(OR, WHY SCOOTER WILL NEVER GET TO TRIAL)


Gadfly is Marty Aussenberg, a columnist for the weekly Memphis Flyer. Marty is a former SEC enforcement official, currently in private law practice in Memphis, Tennessee. (A full bio is below the fold.) This is an expanded version of the column published at The Memphis Flyer.


Now that Scooter Libby has done his crutch-assisted version of the perp hop for his arraignment, the second biggest question on everyone’s mind in the CIA leak case (the first, of course, being a multiple choice one of whether Karl Rove will either (a) be indicted, (b) resign, (c) both, (d) apologize and throw himself on the mercy of the American people, or (d) none of the above), is whether Libby’s case will go to trial. I have already weighed in on this question, in no uncertain terms.


Much has been made of the fact that Libby has now “lawyered up” with the addition of two prominent criminal defense attorneys, Theodore Wells and William Jeffress, Jr., both of whom accompanied Libby to his arraignment, and one of whom, Wells, made what could only be described as a resounding pronouncement on the courthouse steps that

in pleading not guilty, he has declared to the world that he is innocent, he has declared that he intends to fight the charges in the indictment, and he has declared that he wants to clear his good name and he wants a jury trial.


YEAH, RIGHT! This is the same kind of speech every criminal defendant’s lawyer gives who, for whatever reason, hasn’t worked out a deal for his client before he’s been indicted. It goes hand in glove with the “innocent until proven guilty,” flag-waving pablum everyone spouts about the accused, even if they really believe he’s guilty (which most people usually do). But here, because Libby has hired two “trial lawyers,” one of whom has made a stentorian speech about his client’s innocence and desire to clear his name, the uninitiated are assuming it must mean he really does want to go to trial. Nothing could be farther from the truth, and the fact that accomplished trial lawyers have been hired is the strongest evidence of that.


Continued below:
As in all adversary legal proceedings, where each party is represented by counsel, there is a stage of the proceeding (sometimes more than one) where the parties’ lawyers do what I call the “war dance.” It’s a bit like what goes on in the animal kingdom when two beasts who have come to loggerheads square off against each other and strut their stuff in an effort to convince their adversary it would be a mistake to rumble.


So, one party bellows, followed by the other; then one party thumps the table, followed by the other, and so on. And, of course, the more credibly each participant in the “war dance” struts his stuff, the more they may be able to avoid, or at least mitigate, the inevitability of a rumble. Sometimes that means the party that brandishes the biggest weapon during this stage of the preliminaries, can walk away without having to fire a shot. And big guns require big (read: expensive) gunslingers. That, my friends, is also why high profile criminal defendants hire high power defense lawyers.


What’s happened so far in the Libby criminal proceedings is that the prosecutor has had his opportunity to bellow and thump the table (with the indictment and during his press conference announcing the indictment), and now Libby’s lawyers have had the same opportunity (Mr. Wells’ pronouncement on the courthouse steps). Libby has now said to Fittzgerald, “OK, Mr. Big Stuff Prosecutor; my defense team can beat your prosecution team any day of the week” (or in GWB vernacular, “bring it on”). Now the parties will retreat to their separate corners and, yes, go through the motions of preparing for trial.


But let me assure you, behind the scenes there will be some intense negotiations between the government and Libby’s lawyers to enter into some kind of plea agreement. And, those negotiations will get even more intense as Libby’s defense team finds out what the evidence against their client is, which they will. Key in those discussions will be whether Libby will rat out his boss, the Vice President, or lead prosecutors to where any other bodies may be buried in the whole Wilson/Plame debacle (i.e., the Italian connection). But even if he doesn’t turn on his boss, his boss may turn on him, trying to force him to cop some kind of plea to lesser, or limited charges, in order to avoid a full-blown trial. In fact, most criminal defendants (96% in 2003) choose to plead guilty or no contest.


But don’t kid yourself. Just because Libby has hired “trial” attorneys, or even these particular ones, doesn’t mean they won’t be doing everything they can to explore ways in which they can avoid going to trial, not because they’re afraid to, but because they know the risks and costs of doing so.

For example, one of Mr. Wells’ most prominent clients was the famed junk bond king, Michael Milken. Milken, who, despite the same kinds of pronouncements of innocence and intended vindication at the time of the indictments (which included 98 counts of racketeering, and securities fraud, among others), didn’t go to trial. Instead, the prosecutor in the case, Rudy Giuliani (back before he started making the big bucks) and Milken’s lawyers, including Mr. Wells, entered into a plea agreement under which Milken eventually served 22 months in federal prison, paid $600 million in fines and restitution and agreed to be barred from the securities industry for life. Some bargain, eh?


And Mr. Jeffress? One of his high profile criminal clients was the CEO of the drug chain, Rite-Aid,, Martin Glass. Glass was indicted on numerous counts of securities fraud, mail fraud, wire fraud, conspiracy, perjury and obstruction of justice. Instead of going to trial, he pleaded to two conspiracy charges, and payment of a $500,000 fine, and was sentenced to an eight-year jail term.


