LabDancer on Libby

The following was posted on February 6, ’07, on the outstanding political blog The Next Hurrah, which has been covering the Libby/Plame story since the getgo and features as its lead writer Marcy Wheeler, who is covering the trial at the moment and has published the definitive book on the pre-trial story.  I hope that all readers will rush over to The Next Hurrah for continuing coverage.  I post LabDancer’s comments both for their wit and their brilliance.

–Bill Hicks

Comments on "Dick's Talking Points," The Next Hurrah, 2/6/07, by LabDancer

I remain of the view that neither Libby nor Cheney will take the stand. I realize this thread is more for speculating on Cheney than Libby's dilemma, but given the prosecution's case will end tomorrow or so, I think it may be more apt. Team Libby is arguing that a flaw in the Constitution has jammed their/his ability to demonstrate a full and fair defense between a First Amendment rock and a Sixth Amendment hard place.

Poor Scooter. Poor scared little Andover, Harvard, Columbia Law, Wolfowitz and Cheney educated, AEI and Hudson Institute sheltered Scooter – screwed - caught between one right the Constitution guarantees to him, just as every low life slum dwelling unemployed slime charged with a combination rape and homicide, the right to stay silent at his trial (which in Libby’s circumstances presents the extremely attractive option of avoiding a face-on struggle with a foe who can read his every move and motive, akin to a late middle-aged touch football quarterback used to playing in the park on Saturdays with his desk jockey buddies suddenly confronted with Dick Butkus circa 1965, blitzing on quarterback blitz faster than the blood and spittle spraying from his helmet; and another right also guaranteed by the Constitution, the right to receive legal advice (which in Libby’s case presents the extremely attractive prospect of being counseled by a large team of hand-picked experts).

When your typical expert criminal lawyer with a real client who is facing really serious charges with the outcome of doing serious jail time being a real possibility, the lawyer is bound to understand that the client is not just entitled to, but in need of sound, hard, tough advice on the most difficult choice that exists in a criminal case, the lawyer is wise to put that legal advice in writing, and then have the client read it over, and finally have the client to sign statements to prove not only that the client read over the written advice, but thoroughly understood both that advice and the awful consequences of the choice.

I have no idea if Wells, Jeffress et al have or plan on presenting written advice to Libby on his choice here. But since their latest filing is all about that, this is how I see the “advice” which Libby is getting from his Team [assuming at least one of them is looking out for Libby’s interests above those of anyone else]:

Dear Scooter:

If you choose to remain silent, it is very likely you will lose this trial, and that this jury will bring in a verdict of “guilty” on at least two of the five charges, with no odds on the obstruction count, and in any event of that you then will be sentenced to a jail term.

But if you choose to testify to this jury, it is STILL very likely that you will lose this trial, and that this jury will bring in a verdict of “guilty” on at least two of the five charges, maybe even more than if you had not testified, and if you are convicted you then will be sentenced to a jail term longer than if you hadn’t testified, but on the basis of a narrative different from the one you would face if you testified, and you may even face more charges of perjury in relation to your testimony given at this trial. Plus, it looks like better than even odds that this prosecutor can do things to you that could kill your hopes for a pardon, expose you to further prosecutions on charges ranging from perjury to treason, take down your boss and benefactor, take down some of your fellow workers, and maybe even take down the big boss.

Plus, bear in mind that we’ve been running this trial like a Ma and Pa Savings & Loan hedge fund in a bear market. Because of that strategy, just about any story you tell – not that we don’t believe whatever it is that you’d say, understand, because Hey! We’re your lawyers, we speak for YOU, and we’re 200% all the way behind you, all the way until that jail door slams shut – is going to look like an invitation to Fitzgerald to bitch slap you all around the courtroom over how it conflicts with some of the more aggressive alternatives we’ve been working to keep open to spin to this jury, and “the base” of course.

Hey baby, it’s your life, and it’s your choice, so … best of luck to you in making it!

Scooter, please note the statement just under our signature, sign it on all eight copies of this letter and return the first seven copies to us. Thanks buddy. It’s been a slice speaking for you. And don’t forget to say “Hi” for us to all your supporters, and thanks for the money.
Best wishes,
Ted, Bill and John

What makes all this more problematic for Team Libby is that this is very far from an ordinary case. A comment from a lawyer at Talk Left opined confidently that Team Libby’s argument doesn’t 'implicate' a valid constitutional or legal complaint. Okay, I’m sold. But the point is that no matter how this trial goes down, no matter what Libby chooses to do [and it’s SCOOTER’S choice here, not his lawyers], Libby is a damned liar. Team Libby may try to dignify Scooter’s Quandry by wrapping it up in pretty floral-patterned paper embossed with a constitutional water mark. But it’s not even mutton dressed as lamb. It amounts to nothing more than a pathetic whine that Libby is now wringing his hands over - forced to choose between which set of truths mixed with half-truths against which his nominal innocence and reputation will be judged – and among which narrative of myths his actual fate will take into battle. May it be known hereinafter Scooter’s Quandry, or Libby’s Dilemma … whatever, just so long as it’s memorialized.

