Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Tuesday, October 04, 2005

Libby's statements are not credible

We're asked to believe that Libby always wanted to Miller to testify.

Get real.

The argument Libby's attorney is asking us to believe is that "it was a misunderstanding."

That's absurd.

Any attorney who wants to immediately notify the court of anything, simply has to send a message to the court and "clear up" the matter.

This could have been resolved before Miller was brought before the court and faced sentencing.

Arguably, if we are to accept Libby's statements that it was simply a "misunderstanding," the jail time delayed an official proceeding; but the matter was well within the power of the attorney to timely resolve.

* * *


Here's a sample of the American Bar Association Model rules governing attorney conduct, statements, and other affairs that appear to have bearing on the Miller situation before the Fitzgerald Grand Jury:



Motivation for delays?







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In this case, what did both counsel and Libby do? Self evidently, they chose the less than speedy route; a reasonable person would conclude at best they fumbled around for three months while Miller sat in jail.

Had Libby or counsel wanted to clear up the matter, confusion, or misunderstanding, they would have taken specific, clear, and affirmative steps to timely do so.

Speaking out, three months later, and after Miller has secured a book deal is not credible as an argument that the matter was a "misunderstanding."

If we are to believe that this was a "misunderstanding," then we are to believe that counsel has wasted the time of the court, not taken affirmative action to clearly communicate with the court.

* * *

In my personal opinion, counsel has either:

  • A. Wasted time in not timely resolving this matter; or

  • B. Failed to understand something that was relatively simple.

    One or the other.

    Regardless, in my personal view, this situation reasonably raises doubts in my own mind about counsel's ability to handle something slightly more complicated like running a law firm or practicing law.

    Congratulations, you are on my personal "Do not hire" list.

    Thank you for making this a public spectacle, counsel.

    * * *

    It remains a matter of law whether the court finds Libby's counsel deliberately made misleading statements about the delays; or whether counsel is simply incapable of timely resolving this legal matter.

    Apart from the delay, the spotlight will now get shined squarely on counsel, and to what extent, if any, counsel has inter alia

  • A. Allegedly violated the ABA ethics rules prohibiting frivolous delays; and/or

  • B. Allegedly proffered materially misleading statements about ongoing legal matters which the court has relied upon.

    * * *

    It appears there is another reason for the "misunderstanding."

    It remains to be understood to what extent these extra-judicial-comments are designed to mislead the court, public, or potential jury pool.

    Regardless, the Grand Jury will soon make a decision and return an indictment.

    * * *

    Subsequent to the above, the National Journal reports the two attorneys for Libby and Miller.

    Miller's Attorney is Floyd Abrams

    Libby's attorney is Joseph A. Tate

    Both attorney's have conflicting accounts of what happened. It appears as though a promise of confidentiality was required as a condition of continued White House employment.

    It remains to be udnerstaood to what extent this "threat of firing" is used as a condition on other White House personnel in order to ensure obstruction of justice or inquiry, despite lawful inquiry.

    Notice the contradictions on wheyther the statements wer volunteary:

    "Mr. Libby did voluntarily provide your team with the written waiver immediately when it was presented to us, well over a year ago", Tate wrote to Fitzgerald. Tate also asserted that he repeatedly "assured" Miller's attorney Floyd Abrams that "Mr. Libby's waiver was voluntary and not coerced and [Miller] should accept it for what it was."

    However, on September 29 Abrams wrote to Tate challenging that assertion. Abrams charged that Tate had indicated to him that Libby had considered the general waiver by its very nature to have indeed been coercive. "In our conversations," Abrams wrote to Tate, "you did not say that Mr. Libby's written waiver was uncoerced. In fact, you said quite the opposite. You told me that the signed waiver was by its nature coerced and had been required as a condition for Mr. Libby's continued employment at the White House. You compared the coercion to that inherent in the effective bar imposed upon White House employees asserting the Fifth Amendment. A failure by your client to sign the written waiver, you explained, like any assertion by your client of the Fifth Amendment, would result in his dismissal. You persuasively mocked the notion that any waiver signed under such circumstances could be deemed voluntary."