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Libby Judge Issues Orders on Journalists and Document Disclosure

The Judge issued three orders in the Lewis "Scooter" Libby case today. The first two are no big deal. One set a schedule for subpoenaing jounalists, filing objections to the subpoenas and holding a hearing in April on the objections. No further court permission must be sought before either side issues the subpoenas.

The second order denied a request by Libby that Fitz not be allowed to continue filing ex parte affidavits with the court. (Ex parte means one-sided -- only the party who files it and the judge get to see it.)

The third order indicates to me that Libby is going to lose his request for being provided with the Presidential Daily Briefings, and even the documents he will receive will be for a much shorter time period than he had requested. I have uploaded the two page order here.

Essentially, the Judge says he believes Libby's memory defense requires only a description of the subject matter of the daily briefings and documents attached to them, not the entire documents. He also says the relevant time period is not the year of briefings Libby had asked for but only three short time intervals: (1) when he spoke to Miller, Cooper and Russert, (2) when he was interviewed by FBI investigators and (3) when he testified before the grand jury.

The judge suggests that two days leeway on each side of (2) and (3) should suffice.

The Order asks Fitzgerald to advise the Court whether he can create the subject matter summaries and how much time and resources the compilation would require.

Bottom line: Libby is going to get a fraction of what he wanted, if that.

This judge is going to keep the trial to the issue of whether Libby lied, and not let him go off on a fishing expedition into who else may have leaked the information on Valerie Plame. I think Libby has boxed himself in on his memory defense. He now has a huge burden to show that he was so preoccupied with other matters on six or seven different occasions that he couldn't accurately remember what he told or was told by Miller, Cooper and Russert. It's almost like using the space cadet defense many drug defendants offer, rarely sucessfully.

Speaking of Cheney, if today's rumor that Cheney may resign a few months after the November elections is true, he may be feeling more heat from Fitzgerald than we know about. I'm not convinced Libby will let his lawyers call Cheney as a witness at trial. He's too loyal to Cheney for that. I don't see why the Government would want to call him either.

I think Fitz is getting information from cooperating witnesses inside the White House, State Department and CIA that could lead to a second round of indictments....and Cheney's in Fitzgerald's line of sight.

[Graphic created exclusively for TalkLeft by CL.]

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  • Re: Libby Judge Issues Orders on Journalists and D (none / 0) (#1)
    by TomStewart on Mon Feb 27, 2006 at 02:59:26 PM EST
    If I was Cheney, I'd be thinking I shot the wrong man...

    Re: Libby Judge Issues Orders on Journalists and D (none / 0) (#2)
    by squeaky on Mon Feb 27, 2006 at 03:38:07 PM EST
    Sounds like a good compromise. As you cautioned against the waffling about the PDB's request by the judge in the last thread now Libby's appeal is not going to be enhanced by the judge disallowing the PDB's. By limiting them to the few days in question he calls Libby's bluff. This judge knows how to trim the fat enough to expose the paucity of meat in team Libby's defense. Again, I marvel at Fitzpatrick's foresight (experience) and ability to attain justice by limiting the charges to Perjury and Obstruction of Justice.

    I've always felt that one of the reason Rover is still un-indicted is Fitz is waiting for Libby to roll over and turn on his him and his WH pals. Lets face he is lookin at some real time here. We're not talking about a blow job, we talking National Security. If he was covering up for a BinLaden plan to burn the Capital we would realize how serious his lies were.

    I'm not sure I understand Libby's defense. If he was arguing that he didn't remember Plame's connection to Wilson (or Wilson's wife's employment)UNTIL he read it in a PDB, I could see the rationale for wanting to use at least that one PDB. But I don't understand how all that classified information is necessary to establish simply that he was busy. As someone wrote (and I'm sorry that I don't remember who), Fitz could stipulate that he was busy and read a lot. I just don't understand how this issue could require the WH to hand over the family jewels.

    Re: Libby Judge Issues Orders on Journalists and D (none / 0) (#5)
    by squeaky on Mon Feb 27, 2006 at 04:19:29 PM EST
    Ed-I do not agree, as appealing your idea is. Libby and Fitzpatrick know that Bush will pardon the creep(s) just before he leaves office. Libby is not so old that he can not resurface again and needs to keep his friends. Money is no object for Libby; Comstock will see to that. The big bucks needed for defense was an issue for the lesser officials that Fitzpatrick has already squeezed.

    Isn't Libby just trying to kill time until he can get pardoned?

    Re: Libby Judge Issues Orders on Journalists and D (none / 0) (#7)
    by Tom Maguire on Tue Feb 28, 2006 at 09:53:26 AM EST
    This judge is going to keep the trial to the issue of whether Libby lied, and not let him go off on a fishing expedition into who else may have leaked the information on Valerie Plame. The test of that will come when Libby starts trying to subpoena reporters - my assumption is that the judge has to approve the subpoenas, so we will see then how much fishing is allowed. As to the PDBs, this seems like a sensible compromise - getting all the PDbs was never going to happen.

    The judge will rule on any motions to quash the subpoenas, but neither party has to have the subpoenas pre-approved before they are served. That was a part of yesterday's order.

    Re: Libby Judge Issues Orders on Journalists and D (none / 0) (#9)
    by Tom Maguire on Tue Feb 28, 2006 at 10:56:29 AM EST
    And one more thing! Since the judge is going to allow reporters to be subpoenaed, how is he going to deny Libby'sz request for access to the testimony of, for example, Russert? At a minimum, I would think that the testimony of any reporter for whom a new subpoena is not quashed would be given to Libby, just in the interests of time management.

    Re: Libby Judge Issues Orders on Journalists and D (none / 0) (#10)
    by Tom Maguire on Tue Feb 28, 2006 at 11:26:16 AM EST
    Ooops, Russert is a terrible example - the prosecution has already disclosed the directly relevant testimony. Well, then - *if* the judge upholds a subpoena to Pincus, won't he also order the Pincus testimony turned over?

    Well, then - *if* the judge upholds a subpoena to Pincus, won't he also order the Pincus testimony turned over? yes, because the defense would have the right to make sure that Pincus's story remained the same. The question, of course, is whether the judge will allow Pincus to be supooenaed. Pincus's testimony has never been cited by FitzG, and as it does not appear that FitzG plans on calling Pincus as a witness. Unless Libby knows something we don't about Pincus' testimony, its likely that any attempt to supoena Pincus will be quashed by the court because of a lack of relevance.

    Re: Libby Judge Issues Orders on Journalists and D (none / 0) (#12)
    by squeaky on Tue Feb 28, 2006 at 06:32:28 PM EST
    According to ThinkProgress
    Scooter Libby "has hired a renowned memory-loss expert to assist him with his legal defense. Harvard psychology professor Daniel L. Schacter tells NBC News he has been retained by Libby as a consultant." Libby's lawyers have suggested that memory loss will be one of the "central themes" of Libby's defense. 
    The Hypnotist, Channeler and ESP experts will be next.

    Re: Libby Judge Issues Orders on Journalists and D (none / 0) (#13)
    by squeaky on Tue Feb 28, 2006 at 06:34:45 PM EST
    oops...here is the ThinkProgress link