It’s even worse than that, because Libby isn’t just a damned liar, and a coward to boot, but as that lawyer commenter at Talk Left also observed, with this latest Team Libby argument Libby has invoked the spectre of Oliver North. I’m sold again; Libby even takes going (Ollie) North up a notch. But for that, I would be tempted to end by observing that the fact Team Libby has tried to elevate this grotesquely disingenuous proposition by inserting it into a court filing evidences how craven is lawyer Libby. But their argument on Libby’s Dilemma doesn’t just surpass North's numb-skullery, it achieves a reverse legal trifecta – it insults the process, denudes the Constitution, and is too dangerous to be disposed of summarily as just Return of Ollie [Ollie’s theme: “First we took the Contras, Now we take Iran” – My apologies to L. Cohen].

North version of Libby's Dilemma was erected on two key pillars. The first at least bore the attraction of superficial relevance to the facts of North’s case. Ollie posited that the only reason he faced charges was that being exposed to criminal prosecution was a consequence of his unswerving patriotism and loyalty. As a [Cue “Fanfare for the Ordinary Man”!] true blue red-blooded American, his only crimes were blind love of nation and unquestioning obedience of the [Cue “Hail to the Chief”!] Commander in Chief and those entrusted to interpret his will - no matter how ill-conceived, short-sighted, bone-headed, deluded, ignorant and stupid the Chief, that will, the means, or the consequences.

As I recall, North was charged among other things with lying about an executive branch caper involving a country in the Middle East...Ir-something. Anyway, his argument was indistinguishable from the 'legal excuse' that "I was only following orders". So, unless someone wishes to revisit the whole Third Reich thing, so much for Ollie’s ops.
[And on to talk radio!]

It’s Libby’s adoption of Ollie’s second argument that really gets my goat. It was the one less prominent in North’s defense, mostly because it is so staggeringly superficial. As well, it is so irretrievably putrid it makes the first argument smell, as Colbert is wont to say, simply delicious. It’s really modeled off an idea we know better as a pillar of President Bush’s “moral clarity” advantage, but in these courtly circumstances, all dressed up in commencement day robes and holding a cut-rate mail order law school synthetic sheepskin.

North countered his detractors with an argument aimed not at the charges, but at his prosecutors/persecutors; that they were guilty of moral blindness in failing to appreciate this:

WHEN in the affairs of the United States of America, ANY ARTIFICES, no matter how sound it has proven to be, no matter how established an institution, no matter how rooted in the history of civilization, and no matter how engrained a value in the nation’s culture WHICH even just gives off the appearance of CONFLICT WITH the choice of a free-born American to follow to the letter (or to the spirit, depending on which suits best) AN ORDER issued BY or under the authority of THE nation's one ‘true’ LEADER - which at any point might be the President (though not necessarily) –said ARTIFICE intolerably INFRINGES that citizen's essential "AMERICANISM".

It’s the trump card in the American Right Wing deck, so powerful it logically extends throughout the Constitution, superceding all rights articulated therein (or implied any where else, like the Magna Carta), and all Amendments, save the Second (of course).

Libby's New and Improved versions of North’s key arguments are more toxic than the originals. And by far, I say. Given his background and vocation, Ollie’s "Dirty Dozen" defense at least bore the pretension of legitimacy. But Libby is a product of the best educational institutions in the nation, several "think tanks" - the American Enterprise Institute, the University of Dick Cheney, and the Hudson Institute [which, hereafter, I will try hereinafter to refrain from referring to as "wank tanks"], and his job was senior counsel to the only executive officer in the country accountable to no one but the Commander in Chief.

Libby and Team have succeeded in reaching depths surpassing those plumbed by North, not merely by weighing in with Libby's educational and vocational 'qualifications', but by throwing the weight of his professional and social standing, and those of his Team, behind the idea that the Constitution is an IED-infested swamp.

As I expect others here do, from time to time I drop in at Websites of the Bitchin’ Disaffected, mostly to check their temperatures. A while back the quotation on the lead banner of one caught my attention, being this from H.L. Mencken:

“There comes a time when a man must spit on his hands, hoist the black flag and begin slitting throats.”
Maybe it was just that Mencken had a rodent infestation, because he also wrote this:
"As democracy is perfected, the office of president represents, more and more closely, the inner soul of the people. On some great and glorious day the plain folks of the land will reach their heart's desire at last and the White House will be adorned by a downright moron."
Mission accomplished. Let us move on - starting with Libby.

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