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As some of you have noted, Judge Walton released a whopping 48-page opinion explaining his evidentiary decision-making in the trial. I think he did so for two reasons. First, his clerk, who has been involved in this case from the start, had his last day Friday. By getting all this on paper now, Walton makes sure that the clerk who worked with him on these rulings works with him on the opinion.

But it also lays out where we might be heading for the appeals process. After all, in the very first days of this trial, Ted Wells said we were "probably … maybe" going to be arguing these issues after the trial. If the Lead Defense Counsel thinks an appeal (and therefore some convictions) are probable, then the judge might well take note and prepare for it.

The scope of the opinion provides some unsurprising guidance about what Walton believes Team Libby might appeal–two of the three issues relate to Russert (Walton's ruling to exclude the Andrea Mitchell self-impeachment, and Walton's ruling to exclude some information that might have impeached Russert). No doubt Team Libby and Walton, like everyone else, recognize that the Russert charges are much stronger than the Cooper charges. Curiously, though, any attack on Russert himself ignores Fitzgerald's (I think correct) assertion that the Russert charges would hold up even if Russert had moved onto that great newsroom in the sky–I guess Team Libby still cannot or will not find a way to impeach David Addington, which will limit their ability to reverse this charge.

The part of the opinion I'm really interested in, though, is where Walton expounds on his opinion, expressed during the trial, that it would be suicide for Libby launch a memory defense without testifying. After some back and forth (Team Libby came very close to winning this one), Walton dramatically limited what Libby could introduce for his memory defense if he didn't testify. Most importantly, he refused to allow the defense to introduce a Statement Admitting Relevant Facts (explaining the Very Important things Libby did at work) even after Wells had read it in his opening statement.* And he prevented a parade of CIA briefers from taking the stand to explain all the Very Important things Libby was obsessed with, in addition to outing a CIA NOC. Basically, Walton is arguing–as he and Team Fitz did in the trial–that all the classified information provisionally declassified for the trial was only admissible if Libby took the stand to explain how those Very Important things affected his state of mind. With two footnotes, Walton makes it very clear that any decisions he made in the CIPA hearings were based on the assumption that Libby would testify:

In its Response, the government identified at least a dozen occasions during the CIPA proceedings whent eh defense affirmatively represented that the defendant intended to testify … and nine instances when the Court's statements suggested that its relevance determinations were predicated upon the defendant's testimony laying the necessary foundation for the admissibility of specific evidence…

In this regard the defendant's disclaimer expressed during the 6(a) proceedings that there remained a possibility that the defendant might not testify merely stated a truism. Although the defendant surely retained then, and retained until the very end of his trial, the choice whether to testify, there can be little doubt that the Court and the parties labored during the CIPA phase of these proceedings under the assumption that the defense would testify as part of his defense.

Once he lays this premise out, Walton goes on to knock down all the bases for Libby's complaints about the excluded testimony. Over and over, Walton basically says: you had the choice to testify or not, to enter this evidence or not. You chose not to, so live with it.

There is one passage in which he goes further. Walton shows that Libby tried to admit the evidence for a purpose (to show his Very Important job) beyond that for which it had been declassified (to help Libby show his state of mind when he forgot outing a CIA NOC). In a big old footnote, Walton lays out all the other ways he could have entered information about his Very Important job.

The defendant also had a number of other vehicles of presenting to the jury the nature and scope of his work responsibilities. In fact, during the defendant's case, John Hannah, the Vice President's current National Security Advisor, and formerly the defendant's deputy, testified about the nature and scope of the national security work the defendant performed during the critical dates of this case. And had he chosen to do so, the defendant could have also recalled David Addington during his case to testify about the scope of his responsibilities as Chief-of-Staff to the Vice President, a position also held by the defendant during the times pertinent to this case. Additionally, the defendant's former administrative assistant [Jenny Mayfield] could have been called as a witness to discuss his daily schedule, and his calendars could have been introduced as exhibits to show the jury the demands of the defendants' daily schedule. Moreover, the defendant could have called the Vice President to testify concerning the issues he directed the defendant to address and upon which the Vice President expected the defendant would devote his time and attention.

This last bit is the real smack-down. The Year of Iran Hannah, of course, turned into a total flop as soon as Fitzgerald asked Hannah what it meant if Libby took two hours out of his day to meet with someone, as he did when he leaked Plame's identity to Judy. With Jenny Mayfield, Libby would have introduced another witness who had heard Libby say nothing to corroborate his side of the Cooper conversation; not to mention that Mayfield witnessed some of the top secret scheming about a response to Wilson that took place between Cheney and Hadley and Libby. Maybe Mayfield even knows the content of Libby's missing document . And then there's Cheney himself. Walton lays out the risk precisely, that Cheney could "testify concerning the issues [Cheney] directed the defendant to address." You know. Like outing a CIA NOC. These witnesses might have been able to testify to Libby's Very Important Job–but they're also all direct witnesses to what he was doing instead of attending to that Very Important Job.

Judge Walton is too polite to say it directly. But the subtext here seems to suggest that Libby had plenty of ways to introduce the evidence he claimed to want to introduce–but all of that evidence and those witnesses would only increase the cloud hanging over the Vice President.

I can't tell you how well or poorly this opinion will impress Laurence Silberman if he gets this case on appeal. But I love the way the opinion boils down Judge Walton's exasperated rulings into a polite smack-down of Libby's attempts to game the system.

*Here's something I've been thinking about Wells. Remember how he made that heartfelt plea for Walton not to suspect that Team Libby threatened to call VP to drive jury selection and to call Libby to justify greymail? Well, I can't help but remember that Wells said they first considered not calling Libby after December 22, when they got Jencks.

But if they were seriously considering that in December, why build the Statement into your opening statement? Unless you were still trying to get some benefit from just threatening to call Libby, without actually doing so. 

Related posts:

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  2. al-Haramain Reply Filed; Constitution, Rule of Law in Judge Walker’s Hands
  3. Appeals Court Won’t Unseal Spitzer Wiretap Applications
  4. The Cheney Interview: Judge Sullivan Rebukes Obama, but Still Shields Crucial Info
  5. Cheney’s Betrayal Made an IIPA Charge for Libby Possible