GADFLY: Et Tu, Scooter (Being More of Libbygate) 

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.

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 Fitzgerald, “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 hotshot 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 “glamour 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 two other alternatives available to the powers that be: first, they can always involuntarily (and permanently) put Libby in one or another (official or otherwise) witness “protection” program "glamor slammers", and second, 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, for that matter, any courtroom anywhere else either) again.  Hey, let's not forget, those “detainees” are innocent until proven guilty too---aren't they?

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