Libby's Judge Jumps Ugly on the Defense

The perjury and obstruction trial of former White House aide I. Lewis "Scooter" Libby took another extraordinary turn today when the trial judge in the case, U.S. District Judge Reggie Walton, scolded the defense for deceiving him into thinking that Libby would testify in his own behalf. The Associated Press' Matt Apuzzo put it this way in his lead sentence: "Defense attorneys misled the court into thinking that former White House aide I. Lewis 'Scooter' Libby would testify in his CIA leak trial, a federal judge said Wednesday, as he blocked Libby from using some classified evidence in the case."

Apuzzo continued: "Walton appeared upset and seemed to stake his reputation on the decision. Libby's attorneys indicated they would appeal the decision if Libby is convicted. 'If that's what the Supreme Court is going to say (in any ruling on an appeal), they might as well say the government's not entitled to a fair trial and the defendant is,' Walton said. 'I think both sides are entitled to a fair trial. If I get reversed on that, maybe I need to hang up my spurs.'

Whoa, Nellie. Another bad sign for Team Libby. The judge had told them before trial that he would allow into evidence for the defense classified information about some of the pressing national security matters that Libby had on his mind during L'Affair Plame because, he was led to believe, prosecutors would have the opportunity to cross-examine Libby about those matters once he was on the witness stand. No Libby on the witness stand. No classified evidence. And, in my opinion, very little chance for reversal on appeal. It's another bad day for the defense.

By Andrew Cohen |  February 14, 2007; 2:28 PM ET
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The judge should have scolded himself for even remotely thinkiing that they would let Scooter testify on his own behalf. They never would let that happen. If that did that, then the case would be over. Dine. Finished. For, it is just such a simple case: 'Did members of the administration leak out the true name and identity of Plame to spite Wilson?' That is all that this comes down to. You do not even need to ask anyone other than the people who did hear the leaked information. Russert and his protege` do not even need to testify.

Posted by: Oh to have a Blog | February 14, 2007 03:26 PM

The thing that the defense did best was get paid.

Posted by: Titus | February 14, 2007 04:34 PM

This case is about misleading investigators. Now the defense lawyers have misled the court. Does the jury need to know anything more. Libby et al are serial liars and manipulators.

Posted by: Obvious | February 14, 2007 04:45 PM

The defense attorneys seem to resemble the defandant as to their veracity. This is not about anything but lying to Federal investigators. Ask Martha what penalty she paid. Also the defense attorneys knew Libby and Cheney would not stand up to cross examanition by Fitzgerald, but they knew that all along. This trial has shined a very harsh and telling light on the Bush administration and Fitzgerald would have demolished them.

Posted by: Frank | February 14, 2007 04:52 PM

You're missing the point. It's a jury trial, the judge's anger means nothing. The judge cannot reveal that anger to the jury, cannot say anything to the jury about trial strategies, etc. Libby's team did an excellent job: they put on a defense of "look how busy Libby was, he just forgot," without Libby testifying, and subjecting himself to a grilling by Fitz. Brilliant! Plus, they did it in a way that the judge can't hold a grudge, because it is plausible to say "we intend that our client will testify" and then later say, "as the trial progressed our strategy changed and we advised him not to testify." Again, brilliant! He is only charged with lying to the grand jury about revealing Plame's name to 2 reporters, Russert and Cooper (the Miller indictment was dismissed). His defense is "I forgot," and he didn't have to testify. Help me here, where exactly did the defense attorneys hurt him?

Posted by: Jack | February 14, 2007 04:53 PM

The defense also misled the court to believe that Cheney would testify, which is why the defense was allowed to stack the jury by excusing all those jurors who said they would not believe him.

Posted by: Robert Denham | February 14, 2007 04:59 PM

YAY! Libby is a liar, a treasonous neo-con, and soon a certified criminal.

Meanwhile the leader of the treasonous neo-cons Dick Cheney is laughing because Bush will pardon them all.

Posted by: Joel | February 14, 2007 05:05 PM

Nothing to add except to say I completely agree with Titus, Frank, and Robert. Just another waste of taxpayer money defending a bunch of weasels.

Posted by: A Different Joel | February 14, 2007 05:32 PM

Has the WH fired the leaker yet as was promised when this story broke? Will the WH continue to dodge comment on this case once the case is closed? Will the WH press corp grow a backbone?

Posted by: alkm | February 14, 2007 05:34 PM

Umm, I don't know that it was a "brilliant" performance, Jack. I might go with "the best they could do under the circumstances." The evidence the defense attorneys put on supports a conclusion that there were a lot of other people besides Libby who were leaking Plame's CIA status to the press, but it does virtually nothing to dispel the prosecution's central argument: Libby was too intensely involved in the effort to discredit Wilson to simply forget that he told Russert and Cooper that Plame sent him to Niger. Hannah, the mouthpiece for the "I was so busy, I forgot" defense, testified that Libby was so busy, that to get an hour with him, it had to be something critical. Libby gave Judith Miller alone 2 hours on the Plame story. The prosecution has made an excellent case that this was too important to Libby--and Cheney--for him just to have forgotten. The defense has done virtually nothing to rebut that. Now, that may well be because they can't, but let's not crown them defense attorneys of the year, or anything.

