, included the information in his appeal. The federal judge read the appeal, and then excluded the information from the Caruso File, because it did not fit the definition of an exhausted claim. However, Leon knew it was like on a movie, when explosive evidence is introduced, and the judge orders a jury to ignore it for technical reasons. No juror or movie viewer forgets that evidence. In Carter's case, Judge Sarokin noted that not only was he overturning the conviction on procedural grounds, but that he was aware that Rubin Carter was not only "not guilty," but that he was innocent. That was because he had read the Caruso File. In Scooter's case, even though the trial is limited to Libby's lying to the FBI and grand jury, Judge Walton is now aware of the true nature of the issues involved in the OVP/WHIG operation to destroy the Wilsons.

Document 114 is Judge Walton's Order to the prosecutor and defense to "appear for a status conference on June 12, 2006 at 1:30 p.m." They will be discussing several issues, including the status of discovery; the possibility that other motions are going to be filed; and if Mr. Fitzgerald will be "asserting any claims of executive privilege." These three issues alone make the hearing worth keeping an eye on. But there is something else that appears far more significant.

Judge Walton wants to discuss if the parties "believe it is necessary to issue early returnable trial subpoenas to resolve anticipated claims of testimonial privilege." It is hard not to conclude that Judge Walton is taking Mr. Fitzgerald's statements regarding the possibility of calling one Dick Cheney to testify very seriously. The possibility of Mr. Fitzgerald calling on the vice president is fascinating to consider, and there is a variety of opinions on how Dick Cheney might respond. Will he attempt to avoid testifying? Surely he would not want to either be used by Mr. Fitzgerald to put the screws to the man who is lying to protect him. Nor would he want to risk lying on the witness stand.

The three documents filed by Judge Walton on June 2 were bad for Scooter Libby. The June 12 hearing may be worse for Dick Cheney.

[Olney Blue]

1. Thank you, H20 Man. Very informative.

Your writing conjurs an image of Judge Walton sitting in a big leather chair at midnight in a darkened room with only a reading light,
and having chills while reading the full extent of the WH operation to destroy the Wilsons. :scared:

[H2O Man]

2. I'm reminded of

when the federal judges were considering the appeal by Judith Miller and Matt Cooper, and they all agreed there was something very significant involved in the case that mandated forcing reporters to cooperate with Mr. Fitzgerald.

[JHH]

3. Thanks well presented

[H2O Man]

Thank you.

I would hope that this essay would be fun for people to read on a rainy Saturday morning.

[The Wizard]

4. Note to Scooter

Find your canary voice lest you enjoy a severe ass raping. Sing now or howl later.

[DoYouEverWonder]

5. I've got to admit it's getting better

A little better all the time...

Looking forward to June 12th.

[H2O Man]

7. "Can't get much worse..."

for Scooter & Dick.

Love that song. One of the great examples of Lennon & McCartney's combined efforts .... reminds me of "We Can Work It Out." I know what albums I'll be playing today!

[Fiendish Thingy]

28. "Getting so much better all the time"

Yesterday was the 39th anniversary of Sgt. Pepper (in the US).

[im10ashus]

6. Brilliant synopsis of the day's events, as usual, my friend.

Question? You say that "although the classified information will not be introduced as part of the case for the jury to consider, Judge Walton now knows what the CIA knows about the case."

Will that matter if the jury doesn't hear the information? Can the judge let that inform his decision if it wasn't introduced to the jury? Or does that mean the information is classified and thus the judge can let it into evidence, albeit classified?

[H2O Man]

8. Good question.

The jury won't hear it, because the Libby defense is going to be restricted to the charges he faces. But Judge Walton's thinking is not going to be restricted, and that may influence the range of the case each side will be allowed to introduce. A good judge is fair, even when he knows the defendant is guilty as hell -- and we can anticipate that Judge Walton will meet that standard in a very careful way. So careful that he will close the door on all of the issues that Team Libby anticipates appealing post-convictions.

[im10ashus]

10. Thanks. I suspected as much.

I mean, it IS classified, so their hands are somewhat tied on what the jury can hear. Given that though, at least the judge is able to view this information. If only I could be a fly on the wall in that courtroom's chambers. :-)

Edited for grammar. :dunce:

[H2O Man]

11. Yes.

The June 12 hearing may be a fly in the ointment for our trusted VP.

