In all the furor about Bush’s possible role (way overdone from a legal standpoint, imho) in Plamegate, the more significant parts of the Fitz filing are being ignored.  Most importantly, the information it gives about the witnesses Fitz is gonna call, and how he is trying his best to avoid the graymail stalemate. You have to read it to get the flavor.

Firstly, one of the unspoken issues is MOTIVE.  and remember, this is motive TO LIE, not motive to disclose Plame’s identity OR motivation to remember. It is important to remember that all of the stories about Cheney being enraged, all the stuff about Hannah, etc,  becomes pretty irrelevant to THIS ISSUE OF LIBBY’S MOTIVATION TO LIE. Sure, it would be nice to have the Hannah stories, because they would show some conspiring, some orders from the VP, all sorts of stuff that Scooter PERHAPS would want to lie about.  in the same vein, Rove and Hadley were playing the same dangerous game that Libby was, plotting, baiting reporters, conferring on strategy, and then lying about it to investigators/grand jury.  


 Why? Because of the graymail defense.

WHAZZUP, below the fold…
Testimony from the inner circle of the administration would also be useful in that it could certainly document that the whole Plamegate thing was VERY important to Libby, countering Scooter’s “I forgot because it wasn’t important” defense.

BUT… is clear that Fitz is not gonna be using the testimony of these big shakers and movers…he is being quite economical; and he has to be. Read his Libby indictment press conference transcript. If he relies on administration higher ups like Cheney, Hadley, Hannah, Rove,  et al, or mentions the word “conspiracy”, then Libby’s graymail defense becomes much stronger, ie, Libby’s lawyers will demand the minutes of every classified meeting that ever happened, etc, etc, and the case will rapidly become a quagmire of refused subpoenas, etc, and Libby will skate. Fitz can’t even get very far into a discussion of the issue of the 2004 elections, except to hint that Libby’s (but not Bush’s or Cheney’s) job depended on making nice in the newspapers.

So while it tempting to try to show motive by postulating/documenting a great coverup by everybody from Cheney on down, Fitz can’t do that; he has seal the case off from the offices of the President and the VicePresident. He has to use lower level folks like CIA briefers, Ari Fleischer, people who were not part of the White House inner circle, and reporters. That is why Fitz realized very early on that Judith Miller and Mark Cooper were so crucial.

Furthermore, Fitz is not even going to show that disclosing Plame’s identity was a crime. We don’t exactly know the status of this part of the investigation, but Fitz has made it clear that it doesn’t matter to his case. Without showing a crime was committed, it becomes even more difficult to show what Libby’s motive for lying might have been.

So how will Fitz show motive for lying, if he is, for all practical purposes, show motive, if he can’t get into whether there was an “outing” crime, or anything about political whitewash?

Apparently, Fitz is gonna rely on showing that, for WHATEVER REASON, Libby, at the time, manifested guilt about what he was doing, while he was disclosing Plame material. Examples: The “clandestine” meeting with Judy Miller, his demand for a deceptive cover (“a departed White House staffer”): state of mind, mens rea, guilty behavior. And he is gonna use the testimony of newspeople and maybe Fleischer to do it.  Secondly, he is probably going to use a timeline to show that Libby, at the time he was being interviewed and giving testimony, THOUGHT that what he had done might have been a crime. Mens rea. Therefore, there was evidence that, for whatever reason, Libby felt guilty about his behavior, and that was sufficient motive for him to lie.

To move on to Libby’s affirmative defense (forgetfulness/press of other business): Here again, Fitz has to counter, by showing that Plamegate WAS VERY IMPORTANT to Libby, but he can’t use the “Cheney was in an uproar” argument, or the Hannah testimony, without getting into hugh graymail problems. So he is gonna rely, again, on the press and the CIA briefers and Fleischer to show the number of times that the subject was  discussed and the fervor that Libby showed.

(There is, of course, another reason why Fitz would not have Rove, Hadley, et al on his witness list: you don’t want to use as a witness SOMEBODY YOU ARE INDICTING FOR PERJURY…..)

[crossposted at dKos]

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