Does the Libby Verdict Have Appeal?
Making sense of legal nonsense.
March 6, 2007
The Scooter Libby verdict makes no
logical sense, but that won’t bother the legal notions of an appellate
court. In convicting on four counts but acquitting of one, the jury made the
peculiar decision that Libby lied before the grand jury about his
conversation with Time’s Matt Cooper, but not to the FBI when the
agents questioned him about the same conversation. Libby gave the same
general answer in both fora, specifically that he told Matt Cooper that he
did not know if it were true that Joe Wilson’s wife worked for the CIA.
I don’t think I’ve ever read a case
where the courts have overturned a conviction because the individual verdict
counts were internally inconsistent. But there are issues that could be
legally significant on appeal. To name a few:
The court punished Libby for not taking the stand: During trial the Libby
legal team had said it was probable, but not certain, he would take the
stand. Any criminal-defense attorney knows that decision is never made until
the final moments of a trial. When the decision was made that Libby would
not testify, the judge was, incredibly, furious and limited his defense
evidence on the memory issue.
The court prevented the defense from impeaching Tim Russert: The NBC
anchorman, who has a law degree, testified he did not know a lawyer could
not accompany a witness before the grand jury. The defense then exhumed
three clips where Russert had said on the air that a lawyer cannot go into
the grand jury with his client. The judge would not allow the jury to hear
that other honorable people sometimes forget or misspeak when being grilled
on the witness stand.
The court permitted Special Counsel Patrick Fitzgerald to refer to Valerie
Plame as being “covert” or having a “classified” job throughout trial and
specifically during closing argument. Neither of those highly prejudicial
characterizations was proven at trial. Even if Plame’s job were
“classified,” as Fitzgerald reiterated in his press conference after
conviction, there is no criminal violation in publishing her name. That
legal gap is why Congress passed the Intelligence Identities Protection Act
— Victoria Toensing, a founding partner of
diGenova & Toensing.