Late Night Filing: Libby Responds to Fitzgerald

Scooter Libby has just filed a 29 page Reply Memorandum (pdf) (to Patrick Fitzgerald's Response) to Libby's Third Motion to Compel Discovery, and 25 pages of exhibits.

I just obtained them and am about to start reading. Details soon. Also, scroll to the bottom to see other bloggers' takes as they come in, as I'll be updating with links to them.

Shorter version: Watch out Marc Grossman, Ari Fleischer, Karl Rove, George Tenet and Joe Wilson: Scooter's coming after you. (more below.)

First Update: Libby may call Joe Wilson as a hostile witness (page 9)

...because the defense may call Mr. Wilson as a hostile witness, we need to prepare to examine him, if necessary, on the details of the trip, including his wife's role in selecting him for the assignment and the findings he reported to the CIA, and later, to the press.

Quotes related to Fitz' filing last week:

...the government introduced a variety of new factual issues in its response brief. Those issues included, for example, disclosures of the NIE, the role of the President in the Administration's response to Mr. Wilson's criticism, and Mr. Libby's purported fear that he would be fired for disclosing classified information.

...the government argues that production of the requested documents is not warranted because Mr. Libby has been charged with perjury, not other crimes. As we discussed in our opening brief, this contention ignores the expansive nature of the factual allegations in the indictment, all of which the defendant has the right to challenge.

Regardless, Team Libby, says, they are willing to compromise:

Nevertheless, to reduce any burden on the government, with respect to documents responsive to requests A(1) (which asks for documents concerning Mr. Wilson's trip and subsequent discussion of it), B(1) and B(2) (which relate to the NIE), and B(3) (which asks for documents relating to the July 11, 2003 statement by Director of Central Intelligence George Tenet), the defense will agree to limit these requests to documents that are currently in the actual possession of the OSC or which the OSC knows to exist.3

Is Libby announcing here he will call Cheney as a witness?

We emphasize that request B(1), which calls for documents relating to the declassification of the NIE, triggers the government's Brady obligations. At trial, the
government intends to introduce testimony regarding Mr. Libby's disclosures of portions of the contents of the NIE, which appears to be a unique story. Upon hearing about these events, jurors may suspect that Mr. Libby mishandled classified information or did something else wrong when he made these disclosures - even if the government does not argue that Mr. Libby's actions were unauthorized or illegal. The defense has the right to argue at trial that Mr. Libby's actions with respect to the NIE were authorized at the highest levels of the Executive Branch, and would be entitled to bolster such arguments with documents and testimony.

Second Update:

Libby describes the documents he is seeking regarding Wilson:

To reiterate the document request at the heart of this motion, we seek documents that concern Mr. Wilson's trip to Niger, including reports about the origin and circumstances of the trip, as well as subsequent comment and analysis concerning the trip, such as discussions of the role played by Ms. Wilson and reactions of Administration officials to Mr. Wilson's attacks.

The defense is entitled to all such documents from each government agency that has played a significant role in the case: the White House, the State Department and the CIA. At a minimum, we are entitled to documents concerning Mr. Wilson's trip to Niger that were generated, sent or received by officials from these agencies who are likely to testify at trial, so we can prepare to examine them.

Then Libby notes the documents Fitz is refusing to produce:

  • "[D]ocuments related to Mr. Wilson's trip" from agencies other than the OVP that the government deems "irrelevant to defendant's knowledge or communications regarding Mr. Wilson, Ms. Wilson, or Mr. Wilson's trip to Niger"; and
  • Certain documents that could be "characterized as reflecting a possible attempt or plan to discredit or punish Mr. Wilson or Ms. Wilson." (Id. at 7.)

If this seems murky, here's the deal. Fitz has turned over only documents from the Office of the Vice President and Executive Office of the Vice President, saying that documents from the State Department, CIA and White House are not relevant to the perjury and obstruction charges against Libby. Libby disputes this, saying that because Fitz has presented actions of these agencies and their officials in detail in the Indictment --and presented them as fact -- he has the right to show Fitz's portrayal is wrong, and to do that, he needs the documents from those agencies and officials.

