Legal Commentary

Ted Wells Discusses Scooter Libby's Conviction

By Jeralyn

I was checking White Collar Crime Blog to get Professor Ellen Podgor's take on the Don Siegelman decision, but learned she's at the ABA White Collar Crime conference in San Francisco. One panel she attended was about the white collar trials of 2007. Ted Wells, Scooter Libby's lawyer, was one of the panelists. She writes:

The eight male speakers covered the cases of Michael Reyes (Brocade), Joseph Nacchio (Qwest), Scooter Libby and the KPMG defendants. One recurring theme was what I call the "the context of the case."

For example, in discussing the Scooter Libby case, Theodore V. Wells, Jr. noted how the Scooter Libby case could be seen as a proxy for how people felt about President Bush and the war. It was a "he said-she said" case on a 20 second phone call - but the timing of the trial was important.

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Ellen notes that Sol Wisenberg, a former AUSA and Deputy Independent counsel in the Whitewater investigation, now a white collar criminal defense lawyer and (a self-described politically conservative-libertarian) was also writing about the conference at his blog, Letter of Apology. So I checked there for Sol's comments about Ted Wells:

Ted Wells, who represented Scooter Libby, was, true to form, an outstanding panelist. Wells stressed that Libby faced a choice, when deciding whether to testify before the grand jury, between increasing his criminal exposure and losing his job. This is a choice sometimes faced by politicians and public servants who are witnesses, subjects, and targets. It is a choice also faced by corporate executives who are asked to participate in internal investigations or testify at the SEC. The ultimate question that all of these people should ask themselves, at every stage of the game, is: “What do I prefer–to lose my job or my liberty?”

Wells reminded the audience that even the sharpest clients and attorneys often cannot comprehend the full scope of a criminal investigation. Thus there is no way to be prepared for every question. Libby, before he hired Wells, testified in front of the grand jury, apparently not realizing that Patrick Fitzgerald’s mandate was much broader than the question of who leaked Valerie Plame’s name to Robert D. Novak.

Sol goes on to note that the white collar panel generally agreed letting your client talk isn't a good idea. Most of them blamed their client's prior lawyers:

There was general agreement among the attorneys on the panel that the talking had been a major mistake. The decisions to talk had been made for the most part by previous counsel on the cases at issue.

I think those of us on the defense side who aren't former AUSA's have known this from the get-go. As I always say, the jails are filled with people who thought if they could only tell their side of the story, the cops and prosecutors would see it their way. The Fifth Amendment privilege against self-incrimination is there for a reason. Use it.

If white collar crime is of interest to you, White Collar Crime Blog and Letter of Apology are two you will want to bookmark.

Full post as published by TalkLeft on March 06, 2009 (boomark / email).