The trial of I. Lewis "Scooter" Libby opened today with voir dire, the questioning of the potential jurors.  The Washington Post reports on the political questions asked of these potential jurors (here) and also tells about some of the "other" questions. 

Good defense attorneys start their defense in the voir dire.  The questions the attorney asks (or request a court to ask when the court is doing the voir dire), sets the stage of the theme of the case.  It is clear from seeing some of these questions that one theme will be – "faulty memory"  or "we all make mistakes as to exatly what we recall."  Often the defense attorney will develop the theme with different witnesses presented. 

In this case we are likely to see a main theme and several subsidiary themes.

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The following provide background on the Libby Prosecution.  To access the achives by date, see here:

Ground Rules Set for Libby’s Trial 1/12/07

Libby Argues No Underlying Crime 11/15/06

Court Denies Use of Expert in Libby Case 11/5/06

Pre-Trial Sparring in the Libby Prosecution 11/1/06

What the Memory Expert Did Not Remember 10/28/06

Even Libby Can’t Get All the Discovery He Wants 8/21/06

Plame Files Civil Action 7/17/06 Will Libby’s Trial Be Delayed Further? 7/1/06

Libby: The Cost of Building A Case 6/12/06

Judge Denies Most of Libby’s Document Requests 6/2/06

Witness for the Prosecution 5/25/06

Libby Challenge to Fitzgerald Appointment as Special Counsel Rejected 4/28/06

Will President Bush Be a Witness at Libby’s Trial? 4/13/06

Proving Libby’s Intent 4/7/06

Libby’s "I Was Too Busy Blaming Others" Defense 3/19/06

Indicting at the Top 3/12/06

Fitzgerald to Libby: "REDACTED" 3/4/06

The Libby Website — New Motion to Dismiss the Indictment 2/24/06

The Strange Assertion of Fitzgerald Regarding Libby’s Grand Jury Testimony 2/11/06

Grand Jury Secrecy – Libby Case 2/5/06

The Libby Trial: Ready, Set . . . Wait 2/4/06

Special Counsel Fitzgerald’s Response to Libby’s Discovery Requests 2/3/06

The Outlines of Libby’s Defense 2/2/06 Libby’s Defense 1/22/06

The Latest on Patrick Fitzgerald’s Investigation 1/11/06

What to Expect in 2006 1/1/06

Another Reporter to Testify in the Plame Investigation 11/28/05

Bob Woodward: Would You Buy the Book? 11/22/05

Will Woodward’s Revelation Help Libby’s Defense? 11/17/05

New Evidence in the Leak Case 11/16/05

Libby Documents 11/15/05

Who Will Pay the Lawyers? Libby? 11/9/05

Libby Prosecution Will Enter CIPA Hell 11/5/05

Libby Pleads Not Guilty 11/3/05

Do the President and Vice-President Have An Appropriate Compliance Program? 11/1/05

Libby Indicted 10/28/05

How High Could This Leak Investigation Go? 10/25/05

The Story of "Scooter" Libby 10/24/05

Will This Be Patrick Fitzgerald’s Big Week? 10/23/05

Rove + Libby = ? 10/20/05

Could VP Cheney’s Office Be Involved? 10/18/05

"Don’t Go There" 10/17/05

More on the Judith Miller Case 10/16/05

What Does Patrick Fitzgerald Do Now? 10/16/05

Is Libby Wearing the Bullseye? 10/13/05

How Fitzgerald Got Miller to Testify — And How Much Should We Know 10/6/05

What Now, Mr. Fitzgerald? 10/3/05

Can the "S" Show Intent? 7/22/05

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With the January 2007 trial approaching, Special Counsel Patrick  Fitzgerald and I. Lewis Libby have filed motions in limine to set the parameters for the proceeding (available below).  The parties filed motions on October 30 to prevent the other side from presenting certain evidence and arguments that each asserts is extraneous to the issues and potentially prejudicial.  The government motion seeks to prevent Libby’s lawyers from discussing the government’s decision to charge only Libby, and not to charge anyone for violating the federal law prohibiting the disclosure of the covert status of an intelligence agent.  According to the motion:

The evidence, comment, and argument this motion seeks to preclude are not relevant in the trial of the charged crimes; they have zero probative value in the case. The investigation that led to the indictment of defendant did not result in a charge against Libby or any other person for the act of disclosing classified information, nor was any person other than Libby charged with obstruction of justice, perjury, or making material false statements.  The fact that neither Libby nor anyone else has been charged with a crime for the disclosure of classified information is irrelevant to whether Libby committed the crimes charged in the indictment. Likewise, the fact that no one but Libby has been charged with obstruction of justice, perjury, or making material false statements is irrelevant as to whether Libby committed the charged crimes. Evidence, comment, and argument about the government’s charging decisions have no tendency to make any matter of consequence to the determination of the action more or less probable.

The government’s concern is that the defense will put it on trial by raising questions about the reason for the charges and the failure to find any "real" wrongdoing.  This in turn leads to the position that the Special Counsel opted for the obstruction/perjury/false statement charges to justify the large expenditure of resources to investigate the leak of Valerie Plame’s identity that did not turn up evidence of a substantive offense. To the extent the defense can build sympathy for Libby, which may be difficult, it would help make the argument that he has been singled out unfairly.

