Libby Targets White House Infighting Over WMD's in PlameGate

With the advent of electronic filing in the federal courts, lawyers can now file pleadings 24/7 and they take advantage of it. I thought the news today would be over Team Libby and Fitz fighting about whether Fitz was properly appointed as Special Counsel.

Now I see Team Libby moved on to the next front, filing a late-night discovery pleading (pdf). (The documents he is requesting are summarized in this proposed order attached to his request.) This issue is far more interesting, as AP reporter Pete Yost explains.

"If the jury learns this background information" about finger-pointing, "and also understands Mr. Libby's additional focus on urgent national security matters, the jury will more easily appreciate how Mr. Libby may have forgotten or misremembered ... snippets of conversation" about Plame's status, the defense lawyers said.

Shorter Libby: My memory is bad because I was so embroiled in internal fighting and finger pointing at the White House about why we didn't find any WMD's that the Plame/Wilson matter was a trifling detail in comparison.

There are other nuggets in the 39 page motion, including details of evidence that the Government has advised Libby it will seek to introduce at trial. For example, Libby's lawyers write:

The government has put the defense on notice that at trial it plans to focus
on Mr. Libby's disclosure of certain portions of the NIE to Judith Miller, as discussed in Mr. Libby's grand jury testimony. (Jan. 23 Ltr., Exhibit A at 6.) Mr. Libby has testified before the grand jury that this disclosure was authorized. (Id.) The defense has the right to rebut any suggestion by the government that Mr. Libby's disclosure of portions of the NIE was improper by showing that Mr. Libby believed his actions were authorized and involved only disclosure of declassified materials, which will demonstrate that his actions did not constitute a "leak." Accordingly, through this motion, we seek any communications within the Executive Branch pertaining to the disclosure and declassification of the NIE that are discoverable under Rule 16 or Brady, as set forth in Document Requests B(1) and (2) above.

The prosecution has also advised the defense that it wants to introduce the
entire transcript of Mr. Libby's grand jury testimony. We are therefore compelled to seek discovery from the government concerning certain of the matters raised in either the questions or answers during the course of Mr. Libby's testimony. These subjects include documents relating to Mr. Tenet's July 11, 2003 statement and notes relating to a September 2003 Situation Room meeting.

In addition, during his grand jury testimony, Mr. Libby was asked about
discussions concerning Mr. Wilson's trip, the government's response to Mr. Wilson's criticism, and whether there was a concerted effort by any officials in the Administration to leak his wife's name. The defense must prepare for Mr. Libby's grand jury testimony on these subjects to be introduced at trial, which is yet another reason why Mr. Libby is entitled to further discovery from other government agencies about these subjects.

The pleading also hints at Libby's trial strategy. Fitz has consistently said the issues should remain on Libby's alleged lying. Libby wants to go further. His lawyers write they are entitled to more documents than Fitz is willing to provide:

Information, for example, that tends to show that Mr. Libby did not improperly disclose the contents of the NIE is surely Brady material. In addition, documents that help establish that no White House-driven plot to punish Mr. Wilson caused the disclosure of Ms. Wilson's identity also constitute Brady material. The same is true for information that tends to show that government officials who knew that Ms. Wilson worked for the CIA did not treat that information as classified.

Libby also filed 40 pages of exhibits consisting of letters from Fitz and news articles, I'm still making my way through those.

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    We now witness an Alice thru the Looking Glass moment in criminal defense. The defense will be that because no crime was committed (Why else the need to offer this in evidence re: no concerted effort to out Plame, no national security issue) there was no reason to Lie - ipso facto - no lie happened.Kind of a extension of you don't need to fear wiretapping if you haven't done any thing wrong. This is bogus squared, primarily because it ignores the pathological liar and the pathological need for secrecy of this administration.