Well… so much for my lunch break
Just saw this news at FDL, and suddenly the gloom of two days before the winter solstice has lifted.
Personally, I think there’s probably a whole, entire botanical element about Aspens Turning that perhaps Deadeye will want to enlighten us all about from the stand… too bad they can’t call Hadley, Abrams, Feith, and others for added details. But I’ll settle for the pure amazement of news headlines about the Veep testifying in a Criminal Trial, and leave the clever interpretation to those more skilled (Colbert, et al).

Here’s hoping Fitz is in fine fettle.
Truly, the midwinter sky at my latitude looks brighter since this news came across my particular Internet Toobs. I fear that I shall devolve into a hopeless Plame junkie from now through Feb 8-0

I don’t think that this makes sense at all. Not at all. If the truth is anything how Fitzgerald says it is, then Cheney would nearly ruin Libby’s case. There are numerous ways that Fitzgerald could use Cheney to destroy the proposed defenses.

My only belief is that Libby is threatening to call Cheney in order to get a pardon before trial. Putting Cheney on the stand would open so many can of worms for the administration, I just don’t see a way that they would let it happen.

Another possible explanation is that the defense often times threatens to put on witnesses for various reasons (often to confuse the prosecution or force them to waste their time trying to anticipate defenses) but it never happens. So this could simply be Wells acting as a defense attorney.

so how does dead eye dick get out of this one ???

could cheney seek protection under the 5th Amendment, and refuse to testify because it might incriminate him ???

that’s gonna look real good

I don’t see how a blanket refusal to testify could work in the face of the Clinton Impeachment prescedent

maybe george will pardon scooter, and take his chances in front of Mr Waxman and Mr Conyers

anybody wanna speculate on the weasle manuvers that dead eye dick might try ???

I can imagine prosecution’s case being airtight irrespective of Cheney’s narrative.

I would expect Cheney to explain that his office wrote, in conjunction with NSA, a secret executive order, to this date unpublished, which Bush-2 signed, affirming linkage between instaDeclasify-instaReclassify, resting this classification system on executive war powers and unitary executive theory of asymmetrical checks and balances.

The interesting part here, if Cheney actually shows up to testify, is it will be his first sworn statements. Recall Bush and he permitted only one interview and only together not separately, and unsworn, in the White House.

pdaly

I think that’s likely–that they would have rather had Fitz call Dick. One of the reasons to do that is that Fitz has to reveal more about Dick if HE calls him, than if Libby calls him. I don’t think that matters in this case (that is, I think Libby knows exactly how Dick will testify).

I need to go back and review it. But one of the most damning witnesses in the Ollie North trial was a witness North had called. There was something Walsh had wanted to present, but didn’t want to reveal it in discovery. He couldn’t believe the break he got when Ollie decided to call him, because he basically got to ambush Ollie with the testimony.

It is such an honor to be mentioned here.

I am such a fan! Half the time I cannot even follow the posts, b/c Marcy’s command of the details is so intense.

The WaPO is saying that Cheney will NOT resist the call to testify.

So, whatever Cheney is going to say, he and Scooter are in agreement that he should say it. Not that I am saying that Scooter’s agreement is voluntary maind you, just that they appear to be acting in concert.

Fitz is so much smarter than the people around Bushco. We need to always proceed on the premise that this Administration has advice from 3rd tier law students who joined the Federalist Society and thought their success was assured.

E.W,

You may have addressed this a million times but I have missed it and someone on FDL asked this question and I wonder what your take would be on the question. Why did Fitz allow Pres and V.P to interview together (which I feel was a big bonus to them so they could know each other’s testimony) and why would he allow them to testify without being uder oath? And if they had nothing to fear because the NIE was declassified by themselves why were they not willing to testify under oath? I just don’t get it?

