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So yesterday, we learned for certain that Team Libby intends to call Dick Cheney as a defense witness during Scooter's criminal trial.  There is no word at this point whether Cheney will make a public appearance on the stand, sitting in the witness box in the hot seat live in front of the jury — or whether the appearance of the Vice President will be done via a videotaped deposition-type appearance.  That will have to be worked out by the parties, the judge, the Veep's office and the Secret Service.

I'm not even going to try and guess what or how this will play out, because there are advantages and disadvantages to doing it either way for Team Libby and for Fitz's team as well. 

Personally, I always preferred a live witness to having to go through the hassle of a videotaped appearance.  However, one thing you do get from doing such an appearance ahead of time — especially where you have what is likely to be an attempt to limit testimony on direct examination to very narrow grounds as Team Libby will no doubt try to do to prevent Fitz and his team from being able to ask a wide range of questions on cross-examination — is that you already know what you will have to deal with at trial with a witness that is likely to be either combative or less than forthcoming.

But, when you have a witness that is likely to be smarmy or evasive or hostile or petulant or what-have-you on the stand, the best possible way to have them in the hot seat is to have them there.  Live.  In all their glory in front of the jury, so that the jury members can see every sneer, every blink, and every snarling flash of the angry eyes.  Every bead of sweat on that wide forehead.  Every vein popping out in anger as well.  Every single thing.  For every last minute that the witness is sitting there on the hot seat in front of them.

I previously talked about how magnified everything can be when one is sitting in the witness chair for a grand jury appearance, and it goes the same way for a criminal or civil trial appearance.  And I wanted to pull a couple of points out of that post for folks who may not have had the experience of either being a witness or in a trial courtroom, just to set the scene a bit:

But it carries a LOT of risk — Karl will be sitting in the witness chair with the entire grand jury watching his every move, his every bead of sweat, his every little slip of the tongue…and Fitz will be right there to follow-up on every single one of them.

It occurred to me this morning during my ultra-super-nutritious breakfast of a chocolate covered Krispy Kreme (or Krispy Krack, as I like to call them) and coffee, that a little detail on just what happens when someone testifies to a grand jury would be helpful to everyone. So, here goes:

The witness enters the room and is asked to raise his right hand and swear to tell the truth, whole truth and nothing but the truth. The witness is then seated in the chair provided for testimony, and questioning begins. You usually start with introductions, if the witness is new to the jury, but since Karl will be there for the fourth time, that won't be necessary. (snark intended)

As a prosecutor, you prepare, endlessly really, for this sort of thing, writing out potential questions on legal pad after legal pad, outlining and timelining the evidence that you have, putting together a story board of sorts on who has said what so that you can get to the heart of any big discrepencies. The way Fitz runs his investigative grand juries, according to every report that I have read, is a more interactive way — allowing lots of questions from the jurors as well as his own questions. And then Fitz will be able to follow-up on any testimony that doesn't square with what he already knows, asking question after question if necessary. Honestly, you prepare all these questions in advance, and you hit a lot of them — but there is always a moment when a witness veers off on a tangent, and it is the tangents that can prove the most useful.

Obviously, that was all about the Rove grand jury trips, but the jury observations and the prosecutorial preparation and meticulous follow-up on any and all aspects which are discussed on direct examination or via answers on cross-examination corrolates with the grand jury appearance information above.  The difference is that Cheney will be able to have a lawyer present while he is talking, and that this is a criminal trial proceeding instead of a grand jury appearance – which has a broader range of possibilities in terms of what can be asked and answered, but also carries with it significant limitations in terms of what a prosecutor may ask on cross-examination based on what is asked on direct examination by defense counsel.  One big difference is that jurors in a criminal proceeding do not ask questions — they simply listen — as the criminal trial process is not as interactive for them as the grand jury process is.

I'm working on a longer post on direct and cross for later — but I wanted to give a little context to new reports that I am looking at for you all this morning.

So, on to the news.  The Financial Times comes closest to what I think is the political question involved in a public trial, in which the sitting Vice President participates as a witness called on behalf of the criminal defendant: 

Mr Libby’s trial is due to begin in the middle of next month. It could become an embarrassing spectacle for George W. Bush’s administration, with leading officials expected to take the stand to explain whether Ms Plame’s name was leaked because her husband, Joe Wilson, was a critic of the administration’s war policy.

