It’s tough walking away from what your own notes say

Tom McGuire has a very good post on Plame this morning, and it jogged us about something important in litigation: what the written record shows, must usually square with your testimony. The cynical lawyer might say that you are free to make up what you like at points where there is no evidence, but wherever there is documentation, that forms the basis of your testimony. This is something Clinton understood very well. We always laughed when he would answer a question about whether he did this or that antic, and he would say: “There is absolutely no evidence……” People took that to be a “no” but it was not of course. It was a devious and lawyerly mind at work. If the evidence surfaced, Clinton’s answer could change, without the previous answer ever having been false. Very smart.

Twenty five years ago, we worked on a number of hostile takeovers, so we attended many Board of Directors meetings of large public companies. At one such meeting, the legendary takeover lawyer Joe Flom spoke particularly memorably. Most of his comments were instructions to the Board about the “business judgment rule” meant to guide their deliberations, and protect them from liability. He added something we have always remembered: if you take notes of the meeting, remember to write at the top of the page “Ladies and Gentlemen of the Jury.”

The written record governs. It is evidence of what actually transpired at the time, and testifying against what is in the written record is usually a fool’s errand. Libby’s testimony to the Grand Jury has just such a nonsensical episode, in which Libby contends he forgot that the VP told him about Plame on June 12, but learned it anew on July 12 from Tim Russert, and it so struck him at this later time that he started immediately passing it on to reporters.

Problems: (a) Russert says they didn’t discuss Plame on July 12; and (b) other government officials say they discussed Plame with Libby half a dozen times prior to July 12. But perhaps most important, Libby’s own “copious” notes demonstrate he discussed Plame with Cheney on June 12 — you can’t walk away easily from what you yourself have written. It can be done, but it’s not easy.

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