Hey, how about a readers’ poll?
– Impose a deadline for comments on this post, followed by a fresh post containing the more promising speculations, for readers to rank them in order, most likely to least.
At this point, I would rank your second and third speculations as co-most likely to come true.
You have to have been on a witness stand, in a courtroom, to fully appreciate how little power a witness senses. At least in Grand Jury proceedings, there’s some feeling of at little privacy. But the overwhelming sense of witness emasculation is bound to be far worse at this trial, where one knows that there are millions out there in the cheap seats analyzing every turn of phrase, all of them knowing you are the only one who had to ante up – your freedom and dignity.
Reading the Grand Jury extracts of Libby’s examinations would convince any half-decent defense attorney that Libby came across as a liar. Mind you, that was just the transcript – my experience has been that such an impression is vastly more compelling when one gets to see lying liars lie.
It won’t help Libby’s pre-game jitters that his attorneys are under an ethical duty to tell him how he comes across.
Worse, Libby IS a lawyer, and he has at least some court experience, so he knows all about the importance of being earnest and the rest of the drill with witness demeanor. He acted for Armitage on a congressional hearing into Armitage’s nomination by Bush the First to a post that’s subject to confirmation – on which Armitage, who I would expect is a braver person than Libby (and possibly a more convincing liar, at least off the witness stand, based on his performance on 60 Minutes), performed so poorly, Libby advised him to withdraw from the process.
Before all this Plame unpleasantness, Libby was reputed to have a Steel Trap Memory, or, given the Neocon love for anagrams, STM. Other than for his ability to turn an elevator into a deep freeze, and for his writing propensities (not just the turgidly homophobic novelish“The Apprenticeâ€, but both editions of the Neocon Manifesto, the First Edition, under the title â€Defense Planning Guidanceâ€, produced in 1992 for his then-boss Secretary of Defence Dick Cheney, and instantly classified, presumably because it was too scary for Little Brains and too alarming for the sane, and the Second Edition, under the title “Rebuilding America’s Defensesâ€, published in 1997 by the American Enterprise Institute, aka America’s Readin’ and Writin’ Room for the Right, a barely-disguised re-write, it’s only redeeming merit being in not having been paid for with tax dollars), that STM, that and being Cheney’s minder, was pretty much ALL which distinguished Libby from, say, David Frum.
Moreover, Libby had a well known reputation in Washington for taking great pride in possessing his STM, not just for what it might indicate about his intellect, but for its being readily available to haul out when most needed in the blood-spattered offices and anterooms of the Capital – to dazzle some would-be-independent-thinking congressman or to bully some wimpy soft-brained career type in State or the Agency.
Assuming his attorneys’ claim, that in recent years, more particularly since the end of May, 2003 through October 28, 2005, he suffered bouts of limited-subject amnesia and audio-hallucination on being confronted with the memories of those chilling days after invading Iraq, listening in as his boss channeled the Spirit of Even Bigger Dick (Nixon) for more misinterpretations of the world to spin into Bush’s right ear and trying to get them written down before Dick was left on for his extended brunch with a member of Halliburton’s board of directors, is just some lame-ass b.s. to keep the right wing bloggers and talk show hosts supplied with talking points until Pardon Day, then Libby’s STM is bound to cause him problems on the stand.

Labdancer

Thanks emptywheel and smiley. I began my commute shortly after commenting and missed your responses.

I think emptywheel’s explanation explains better the Team Libby exasperation (not getting Fitz’ discovery) but as you suggest Libby probably knows what Cheney is going to say. And by naming Cheney as a witness doesn’t this give Libby’s lawyers something previously off limits in this criminal case–a new found permission to converse with the VP?

I keep wondering about Cheney’s annotated Wilson op-ed. Its somewhat improbable survival during the early investigation makes me wonder if it wasn’t a red herring afterall–a post hoc ploy to get Cheney named as a prosecution witness from the beginning. I have no idea if that makes political or strategic sense.

Sara, I noticed that on NBC also, that Cheney would probably be â€deposed†via video.

The questions that I would like to seee Fitzgerald ask both Libby and Cheney are whether they were aware of Plame’s NOC status, and if not, why? It will highlight either their guilt or their depraved indifference, incompetence and willful blindless and ignorance.

lilnubber

AFAIK, it will NOT be televised.

Evidently, Bush was the only one Fitzgerald interviewed, deferentially, unsworn, on the leak of the spy’s name.

