If there was NO underlying crime (Valerie Plame was not, in fact, a covert agent whose identity was illegally exposed) - and we KNOW that there was no underlying crime, as NO ONE has been charged with that crime - then HOW can ANYTHING which was said (by Scooter Libby or anyone else for that matter) be considered PERJURY?

I thought PERJURY required lying about a MATERIAL MATTER (related to the case at hand)...

Bad memory or not, to whom Scooter Libby may have said that Valerie Plame was Joe Wilson's Wife and/or that she worked for the CIA, and/or from whom Scooter learned of Valerie Plame does NOT PERJURY make...

None of the above makes Valerie Plame into a COVERT CIA agent whose identity was revealed...

Again, NO ONE has been charged with THAT crime!

When he (and any of the rest of this collection of losers AKA the Bush Administration) talked to reporters from viruently Bush-hating media, what did they think would happen.

I survived/thrived corporate life for many years. One of my rules: know the enemy and do everything legally possible to destroy them.
I certainly didn't "do lunch" or take calls from people who were out to destroy my organization

This is a bunch of inside-the-beltway schmoozing amateurs who spend most of their days navel-gazing and socializing with the enemy (and the press IS the enemy).

No wonder the war in Iraq is a mess.

No, that was very literally the next court day after my slot.

I think there's reasonable doubt here as to Libby's state of mind, given that there's no obvious motive to lie when he wasn't remotely involved in leaking Plame's name to Novak. I think, too, that there's an argument for jury nullification here, given that any lie told had no negative impact on the Plame investigation, in that no crime was found worthy of indictment.

I think it all comes down to the predisposition of the jury which, I continue to believe, is anti-administration. It may well be, though, that there aren't 12 votes to convict. In that case, I'm not sure whether there's enough there there to go through this again.

both are true...but what is also true is that both prosecution and defense attorney's are considered "officers of the court" -- and are both expected/required to act in an ethical fashion. And while "prosecutorial misconduct" gets far more attention, "defense misconduct" also exists. The problem, of course, is in proving intent on the part of the lawyers involved.

In this case, I think that TeamLibby has been dishonest with the judge regarding why Libby isn't testifying -- my guess is that decision was finalized when the defense heard Libby's grand jury tapes, and realized he'd be a disaster on the stand because his story made no sense. (and the same goes for why Cheney wasn't called --- Shooter's credibility would have been shredded during cross-examination, and given the emphasis placed on Cheney during voir dire of the jury, a bad performance by him would have sealed Libby's fate.)

So there may have been some really good stuff introduced that I’m only vaguely aware of.

IMHO, Ari's testimony pretty much sealed the deal for the prosecution -- were you there for that?

It seems to me that TeamLibby isn't really trying to establish "reasonable doubt" about the actual charges -- but that Fitz is right, and Wells is going for jury nullification. He just needs one juror who refuses to vote guilty to hang the jury and keep his client out of jail for another couple of months....

I don’t know the law here. Can they introduce an entirely new theory of the crime in closing arguments?!

I do know that they can't bring up evidence not presented during the trial, but AFAIK there is no prohibition against coming up with a new explanation during closing arguments. That being said, because so many documents/articles were included under the condition that they not be considered as factual, but only considered within the context of how they would affect Libby's "state of mind", its possible that Walton would prohibit the argument I'm suggesting because of the prejudicial nature of the documents in question.

Well, yeah -- due deference is one thing, but of course the feds have to go here.

I dunno about calling Cheney. One, I don't know whether Cheney would've testified. Two, I doubt it would've helped -- Cheney would've probably insisted on executive privilege, the trial would get sidetracked, & the jury would get lost. Three, Cheney would lie & there would be little hope of proving it.

True enough. My point isn't that they're mistaken about what they told Libby but that, rather clearly, they told him that as an interesting aside. None of them considered it particularly important at the time.

I haven't paid close attention to the testimony after I left the trial, as I was off in California the next week and scrambling to get an article written the next. So there may have been some really good stuff introduced that I'm only vaguely aware of. But it strikes me as reasonable to conclude that the testimony of the witnesses provided enough reasonable doubt that calling Libby was no longer needed.