Libby also attacks Fitz' position that he can withhold documents because the grand jury investigation is continuing. (I assume these are documents that pertain to Karl Rove, Stephen Hadley, Richard Armitage and Bob Woodward's secret source, at a bare minimum.)

The government argues that it does not have to produce documents concerning certain government officials who are "subjects of the ongoing grand jury investigation or 'innocent accused' whose identities are protected from disclosure by Fed. Crim. P. 6(e)." (Gov't Br. at 26.) But Rule 16 makes no exception for documents covered by the secrecy requirements of Rule 6(e). Significantly, the government has cited no case supporting its claim that an ongoing grand jury investigation allows the government to deny an indicted defendant access to
documents that are material to the preparation of his defense. Mr. Libby has a firm trial date, and the prosecution has no right to resist providing Rule 16 discovery on the grounds that the investigation is continuing.

Third Update:

Libby signals that the defense will not be just that Libby forgot, but that other's memories are not credible or trusworthy.

In a case where the jury will be asked to decide whose memory is accurate and whose statements are not trustworthy, it is perfectly appropriate to use Rule 16 to gather evidence that will tend to suggest that the testimony of certain government witnesses about their conversations with Mr. Libby is not believable. The materiality of such documents is not tied to whether the documents were reviewed by Mr. Libby or whether they describe meetings or conversations in which he took part.

Libby is asking for Ari Fleischer's and Karl Rove's files. As additional argument, he says:

The indictment describes in detail the media controversy over the sixteen words in the President's 2003 State of the Union address, refers to the contents of five newspaper and magazine articles, and portrays the actions of nine witnesses from various offices of the Executive Branch, including the White House, the State Department, and the CIA. Because the indictment's narrative exaggerates the attention that government officials paid to Ms. Wilson's identity prior to July 14, 2003, it is essential for the defense to correct the government's distorted version of events.

The defense intends to show the jury that the controversy over intelligence failures during the spring and summer of 2003 led certain officials within the White House, the State Department, and the CIA to point fingers at each other. This bureaucratic infighting provides necessary context for the testimony of witnesses from different government agencies. In addition, Mr. Libby plans to demonstrate that the indictment is wrong when it suggests that he and other government officials viewed Ms. Wilson's role in sending her husband to Africa as important. We need the requested documents to prepare this crucial aspect of his defense.

Libby disputes that he was told to discuss Valerie Plame Wilson with reporters.

The government pretends that Mr. Wilson's wife was a part of the response Mr. Libby was instructed to make to Mr. Wilson's false claims, and even argues that "[d]isclosing the belief that Mr. Wilson's wife sent him on the Niger trip was one way for defendant to contradict the assertion that the Vice President had done so . . ." (Id. at 19.)

In fact, as the government is well aware, contemporaneous documents reflect the points that Mr. Libby was to make to reporters, and these documents do not include any information about Wilson's wife. Further, the government's theory ignores the fact that neither the indictment nor the evidence supports the notion that Mr. Libby told any reporter that "Mr. Wilson's wife sent him on the Niger trip."

Libby may be putting President Bush on notice as well:

The government's brief suggests that only the OVP's response to Mr. Wilson is
relevant to the charges in the indictment. But efforts of Mr. Libby and other officials in the OVP to deflate criticism of the Administration cannot be neatly separated from the actions of officials from other agencies - particularly the CIA, the White House, and the State Department. For example, Mr. Libby worked with the CIA and the NSC to determine how to respond to the controversy over the sixteen words. The indictment itself refers to Mr. Libby's alleged concerns about how the CIA was responding to the controversy. The indictment also describes actions by officials at the White House, including senior advisor Karl Rove and former press secretary Ari Fleischer, who both spoke to reporters about Mr. Wilson.

Now, with the government's injection of the NIE story into this case, the government has placed even more emphatically at issue the actions of the White House - including President Bush - in responding to media criticism about the 16 words.

Later he reiterates this point:

The government's discussion of the NIE indicates that at trial all aspects of the government's response to Mr. Wilson will be relevant - including any actions taken by the President.

But, Libby also contends neither Bush nor Cheney asked him to divulge anything about Valerie Wilson. He makes it sound like it was his idea:

We emphasize that, consistent with his grand jury testimony, Mr. Libby does not contend that he was instructed to make any disclosures concerning Ms. Wilson by President Bush, Vice President Cheney, or anyone else.

