The footnote reveals that Libby's lawyers included Fitz' Janurary 26 letter in their filing to show that they had requested Fitz to disclose any "damage assessments" conducted on the harm caused by the leak of Valerie Plame's identity, and that Fitz's response was that he wasn't aware of any. Libby's lawyers tell the Court that they believe the CIA has conducted some damage assessment, even if only an informal one.

Libby's lawyers also point out (in the same footnote) that Fitz advised in his January 26 letter that the Government intends to address the "relevance and admissibility of Ms. Wilson's CIA employment in the context of CIPA." (the Classified Information and Procedures Act.)

In other words, Fitz's letter was purposely included by Libby's lawyers in their court filing for reasons unrelated to casting blame on Cheney. It does not appear that they are signaling that Libby will use an "Ollie North" type defense of blaming the disclosure on Cheney. They are just trying to make it as uncomfortable for the Government as possible by claiming that there are both classified and unclassified documents that they are entitled to be provided because they are relevant and helpful to Libby's defense. The Government is arguing the documents are not relevant or helpful to Libby on the perjury and obstruction charges and, in any case, there is no damage assessment report.

Should the Court agree with Libby and order the Government to provide classfied information to Libby's team, and the Government decides it does not want to comply with the order, one of its options would be to dismiss the charges against him. Thus, Libby will try to get the Judge to order the Government to turn over as much classified information as possible, hoping among the material is something the Government wants to protect so badly it would decide to drop the case against Libby rather than produce it.

Libby's defense is that he didn't lie to the grand jury, he just was so busy with other important matters he got confused or forgot what he disclosed to Judith Miller or discussed with Tim Russert or Matthew Cooper. He is asking for all of the documents, both classified and unclassified, that he either wrote or reviewed from May 6, 2003, the date Kristof's op-ed was published, through March 24, 2004, the date he last testified to the grand jury.

He's asking for everything that came across his desk for ten months, to show how busy he was during this time period, on the theory that it's relevant to his defense of confusion or failed memory. No wonder Fitz is objecting. It's creative lawyering, but I have a hard time believing the Judge will find it relevant and disclosable under CIPA.

Part One on Murray's article and Cheney's role is here.

Is Cheney out of the woods? I'd say not by a longshot. But I don't think it's because Libby is trying to sell him down the river. Cheney is perfectly capable of hanging himself - through the statements he made during his interview with prosecutors. If he denied being part of the White House Iraq Group meetings at which discussions were held as to how to respond to Wilson's public statements; if he didnt' tell investigators or Fitz that he learned of Wilson's wife's employment from the CIA at least by June 12 when he told Libby -- then Cheney is in trouble.

Fitz will take this investigation as high as it goes, including to Cheney. Hopefully, he'll get there before the 2008 elections.

[Graphic created exclusively for TalkLeft by CL]

Update: Arianna weighs in and says it's major:

The great protectors of our country were so concerned about covering their lies they were willing to pass out highly classified information to reporters.