Morning thoughts on the NY Times report that Libby could be indicted >link<

A quick note on the NY Times report that Rove is not likely to be indicted; Libby will be indicted for lying to the grand jury.

An indictment means that the grand jury found that there is probable cause that a crime was committed….this is not a conviction. It will be a major leap to go from a finding of probable cause to a conviction by a petit jury based on proof beyond a reasonable doubt.

Remember, the defendant does not get to present a defense during the grand jury proceedings; the prosecutor is the only side that gets to present evidence. Also, we don’t know whether the indictment (if one is actually issued) was based on a unanimous vote of the grand jury.

Perjury and lying to a grand jury are notoriously difficult to prove because you cannot get inside the mind of the defendant. “I made a mistake,” “I was wrong,” or “I don’t remember” can be compelling defenses, especially in a case like this when the crime involves oral communications. The presence of written notes or emails discussing those communications after the fact can help piece together what happened, but they can also be wrong.

This strikes me as the type of case that a prosecutor would try to plea out rather than take to trial. But the political ramifications of a guilty plea may force this case to trial…and based on the information I have seen in the media (always a dangerous and unreliable source) I would guess that Libby would be acquitted.