As other commenters agree, it was the 911 interview that was both Cheney and Bush and unsworn; see the second article on that webpage, including a few 911 commissioners in the photograph greeting the president and vice president.

ew, I have a request prompted by your 3rd update.

Given that Cheney’s overall approval poll numbers are in the low teens, how likely it is that Team Libby will be able to find even one person to sit on the jury who is not openly hostile to Big Time? If Libby asks their â€How do you feel about Dick?†question, and all the potential jurors say â€I hate his pro-torture undead zombie ass and want to see him hung by his feet from a lamppost,†and then Libby’s lawyers move to strike for cause and Walton says no… they’re kind of screwed, right? They would be forced to treat him as a hostile witness, or not call him at all, because if Libby’s defense is that he was joined with Cheney at the hip, and the jury hates Cheney, that means the jury should hate Libby too.

Here’s the request. Can we have a post about the DC voire dire rules? I’m thinking: how big is the initial pool of jurors, how many peremptory strikes, is the voir dire open to the public, etc etc etc. I’d be willing to spend some time (and use my fully-paid educational westlaw and lexis accounts) doing the research if you have more interesting things to think about.

If this thing is really going to trial, I think we could benefit greatly if people actually go and sit in the gallery and liveblog the damn thing. For an example of a passionate public getting involved in a corporate civil case, you should take a look at Groklaw if you’ve never seen it before- great community, all over the US, making sure that Microsoft doesn’t get to have its way with Linux.

And I’ll be in Kalamazoo over the Christmas holiday, so greetings from a (former) fellow Michigander

Cool blog. By the way, I read your entry on Forever Blue. If you want to watch it again, I recently uploaded it onto megauploads. The link is on my blog (kurblickDOT blogspotDOT com).

I will start by making these statements:

Dick wants to help his employee and friend Libby.
Dick’s testimony will help Libby.
Dick is not stupid enough to do anything that puts him in jeopardy, and Fitz knows it.
Dick’s testimony will not hurt Dick.
Dick will be able to handle Fitz easily.

Most here had built up strawmen of what they expected.

e.g. Dick hiding, being afraid, being taken apart by Fitz, Dick not being able to help Libby, Dick being ineffectual (aside from some politic things), etc. All that fit the pattern you have also built of terrible deeds done by the White House to Plame and Wilson.

So thus far in this sordid sequence, you have Libby being tried for a memory fault, and Dick on the stand (wow) testifying for his friend.
Not very much, I would say.

Most of this turmoil has been wishful thinking, and the usual case of a special prosecutor prosecuting on something other than his mandate.

Wake up folks! Dick might be made fun of for shooting a man who was in the wrong place, for having a bad heart, for having a daughter that is somewhat out of sync with the WH position on Lesbians, but I notice that few attack him as being slow.

Now I will do what none here will. I will say I could be wrong, because the game must still be played out in the courtroom, and on appeal, and so on, and no one really knows what might happen. And then if I am wrong. I will smile, and say â€Golly you were correct. Great Game!â€

Anyone here brave enough to do that?

Re: Questions about video in the courtroom.

The newer federal courthouses are all wired for remote video testimony. There are screens (big screens) for the judge, jury, spectaors and court reporter.

The witness sits in a remote video conference center and usually, eveybody else is in the courtroom.

This trial is in an old courthouse. They woul have to bring in temporary eqipment to do it.There a tons of companies which have been certified by the Office of Court Administrtion to this.

One of the problems that comes up in old courthouses, is electricity and broadband cable availability. Currently OCA is in the process of doing asbestos abatement and retrofitting the wiring in old courthouses. For example right now the old courthouse in the SOuthern District of NY is completely shut down and everyone has been shoehorned into the new courthouse whill the old one is being renovated.

I don’t know where in the renovation cycle the Prettyman Courthouse might be.

So, there may be problems doing a true remote. Also, there may be space issues because of the bulkiness of the temporary equipment.

Lastly, the Federal Rules of Evidence do allow deposition testimony to be used at trial in lieu of live testimony, so that may be the plan in this case.

lhp

Thanks, that’s helpful.