I mention these two examples (and I assume there are probably others) in the case of Libby’s new legal team only to point out that just because these are hot-shot trial lawyers doesn’t mean they aren’t more than able and willing to pack their trial weapons in, and go for the best deal they can possibly get for their client. This is especially so, given the effect of plea bargains on the federal sentencing guidelines (one of which has substantially increased the time required to be served for the crime of obstruction of justice), and the ability to have more say about which of the “glamor slammers” one gets to go to when one plays ball with the prosecutors.


The simple fact is that in any criminal prosecution, but even more so in this one, both the stakes and the costs are simply too high to Libby (and to the people for whom he’s acting as the patsy) to go all the way. The proceedings leading up to and including a trial for a very high profile defendant can easily run into seven figures, and sometimes higher. And, while no price may be too great to pay for freedom, a well-negotiated plea agreement that obviates the pain, suffering and financial distress associated with going all the way through a trial, even if it may be at the expense of some kind of negotiated punishment, is almost always better than going “all the way.” No, my friends, there will be no trial for Scooter Libby.


P.S. Let’s also remember, by way of explaining why a trial in this case will never happen, that if worse comes to worst, and it really looks like Libby’s case is going to go to trial, and that Cheney (and who knows who else the White House doesn’t want to testify) might actually have to testify, there are at least three other alternatives available to the powers that be: first, given the White house code of “omerta,”

They can promise Scooter that if he takes the fall, and even if he goes to prison for it, they’ll make sure he’s “taken care of” when he gets out; second, they can always involuntarily (and permanently) put Libby in one or another (official or otherwise) witness “protection” program and third, if all else fails, they can always send him to one of the recently-disclosed CIA secret prisons, where they’ll never have to worry about seeing him appear in a courtroom in the District of Columbia (or any other courtroom, for that matter), ever again. Remember (wink, wink), those “detainees” are innocent until proven guilty too.


BIOGRAPHY:

Mr. Aussenberg is an attorney practicing in his own firm in Memphis, Tennessee. He began his career in the private practice of law in Memphis after relocating from Washington, D.C., where he spent five years at the Securities and Exchange Commission as a Special Counsel and Trial Attorney in its Enforcement Division, during which time he handled or supervised the investigation and litigation of several significant cases involving insider trading, market manipulation, and management fraud. Prior to his stint at the S.E.C., he was an Assistant Attorney General with the Pennsylvania Department of Banking in Philadelphia and was the Attorney-In-Charge of Litigation for the Pennsylvania Securities Commission, where, in addition to representing that agency in numerous state trial and appellate courts, he successfully prosecuted the first case of criminal securities fraud in the state’s history.


Mr. Aussenberg’s private practice has focused primarily on investment, financial, corporate and business counseling, litigation and arbitration and regulatory proceedings. He has represented individual, institutional and governmental investors, as well as brokerage firms and individual brokers, in securities and commodities-related matters, S.E.C., NASD and state securities regulatory proceedings, and has represented parties in shareholder derivative, class action and multi-district litigation, as well as defending parties in securities, commodities, and other “white-collar” criminal cases.


Mr. Aussenberg received his J.D. degree from the University of Pittsburgh School of Law, and his B.A. degree in Honors Political Science from the University of Pittsburgh. Immediately following law school, he served as a Reginald Heber Smith Community Lawyer Fellow with the Delaware County Legal Assistance Association in Chester, Pennsylvania.


He is admitted to practice in Tennessee, Pennsylvania and the District of Columbia, before the United States Supreme Court, the Third and Sixth Circuit Courts of Appeals, and the United States Tax Court, as well as federal district courts in Tennessee, Arkansas, Mississippi and Louisiana. He is an arbitrator for the NASD, New York Stock Exchange and American Arbitration Association, has published articles (“Stockbroker Fraud: This Kind of Churning Doesn’t Make Butter”, Journal of the Tennessee Society of C.P.A.’s,; Newsletter of the Arkansas Society of C.P.A.’s; Hoosier Banker (Indiana Bankers Association), and been a featured speaker on a variety of topics at seminars in the United States and Canada, including: Municipal Treasurers Association of the United States and Canada, Ottawa, Canada; Government Finance Officers Association; National Institute of Municipal Law Officers, Washington, D.C. ; Tennessee Society of Certified Public Accountants, Memphis, TN; Tennessee Association of Public Accountants, Memphis, TN (1993)
.


Mr. Aussenberg has two children, a daughter who is a graduate of Columbia University and holds a Masters in Public Health from Johns Hopkins University and is currently a student at the University of Pittsburgh School of Law, and a son who is a graduate of Brown University and is working with a conservation organization in Marin County, California while he decides what to do with the rest of his life.


Mr. Aussenberg is an avid golfer whose only handicap is his game, an occasional trap shooter whose best competitive score was a 92, and an even less frequent jazz drummer.