[flyarm]

56. you are correct that most judges even if they know the defendant is

guilty as hell will be as fair as possible to the defendant..

i was a juror for a rape case...a serious rape case of a minor....we almost had a hung jury , as we had one woman who did not want to convict no matter what the evidence was..

she finally voted to convict ..but it was not come by easily.. we went back into the court 3 times saying we were hung..and the judge asked us to try again..over and over...

well we did convict, finally ..it was always 11..to 1 ..until the end..when we convicted..

after we delivered the verdict ..the judge came into the jury room ..there was anger there and tears..the judge then told us we came to the correct verdict..he said the man had committed numerous other rapes..

but as jurers we were not privy to that info during the trial...

the judge shook all our hands and thanked us for the correct verdict in that case...

yes this judge seemed neutral during the entire trial..i would never have guessed how he felt about the case ... until he walked into that jury room after our verdict had been read in the court...

he was very fair to the defendant...

even though he knew the guy was guilty as hell!!


i will pray that Judge Walton will be equally fair..but true to his job...and nail scooters ass to a wall!!

fly

[JNelson6563]

9. Bravo!!

Enjoyable reading. I appreciate your writing style and all the info your bring us.

:toast: Julie

[H2O Man]

12. Thank you, Julie.

I certainly enjoy participating in the discussions here about the Plame scandal. Although the Libby trial isn't going to focus on the war, the president's "16 words," and Wilson's trip to Niger, I can't help but think it is important that DUers take the information we discuss here, and use it in the larger public debate on the war.

[im10ashus]

13. It's certainly helped bolster my debates with friends and others.

I can't tell you how many people I work with and fraternize with that are basically uninformed as to the current events that could effect us all.

[H2O Man]

14. One of my friends

stopped by yesterday when he got out of work. He saw the three filings spread out on my table, and we had a laugh about how in 2003, I had told him this was the "new Watergate." He had laughed then, and asked if it were so important, why was I the only person who had heard about it? His opinion has changed since then. Mine has not.

[im10ashus]

16. May he never doubt again.

:-)

I remember talking about the Plame affair and the corruption in this administration back in 2004 before the election. Some of my less-informed family and friends thought I was reading too far into things. That I was being my typical overly-passionate self. My how the mighty have fallen since then. Abraham, DeLay, Cunningham. Not all connected to the same crimes, mind you, but an apparent corruption pervading republican politics, IMHO.

I remind them, now that they are starting to see the same things and are waking up, that we still have to be patient. It could still be a while before we see the chips all fall and there will still be more indictments. A very long process for those of us who work, or have worked, in the litigation side of the law. It can be frustratingly slow.

[kpete]

15. Going to read this at the beach

Beautiful day in California...

My day in the sun...

Thanks H20 Man,

And have a good one!

17. who is the barber ?

I am glad Fitzgerald has some help from Judge Walton.

[H2O Man]

20. The Barber was Paul .....

I have compared the case to a chess match. One of the greatest games in chess history was played by American chess genius Paul Morphy in Paris in 1858, between the acts of the opera "The Barber of Seville."

23. oh thanks, I never would have figured that one out n/t

[gkhouston]

40. yeah, I was thinking about that aria in

Nozze di Figaro where Figaro sings that the Count "may go dancing, but I'll play the tune". (i.e., the "servant" is actually running things.)

[DemReadingDU]

18. Thank you for your insight and analysis.

It is difficult for me to read the court filings, but you make them so easy to understand. Appreciate the time you spend posting here.

Also, isn't Judge Walton the same judge in the Sibel Edmonds case? It seems there possibly could be the same people involved in her case as in the Plame case? Do you have any insight as to where the Sibel case is headed? Thanks!

p.s. perhaps info about Sibel Edmonds should be posted elsewhere, but I haven't seen anything recently about her case.

[H2O Man]

33. I really do not

know enough about Sibel Edmonds' case that I feel qualified to give an opinion. I am aware of parts of the case. I think that the conflict comes from her knowing some information that she believes is important for citizens to hear in order to more fully understand events leading up to 9-11, while Judge Walton is taking a strict stance that he believes is both the correct reading of the law, and in the best interests of the country. I believe that she has to decide if the information is of enough significance that she should speak out no matter what the consequences. That is a lot to ask of a person; there are a few individuals who have been brave enough to risk all for the truth, and time will tell if she joins that group.