John Casper

I’m rather alone in this opinion, but I don’t think they intend –or want–to pardon Libby until they have established certain issues looking ahead to the trial. One of the most important, by far, is to establish that, whatever Scooter did, he was just doing his job. If they can establish that in this trial, the civil case is MUCH more likely to be thrown out. But if they don’t and Scooter is found guilty (or, if he admits guilt, which a pardon is considered to be, admission of guilt) then it makes it easier to go forward with the civil trial. One of the reasons to have Dick testify, it seems to me, is to emphasize precisely this point: Libby was ordered to do these things by his superior, therefore it was all in day’s work.

jodi

Again, I’ve said this before, but you seem to believe you’ve read all of the plame entries on this blog–but you clearly haven’t, neither the ones where we admit this is all speculation nor the ones where we proved very prescient.

That said, I will agree with lhp that Dick doesn’t get intimidated. However, I will say that in interviews he always adopts a studied nonchalance, but incredibly inflexible approach. He’s a very discipline interviewee, but in a court he won’t have the same ability to set the terms of the interview, which will make all his normal coping strategies moot. ANd, as many have pointed out, when he loses control of hte situation, when someone says something he doesn’t like (as he did with Pat Leahy) he loses all this discipline. Will he pull off the trial appearance? Maybe–but the possibility of a major fuckup is there.

And as to being slow? Well, I will insist–because all the evidence is there–that he is wrong, inflexible in his thinking. THat’s a little different from being slow, but will affect his testimony nevertheless.

It’s not that Cheney will be intimidated on the stand.
It’s that, for the first time in his life, he will be cornered.

Leslie:See? This man is the Veep, much too important to actually testify in person…

Right. But the Jury will HATE Big Time. Everyone who is not Barbara Comstock has a strong visceral revulsion to the man. So if Big Time says nice things about Scooter… the jury thinks, â€This bad man likes Scooter! So Scooter must be a bad man too. GUILTY.â€

That is, unless the jury thinks â€If I don’t acquit, that bad man will SHOOT ME IN THE FACE.â€

Smiley and lhp, thanks very much for the info on how the video testimony works — and lhp, I absolutely follow all the network and electrical power issues involved 8-p

A question for the more legally-astute. My boyfriend is concerned that if Cheney is listed as a defense witness but then not called by the defense, he cannot be called by the prosecution. Please tell me he’s wrong?

This will be a cross-examination for the ages. Of this trial were broadcast, I would be glued to the tube.

I’ve been waiting, apparently in vain, for ANY more substantive information about what transpired during the apparently hours-long motions in limine (and status reports follow-up) hearing yesterday, from those (apparently numerous) members of the â€press†who were present… Nope, we get the news of about 1 minute flat of the proceedings: Prosecution won’t call Cheney, Defense will. PERIOD. [The motion hearing was scheduled to start at 11:30 a.m., and the breathlessly brief AP report about Cheney came out at about 3 p.m., I believe.] Because that one development qualifies as â€big news†does that mean that all the other developments of the day’s hearing are relegated to the trash bin by the editors and reporters…? I don’t get it. Even if nothing else of significance happened, why not point that out, in a brief summary of the arguments the press witnessed…

If this is the standard we can expect from the corporate media during the trial, the coverage from any bloggers who manage to get into that courtroom will blow the lid off the paid media’s version of the proceedings.

I did finally find two references to developments from the rest of yesterday’s hearing, FWIW:

1. The defense will not be calling Joe Wilson to the stand. [That’s from Joel Seidman’s NBC version of the story.]

2. From The New York Times (David Johnston’s article, thanks to Christy’s FDL link this morning):

William H. Jeffress Jr., one of the defense lawyers, said he planned to call Mr. Libby as a witness, along with several reporters who interviewed him in mid-2003, to show that Mr. Libby had encouraged the reporters to testify or give depositions in the case.

This NYT excerpt, if accurate, seems to indicate that Andrea Mitchell would not be one of those being called by Libby, as she has never testified in the case. Probably Glenn Kessler, Robert Novak, and Walter Pincus qualify (I haven’t yet discarded the idea that Libby is the anonymous Pincus source, based on the way I read the information in one of Libby’s in limine filings, despite the fact that Pincus has asserted publicly that Libby was not his source). Then again, this could be a reference to a different trio of reporters, I suppose, from those mentioned in the Libby status report.

