Monday, February 19, 2007

I think the Libby defense might have missed an opportunity to score a knockout punch against the prosecution... and, as a result, increased the likelihood that Libby will be convicted...

As we've all heard many times on TV, the necessary ingredients for a prosecutor to obtain a conviction are motive, opportunity and, in the case of a violent crime, the weapon.

For me, the relevant ingredient in this case is motive: why would Libby have done what he is accused of doing? Now, even though (I believe) the exact nature of Plame's status at the CIA hasn't been addressed at trial, Fitzgerald has claimed that Libby lied to the grand jury and investigators because Libby didn't want known the particulars of where and when he learned about Plame's involvement in the Wilson matter and the specifics of discussions he had with reporters about Plame... and, according to Fitzgerald, Libby was willing to lie in order to keep those particulars known.

But why? Why would Libby have cared? Why would Libby have tried to keep anything secret?

By the time Libby got around to being visited by investigators, notwithstanding the screaming coming from some nuts on the left, it was pretty much a foregone conclusion that Plame was not covered by any of the laws protecting the identity of covert agents... so Libby ought not to have been more than a wee bit concerned about any exposure he would have faced had he been the one to reveal Plame's identity or status at the CIA.

It's possible, but, in my mind, extremely unlikely, that Libby would have been so concerned he would be fired for having talked about Plame that he would have fudged his testimony before the grand jury. Libby didn't need the job... at least, not that much.

Second, Libby was among those who had waived confidentiality as to conversations he had with reporters on this matter. He certainly would have known that investigators would have been calling on Russert, Novak, Cooper and the others with whom he had talked... and it's unlikely Libby would have been counting on them to stay quiet (who wasn't surprised that Judith Miller spent all that time in jail? Who was surprised that all the other reporters in this case folded and talked?).

Thus, it makes no sense that a smart guy like Libby (agree or not with his politics, it's hard to argue that the guy has some brains) would go and intentionally lie/mislead the investigators and grand jury when (1) he figures he doesn't face any legal exposure over his conversations he had with reporters and (2) he knows that those reporters will have told Fitzgerald about their conversations with Libby and that Fitzgerald is likely to charge him, and not the reporters, with perjury and obstruction of justice if what Libby says is any different from the story Fitzgerald hears from the reporters.

And this leads to the mistake I believe the Libby defense team has made. They have concentrated their defense on defending Libby against the specifics of the charges. They've tried to show that the testimony of the reporters and others who have testified for the prosecution is wrong and not to be believed... at least not enough to justify convicting Libby.

A necessary element of a defense, to be sure, but where has the defense given the jurors a reason to doubt that Libby would have done what he is accused of doing? Introduce the element of doubt as to motive and the jurors have no basis for ascribing criminal intent to Libby's actions. And without criminal intent, all that is left is some trivial he-said, she-said squabbling. Without criminal intent, all that is left is the jury wondering why they have had to spend all this time hanging around a DC courthouse.

Now I don't know if the defense could have introduced this into the trial without Libby testifying. And I know that there are often some good reasons for keeping a defendant off the stand... but, in this case, I think the opportunity to score a knockout blow against the prosecution's case - by having Libby testify that he wasn't worried about being charged with having leaked Plame's identity and that he certainly wasn't going to lie to a grand jury in the hopes that these reporters would cover for him - would have certainly worth the risks of opening Libby up to some cross examination.

And by not having gotten this into the trial, either with Libby's testimony or through some other means, the jury is free to infer from everything Fitzgerald has claimed that Libby had real good reasons to lie to the investigators and grand jury... and vote to convict.