[flyarm]

58. DANIEL ELSBERG and the Pentagon papers ...n/t

[hootinholler]

19. I may be reforming my opinion of Judge Walton.

"Judge Walton is known for having strong beliefs on the need to keep classified information secret"

In Edmunds V. DOJ I had assumed the motives of the Judge were political, and not so much idealogical. Now, I'm not so sure. He's a hard one to read from this distance.

Perhaps you may have some insight why he would quash that case rather than finding a similar summarized accomodation?

-Hoot

[Beetwasher]

21. Boy Oh Boy! Sat. Morning and A Great H2O Man Piece!

Fitz is like a laser beam.

:thumbsup:

[emulatorloo]

22. thanks for the informative summary -- kicking n/t

[Spazito]

24. When reading the Protective Order, I was also reminded of the

previous judicial response that ended with Judith Miller going to jail because of the serious national security concerns related to the link as was iterated by Circuit Judge Tatel in his concurring opinion:

"Were the leak at issue in this case less harmful to national
security or more vital to public debate, or had the special
counsel failed to demonstrate the grand jury’s need for the
reporters’ evidence, I might have supported the motion to quash.
Because identifying appellants’ sources instead appears essential
to remedying a serious breach of public trust, I join in affirming
the district court’s orders compelling their testimony."

Link to the decision by the Court of Appeals:

http://pacer.cadc.uscourts.gov/docs/common/opinions/200502/04-3138a.pdf

[Fiendish Thingy]

25. this may explain why we've hear nothing about Karl...

Fitz has been too busy getting his ducks in a row for Libby's judge...
but now that's out of the way...

[riderinthestorm]

26. What are the real chances of Cheney testifying?

Any speculation on your part?

I just can't imagine it happening.

On the other hand, what are the possible arguments Cheney can use to avoid testifying? There's got to be some rationale that fits his need for secrecy and assertion of executive power but I would hazard an opinion that any potential excuse Cheney finds for not testifying would look as weasely as taking the Fifth.

And any refusal to testify would send up a confirmed signal that Cheney is the real criminal here.

He's in a bind for sure but I'm still curious about any thoughts you have in this direction.

[H2O Man]

30. Two thoughts:

First, I continue to believe that by late November or early December, Libby will have made a deal with Mr. Fitzgerald. No matter if he does or not, VP Cheney will be placed in the hot seat. If Scooter goes to trial, I think that Cheney will have to testify. I think that even the US Supreme Court, which I believe is presently the most seriously flawed of federal courts, would recognize that he has to take the stand. It is interesting to consider his options from there.

I do believe that we are going to witness a Constitutional crisis. I do not use those words lightly. Our federal system is at a crisis point already, and the need for a confrontation to define powers is unfortunately necessary.

[Pithy Cherub]

38. The pending Constitutional Crisis

is underway for the knowledgeable, but the public at large needs an event to tie the narrative together. I keep wondering what will it be that makes The Case for the General Audience to have a sustained interest in the outcome of Justice. Media coverage is currently inconsistent at best and many "stars" are tied six ways to Sunday to the whole mess. Certainly, the mid-terms and electing strong, determined Dems would put it on the front pages. June 12 could also provide an illumination of Cheney that puts the presidency in crisis as more sordid details from the OVP are made public.

What do you think it will take to make it a mainstream equivalent of Watergate?:shrug:

Great recap!

[H2O Man]

47. I agree

that the struggle which has been going on for the past six years has been largely unrecognized by the general public. I think that a lot of responsibility falls upon the House and Senate for betraying this nation by refusing to do their Constitutional duties. Also, I think that the journalists who are employed by the corporate media have neglected to tell the truth in far too many cases for far too long.

That brings us to your question -- and, indeed, it is THE question: what will it take to make this the mainstream equivalent of Watergate? I think that it is Dick Cheney. I think that the upcoming struggle to get him on the witness stand, and the results that follow. I think that more people are going to connect the Plame scandal with the outright and purposeful lies that brought us to that ugly war in Iraq, and they will realize that Dick Cheney and Donald Rumsfeld are the two worst human beings who have ever inhabited the seats of power in this country.

[riderinthestorm]

44. Yes, I also believe we are on the brink of a face-off

over separation of powers and executive power, plus the troubling doctrine of "unitary executive power".

Which is why Cheney is in such a bad spot: he's historically dodged accountability by asserting executive branch priviledge. But doing this here would sink Libby (who I assume would turn on Cheney and the rest of this Admin faster than I can type these words), and certainly get everyone pointing their fingers at Chcney for not appearing - it just makes him look so guilty. WE know he's guilty but suddenly the public would be looking at it all afresh.

