*** New Thread at Firedoglake.com- Libby Trial: Motion Opens Door For No

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Libby Testimony
By: Christy Hardin Smith
http://www.firedoglake.com/2007/02/06/libby-trial-motion-opens-door-for-no-libby-testimony/

Jeralyn of TalkLeft caught a new motion filing (PDF) from TeamLibby last night after I'd already gone to sleep, and graciously sent it along to me last night for my review as well. (Thanks, Jeralyn!) The key points are as follows: (1) Team Libby wants Judge Walton to reconsider them being allowed to introduce circumstantial and other evidence regarding Libby's memory, whether or not Libby takes the stand; (2) that exclusion of such evidence would violate his Fifth Amendment and Sixth Amendment rights to a fair trial and to not incriminate himself, among other arguments; and that this evidence satisfies the requirements of Rule 401 of the Rules of Evidence defining relevance as "means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

Team Libby is doing its job here in re-arguing this point with Judge Walton, and making a record for the appellate court should the judge fail to rule their way and should Libby be convicted by the jury at the close of trial deliberations. This is what lawyers do on both sides — leave a clear trail in their oral arguments on the record and in their paper filings as to what the interpretation of the law ought to be — if everything went the way they would hope for their particular side of the case, and lining out what they think the law says to support those facts and arguments.

The strongest argument for Team Libby is the Fifth Amendment one, I think — arguing that Libby has a fundamental right to remain silent and that conditioning the entry of this evidence on Libby's testimony violates that right. Since the Government's case has already touched on some of the National Security material, I think an argument can be made that this is tangentially related (although, oddly, the Team Libby brief glosses over THAT particular nuance, and I'm not certain why, since an argument that the government already "opened the door" for this particular issue would have been a stronger one for them with Judge Walton — at least, I think so, having read through the copious rulings in this case from the start of motions proceedings.)

That said, this would not, nor should it, open the door for Team Libby to introduce reams and reams of national security materials in an attempt to confuse the jury or to overwhelm them and to obfuscate the fact that, despite having substantial national security matters on his plate, that Vice President Cheney and his chief of staff, Libby, were honing in on Amb. Joe Wilson with a laser focus from the moment the Vice President received criticism about his credibility.

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