The common phrase uttered by prosecutors asked to grant immunity (or even enter into a plea deal in exchange for cooperation) is "We won’t buy a ‘pig in a poke.’"  Having uttered it myself with no clue what it meant, I once looked up the phrase and learned that in an earlier era pigs (and other animals) being transported to a market to be sold were kept in a "poke" sack, which is a thick canvas bag, to keep them from escaping — pigs were especially prone to running away, so the sack was kept tied tightly.  Rather than buying something sight unseen (like we do on the internet all the time), the purchaser demanded to see the animal before paying for it, lest he buy the pig in an unopened poke.  For prosecutors, the phrase is an indication that the witness/defendant has to provide a statement, usually called a proffer, before the government will make a deal. 

The prosecution of I. Lewis Libby has brought this timeworn phrase to the forefront with news that former White House spokesman Ari Fleischer sold the aforesaid pig in a poke to Special Counsel Patrick Fitzgerald when he demanded immunity during the investigation of the leak of Valerie Plame’s status as a CIA agent without first making a proffer.  Fleischer is scheduled to testify against Libby at trial, and the prosecutor refuses to turn over any notes because they are not witness statements (under the Jencks Act) nor was there a deal for Fleischer to receive immunity in exchange for certain testimony.  In that sense, while the government knows the outlines of Fleisher’s testimony, the exact nature of it will be a surprise to both sides, at least according to Fitzgerald.  Needless to say, defense counsel are skeptical that an experienced prosecutor like Fitzgerald would make a blind immunity deal and are demanding to know what has been said about Fleisher’s testimony. 

An AP story (here) quotes Fitzgerald as stating in court, "I didn’t want to give him immunity. I did so reluctantly . . . I was buying a pig in a poke."  Although I doubt Fitzgerald meant the porcine reference to relate specifically to Fleischer, it certainly shows that the Special Counsel was willing to take a significant risk that Fleischer would say things that would protect others in the administration while making it virtually impossible to pursue criminal charges against him because of the immunity.  While risky, the grant of immunity without hearing Fleisher’s likely testimony allows him to state on the witness stand that he did not "bargain" for that protection in exchange for "tainted" testimony, thus giving his credibility a small but potentially important boost.  Never having bought a real pig in a poke, I can’t say what the risk there really is, but in a high-stakes investigation like this one Fitzgerald has shown his willingness to take chances.  To the extent the prosecutor denies having any information on what Fleischer promised to testify about, U.S. District Judge Walton’s hands are largely tied because he can’t order the government to turn over what it doesn’t have, even if the government purposely chose to avoid creating such material to hamstring the defense. (ph)

The trial of I. Lewis Libby is moving down the the path of triggered memories and challenges to suddenly clearer recollections as the government focuses on when Libby learned that Valerie Plame was a CIA officer and defense counsel challenges the recall of the government witnesses.  The government’s second witness was former CIA associate deputy director Robert Grenier, who testified that Libby contacted him to learn about former Ambassador Joseph Wilson’s trip to Africa.  Grenier said that he was called out of a meeting with the CIA Director by a second call from Libby for further details on the trip, and that he told Libby that Wilson’s wife was a CIA agent in the group that arranged the trip.  On cross-examination, William Jeffress noted that Grenier’s testimony was different from his earlier statement to the FBI that he did not recall telling Libby that Wilson’s wife (Plame) worked for the CIA.  Jeffress asked, "Do you find your memory gets better the further away from an event you are?"  Classic cross-examination to impugn the witness’s testimony, a question that does not really seek an answer — Grenier said, "It depends."  The case remains one about the credibility of witnesses, and whether the jury will accept the version presented by the government or Libby.  Talk of scapegoating during the opening has a certain rhetorical value, but the assessment of witness recollections (or the lack thereof) will likely tell the tale.  A Washington Post story (here) discusses the latest testimony, and the blog Firedoglake live-blog’s the testimony (here). (ph)

Many people have comments about the opening day of the Libby trial.  One thing is for certain from the defense opening statement – the name Karl Rove is a name that will be mentioned in the days ahead. And for Karl Rove yet a another stroke of luck (?) as the newspapers will be reporting this on the same day as the President’s State of the Union Address.  Which one was above the fold and in the center of the paper that you read?

Here are some descriptive portrayals or blog entries of day number one –

Talk Left here

FiredogLake here

New York Times here

Washington Post here

LATimes here

Wall Street Jrl here

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The opening statements are set for this a.m. with the jury selected in the I. Lewis "Scooter" Libby case.  (see Washington Post here).

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The second week of the I. Lewis "Scooter" Libby trial starts today, and the jury has yet to be selected.  But it is anticipated that this will happen by the end of the day. For details on the jury selection process check out the Washington Post here and Firedoglake here.  It seems obvious from reading the media and blogs that this case will not be streamlined to cover just obstruction and perjury allegations.  It appears likely that the defense will be opening the door to cover matters that will relate to Iraq, or matters that may explain the surrounding circumstances at the time of the alleged criminal conduct.  As prosecutors can infer intent from the circumstances, the defense also has the right to have evidence that might shed a different light on the intent of the accused. But what that defense will be and how it will develop remains to be seen. Oftentimes the theme of the defense case can be seen when listening to the opening statement.  Jerri Merritt at TalkLeft has some pointers here.  It is always important to keep in the back of one’s mind that the defense is not required to testify and is not required to prove anything.  The burden rests with the government.

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