Libby's appeal for freedom pending appeal

Warning--for those who care nothing about this ongoing saga, which includes most of America, now might be the time to peel off. Consider this a public service message from your friends here at Fore Left!

Tomorrow will be decision day (again) in the Libby trial whereupon we'll find out whether Scooter has 45-60 days to start doing pushups in preparation for lockup or whether Bush gets to slide on the pardon question. Looking over Fitzgerald's package to Judge Walton arguing against bond it looks to me like Scooter is cooked on the first three bullet points. Of course, much more commentary is available at Maguire's place, including team Libby's reply to Fitzgerald.

I'm no lawyer but it looked to me like Fitzgerald easily de-constructed the defense's arguments on the memory expert, the national security substitutions, and the validity of the Special Counsel, but not so much with the Andrea Mitchell question. So let's stick with the latter.

Calling it "fantastical" to believe that her unambiguous statement on CNBC during an October 2003 interview could actually sway the case is like saying that images of a landing flying saucer would not sway public opinion on little green men. Here's her moment in history, preserved on the tubes:

ALAN MURRAY (co-host): And the second question is: Do we have any idea how widely known it was in Washington that Joe Wilson's wife worked for the CIA?

MITCHELL: It was widely known among those of us who cover the intelligence community and who were actively engaged in trying to track down who among the foreign service community was the envoy to Niger. So a number of us began to pick up on that. But frankly I wasn't aware of her actual role at the CIA and the fact that she had a covert role involving weapons of mass destruction, not until Bob Novak wrote it.

Pretty straightforward to me, but Fitzgerald fantastically thinks she adequately covered her tracks by simply refuting herself a number of times, as if the follow-up comments somehow excuse the first one. Such a thing is exactly why Libby is sitting in the dock awaiting prison, isn't it?

Had Mitchell said anything other than "her actual role at the CIA" prudence might allow for a pass, but saying it the way she did leaves no doubt she knew Plame worked at Langley. Period. This story should not be allowed to slip into the ether without hearing from both her and David Gregory, whom Ari Fleischer testified he told about Plame several days before Libby's conversation with Russert.

Recall Tim Terrific testified that since Mitchell and Gregory worked for him and their group was fairly tight such a scoop would have been shared. But this is what Mr. Fitzmas said:

As in all of these cases, allowing the defense to call Ms. Mitchell posed the unacceptable risk that the jury would improperly consider Ms. Mitchell’s October 3, 2003 statement for its truth.

Is this one of those things that only makes sense to lawyers? Seriously folks, what good is a jury if cannot decide whether a statement on television pertinent to the defendant is truthful? Remember, they played them several other interviews at trial.

I have no answer, but since we occasionally peddle fantastical tales here as well let's end with one. Most agree that NBC has tilted left in the past few years, rivaling Fox in partisanship. Don Imus was an NBC employee. He interviewed Andrea Mitchell on November 10, 2005 and quizzed her hard about her CNBC interview, and she reportedly set a record for squirming. Unfortunately that interview is hard to find on either video or audio, and Don Imus was fired for doing something he was hired to do. Weird, wild stuff.

Meanwhile, NBC News has placed a cone of silence over David Gregory. As Maguire has repeatedly pointed out, we've not heard him answer the question on the Fleischer allegation to date. We've also not heard Walter Pincus explain why Bob Woodward was lying when he testified under oath he told him about Plame in June 2003, nor why Judith Miller had Wilson's name in her day planner before she talked to Libby. Yet Scooter is the only one going to jail for lying. Perhaps Bush should take this advice.

Why does it matter? What motive does NBC have for lying? It's simple. If it could be proved that Russert knew about Plame before Novak's column it would instantly cut NBC News' credibility to ribbons and several luminaries might lose their jobs.

But I'm willing to go deeper into the fantastical tales area. It's worth reading Peter Lance's terrorism timeline if nothing else for the jabs he throws at Patrick Fitzgerald during his time at the Southern District of New York. In those days he was a terrorism prosecutor going after cases like Operation Bojinka and the Day of Terror plot on New York City. He sent Ramzi Yousef to the supermax and played tiddlywinks with Islamic double agent Ali Mohammed. Lance's work can't be fully accepted since for some reason he's decided to airbrush Iraq out all things terror but if he's correct about Fitzgerald's need to atone for 9/11, well.

The American Thinker noted that Fitzgerald was a close friend of James Comey, who selected him for the SC. Comey was recently elevated to star status when he testified to Waxman about John Ashcroft's sick bed experience. Anyone who can't see the divisions within the bureaucracy on matters of terrorism is blind, but at the same time the general public is blind as to the players and teams. A man should not be sent to prison to settle scores or cover butts.

MORE 6/13/07

Here's an excerpt from team Libby's rebuttal to Fitzgerald:

As the Government reads Johnson, the DC Circuit intended to adopt a broad rule of law forbidding a party - any party - from calling and impeaching a witness he knows will disavow a prior inconsistent statement.

This simply makes no sense. Cross-examination would swiftly cease to be "the greatest engine for the discovery of truth ever invented" if criminal defendants were forbidden to challenge a witness's lawyer's claim that the witness testimony will be "X" or "not X".

In other words, this man is on trial for his freedom based largely on a he said, he said conversation witnessed by no one. For the government to say that possible confirmation from Ms. Mitchell that the close-knit NBC News team already knew Plame worked for CIA was a non-factor is patently absurd and certainly could be grounds for reversal on appeal.

Clearly the government viewed calling Mitchell as a defense stunt--take a misquote from a TV show and use it to prejudice the jury. But just consider how powerful her testimony could have been for Fitzgerald had she reached the stand and confidently explained her gaffe and the jury believed her--game, set, match.

Some will say that last possibility is why the defense declined a "test run" outside purview of the jury. Maybe, but maybe they knew it was a lost cause even if she was lying and therefore banning her testimony was more useful as an instrument for appeal than anything else. We will see.