It will be quite interesting to see this parade of headline names, in and out of the courthouse — Administration officials, media luminaries, Republican operatives, and the like, all put in the same position any person in any petty criminal trial is in day in and day out in courthouses all across America. All having to answer questions about the way that they do business. Except in this case, the way they were doing business happened to mean that a covert CIA operative was exposed by members of her own government for payback against her husband for exposing the Bush Administration's push of false information to gin up the war in Iraq.

High stakes stuff.

Why call Cheney at all for the defense?  I'll let the WaPo explain that one:

Cheney's role in the case is a pivotal one, for both the defense and the prosecution. He was a witness to, and participant in, how the administration reacted in the spring and summer of 2003, when Plame's husband, former ambassador Joseph C. Wilson IV, publicly accused the administration of twisting intelligence to justify the invasion of Iraq.

A "witness to, and participant in, how the administration reacted in the spring and summer of 2003." That pretty much says it all abut Dick Cheney, doesn't it? And the fact that the WaPo is saying it straight out? Nothing short of a miracle, considering how much information has had to get shoved into the public sphere kicking and screaming before they would consider printing that sort of sentence. (Thank you, Murray Waas.)

David Johnston in the NYTimes sets the stage for the tension that will likely be in the air at the courthouse if Cheney appears in person — or that we will see via videotape if he is deposed:

The prospect of Mr. Cheney’s testimony suggested that Mr. Libby’s trial could be transformed from a narrowly gauged perjury case into a riveting courtroom drama with the taciturn vice president as the star witness. He would testify under oath and be exposed to cross-examination by prosecutors….

Although Mr. Cheney has been a vigorous proponent of sweeping executive authority, which includes the notion that the president and perhaps other high officials could resist calls to testify in criminal trials involving their official conduct, his appearance may not set precedents, legal experts said. That is mostly because the Libby case presents a different situation from one in which such officials are subpoenaed to testify, they said.

Mr. Cheney appears to have voluntarily agreed to testify on behalf of Mr. Libby, whom he has steadfastly supported. It is unclear whether Mr. Cheney would appear personally in the courtroom or seek to testify in a less exposed manner like having his testimony taken at the White House and introduced into the trial by videotape….

In his testimony, Mr. Cheney will probably be asked to affirm Mr. Libby’s statements that he was occupied with many important issues and that there was no deliberate White House plan to disclose Ms. Wilson’s identity.

Prosecutors have said in legal filings that Mr. Cheney played a central role in the White House reaction to Mr. Wilson’s Op-Ed article. Mr. Fitzgerald has hinted in filings that Mr. Cheney may be a prosecution witness, although he said at the hearing that the government had no plans to call the vice president.

According to Mr. Libby’s grand jury testimony, cited in prosecution legal papers, Mr. Cheney believed that the article falsely attacked his credibility because it asserted that the vice president’s office instigated Mr. Wilson’s 2002 trip to Niger.

Prosecutors have already disclosed a copy of the article on which Mr. Cheney made handwritten notations asking whether it was Mr. Wilson’s wife who sent him on the trip.

In previous legal briefs, prosecutors have said they want to use Mr. Cheney’s notes as evidence, saying they show the agitated environment in Mr. Cheney’s office and the importance that Mr. Libby attached to the effort to rebut the article.

After Mr. Cheney expressed concern, Mr. Libby told several reporters that Mr. Cheney’s office had not sent Mr. Wilson on the trip and that he might have traveled on what was little more than a junket arranged by Ms. Wilson….

Ought to make for a very interesting time on the hot seat, eh?  This probably means absolutely nothing but that the folks at Radar Online are trying to snag some traffic, but this did catch my eye:  "Cheney Flips On Scooter."  That WOULD be interesting, wouldn't it?  (Again, probably not much of anything, but I thought this sort of headline in a publication put out by the Washington Times ought to be noted.  And then some.)

Finally, the LATimes has some historical background on the prospect of the sitting Veep testifying at trial.  Well worth a read.

Related posts:

  1. Cheney Refused to Release the Journalists
  2. Dick Cheney, Scooter Libby, and the “Unremarkable” Meat Grinder
  3. Fitzgerald-Cheney Interview: A Comedy of Excuses
  4. Dick Cheney, Torture, Iraq, and Valerie Plame
  5. Dick Cheney Asks Obama to Wave His Magic Wand