Looking back at my (seemingly ancient) times as a high school debater, I remember a term for a strategy occasionally used by lazy or overmatched competitors when they had to debate the “affirmative” side of a policy issue. It was called a “Squirrel Case.” Very roughly described, it consists of taking a position so obscure and unexpected that even a meticulously prepared opponent would have done no research that would help rebut any element of the proposal.
My debating partner and I often happened to fall into the “lazy or overmatched” camp, but we were quite successful on the affirmative side with a “squirrel case” related to Prison Reform (the official debate topic for my junior year). In our proposal, we argued for a treatment regimen for convicted violent offenders based on the combined use of chemicals (such as sodium pentathol) and intense hypnosis, a la “A Clockwork Orange,” in order to completely eliminate the need for incarceration.
Because we didn’t do any substantial research into potential arguments for the “negative” side, we routinely got our rear-ends handed to us by scrawny, bespectacled geeks with enormous filing cabinets full of material, but their files didn’t help them much when we were lucky enough to draw the affirmative!
One week into the Scooter Libby trial, I am starting to suspect that the Libby team may be trying the equivalent of a “squirrel case,” instead of the vaunted “faulty memory defense” that has been their more public strategy, and the one that Fitz has clearly built his case to overcome.
During a lengthy argument before Judge Walton on Thursday, Fitz lobbied to be able to show video of Scott McClellan press conferences about Libby, and he repeatedly referred back to one of the big surprises of Wells’ opening statement. From Emptywheel’s play-by-play:
Fitz. For Wells to argue that this is about Libby being thrown under the bus, when that's not in the GJ, and this is, then why can't I do that.And
Fitz. Mr Libby never testified to this "throwing under the bus concept." That's not in GJ.And Wells spelled out, in more detail, an argument that seemed to come out of the blue during his opening statement:
Wells. Let me explain purpose of it. Fitz repeatedly argued that Bush made statement that anyone involved would be fired. My response to that, in terms of Libby, he was not concerned about job, he was concerned they were scapegoating him. What we're going to argue in response to govt's argument, he was concerned about scapegoating. He acted like an innocent person, went to VP and asked to be exonerated. That's what VP will say if he testifies. It goes to motive. They want this transcript in to go to motive. They want to say he was afraid of losing job. Only an innocent person, I would argue, would go to VPUS, to say that he was worried about scapegoating.In a case where the primary focus has been whether or not Libby knew about Valerie Plame before he said he learned about it from Tim Russert, Fitzgerald has methodically set out to establish, through a parade of witnesses describing conversation after conversation, that Libby was preoccupied with Wilson and Plame before he talked to Russert. For Libby to be able to testify credibly that he mistakenly thought he learned about Plame from Russert after all of these conversations seems nearly impossible.
Frankly, I think the Libby team has known it would be impossible from the beginning, even as they were floating the “faulty memory” defense and filing motions foreshadowing this defense, all the while intending to stake their chances on the argument that he was “completely innocent” of any wrongdoing, had no motive to lie, and that everything that he did was out of a desire to avoid being “scapegoated!”
I don’t think Libby is going to testify. According to Judge Walton, that would be “suicide” to his “faulty memory” defense, but I don’t think that’s his defense. I don’t think there was ever any intention of Libby testifying, which is why Wells’ opening statement began with the line: “My name is Ted Wells and I speak for Scooter Libby.”
All of the government witnesses have been grilled by Libby lawyers about their own memory shortfalls, as if to set the stage for Libby to claim he has similar shortfalls. That won’t work, because there are too many witnesses, and too many conversations, about Wilson and Plame.
Emptywheel thinks that Cheney won’t testify despite claims by Ted Wells of what Cheney will say - because by testifying, Cheney would have to perjure himself or end up confirming the prosecution’s narrative of the case. Frankly, I don’t think Libby can afford to have anyone even remotely involved in the so-called “War on Wilson” testify, because Fitzgerald knows enough to make any of them have to commit perjury or further incriminate Libby!
From the beginning, Libby’s real goal was to try to get at least one juror to sympathize with him and his stated desire to avoid being “scapegoated.” At least one juror would have to see everything else as either due to:
1) misunderstandings from poor note-taking by forgetful reporters,
2) a grudge between the CIA and the Office of the VP, or
3) deals made with the prosecution by people who were trying to save their butts.
But from the beginning, Libby's defense would have to be done only with "character" witnesses who weren’t actually involved in the Wilson matter.
And from the beginning, Libby's defense would have to be done with an argument that was not foreshadowed in the Grand Jury testimony or the pre-trial posturing, so that Fitzgerald’s case would have left the door open just a crack - at least one large enough for a squirrel to squeeze through!