Libby’s motions strike a similar tenor.  One seeks to prevent the government from offering evidence that Plame’s position with the CIA was classified or covert, and to exclude arguing that national security was damages by the disclosure of her CIA status.  The defense argues:

Notwithstanding the clarity of the Court’s prior rulings (and the government’s own narrow view of relevance during discovery), Mr. Libby is concerned that the government intends to raise at trial both Ms. Wilson’s actual employment status and "evidence" regarding "potential" damage that Mr. Libby knew nothing about at the relevant time . . . Having steadfastly refused to provide discovery relating to these issues (other than conclusory assertions contained in two brief "summaries" prepared by the CIA), the government cannot now be permitted to inflame the jury — and encourage it to punish uncharged and unfounded national security violations — by offering irrelevant and largely speculative evidence that sheds no light on Mr. Libby’s guilt or innocence of the charges that were brought.  Specifically, the government should be prohibited from referring to Mrs. Wilson’s employment status as classified or covert, or to any actual or potential damage caused by disclosure of that status, except for evidence and argument of what Mr. Libby, or others he spoke with, knew about those mattes at the relevant time.

The motion is built on the District Court’s earlier denial of defense motions for broad discovery about Plame’s CIA role and the knowledge of it in a variety of offices in the Administration.  To frame the case, the Special Counsel will want to discuss Plame’s status with the CIA, so at least that part of the motion is likely to be vigorously opposed.  The second motion concerns references to the reporters whom Libby is alleged to have leaked to about Plame.  The defense seeks to exclude the following:

1. Whether any news reporters refused to testify in the government’s investigation of the disclosure of Valerie Wilson’s identity (the “investigation”);

2. Litigation involving news reporters and relating to the investigation, including any news reporters’ motions to quash grand jury subpoenas;

3. Threatened or actual contempt proceedings against any news reporter, including Judith Miller and Matthew Cooper, relating to the investigation; and

4. Judith Miller’s imprisonment for contempt of court, including the letter dated September 15, 2005 that Mr. Libby sent to Ms. Miller in jail.

Libby seeks to exclude this evidence to undermine the government’s argument that Libby thought he could leak information freely because the reporters would protect their source, an argument the motion calls "implausible."  The relationship between Libby and the reporters will certainly be important, although the subsequent contempt proceedings against the reporters is the type of evidence the judge may well exclude or substantially limit because it appears to be irrelevant to the core issues of lying to the grand jury, federal agents, and obstructing justice.

As trial gets ever closer, look for the sparring between Fitzgerald’s prosecutors and the defense team to intensify. (ph)

Download libby_government_in_limine_motion_oct_30_2006.pdf

Download libby_motion_in_limine_exclude_evidence_oct_30_2006.pdf

Download libby_motion_in_limine_exclude_reporter_issues_oct_30_2006.pdf

According to Smoking Gun here, Valerie Plame Wilson and Joesph C. Wilson IV have filed a civil action against Karl Rove, Lewis "Scooter" Libby, Richard Cheney and John Does 1-10.  The action is for alleged First and Fifth Amendment Violations, Civil Rights Conspiracy, Failure to Prevent Civil Rights Violations,  Public Disclosure of Private Facts, and Civil Conspiracy. 

What may prove to be the more complicated aspect of this action is the civil discovery.  In civil actions, counsel use interrogatories and depositions to obtain evidence.  When there is an ongoing criminal action, as in the case against "Scooter" Libby, defense counsel may be reluctant to turn over information that may eventually find its way into the criminal trial.

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An AP story (here) reports that U.S. District Judge Reggie Walton will hold a motion by I. Lewis Libby until September before deciding whether to postpone the trial that is currently scheduled to begin on January 8, 2007.  Libby’s lead trial counsel, Theodore Wells, Jr., of Paul Weiss, has a trial scheduled in Los Angeles County Superior Court that may go until early January, and the defense filed a motion requesting a postponement until February 12.  Judge Walton will wait until the judge in Los Angeles holds a scheduling conference on August 31 before deciding on the defense motion.  Whether that conference will provide much clarity about Wells availability is an open question because trials almost inevitably last long than expected — a handy rule of thumb is to take any litigators estimate of trial time and add 50%.  It is likely the Libby trial will be moved at least into February 2007, and could be pushed back even further if problems related to national security information arise that could easily derail discovery. (ph)

An AP story (here) reports that Special Counsel Patrick Fitzgerald informed Presidential aide Karl Rove that he would not be indicted in connection with his statements in the investigation of the leak of Valerie Plame’s identity as a CIA agent.  Rove’s attorney, Robert Luskin, stated that Fitzgerald informed him in the evening on June 12 that the prosecutor did not expect to seek an indictment of his client.  Rove testified before the grand jury five times, most recently in April 2006, to explain his contacts with the media about Plame and his knowledge (or lack thereof) regarding the leak of that information.  There had been widespread media speculation that Rove would be indicted on perjury, false statement, and obstruction of justice charges, similar to the indictment of I. Lewis Libby, the Vice President’s former chief of staff.  With the possibility of charges gone, the next question will be whether Fitzgerald plans to call Rove as a witness at the Libby trial.  The two were in close contact during June and July 2003, when the administration sought to combat claims by former Ambassador Joseph Wilson, Plame’s husband, about the lack of evidence of WMD in Iraq.  As an earlier post (here) about Korean prosecutors noted, it is helpful when a target of an investigation receives information that the government does not intend to pursue charges rather than be left hanging. (ph)