Skip to comments.Why Scooter Libby Is Not Guilty Beyond A Reasonable Doubt
Posted on 02/26/2007 5:08:15 AM PST by theothercheek
In his prosecution of I. Lewis "Scooter" Libby, Special Counsel Patrick J. Fitzgerald contended that Vice President Dick Cheneys former Chief of Staff was actively involved in a smear campaign against anti-war diplomat Joe Wilson and his wife, Valerie Plame and that he lied about what he said to whom during the early summer of 2003, thus obstructing the investigation to determine who outed Plame as a CIA agent by leaking her identity to the media.
Libbys lawyers countered that he was too busy with pressing national security matters to be involved up to his eyeballs in a conspiracy to leak Plames identity and then to cover up the White Houses involvement, and if details of what he told FBI investigators conflict with what other witnesses said its because the matter was too insignificant to recall.
Lets examine the prosecutions case point by point.
Libby The Leaker
The prosecution did not make its case that Libby was at the heart of the smear campaign against Wilson and Plame. Rather than making like the Ancient Mariner and buttonholing any journalist who would listen to the convoluted saga, just two reporters Judith Miller, then with The New York Times, and Matthew Cooper, then with Time Magazine - testified that Libby told them who Plame was and seven other reporters testified that other people told them.
In a video interview, political commentator Mickey Kaus suggested that to be effective, Libby would have preferentially leaked to just one or two reporters, giving them an exclusive. But both reporters notes were ambiguous as to whether they first heard about Plame from Libby, or were seeking to corroborate what someone else had told them (see below). And Millers boss, Jill Abramson, undermined her subordinates testimony when she took the stand, suggesting that Miller may not have learned Plames identity when she claimed she did.
Memory Or Made-Up?
The brain is very quirky when it comes to filing information for short-term retrieval or long-term storage. However, short- and long-term memory both rely on attentiveness. This is why you remember a hurtful remark your best friend made 25 years ago, but cant recall the name of someone you were introduced to at a party just five minutes earlier. At the time you were squabbling with your friend, you were paying close attention what he or she was saying. But just as the party host was making the introduction, you were distracted by music or spotted someone else in the crowd waving to you.
So if Libby says he cant remember specifics of conversations about Plame or whether he was a participant in such conversations - it could be because he was occupied by other matters or because the subject was of such scant interest that it did not register.
An article in The Washington Post explains the vagaries of human memory, as it pertains to the Libby trial:
"Human memory does not work like a video camera; memory is more selective," writes [Elizabeth F. Loftus] the professor of psychology at the University of California at Irvine. "The act of remembrance is reconstructive ... human memory can change in dramatic and unexpected ways with time. Memory can be altered through the reconstructive process, unconsciously blending actual fragments of memory of the event with information provided during the memory retrieval process."
Her specialty is the murkiness of memory. Her super-specialty is explaining how memory works - and doesn't work - to juries. She has appeared as an expert witness in more than 200 cases. Loftus was called in by Libby's defense team to speak to the court about the vagaries of memory. Fitzgerald cast doubt on Loftus's own memory through questioning.
"If you are having lots of conversations with similar kinds of people, lots of politicians and reporters, lots of interaction with media," says Loftus, "it can be very difficult for even the most intelligent person to know which detail you received from which source."
Loftus says that memories are fungible. She has even proposed that the oath "Do you swear to tell the truth, the whole truth and nothing but the truth?" be amended to read: "Do you swear to tell the truth, the whole truth or whatever it is you think you can remember?"
"True memories," Loftus writes, "cannot be distinguished from false without corroboration."
And Libby was not the only witness who had a faulty recollection of events. As Libbys defense pointed out, its unfair to assume that prosecution witnesses made honest mistakes, but that Libby was lying through his teeth.
Not Taking Note-Taking As Gospel
Can contemporaneous notes corroborate someones recollection of events and conversations? Researchers have known for years that the written or typed notes people take at meetings and lectures, while questioning suspects and witnesses during a crime investigation, or during interviews of sources for newspaper or magazine articles are inaccurate and incomplete, according to The Associated Press.
The brain filters out information being presented verbally so that note-takers do not record information they either know already, or that they do not completely understand. Notes can become personal snapshots, useful for jogging memory, more than an official record, Kenneth A. Kiewra, a University of Nebraska educational psychology professor who studies note-taking, tells AP.