It would be ironic if this is the issue that finally awakens the sleeping public over this Admin's breathtaking power grabs. I thought it might be wiretapping but Gonzales is nothing if not adept at legal maneuvering.

Thanks for ruminating aloud for the peanut gallery. Fitzgerald's opera is waaayyy better than Barber of Seville!

[H2O Man]

46. I think that

the OVP is in for a "long, hot summer." I think that Mr. Fitzgerald is applying creative tension, and that it is one of the best things that has happened in this country in recent history.

[sutz12]

27. Every time I hear "Barber of Seville"

I think of Elmer Fudd runnning around singing: "Kill the Wabbit.......Kill the Wabbit"

:rofl:

http://www.jenn98.com/bugs/1950-10.html

[mod mom]

29. Love your informative posts! even better when they are good news!

[Patsy Stone]

31. The Rabbit of Seville

Yes, as usual, you get to the crux of the matter. I certainly sat up at attention when I read this in the filing: "believe it is necessary to issue early returnable trial subpoenas to resolve anticipated claims of testimonial privilege". Poor Dick.

With apologies to Bugs: "Dick, you're so next."

[Me.]

32. The Elephant In The Room

The Judges know, Hogan, Tatel, Walton, members of the media know, at least those who will admit it to themselves, a small number of the public knows, it's like the water seeping under the door just before the flood waters come crashing in.

As for Cheney's Hobson's choice. I guess we can presume that he won't try to get away with saying he hardly knows Libby, as he and the OOP has done so many times in the past? Hardly knew Abramoff, never met Wilson...we know he doesn't have any trouble looking people in the eye and flat out lying. Will he try it with FitzG., on the stand? My guess is that if he's cornered by FitzG., he'll sell out Libby. Wonder how that will go down and what the ramifications of that would be? Could/would the defense made a deal in the middle of the trial?

*shadow government*

[sutz12]

35. Well, me....

am I talking to myself? :)

It seems to me that Cheney has already lied to the GJ. A lot of people have been saying that for months.

After all, they had him back 4 or 5 times already. He must have tripped up somewhere in there.

[Me.]

36. I Think You're Really Talking About Rove

Yes? As to the name (lol) the reflective aspect of Me. is one of the reasons I chose it. Good catch.

*shadow governemnt*

[DoYouEverWonder]

48. We know he lied to Tim Russert on 09/14/03

I think we can assume that he lied to Fitzgerald.

09/14/03


MR. RUSSERT: Now, Ambassador Joe Wilson, a year before that, was sent over by the CIA because you raised the question about uranium from Africa. He says he came back from Niger and said that, in fact, he could not find any documentation that, in fact, Niger had sent uranium to Iraq or engaged in that activity and reported it back to the proper channels. Were you briefed on his findings in February, March of 2002?

VICE PRES. CHENEY: No. I don’t know Joe Wilson. I’ve never met Joe Wilson. A question had arisen. I’d heard a report that the Iraqis had been trying to acquire uranium in Africa, Niger in particular. I get a daily brief on my own each day before I meet with the president to go through the intel. And I ask lots of question. One of the questions I asked at that particular time about this, I said, “What do we know about this?” They take the question. He came back within a day or two and said, “This is all we know. There’s a lot we don’t know,” end of statement. And Joe Wilson—I don’t who sent Joe Wilson. He never submitted a report that I ever saw when he came back.

I guess the intriguing thing, Tim, on the whole thing, this question of whether or not the Iraqis were trying to acquire uranium in Africa. In the British report, this week, the Committee of the British Parliament, which just spent 90 days investigating all of this, revalidated their British claim that Saddam was, in fact, trying to acquire uranium in Africa. What was in the State of the Union speech and what was in the original British White papers. So there may be difference of opinion there. I don’t know what the truth is on the ground with respect to that, but I guess—like I say, I don’t know Mr. Wilson. I probably shouldn’t judge him. I have no idea who hired him and it never came...

MR. RUSSERT: The CIA did.