Finally, a couple of reports have mentioned that the trial is â€expected†to last six weeks – that seems to have been a development from yesterday’s hearing as well.

P.S. I believe the new â€Annex†to the Prettyman courthouse has just been dedicated and opened for use. If so, it seems possible that this trial may have first priority to a courtroom in that facility, and thus the modernized infrastructure would all be in place for the Big Time show.

pow wow

Thanks for those developments. I’m trying to decide whether it’s worth braving the pre-holiday court room to get the transcript to FedEx a check so as to get a transcript. I agree, the reporting on this is appalling.

As to the 6 weeks–that’s been something Walton has said since the trial was scheduled. Every time Libby’s team invented some new shiny object, Walton would admonish–6 weeks, boys.

And as to Novak being one of the journalists–I think not. He is said to have testified WITHOUT a personal waiver to do so, at least wrt his meeting with Libby. Which would leave Kessler and Pincus (we know he encouraged Pincus to testify about their pre-June 12 conversation, so the question of whether he’s the source or not is moot). Actually, he might be getting Woodward in for that dodge, too–since Woodward interviewed him on June 23 (mid-2003) and testified with Libby’s encouragement.

I know Libby badly badly badly wants Woodward on the stand, but wants him there in such a way that he can introduce Armi without having to admit that when he leaked the NIE to him he wasn’t yet authorized to do so.

smiley:

Right. But the Jury will HATE Big Time.

I’m not saying it won’t backfire; we here know that these people are not as brilliant as they’re often given credit for. But it may nonetheless be part of their thinking.

Along the same lines, as to the overall purpose of Cheney testifying – I agree with you that Cheney’s testimony is unlikely to exonerate Libby. But I’m not sure that Cheney and Libby agree with us on that point. Cheney may very well think he can go in there and lie with impunity to get Scooter off the hook. He’s not lacking in arrogance, after all.

Well… We won’t be hearing that â€soon†after all, about the motions in limine. The Judge has deferred ruling on all four motions, and scheduled a new motion hearing for January 10th at 9:30 a.m. Meanwhile, in accordance with DCD Local Criminal Rule 57.6, he has set a filing date of January 4th for:

â€Any news organization or other interested person, other than a party or subpoenaed witness, who seeks relief relating to any aspect of the proceedings in a criminal case shall file an application for such relief in the Miscellaneous Docket of the Court. The application shall include a statement of the applicant’s interest in the matter as to which relief is sought, a statement of facts and a specific prayer for relief. The application shall be served on the parties to the criminal case and shall be referred by the Clerk to the trial judge assigned to the criminal case for determination.â€

From Rules of the USDC for the District of Columbia, revised 10/12/2006

I wonder how much of this the corporate media learned yesterday, but couldn’t be bothered to tell us… There are also some supplemental exhibits that were filed today by Libby in support of his reporter litigation Motion in limine. Perhaps they shed some new light on the status of things – I haven’t yet looked at those exhibits.

Just to capture it for the record, here’s Joel Seidman of NBC News, writing yesterday for MSNBC:

â€Libby’s attorneys also indicated today that they did not intend to call Wilson as a defense witness.â€

http://www.msnbc.msn.com/id/16284994

From the context, Seidman is referring to Joe Wilson, not Wilson’s wife. And yet, Chris Matthews (of the same network) today is apparently saying that Wilson has been subpoenaed by the defense and is attempting to get the subpoena quashed.

Talk about the media not being able to get or keep the story straight…

[The money line of the Order I typed above should read â€an†Application for Relief, not â€as†Application for Relief.]

First, I don’t see any way that the prosecution will be restricted in what it asks Cheney. Even if Libby only asks Cheney about the NIE, Fitzgerald will be given wide latitude to cross-examine Cheney on matters that he has personal knowledge about related to this case.

jk – why do you think that Judge Walton would let the Prosec. go beyond the scope of direct in cross-x, particularly when it is the Pros. that has over an over requested narrow adherence to the charges before the court?