Heres how this phenomenon impacts the trial testimony:
FBI agent Deborah Bond wrote a report saying Libby "adamantly denied" discussing CIA operative Valerie Plame. The original FBI notes, however, contain no record of that denial. Rather, they say he may have discussed Plame but couldn't recall. Adamantly might not be the perfect word, Bond acknowledged at trial.
Prosecutors say Libby told New York Times reporter Judith Miller that Plame, the wife of prominent war critic Joseph Wilson, worked for the CIA. As evidence, they point to Miller's note, set off by parentheses, that said, "Wife works for bureau?"
Miller testified that she believed Libby told her Plame worked for a bureau of the CIA. But she said she sometimes sets things off in parentheses when she already knows information and wants to ask about it. That's how Libby's attorneys want jurors to read those notes.
Former Time magazine reporter Matt Cooper testified that Libby confirmed for him that Plame worked at the CIA. That confirmation did not appear in Cooper's notes. Libby says he told Cooper only that he'd heard something like that but didn't know for sure.
Cooper could not explain a line in his typewritten notes that read: "had somethine about the wilson thing and not sure if it's ever."
Libby's lawyers believe that was supposed to read: "Heard something about the Wilson thing, but not sure if it's even true."
One of the few reporters whose notes were not dissected in the Libby trial was Washington Post reporter Bob Woodward. He spoke confidently about what he learned about Plame and when he learned it.
He had taped his interview.
Conflicting Testimony, Conflicting Timelines
No two witnesses appear to agree on a timeline, or on who first told him or her about Plame.
Miller and Coopers testimony about Libby being the leaker conflicts with the testimony of Robert Novak, Woodward and several other journalists that Libby was not the leaker. Millers testimony also conflicts with Abramsons testimony.
Meet The Press moderator Tim Russerts testimony conflicts with Libbys recollection that Libby did not know Plames identity until Russert told him on July 10 or 11, 2003; Russert says he did not know Plames identity until he read Novaks July 14 column, Mission to Niger.
Libbys memory that Russert told him who Plame was conflicts with FBI agent Deborah Bonds testimony that Libby had been told by Cheney on June 12.
Millers testimony that Libby told her about Plame on June 23 and July 8, 2003 conflicts with Libbys assertion that he did not know this information until later. So too with former White House press secretary Ari Fleischers testimony that he learned Plame's identity from Libby on July 7, 2003.
As far as anyone can tell from this tangled tale, the very first person to leak Plames identity was former Deputy Secretary of State Richard L. Armitage, a top aide to then-Secretary of State Colin L. Powell, who told Woodward in a taped interview about Plame being Wilsons wife on June 13, 2003.
Yet Fitzgerald went after Libby, not Armitage.
In a recent commentary in The Washington Post, Victoria Toensing, a deputy assistant attorney general in the Reagan administration and an attorney, lays out her own personal bills of indictment against Armitage, the CIA, Wilson, the media, Fleischer as well as both Fitzgerald and the U.S. Justice Department because the Plame investigation has enough questionable motives and shadowy half-truths and flawed recollections to fill a court docket for months.
A couple of anti-war, liberal, non-entities just cannot understand that it is NOT all about them.
The smear is aginst the VP and anybody else close.
Our entire system of justice is broken. We need to end the "War on Drugs(TM)" to restore sanity to our streets and judicial systems, and we need to bag the entire "adversarial" system of justice and adopt the inquisitorial system which you see in France in which the common incentive of all parties is to determine reality. NOBODY should have any sort of a career or money incentive to put people in prison. The job of DA is a magnet to psychopaths and should not exist, and most of the psychopaths the job attracts are demokkkrats. Aside from the insane case involving Duke lacrosse players, there's still one poor guy (Fuster) rotting in a Flori-duh prison for imaginary crimes involved in Janet Reno's witchcraft ritual abuse trials of the 80s and why Jeb Bush hasn't pardoned Frank Fuster is basically one of life's mysteries. I'd have made it a priority.
The Duke Rape case and Nifong is the best argument for your case there could ever be.
Scooter could have been proved to be Jesus Christ and he will still be found GUILTY. This is the OJ Jury in reverse.
Scooter's 'D.C. jury of his peers' (sarc) hates Dubya and all things Republican. Ergo, facts be dammed - he's Guilty for being republican.
(should have asked for a Change of Venue IMO, or at least a Bench Trial)
He's guilty, just ask any Demcrat
Dems can "lie to their diaries" and "stuff top secret documents down their pants" and get off with a hand slap. A Repub is a "lying liar" and it's only a matter of formality (and the right venue and voir dire (jury packing) and jury instructions (jury tampering)) to get the right verdict.