What's the rule? Libby has a 5th Amendment right not to testify and, one would think, a 6th Amendment right to counsel's best evolving judgment. Can they not decide, when the rubber hits the road, that they don't want Libby to testify?

I hope that his plan is to use the documents that have been entered into evidence to establish Libby’s motive– i.e. that Libby was covering up the manipulation of intelligence by the OVP.

I don't know the law here. Can they introduce an entirely new theory of the crime in closing arguments?!

I noted during my live-blogging in the first week of the trial that the first several prosecution witnesses indeed displayed a REMARKABLE lack of memory about almost everything and that this would surely play into the defense’s hands. I don’t know the law here but defense closing arguments should surely be allowed to argue that, if the government witnesses–who presumably had less “on their plates” than the VP’s chief of staff/national security advisor–couldn’t remember those details that it’s fair to conclude Libby could be excused for mixing up the sequence of events in his own head.

a few points...

1) the reason that those witnesses were called was not to testify about what they remembered so much as it was to verify the authenticity and explain the context of documents entered into evidence.

2) with a couple of exceptions, all of the relevant facts concerning Libby's extensive prior knowledge and actions concerning the Wilsons was "double sourced" .... i.e. either two people remembered the same thing (Martin backing up Cooper) or notes backed up memories.

3) people's memories are much better about things that are important to them than they are about things that are unimportant to them. Thus, it is unsurprising that witnesses would not recall unimportant details in this case. What is critical is that Libby found the subject of the Wilson's important enough to be asking questions about it, and telling others about it.

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As to Team Libby's claim that their plans to have Libby testify changed after receiving Jencks material in December, that's obviously BS. First, given the intent to use the "memory" defense, TeamLibby had to know that the prosecution witnesses would not have had perfect recall, and would have been looking to exploit any instances of "i don't recall" found in their statements. Secondly, TeamLibby continued to enter evidence that was ruled admissible solely because Libby was expected to testify with the full knowledge that they would be trying to keep Libby off the stand.

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final observation -- Fitz has done a lousy job of establishing motive for Libby to lie and obstruct justice -- and should have put on a better "rebuttal" case (specifically, calling Cheney as a hostile witness). I hope that his plan is to use the documents that have been entered into evidence to establish Libby's motive-- i.e. that Libby was covering up the manipulation of intelligence by the OVP. There is enough information in the various exhibits presented to the jury to establish that intelligence was manipulated -- and that Libby was part of an effort to hide that manipulation by discrediting Wilson -- then lied about his role in it.

That's not really a "memory defense" in the sense of "Libby has a bad memory," which may show why this is a confusing topic (& lawyers thrive on confusion).

Saying "Plame wasn't a big deal, why remember it?" isn't really a statement about Libby's memory. It's a statement about Plame & her relative unimportance. The jury can consider that, but the feds did a pretty good job making that seem implausible ("beyond a reasonable doubt" may be another matter).

But the specific claim that Libby has a bad memory *in general*, not just about Plame, would I think require that he take the stand, though it's not like I've researched the point. I just don't see how else you can get that in.

The defense doesn’t have to prove Libby didn’t remember–the prosecution has to prove that he did and was lying.

Sure, but see above for why the feds have done a good job on that.

I get why they can't introduce facts not in evidence into the closing arguments. On the other hand, it strikes me as perfectly reasonable to argue that if the people who told Libby about Plame didn't remember much about it, why should Libby?

The defense doesn't have to prove Libby didn't remember--the prosecution has to prove that he did and was lying.

You're the attorney, so maybe you can shed more light on this.

Uh-uh. That's like claiming your car's A/C was bad because the A/C on 3 different cars was bad, without letting anyone look under your hood.

The defense should absolutely be barred from raising any such issue as to Libby's memory without Libby's taking the stand. They have no factual predicate for it. There's no such thing as "memory" in general -- the only memory that matters here is Libby's.

Personally, I don't think the grand jury testimony will support any such defense, which is perhaps why the defense won't call him.