VICE PRES. CHENEY: Who in the CIA, I don’t know.

http://msnbc.msn.com/id/3080244/default.htm

[H2O Man]

49. I agree.

I would suggest that the OSP was very aware of Ambassador Wilson, and his history of work that was of value to State and to the Agency. The OSP was aware of things going back before the Niger trip that resulted from VP Cheney and Scooter Dogg Libby insisting there was more to the yellow cake reports than the Agency had concluded. And Mr. Fitzgerald is aware that the OSP was the intelligence branch and the WHIG the publicity branch of the OVP.

[MarinCoUSA]

34. thnxfor thuis post H2O Man

n/t

[dogday]

37. As always, a wonderful insightful piece ...

this is the first day this week we have not had rain... Thanks so much!!! :hi:

[dave29]

39. A tip o' the hat to H20 man

a wag o' the finger at Scooter Libby & Dick Cheney

:)

[Historic NY]

41. Great break down of where the case is now H2O

oh to hope "crash cart" gets subpoenaed and tries to duck it. It would be music to my ears to hear how the VP is avoiding the rule of law.

[bleever]

42. I'm unclear about the need for Cheney's testimony.

From the prosecutor's side, doesn't the record already establish the material facts regarding Libby receiving info and orders from Cheney? The defense basically stipulates these facts, if I'm correct.

From the defense side, what can Deadeye Dick offer that mitigates Libby's false testimony?

Third and final question: what are the dynamics of the dance regarding whether or not one side or the other will seek to force Dick to testify? Given that there's no way on earth that he want to have to take the stand, what might either side be seeking to gain (from Cheney or other related players) by dangling the prospect of forcing his testimony?


Thank you for another concise and highly readable summary, sir.

[Patsy Stone]

50. IMO

At one point during the May 5th hearing Team Libby was discussing the "problem" of Fitz authenticating the handwriting on the Op-Ed.

It seems to me the questions Fitz could ask (without overstepping his own parameters for the case) include:

1) Do you recognize the handwriting on this Op-Ed? Is it yours?
2) Did you discuss these questions with Scooter?
3) Did you tell Scooter that Plame worked for the CIA prior to his conversation with Timmeh? What was the date?

I can't see why the defense would call him (or even see how/if they would cross-examine him), because that would set him up to perjure himself (Was there a concerted effort to discredit Wilson by outing his wife?), or sink Libby (Was there anything you told him that would cause him to think you wanted to discredit Plame instead of refuting solely the facts in Wilson's Op-Ed?). In fact, I think part of the reason Wells mentioned "authentication" was a bit of fishing to see if Fitz planned to call Cheney. In this instance, it paid off.

There's so much more, I'm sure, and I'm not even delving into where Fitz could take the case if he chose to do so. But those questions, at minimum, could help the government's case against Scooter.

My .02 :hi:

[H2O Man]

52. Central to Scooter's defense

is his claim that he was so busy in that time period, and that Valerie was of so little significance, that he forgot that Cheney had mentioned her to him. VP Cheney will testify that he and Scooter talked about Valerie at least once a day, and usually up to four times per day, during the week in question. Cheney will testify that he told Libby that he believed Ambassador Wilson's Niger adventure was connected directly to Valerie's employment.

[Catrina]

43. Excellent analysis as usual, H2OMan ~ I have a question regarding

this: The possibility of Mr. Fitzgerald calling on the vice president is fascinating to consider, and there is a variety of opinions on how Dick Cheney might respond.

While it would be fascinating to watch Cheney attempt to avoid being placed under oath to testify in this case, which surely would have to be covered by the MSM, my question is - does this mean that Fitzgerald is not planning on indicting Cheney? Iow, would he call as a witness, someone he intends to indict?

In one of the previous court filings, eg, he revealed that he did not intend to call Rove as a witness and I wondered if that was a sign that he did intend to indict Karl.

Iow, can indicted individuals also be witnesses for the prosecution?

[H2O Man]

45. Good questions.

Let's take a look at what R. Jeffery Smith and Jim VandeHei wrote in their May 27 article in the Washington Post, "Filings in CIA Leak Case Paint Cheney as Determined to Counter Critic." They noted that the recent filings showed that while Patrick Fitzgerald "does not describe Cheney's actions as illegal or even improper," he has definitely made "it clear that Cheney had a larger role in the effort to rebut Wilson than was previously known, and that his actions could put him in an uncomfortable place: on the witness stand as a sitting vice president."

The article notes that legal experts tend to agree that the vice president would have a "difficult time refusing to testify as part of a trial to determine whether Libby lied or obstructed justice in the leak probe." There are precedents going back from President Clinton to President Grant for voluntarily providing either testimony, videotaped testimony, or depositions.

