Okay – here’s one

If Ari says during the lunch Libby tells him about Plame and says it was hush-hush (what has been reported previously) and then tells Ari to get reporters looking into it because Cheney wants it out. Is that last part hearsay? It is not trying to prove that Cheney really wanted it out, right? Only that Scooter was pushing the story (and so couldn’t have forgotten). So it should be allowed, no? The charges are perjury, not the leak.

Yes, because any statement by Libby to a person testifying as a witness (e.g., Ari Fleisher) is admissible, provided that it’s relevant and not self-serving. This is true whether the statement (1) is offered to prove the matter asserted in the statement, (2) is a statement against his penal interest, or (3) is offered to show his state of mind when he made the statement. Why? Because any statement by a defendant, whether oral, written, or non-verbal conduct, is defined as non-hearsay.

The self-serving statement or declaration, to which I referred, usually is a statement by a defendant denying guilt or claiming innocence. Due to heightened suspicions that a defendant’s denial of guilt could be truthful, court’s exclude such statements on the ground that they are self-serving and, therefore, presumptively unreliable.

Libby is not charged with conspiracy, which requires proof that an agreement existed between two or more people to commit a specific crime (e.g., out Plame). If the grand jury had indicted Rove and superseded Libby’s indictment charging both with conspiracy, then another exception comes into play. Statements made in furtherance of a conspiracy by a member of the conspiracy, whether indicted or not, are admissible against each member of the conspiracy, whether they were present when the statement was made and whether they knew about it or not. I haven’t looked at Libby’s indictment for several months and I can’t recall if it contained any allegations regarding the existence of a conspiracy and if it referred to some of its members as known or unknown to the grand jury. I don’t believe that it did.

Where this hearsay rule might have come into play is if, for example, Fitzgerald were to introduce sufficient evidence that a conspiracy to out Plame existed involving some of the members of the White House Iraq Group (WHIG), such as Hadley, the Office of the Vice President (OVP), such as Cheney, and the Office of Special Plans in the DoD (OSP), such as Douglas Feith, then any statement by any member of that conspiracy made to further the objective of the conspiracy (such as your example of Libby’s statement about Cheney) would be admissible. Your example would demonstrate the point better if Cheney had been indicted, but not Libby. Then, Libby wouldn’t be a defendant so his statement about what Cheney said would be hearsay (if offered to prove the matter asserted), but it would be admissible if Libby, for example, was an unindicted coconspirator and his statement was to Fleisher was made in furtherance o9f the conspiracy.

Had enough? Fun to speculate about, huh?

Oh goodie LHP. I love this sorta stuff.

housekeeping:

-Paragraph 6, line 2 “are” should be “or”?

-4rd Paragraph from the end, next to last word “it” should be “is”?

sorry, picky picky.

NOW back to the play-by-play & thread upstairs, AND the comments there & here, & stuff downstairs. EEEP!

(snip)

And I think the speech, frankly Tuesday night, the State of the Union address was one of his best. I think there’s been a very positive reaction of people who saw the speech. And I think to some extent that’s helped shore us up inside the party on the Hill.

(snip)

See you later. Off the salt mines. have a great day all

More like the gold mines for all of us!

The books shipped from the printer on Wednesday–though they were supposed to ship earlier than that, which may be the delay. I’ll email Will to ask him for an update.

I started reading on the plane on my way home from DC, Marcy. It’s great so far. I’m about up to page 40.

Thanks again for coming to the DU meetup Friday night — everyone really appreciated it.

Hope you had a great time at the march — we sure had a wonderful day for it. And the crowd went wild when they announced that Rove had been subpoenaed — a lot of us hadn’t heard the news yet.

Yesterday I speculated at TNH:

“might it not be as simple as Team Libby NOT being entitled to testimony by Fleischer in regards to anything outside Libby’s indictment? If Fleischer testified in regards to violations of IIPA and conspiracy by Libby (or anybody else), this isn’t material to the charges of obstruction, perjury and false statements and therefore need not be turned over per Giglio? Assuming this is the case and Fleischer has not yet testified on the stand in this case about the 5 counts, any other content germaine to the 5 counts against Libby are not yet Jencks?

IANAL, but it seems to me that Fitz extended immunity based on Fleischer’s proffer about other charges and not about Libby — that the pig-in-the-poke is what Fleischer might say about Libby. Open to critique since this is merely speculation.”

New thought from sleepless (read: sleep deprived) consideration: what if Fleischer’s testimony was not only about somebody else’s behavior (and not about Libby), but demonstrated that he was left out? What if it shows he wasn’t in the loop because he has none of the information that others have?

Is non-testimony not required for disclosure under Giglio?