Quick Takes on Anna Nicole, Scooter Libby and Guantanamo

What a morning. In the span of just a few hours we've had the start of the circus-like hearing in Fort Lauderdale Florida to determine where Anna Nicole Smith is to be buried; the start of closing arguments in the perjury and obstruction of justice trial of former White House aide I. Lewis "Scooter" Libby; an important Supreme Court ruling that limits punitive damage awards; and a big decision by a federal appeals court that could break the latest logjam over what legal rights the Guantanamo Bay detainees are entitled to.

Here is your single soundbyte analysis. The Smith case? The trial judge continues to act like a buffoon and fail to control his courtroom, even as he makes more complex what should have been a simple hearing. The Libby case? Prosecutors preempted a key defense argument by telling jurors that whatever else Libby is, he is not a victim. The tobacco ruling? It won't just help large tobacco companies but large companies anywhere who are faced with a punitive damage award. The Gitmo ruling? An expected pit stop on the way to the United States Supreme Court, which ultimately will determine whether the Military Commissions Act of 2006 was a constitutionally-permissible way for the Congress to limit the rights of detainees. Phew. Am now going to take a deep breath and then dive back down into the muck.

By Andrew Cohen |  February 20, 2007; 12:30 PM ET
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THE UNITED STATES OF AMERICA V. Scooter

At 9:40 AM the courtroom was already crowded and closing arguments were underway. There was an overflow courtroom with a 7 by 5 foot screen showing four unswerving views. If the lawyers didn't stand in the right place you couldn't see them. One of the cameras was fixed on Judge Reggie B. Walton. He dare not scratch. The sound quality was excellent.

Each side had three hours. Since the prosecution has the burden of proof, they go first. The Defense answers and then the prosecution gets the final say. A Mr. Eidenberg opened for the government. He has a relaxed fluid voice without strain. He sounds like he can go all day with his detail. Given the time limits he almost has to. Apparently the jury was able to look at a presentation as he spoke. There were also audio played of the actual evidence, the grand Jury Testimony of Scooter. He detailed nine conversations that Scooter had about the matters he later forgot.

Having read the detailed indictment that has only five counts one can see why Scooter didn't testify. He was already on record with his grand jury testimony and all other public statements. He would then have to convince the jury detail by detail, interview by interview, that he forgot the most significant details of the pr matter that the VP had entrusted to him. "Entrust" is too mild a word. These nine conversations consisted in getting the information, giving the information and stirring the pot with journalists. On some of them there were other staffers involved who didn't forget.

Mr. Eidenberg described a conversation in which Scooter anticipated leaking the National Intelligence Estimate to reporter Judy Miller. Only three people in the world knew this was to happen, the President, Vice President and Scooter. "An event that you would think would stand out in one's mind." Scooter forgot that. This is where he insisted on shifting attribution to "a former hill staffer." In this interview he told Miller that Wilson's wife worked at Winpack, a CIA group.

He then discusses Russert who is a key witness. He notes that Wells opened the trial saying that Russert was lying. Russert denied raising Wilson's wife in the conversation. On the GJ tape Scooter says Russert raised the issue and that "I was taken aback by that."

Russert says that it never happened. It was made up. So on it goes. nine conversations with eight people about that which he later forgot. Eidenberg notes that a staffer Kathy Martin contradicts him on the July 12 conversation with Matt Cooper.

The prosecutor then went on to explain how on the Obstruction of Justice charge, count three, the jury has to unanimously agree on ony one of three statements. On count five they must all agree on any of four statements.

The prosecutor then said "final" leading all to believe a break was in the offing. One should always note the opening and closing arguments. These should be the best punches. He argued that it is imposible to believe that Scooter "forgot" what the vice President told him about the "bad skinny."

The prosecutor introduced the next argument with another "final" thus assuring all that it wasn't. He threw back some of the Defense opening argument and discussed Scooter's motive to lie. Plame, Wilson's wife, had been outed. The CIA had been asked who asked. The CIA itself, the White House and the Office of the VP had all shown interest. The FBI began an investigation of the leak. Scooter realized that the FBI were "looking for him." The investigation began on September 26. A Mr. Schmall of the CIA told Scooter that disclosing infomation was serious. The President then goes on record as saying whoever leaked that to the press would be fired. Scooter wanted to be cleare like Karl Rove was cleared. She was a covert agent. Scooter had to tell the truth or lie about his involvement. He lied.

Mr. Eidenberg then read an excerpt from the Non-Disclosure Agreement that Scooter had to sign as an administrtion official privy to confidential information. This was very damning since it imparted knowledge to the signor. Mr. Eidenberg then finally concluded for real with the argument that this was just about "Libby" and not a White House conspiracy, NBC (Russert's network) conspiracy, and not about scapegoating, simply did Scooter lie to the FBI and the Grand Jury.

The Defense Closing - Part one, before lunch

Theodore Wells, Defense Counsel, collected himself and began off his notes to hear him say it. He responded to the prosecutor's referring to his opening argument. He explains that Scooter's testimony before the GJ was the product of their beating on him at length so that "his statements expanded." He dramatically punctuated the clause "They are beating on him" with a quick punch that snapped loudly into his hand.

He then quoted the note in evidence from the Vice President that it was "not fair to protect Rove and not protect Libby." This putting the SCAPEGOAT defense at the top of the pile. The VP thinks "It's not right." He then agreed that this was not just about scapegoating the Scooter.

He then lapsed into his planned argument and some legal matters. He discussed reasonable doubt. He explained how the jury did not have to believe Russert lied to find the Defendant not guilty. One could believe he was mistaken or forgot. He informed the jury that the Miller statement as a basis for any charge had been dismissed. He veritably crowed about it. He also informed the jury that his client's life will be destroyed if they find him guilty because in Washington reputation is everything.

He had introduced his closing argument saying that one did not have to find that Russert lied to find a reasonable doubt. He then went on to destroy Russert. Apparently the evidence has been admitted about a year 2000 incident in Buffalo, Russert's home town, where Russert had to retract statements. He gives the jury every reason in the world not to believe Russert. He has a motive, he's lied before. He denies calling Russert a liar, and then argues the evidence he put on to show he was not to be believed. He discusses an FBI Affidavit in which Russert stated he didn't remember something he later remembered on the witness stand.

* * *

Mercifully the lunch break intervened. The afternoon arguments are left to others. Three hours on Mardi Gras morn are all one can take. The arguments are repetitive already and there are still three hours to go. Just because the trial took over a month does not justify three hours a side for just five counts. Unfortunately lawyers soak up all the time they are given even if they have nothing new to say. The judges should forfeit for five minutes for repetitions more than twice.

Both sides have given the Jury facts, law, and arguments sufficient to decide their way. As usual the Juries sympathies shall guide them.

Posted by: webster | February 20, 2007 08:12 PM

Mr Cohen, I would like to get your take on the case of the two border guards convicted of unlwafully shooting that grug-runner down on the border. Some want amnesty for them and the prosecuter who convicted them thinks they got what they deserve. I just want to learn more about the merits of the case and the coverage about it seems to always have some kind of bias. Thanks

Posted by: Don | February 21, 2007 10:55 AM

Mr Cohen, I would like to get your take on the case of the two border guards convicted of unlwafully shooting that grug-runner down on the border. Some want amnesty for them and the prosecuter who convicted them thinks they got what they deserve. I just want to learn more about the merits of the case and the coverage about it seems to always have some kind of bias. Thanks

Posted by: Don | February 21, 2007 10:56 AM

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