PlameGate: Libby and the Government At Odds Over Discovery

The Government and lawyers for Lewis "Scooter" Libby filed a discovery status report today with the court. Here are the items in contention (from the court filing):

6. It is the position of the defense, based on the government's written and oral responses to our requests, that significant disagreements exist between the parties with respect to the nature and scope of the government's obligations under Rule 16 and Brady. These disagreements include, but are not limited to, the following:

A. Whether information in the government's possession about reporters' knowledge concerning Valerie Wilson's employment by the CIA from sources other than Mr. Libby is material to the preparation of the defense. The defendant has already prepared and expects to file a motion to compel disclosure of such information on or before February 3, 2006.

B. Whether the prosecution must obtain and produce documents and information within the possession, custody or control of Executive Branch agencies other than the Office of Special Counsel and the FBI. The defense is preparing, and intends to file on or before February 3, a motion concerning this issue.

C. Whether classified information about Mr. Libby's participation in meetings, briefings and discussions concerning pressing national security matters between May 6, 2003 and March 24, 2004 is material to the preparation of the defense. The defense is preparing, and intends to file on or before February 3, a motion concerning this issue.

D. Whether information concerning Mrs. Wilson's status as a CIA employee, and the allegedly classified nature of that employment, is material to the preparation of the defense. The government intends to address this issue with the Court and the defense pursuant to CIPA.

Libby's team also signaled its intent to supboena journalists and executive branch agencies.

Once discovery disputes with the government have been resolved, the defense will seek to issue Rule 17© subpoenas to individual journalists and news organizations to obtain additional necessary documents for trial. The defense anticipates that some of these third parties will resist complying with such subpoenas. Disputes regarding the subpoenas will likely lead to litigation in this Court and perhaps even the Court of Appeals, in the event that the news organizations elect to seek review of any adverse ruling from this Court. In addition, depending on the Court's ruling with respect to item B above, it may be necessary for the defense to issue Rule 17© subpoenas to certain Executive Branch agencies.

There will also be battles over classified material which it sounds like Libby's lawyers want to use at trial over the Government's objections:

The defense will file, by February 3, its initial notice under CIPA § 5 listing classified information that it reasonably expects to disclose or to cause the disclosure of in connection with the trial of this case, together with a memorandum outlining the use, relevance, and admissibility of that classified information. The defense expects to file additional CIPA § 5 notices as discovery proceeds.

Translation, as I see it: The Government wants the case to be about whether Libby lied. The defense wants to complicate the case by asking for everything, from reporters' notes to government agency records, not just about Libby but about Valerie Plame and especially, what others knew about her and from whom and when and where did they learn it.

The defense will try to think of everything the government doesn't want to turn over and it will ask for that.

The media companies will battle Libby's subpoenas, and Libby's team is probably hoping that the trial court will rule in his favor, which in turn will result in an appeal by the media groups and a long delay of his trial.

Update: Reddhedd at Firedoglake provides inisghtful analysis and many more links on this.

Update: Tom Maguire weighs in here, with a reference to Jeffrey Toobin's New Yorker article. [my prior post on the Toobin article is here.]

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    OK, let me get this straight: Libby will ask for White House documents, which his friends still in the White House will refuse to turn over and then the judge will throw out the case. What a deal!

    Libby's filing demonstrates what a smart prosecutor Fitz is.... There is nothing in Libby's "fishing expedition" that is directly relevant to the specific charges involving perjury and obstruction. Russert's "prior knowledge" of Plame's employment status is probably relevant in terms of "reasonable doubt", but that's about it. And unless FitzG has information from a reporter who says that s/he disclosed to Libby that Plame was CIA, what other reporters knew is not relevant to the question of whether Libby lied when he said that he told Matt Cooper that he'd heard about Plame from other journalists. Hopefully, the judge will require Libby to show how his request for discovery are actually relevant to his defense against the specific charges filed against him, and find that Libby's requests are not relevant to his defense.