From the May 5 hearing transcript:
MR. FITZGERALD: Okay. If the defense is calling a witness and, with all due respect, he's not bound to call a witness so at a pretrial discovery phase defendants often decide to call lots of witnesses that don't appear. My understanding is that under the law, 3500, Jencks and Giglio, we don't have obligations to turn over materials pertaining to defense witnesses and so my point is --
To which, Ted Wells replied:
Wells: But if they have, let's take Mr. Rove, if they have emails and other documents dealing with Mr. Rove's activities, I have a right to get that material.
As Marcy points out, it's not clear from the public filings whether Team Libby ever got this information.
I'm becoming more and more convinced Rove will be a walking time-bomb for Libby if they call him.
This is my last post before arriving in D.C. to attend the trial this week. I'll be staying at FDL's Plame House, with Marcy, so I'm sure we'll be going round and round in circles about Libby's defense.
As of now, I'm still thinking Wells should keep it simple and keep his defense focused to no one remembers anything today the way they remembered it in June or July of 2003 or even when they testified before the grand jury. If everyone's memory is untrustworthy, that alone is a reasonable doubt that Libby intentionally lied, as opposed to simply having a faulty memory like everyone else. The burden of proof is on the Government to show Libby knowingly or intentionally lied and that his misstatements were material, not the other way around.
I don't think Team Libby knows yet who they will call as a witness in the defense portion of the case. It all depends on what the prosecution witnesses say, who hurts them and who doesn't. Sure, they have everyone under subpoena, but that's a precautionary measure, it doesn't mean they will call them.
As for why Libby would call Cheney, I think it's just to reinforce that Cheney told Libby to discredit Wilson, not his wife, and that his wife was not part of the equation. Cheney clearly didn't want people thinking Wilson went to Africa at his request, even though that's not what Wilson said.
Unfortunately for Libby, other witnesses remember events differently. Then again, memory is not like a video recorder, it changes over time, particularly when those involved in events have discussions amongst themselves and when they receive post-event information, whether from their lawyers, the media or from access to documents. Their memories then become an amalgam, of what happened at the time and what happened after. Their original memory of the event is more or less gone, never to be regained. What's left in its place is a blended memory.
For these reasons, I think most people's memories are inherently unreliable.
This case is even more problematic, because everyone seemed to be playing the game of telephone about Valerie Plame Wilson. The problem for Libby is that documents, phone records and e-mails seem to belie his memory as he recalled it to investigators just months after July, 2003.
To be continued from Washington.....
