Libby Trial Could End With A Negotiated Plea .....

[Blackhatjack]

At the end of the prosecution's case, the defendant and his attorney's know what they are facing in trying to create 'reasonable doubt' in the mind of the jurors. They know that if Libby takes the stand he could be asked anything connected with the case or his 'memory loss' defense.

IF, and this is a big one, Libby were to avoid a conviction on the charge of perjury before the grand jury and pled guilty to obstruction of justice, both sides could get something they want.

Any plea arrangement offered by Fitz would have a standard condition that Libby truthfully and fully disclose and be willing to testify to any and all matters upon which he is questioned. He would have to cooperate. THis means he would have to tell all he knows about Cheney's involvement, and others' involvement -- including the knowledge and involvement of GEORGE W. BUSH and his staff(Rove included).

Libby would avoid public questioning by Fitz if he decided to testify at trial, and lesser charge of obstruction of justice would probably make it easier for Bush to grant him a pardon. It would allow him to provide names of people who tried to 'scapegoat' him, if he so desired. And with the end of his trial, it would 'protect' Cheney from having to testify at Libby's trial.

There could possibly be a question of first impression that could wander through the courts for sometime: what if Libby pleads, the trial ends, Bush pardons him and Libby refuses to 'cooperate further with Fitz' violating his plea bargain?

To avoid this Fitz would probably require a 'proffer' of what Libby would testify to if he was allowed to enter into the plea bargain - and if a pardon were to occur, that might be all Fitz gets from him. Fitz is smart, so it would have to be a heck of a proffer.

[Kagemusha]

1. Keep in mind a pardon destroys your 5th amendment rights

since you cannot by definition incriminate yourself by testifying about something you have been pardoned for.

So refusal to testify would lead to criminal contempt of court charges.

Yeah, you can try pardoning that too but that's so seriously attacking the court system that it'd be even harder to justify and get away with cleanly...

[Geoff R. Casavant]

4. It would have to be a series of pardons.

A pardon can be issued for conduct that has not yet been charged, but I doubt anyone would find valid a pardon for conduct that has not yet occurred.

So if Libby refuses to testify, Bush could pardon him and free him from any possible contempt charge for that refusal. But he could be subpoenaed again, and each fresh refusal would be a fresh contempt charge. And Bush could not pardon him for the refusals he has yet to make.

So, in the most comical extreme, there would be a series of subpoenas and pardons, that would finally end in 2009 when Bush leaves office, then Libby's hung out to dry and takes them all with him.

[Blackhatjack]

5. That is true, but Libby would have to be called to testify in a matter other than his own...

.... It would be at a time much later than today. THis is likely all about playing for time, setting up the right circumstances in which Bush would issue across the board Iran/Contra style pardons as we deal with much more serious matters(ie. attack on Iran, or some other pressing matter).

[caligirl]

2. a late filing last night by team Liby seems to indicate his lawyer doesn't want him to testify.

"Libby would avoid public questioning by Fitz if he decided to testify at trial, and lesser charge of obstruction of justice would probably make it easier for Bush to grant him a pardon."


This was noted at Firedoglake this morning.Here is a qoute:

"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."

[NMDemDist2]

3. yeah, but this trial's damage is already done. kept Cheney and his treachery

out of the news until after the election in 04

[Blackhatjack]

6. The real danger is Cheney being called to testify....

... and a plea bargain with Libby could protect Cheney in the short term until Bush can issue the blanket pardons like Iran/Contra.

[PhilipShore]

7. Seems like a great deal for Libby --- because Fitz will never go after...

the big dogs, and Libby can continue to be a arms broker for the CIA.