The Libby Case: The Government Rests

Thursday, February 08, 2007
During Fitzgerald's investigation, Lewis Libby submitted to approximately ten hours of Government questioning, nearly nine of which were by a very skilled prosecutor without the protection of defense counsel under oath in front of a Grand Jury.

From that testimony, three snippets of less than three minutes total are now the subject of intense scrutiny.

Three witnesses testified that their versions of the events described by Libby in those snippets are somewhat different than Libby's version.

To me, the evidence is clear about this:

The memories of the three witnesses main prosecution witnesses, two of whom were highly respected journalists, one of whom was less experienced, were selective at best.

It just so happened that what they selectively remembered differed somewhat from what Libby testified to respecting the events described in the snippets.

As Church Lady used to say, "How Conveeeeeeeeenient" for the Prosecution.

My take is that the government's evidence is somewhat thin to go to the jury.

But it is probably not an abuse of discretion for Judge Walton to overrule a Rule 29 motion, and let it go forward. He could go either way, IMO.

I have, however, not done any research on the issue, and have not read the cases cited in the parties' briefs. So I don't have any idea how I would rule on such a motion.


Rick Ballard said...


Do you understand what Fitz's theory of motive is?

I can't quite get there.

There is no rationale that I can think of for Libby to have used Russert as an "alibi" for his story.

vnjagvet said...

I can't either, Rick. Libby clearly admitted in both his interview with the FBI and his testimony before the GJ he had learned critical information from the Veep when he in fact learned it.

That he forgot that information, did not make any difference, because he was not the source of any leak so far as the prosecution's evidence is concerned.

His "lies" relating to Cooper and Miller clearly concerned trivialities.

His "lie" relating to the Russert conversation also seems trivial in the overall context of the investigation, and Russert's memory is demonstrably both selective and unreliable.

I would not argue bias regarding anyone but Cooper.

Miller was "notebound" and Russert couldn't remember stuff that you and I would find most memorable, even when it was important for him to remember it (e.g. the Buffalo Press situation). That should be enough for reasonable doubt for any juror not thoroughly disposed to convict.

Cooper not only had a bad memory, but the "War on Wilson?" article was a biased political hatchet job on its face. This gives the defense bias and bad memory to hammer on.

Syl said...

I think fitz theory is that Libby made up a story about reporters and that Libby was only passing on information from reporters so Libby would look like he couldn't possibly be a leaker.

And the only thing fitz has to back that up is some nasty press articles about how horrible the leak was. Heck Ari testified it scared HIM, so fitz thinks the jury would think the same emotion hit Libby.

I don't think it's any more complicated than that.

I'm sure Wells can do a skillful job of addressing that.

Rick Ballard said...


I've got a handle on what Fitz thinks that Libby did, it's the why that is missing.

As Vnjagvet notes, Libby was crystal clear that he heard about Plame first from the VP. He was clear to the investigators and clear to the gj.

He was also crystal clear about the fact that he was disseminating information to the press in order to combat Munchausen's lies at the explicit direction of the VP and that he cleared the legality of the President's declassification of certain parts of the NIE with Addington.

He admitted that he spoke with ""journalists"" about Plame.

His "as if for the first time" story conceals - what? And for what purpose?

As far as I can tell - there ain't no motive.

Syl said...


Fitz question is 'why did Libby make up a story about hearing about Plame from reporters and pretending to other reporters that it was gossip and not official information he was passing on when testimony of reporters shows that Libby didn't pretend he was just passing along gossip'.

The answer is the motive. Libby knew he passed along information he shouldn't have and he didn't want to be discovered as a leaker.

(That's why Ari's testimony that he (Ari) thought OMG! I may have outed somebody! and thus took the Fifth and wouldn't testify until he got immunity could be damaging in the eye's of the jury.)

Rick Ballard said...


Great motive for Ari.

Doesn't work for a seasoned attorney with a clear understanding of IIPA, his NDA and the Espionage Act.

If you read his March 5 testimony relating to Grossman, Grenier, Fleischer and Martin you won't see any sign whatsoever of "uh oh, they got me" - he's still thinking that those questions are innocent, honest differences of recollections.

I will admit that I find them easy to pick out with 20/20 hindsight but when he came back to the gj he had reviewed and refreshed his memory and came up with the "one of yours" exchange with Grossman rather than the exchange that Fitz hung on him.

I just don't see any evidence of the mens rea necessary to convict.

Syl said...


I just don't see any evidence of the mens rea necessary to convict.

Me neither. I laid out fitz' case as I understand it, that doesn't mean I think he'll prevail.

vnjagvet said...

If we give Fitz Syl's motive theory, what does that do to the materiality element?

Libby gave Fitz, the FBI and the GJ the tidbits of information he actually learned from Cheney. That was enough to allow Fitz to follow up the chains of information from that disclosure.

Libby's "lies" were poorly designed to throw Fitz, the FBI or the GJ off the track in any way. If anything, he gave them information, which, if followed up on (awk) might have yielded him considerably more information for his investigation.