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Jeralyn of TalkLeft caught a new motion filing (PDF) from TeamLibby last night after I'd already gone to sleep, and graciously sent it along to me last night for my review as well.  (Thanks, Jeralyn!)  The key points are as follows:  (1) Team Libby wants Judge Walton to reconsider them being allowed to introduce circumstantial and other evidence regarding Libby's memory, whether or not Libby takes the stand; (2) that exclusion of such evidence would violate his Fifth Amendment and Sixth Amendment rights to a fair trial and to not incriminate himself, among other arguments; and that this evidence satisfies the requirements of Rule 401 of the Rules of Evidence defining relevance as "means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

Team Libby is doing its job here in re-arguing this point with Judge Walton, and making a record for the appellate court should the judge fail to rule their way and should Libby be convicted by the jury at the close of trial deliberations.  This is what lawyers do on both sides — leave a clear trail in their oral arguments on the record and in their paper filings as to what the interpretation of the law ought to be — if everything went the way they would hope for their particular side of the case, and lining out what they think the law says to support those facts and arguments.

The strongest argument for Team Libby is the Fifth Amendment one, I think — arguing that Libby has a fundamental right to remain silent and that conditioning the entry of this evidence on Libby's testimony violates that right.  Since the Government's case has already touched on some of the National Security material, I think an argument can be made that this is tangentially related (although, oddly, the Team Libby brief glosses over THAT particular nuance, and I'm not certain why, since an argument that the government already "opened the door" for this particular issue would have been a stronger one for them with Judge Walton — at least, I think so, having read through the copious rulings in this case from the start of motions proceedings.)

That said, this would not, nor should it, open the door for Team Libby to introduce reams and reams of national security materials in an attempt to confuse the jury or to overwhelm them and to obfuscate the fact that, despite having substantial national security matters on his plate, that Vice President Cheney and his chief of staff, Libby, were honing in on Amb. Joe Wilson with a laser focus from the moment the Vice President received criticism about his credibility.

Jeralyn argues that it should all be allowed in as circumstantial evidence of faulty memory.  No surprises here that I disagree on that one — the defense counsel should be able to give the jury some flavor of what Libby was dealing with, but only up to a point, because it is up to them and to Libby to show hard evidence — not just a pile of papers — that Libby was, indeed, consumed by these matters instead of his many, many meetings, discussion, and handwritten talking points from the VEEP on Joe Wilson.  And that includes the discussion on Air Force II on July 12th about whether they should release to the media the fact that Valerie Plame Wilson worked for the CIA.  And I cannot see but how a lot of that evidence necessarily has to come from Libby, or from Cheney, if they call him — but only to Cheney's state of mind, not to Libby's because Cheney cannot know exactly what Libby was thinking – only his demeanor and other clues of circumstantial value.

A defendant is entitled to a vigorous and thorough defense.  But that is based on actual evidence which is not only relevant, but also probative, in the case.  The defendant is not entitled to "bootstrap" (to steal a Fitz term) his case into evidence by pretending that the mounds of paperwork that crossed his desk were more important than the CYA he was ordered to do for Vice President Cheney's reputation.  And THAT is what I think that Team Libby is asking for in this motion — which should be denied by Judge Walton, apart from some allowance for the admission of information related to materials already in evidence through actual testimony of witnesses in the case.

Jeralyn is absolutely right that Team Libby may be laying the foundation for appeal and setting the stage for no testimony from Libby.  This could be for any number of reasons, including the fact that the lawyers in any criminal matter cannot, for example, allow a client to testify if they know that he or she will commit perjury on the stand, just as one possible scenario.  Or if you have a client who is just horrible in trial prep — who the lawyers see as a liability to himself — you may decide to put your case on without the client if at all possible.  Lots of possibilities as to why, frankly.

But in a he said/she said type of case, without some actual testimony from the defendant himself, Team Libby would run an awfully big risk with the jury, I should think.  Jurors often want to hear from the defendant so that they can take a measure of him or her speaking directly in front of them.  In this case, the jurors will have heard from Libby — during the grand jury testimony tapes — and I have to wonder if that is the only exposure to Libby that the Team Libby lawyers in the case will be comfortable with them having?

Related posts:

  1. Fort Hood Shooter’s Trial May Shed Light on NSA/CIA Domestic Spying
  2. The Bush Fairy Tale on the Libby Pardon
  3. Yoo’s Nightmare: A Trial Showing Torture was Unnecessary
  4. Cheney’s Betrayal Made an IIPA Charge for Libby Possible
  5. Dick Cheney, Scooter Libby, and the “Unremarkable” Meat Grinder