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 in 1982.

— Victoria Toensing, a founding partner of diGenova & Toensing.





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