Posted by: Anon | February 14, 2007 05:48 PM

Of course the defense misled the courts. That is the only point of a defense - the prosecution is wrong. Perjury only counts if you are a President having a ridiculous affair with a staffer.

Lying about things that patriotic people in the CIA and military put a precicous commodity..IE one's life..on the line for is certainly nothing that a true Republican would want to have to answer for.

The neocons are very smart at sounding wise, then acting like fools. Outing a CIA operative..wasting life in a religious civil war..calling Congress un-patriotic for trying to hold some one to account for blunders in Intelligence or Iraq (Rumsfeld, Feith, Powell, Bush or Cheney) is so cynical. They had Congress for how many years? Billions lost, 3,125 Dead and greater than 20,000 wounded...but don't ask any qustions like should we have people in goverment that are supposed to obey the law.

I sincerely hope people vote such fools out.

Posted by: DGirard | February 14, 2007 05:55 PM

Anon, your comments are spot on, my references to "brilliant" may be a stretch, but under the circumstances, the defense attorneys did the best they could, because clearly they did not believe that Libby could help himself by testifying. I'm not saying Libby will be acquitted, but they put him in the best situation he could reasonably expect.

Posted by: Jack | February 14, 2007 06:02 PM

The pattern of lying continues to the end of the defense. Lying was the charge, it was proven by the prosecutor with no defense from Libby. How long need the jury deliberate, 25 minutes? The verdict will be guilty.

Posted by: Michael Bethard | February 14, 2007 06:09 PM

Agreed, Jack. Let's have a friendly online wager. I'd bet by this time next week, we'll be writing Libby's sentencing hearing on our calendars.

Posted by: Anon | February 14, 2007 06:14 PM

We all heard for months that Karl Rove would be charged. In fact, if you read the Post, he was as good as guilty. However, Karl Rove was not charged, he did not break the law, and was not guilty of an illegal leak.

We now hear that SL is toast. We will see. But it this is the best conviction that the Bush haters can come up with, I feel your pain.

Posted by: Ron | February 14, 2007 06:35 PM

Libby, be nice to Cheney.
Then you get the pardon in 2008.
Probably with appeals it won't be necessary to serve even 1 day in jail.

Posted by: Chuck | February 14, 2007 06:57 PM

I don't do criminal cases but here's a possible answer: the evidence should be thrown out and the defendant's attorneys reprimanded on the record-all outside of the jury's hearing. I am not sure this misconduct is the basis for a Rule 11 sanction. The jury should be instructed to disregard the excluded evidence, they don't have to be told why. Let Libby appeal the decision to exclude the evidence. Everyone knows they'll appeal any guilty verdict on some silly basis anyway, so this can just be added to the other basis for appeal.

Posted by: Fessenden | February 14, 2007 07:00 PM

Well the truth came out today. This case has never been about the conversations that Mr. Libby may or may not have had with reporters. It has always been about the egos of Fitzgerald and Walton. Both knew from the beginning of this "investigation" that no crime had been committed. However, they recognized that their places in judicial history would be assured if they could be the first prosecutor and judge to "grill" a setting Vice President in public. Now that their delusions of grandeur have been crushed, these two denied Mr. Libby's legal team the right to introduce evidence or to question the varicosity of the prosecution's star witness. In fact, the Judge has threatened to hang up his spurs if his rulings are subsequently reversed. Another example of the tyranny of judicial system.

Posted by: Fred | February 14, 2007 08:38 PM

The posters here (as well as in the blogosphere) need to take a step back, take a deep breath, and just read the paranoid bile that you guys are writing. Your burning hatred has blinded you toreality.

According to these posts, all the Bushies are liars who have no good intentions, etc. And now Libby's lawyers are liars, too, who intentionally misled the court. Are you guys aware that Libby's lawyers -- Jeffress and Wells -- are prominent Democrats who donated to Kerry in '04 and numerous other Dems?

Perhaps, just perhaps, the lawyers entered the trial thinking they would have Libby testify, but decided against it after calculating that the prosecution has failed to meet the high reasonable doubt standard? Or perhaps, just perhaps, that the Bushies are motivated by a good-faith belief that they are trying to do good for the country (even if you strenuously disagree with their policies)? Nah, they're evil, evil, evil.

Posted by: Get real | February 14, 2007 10:15 PM

Anon, I won't bet against you, although I haven't seen the jury. Fitz seems like such an American hero, even though I have a natural inclination against the gov'ment. Closing arguments will be interesting. . . .