However, as University of Richmond law professor Carl Tobias notes, Cheney will almost certainly resist any call to testify. He will take the position that as sitting vice president, he should not be forced to testify in a criminal trial. (One might be excused for wondering if the recent surge in conservative republican congressmen and senators for the separation of powers is not rooted in the grove of aspens here.)

The article continues by noting that Mr. Fitzgerald has gone out of his way to make clear that his investigation has found no evidence that President Bush was involved in the operation to destroy the Wilsons by leaking Valerie's identity. However, he has not said anything that would "similarly exonerate Cheney."

On one hand, in terms of the Libby trial, Dick's testimony is the fastest, most powerful way to totally destroy Scooter's claim that he was so gosh darned busy that he plum forgot Ms. Wilson, and that she was of no significance to him. And that is reinforced by the testimony of two CI officials, among many others. Hence, Mr. Fitzgerald has every right to bring the VP to the witness stand.

Unstated but fully understood by the legal experts is that Mr. Fitzgerald is presently turning up the heat with what we might refer to as "creative tension." Dick Cheney doesn't want to testify. And Scooter Libby sure as heck doesn't want his former boss on the stand. No one in their right mind wants to do battle with Mr. Fitzgerald in this context. Dick and Scooter didn't have the balls to deal with Joseph Wilson like men! No! That would have been the honorable thing to do. They instead tried to get back at him by attacking his wife. What type of cowards? Now, listen: the type of jackal who is afraid to deal with a man like Wilson, and who resorts to the cowardly shit they did to his wife -- these are not the cut of men who dare go up against Mr. Fitzgerald one-on-one in open court.

Excuse my swearing. I despise what they did. Now back to Cheney: if he gets on the stand and testifies, legal experts have identified only two options for him -- to implicate Scooter, or to risk charges by being less than truthful. That's a no win situation for Dick. If he implicates Scooter, what will Team Libby do? Shake his hand, and say, "Thanks for convicting our client!"?

Now look at me -- you asked a simple question, and I ramble on and on. Sorry. But, yes, Mr. Fitzgerald can subpoena VP Cheney now, and still have the option of charging him in the future. In fact, knowing what his approach can be, I think that a subpoena now would indicate that Dick Cheney may be in more trouble than many people have recognized so far.

[Catrina]

51. How ironic, first of all, that the relentless pursuit of Clinton by the

Right should come back to haunt them now! There are precedents going back from President Clinton to President Grant for voluntarily providing either testimony, videotaped testimony, or depositions

But I am a bit puzzled by this:

Dick's testimony is the fastest, most powerful way to totally destroy Scooter's claim that he was so gosh darned busy that he plum forgot Ms. Wilson, and that she was of no significance to him. And that is reinforced by the testimony of two CI officials, among many others

Could Cheney not agree that both he and Libby were extremely busy with matters of national security and therefore might not have been all that interested in taking revenge on the Wilsons? (Not that I see how that is of any importance to the actual charges against Libby, as outlined by Judge Walton in your OP)

Or does it depend on the line of questioning from Fitzgerald, which would keep Cheney focused on what he (Fitz) already knows, ie, the notations on the Wilson article, the conversations between Libby and Cheney (on AF2, where there was a witness) and other meetings with other witnesses present?

Even so, would it not be a risk for Fitz to take, that the Defense could direct the questioning of Cheney to show that these conversations were only minor parts of larger discussions he and Libby had, related to more important issues?

I do see how being on the witness stand could be dangerous for Cheney though, thanks to your post. And you have answered my question as to whether or not Cheney could be a witness and also indicted. I did not want to get too excited about him being on the witness stand, if that meant he might not be held accountable for a greater crime.

As for swearing? There is no lower form of life, imo, than those who use wives and children to exact revenge on those they perceive to be their enemies. But what else could be expected of the cowards and chickenhawks who are currently running this country? So there's no need to apologize at all :-)

A little off topic, but something that has received little attention in the MSM (no surprise there) was the news a few weeks ago that SOS Condoleeza Rice may be on the witness stand in the Pentagon Spy trial. She too is expected to fight that subpoena. I wonder how much communication, if any, Fitz has had with McNulty, who I believe is the prosecutor in that case?

I mentioned that because of your comment about the possibility of the current objection to the search of Jefferson's congressional offices by Republicans. As I recall, McNulty is on the other side of that issue, but so is Gonzales. Sometimes it gets confusing to sort this all out!

