The Protective Non-Defense

I gave my impressions of the Scooter Libby trial yesterday, where I reached the conclusion that that Libby's shockingly brief defense comes out of some wingnut mythology that you show confidence at all times. It's as if they're trying to intimidate or bamboozle the jury by showing that they don't even have to mount a defense against such self-evidently ridiculous charges or something.

I asked emptywheel, pretty much America's greatest Plame expert, about this, and here's her reply:

Wingnut overconfidence (2+ / 0-)

Perhaps that, or the realization that the Hannah ploy backfired, so there weren't more people they could call without risk of magnifying the risk.

I didn't address this yesterday. John Hannah is an official with the Office of the Vice President who the Libby defense team used to get out their claim that Scooter Libby was so very busy during this time in 2003 that he couldn't possibly have remembered what he told everyone about Valerie Plame. But prosecutor Patrick Fitzgerald crossed up Hannah in a major way.

What we did get was Cheney proxy John Hannah, who spent the morning telling us what a Very Important Man Scooter Libby is, and how very busy he was fighting Al Quaeda single handedly the week of July 8 and how he had a charming habit of forgetting things that Hannah would tell him. In the courtroom Scooter smiled affably at this good-natured portrait of his memory-challenged self.

On cross examination, Fitzgerald then inquired of Hannah if part of Libby's job was to push back if the integrity of the OVP was attacked, and Hannah said yes. Fitz then wanted to know if, during that very critical week, Hannah wanted to go out for coffee with Scooter for a couple of hours and shoot the breeze would Scooter even have time to say yes? Hannah started to squirm, knowing that this is exactly what happened between Judy Miller and Scooter at the St. Regis. So a very uncomfortable Hannah replied, well, if it were really important, he's sure Scooter would do it. Fitzgerald then wants to know if it's fair to conclude that if Scooter DID agree to go, it would be over something that was very important to him.

It was a Perry Mason moment.

If Scooter Libby and Dick Cheney had to walk onto that witness stand with this information already out, it could have been a bloodbath. Fitzgerald basically got Hannah to admit how important the Libby-Miller meeting was. And even Libby's defense team is having to admit that he leaked classified information.

Lawrence O'Donnell thinks Libby's guilty as sin:

The multi-million dollar defense, which provided no defense at all, did not call Libby to the witness stand for one very simple reason: Libby is very very guilty. Publicly, defense lawyers cling to the text book theory that the defendant has no burden of proof and that no negative inference should ever be taken when a defendant doesn't defend himself on the witness stand. Practically, every defense lawyer knows that the jury desperately wants to hear from the defendant and that the only reason not to put him on the stand is that he is soooo guilty that every answer he gives after his name will eradicate any shred of reasonable doubt. Think about it. Your whole life is at stake in the outcome of a criminal trial. You're innocent. And you don't testify in your own defense? Around the courthouse when defense lawyers are chatting about their cases, the only question they ask each other is can you put your guy on the stand? Those conversations always assume the defendant is guilty. The question is just about the degree of difficulty in presenting a defense.

Libby's defense gave up before the opening statements in the trial. They always knew Libby was too guilty to put on the witness stand. And they were never going to call the Vice President. Telling the judge that they were going to call Libby and Cheney was just a mirage they were trying to create to misdirect Patrick Fitzgerald's focus. I'd be shocked if Fitzgerald was fooled for even a second.

O'Donnell thinks the whole defense is a set-up for a campaign to get him pardoned. Possibly. He's certainly holding things back for the inevitable appeal, hoping to run out the clock until December 2008 when a pardon would have no political ramifications.

For those interested, please also read Murray Waas' column, which explains the reason we're having this trial in the first place, because the executive branch was pissed off about an earlier leak by Republican Senator Richard Shelby, which they wanted to investigate with outside counsel, and when the CIA leak came up they were forced into showing equaniminty. Which is kind of hilarious.