Posted by: Jack | February 14, 2007 10:30 PM

If Scotter has such a bad memory, why does he have such an important job?

Hopefully the jury will see through this smokescreen.

Posted by: Jawja | February 14, 2007 10:50 PM

I listened to the first of the grand jury recordings. My attitude was, keep an open mind and try to get a general impression of what Libby's testimony was all about. Ok, I listened for a couple of hours of Libby spinning, juking, jiving and dancing around the facts, and my only conclusion is: how could a jury in its right mind not find that he had been intentionally lying to the grand jury?

Posted by: JP | February 14, 2007 11:04 PM

Is the Judge claiming the defense filed a completely bogus pleading or motion, solely for the purpose of deceiving him ???????? Or are defense attorneys STILL ALLOWED to make tactical calls at the last second ???? How about making tactical calls after an adverse ruling by the bench on a motion or pleading and SINCE WHEN are defense attorneys required to advise the Judge of a change of plans ahead of time???? SURELY, the Judge is not saying that he would have ruled differently on points of evidence IF HE HAD ONLTY KNOWN THE DEFENDANT[S] OR KEY WITNESSES WOULD NOT TESTIFY -- is he ??? Maybe I missed something here.....

Posted by: brucerealtor@gmail.com | February 15, 2007 12:29 AM

Ron: Rove was not charged. That's all we know. We do not know that he did not break the law.

All we know is that after weeks or months of considering bring charges against Rove, Fitzgerald decided not to bring charges. I assume Fitzgerald thought he'd have trouble getting a conviction, but for Rove, l'affaire Plame was very close his Waterloo -- a "damn close run thing," as Wellington said of that outcome.

Posted by: blaneyboy | February 15, 2007 12:35 AM

Is the Judge claiming the defense filed a completely bogus pleading or motion, solely for the purpose of deceiving him ???????? Or are defense attorneys STILL ALLOWED to make tactical calls at the last second ???? How about making tactical calls after an adverse ruling by the bench on a motion or pleading and SINCE WHEN are defense attorneys required to advise the Judge of a change of plans ahead of time???? SURELY, the Judge is not saying that he would have ruled differently on points of evidence IF HE HAD ONLTY KNOWN THE DEFENDANT[S] OR KEY WITNESSES WOULD NOT TESTIFY -- is he ??? Maybe I missed something here.....

Posted by: brucerealtor@gmail.com | February 15, 2007 12:36 AM

Ron: Rove was not charged. That's all we know. We do not know that he did not break the law.

All we know is that after weeks or months of considering bringing charges against Rove, Fitzgerald decided not to do so. I assume he thought he'd have trouble getting a conviction, but for Rove, l'affaire Plame was close to being his Waterloo, a "damned close run thing," as Wellington said of that event.

Posted by: blaneyboy | February 15, 2007 12:37 AM

Rule 11 is something personal injury defense attorneys like to file [or threaten to file] against effective plaintiff lawyers and sometimes not so effective ones as well. Just ask Judge Eilperin !!! At one point in a personal injury action, where the defense firm kept changing deposition dates and I failed to appear [on time] after about the third or fourth change, the defense asked for sanctions, namely precluding my use of certain damaging material they discovered by way of deposition. At one point, I wondered if Eilperin had some undisclosed connection with the firm. I do not recall filed a complaint with the Judicial Disabilities Commission, simply because I was already unpopular with the Bar and in a future Bar matter, who testified but the DC Partner of that firm -- it seems that he was UPSET with my messages on his firms answering machine, usually left after midnight. It is said that on the seventh day of creation, God rested, but then on that day God left His answering machine on anyway !!!

Posted by: brucerealtor@gmail.com | February 15, 2007 12:49 AM

I guess it makes sense that you would lie to the court to defend a liar. Lying is what this administration and their defenders are all about.

Posted by: mikeasr | February 15, 2007 01:07 AM

What a bunch of whiners--the defense outsmarted a judge and prosecutor! This trial should not even be occurring--talk about a waste of taxpayer's money--it was simple entrapment. Armitage was the leaker--he's not on trial because Plame was not covert--who can't understand that? So let's still put thewe guys on the stand in front of the Grand Jury and see if we can catch em lying? There is no case for an intentional "outing" to embarrass Plame. As far as the public is concerned Wilson did the outing, There's not even any oral sex involved for prurient interest.

Posted by: dandydon | February 20, 2007 07:45 PM

What a bunch of whiners--the defense outsmarted a judge and prosecutor! This trial should not even be occurring--talk about a waste of taxpayer's money--it was simple entrapment. Armitage was the leaker--he's not on trial because Plame was not covert--who can't understand that? So let's still put these guys on the stand in front of the Grand Jury and see if we can catch em lying? There is no case for an intentional "outing" to embarrass Plame. As far as the public is concerned Wilson did the outing. There's not even any oral sex involved for prurient interest.

Posted by: dandydon | February 20, 2007 07:47 PM

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