We could end up with the SOS and the VP as witnesses in two very important cases ~

Thank you for your post, it was very informative as usual ~

[H2O Man]

53. No.

Both Cheney and Libby have made previous statements that document the frequency of face-to-face conversations in the week after Joe's NYTimes op-ed, in which the vice president's concerns were discussed. Also, Mr. Fitzgerald has other witnesses, and a stack of e-mails. And there is more -- much more -- than we are aware of.

Timing is one of the essential parts of being a great prosecutor. And part of timing is knowing when to turn up the heat with that "creative tension" that divides suspects.

Things are good.

[Catrina]

55. Okay, I just read your post #52 which answered my question. Iow, there's

no way out of helping to convict his friend, if Cheney takes the stand ~ other than to perjure himself! Fitz has him up against the ropes, to use a boxing analogy.

Thank you, things are good indeed, although not for the VP or for Libby ~ :-)

[bleever]

57. LOL. I really enjoyed that "ramble".

:toast:

[flyarm]

54. you are the best H20 man!!!....and i am couting on the june 12th

being worse for Cheney..from your key pad to gods ears!!

pleaseeeeeeeeeeeee...

fly

[flyarm]

59. h20 man ..is there a statue of limitations of the Wilsons filing a civil

suit over those involved in outing Valerie??

would the statue of limitations be given a repreive pending the out come of this federal case??

just wondering if we will see a filing by the Wilsons "before" this case makes it to trial...
fly

[H2O Man]

60. Interesting question.

I do not know the answer to it. But I'm sure that the Wilsons do!

[spindrifter]

62. There would be a statute

of limitations for filing the suit. They could then ask to continue a trial until the federal case against Libby is over. Whether they would get the continuance would depend on a number of factors. The value would be to get the testimony of various individuals which has great value for providing Ms. Plame's claim.

[BR_Parkway]

67. And another Clinton precedent - sittng President can be compelled to

testify in a civil case. You have to love the karma in all this

[H2O Man]

68. That is a key point

about Clinton -- his situation involved a civil action, not a criminal trial.

[stop the bleeding]

61. Thank you - your way of making the foreign turn into the familiar is

a vital cog in this machine.

Thanks again for the clarity and insight.

Peace :)

[CrackpotAmerica]

63. AAAH, H20, Another Good One..

.. Thx for posting.

Just got back from reading some Pitt tripe. Thank god this was here!


... like I said.

:)

[Nothing Without Hope]

64. "early returnable trial subpoenas to resolve anticipated claims of

testimonial privilege" - thanks so much for pointing this out, as well as for the rest of your excellent summary. Cheney doubtless has laid plans already, as the safe ground under him continues to crumble away.

K & R

[Nothing Without Hope]

65. Links to related discussions on Judge Walton's rulings at Firedoglake:

http://www.firedoglake.com/2006/06/03/part-i-of-well-that-has-to/

http://www.firedoglake.com/2006/06/03/part-ii-of-well-that-has-to/

[upi402]

66. Pardons for all who hold the line

omerta's reward


my .02

[Me.]

69. I Think The Only Pardon B*** Will Be Interested In Is His Own

Can a sitting president pardon a sitting president? (I know, I know, but since he knows no shame I can see he and Gonzo putting their heads together. Course Gonzo would want one too or he wouldn't play. As for all the others blossoms, turds and otherwise, I bet as far as B*** is concerned they can all go... well you know, that anatomically impossible position.)

*shadow government*

[upi402]

70. kick don't drown

this fine thread

[Catherine Vincent]

72. Amen!

:kick:

[Just Me]

71. As a former practitioner, this is encouraging. They're sticking with,...

,...'the rule of law' and rejecting politcs. Fitz played really REALLY safe. His case is tight. The Honorable Walton is playing tight, as well. *fingers crossed* I would, just once, like to witness 'the rule of law' and truth and justice play out as "check mate" or "royal flush", in these times.

The world's humanity is wanting a democractic, "rule of law", FAIR and JUST system, sincerely offering opportunity to all.

[spuddonna]

73. Yum!

That was delicious! :)

I can't wait to read the filings from June 12th. I know Fitz has a steady hand, and is making sure the case is buttoned down, but I sure wish we could fast forward to the trial!

Thanks, as always. Seeing your posts is like finding a big box of chocolates! :7