Libby continues to maintain he did not know Valerie Wilson's employment was classified:

And he testified to the grand jury unequivocally that he did not understand Ms. Wilson's employment by the CIA to be classified information. The government surely cannot, on the one hand, contend that Mr. Libby knew he had revealed classified information (and thus felt in jeopardy of being fired), and on the other hand withhold from the defense information that would tend to prove her employment status was not classified and that others who knew of that employment had the same understanding.

Libby says Fitz is wrong about his motive (fear of being fired) and says he should get the documents that the CIA referred to the Justice Department in seeking a criminal investigation:

...a key component of Mr. Libby's defense is that he had no motive to lie to either the FBI or the grand jury because he had no reason to believe, before July 14, 2003, that Ms. Wilson's employment status was classified. In spite of its importance to the case, the government has provided the defense no evidence of this purported fact. Based on published news reports, it appears that the referral documents address this very issue.

Libby says these referral documents from the CIA are essential to showing George Tenet's bias -- if Tenet had a hand in preparing them.

...to the extent that Director Tenet was involved in the creation of the referral documents, or actively pushed the DOJ to investigate the disclosure of Ms. Wilson's identity, the referral documents would show that the bias against Mr. Libby reached to the highest levels of the CIA and did not simply represent the complaints of lowerranking employees. Further, Mr. Tenet is a likely witness. If he was personally involved in the referral process, then the referral documents would be important for preparing to examine him on the issue of bias.

One last note: Lawyers reading this filing will appreciate Libby's argument on what is Jencks' Act material and on Fitz' argument that Libby is entitled only to statements by prosecution witnesses, not defense witnesses.

So, is Libby entitled to the documents? I think he is entitled to many of them. The Indictment includes factual allegations about officials in agencies other than the Office of the Vice President. Fitz says he will present the NIE and declassification saga as context for the perjury and obstruction charge. Fitz also says he will bring up his theory of Libby's motive to lie. That should allow Libby to review documents pertaining to these matters to be able to refute them. That's what Rule 16 is all about.

I don't see why Libby is entitled to documents showing whether Valerie Plame's employment was classfied, but I may re-think that in the morning. I also don't think he will get Karl Rove's or Ari Fleischer's entire files. At most, he'll get the e-mails, statements, faxes and memos which Fitz has in his possession which relate to the topics in the Indictment. If Team Libby wants to enlighten me as to what I'm missing, I'd be glad to listen.

This was a well-written response to Fitz' filing. It avoided direct attacks on anyone -- but it put the potential witnesses on notice that Libby will be claiming more than just a bad memory on his part. In some cases, he will allege the witnesses' memories are faulty -- either because they have bad memories, are confused, are biased, or are not being truthful.

Update: Other blogger and MSM takes:

MSM articles now coming in:
* Washington Post (leads with Bush and Cheney not having told Libby to leak Plame's name;
* New York Times mentions Libby's allegation that Fitz misrepresented the narrative.

Update: Fitz' correction is still making news. My take on that is here.

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    Thirsting for your take!

    At this point in time, I don't think we'll see any bombshells. . .oh, we'll see things that will shock and disgust us, but nothing that will be able to be used to drive the "monarch" off of the throne. It's becoming increasingly clear that the folks in this administration are, by and large, teflon-coated (with apologies to duPont), and the only thing that'll scrape the teflon off is a crushing takover of the House and Senate in November. . .problem is. . .do those in our party realize this is probably our last best chance to get something done before 2008?

    Re: Late Night Filing: Libby Responds to Fitzgeral (none / 0) (#3)
    by annburns on Wed Apr 12, 2006 at 09:51:50 PM EST
    Jeralyn, I'm not a lawyer - but this reads like a plea for a Presidential pardon to me. Even the wisecrack about the case only involving Libby and the OVP seems ominous. So who else does it involve? The Office of the President? The CIA and the State Department? Plus ... the quote you pulled about testimony from the highest officials in the Executive Branch of government ... It kinda reads like "Pardon me, or I'll blow the whole thing wide open."

    Re: Late Night Filing: Libby Responds to Fitzgeral (none / 0) (#4)
    by Kevin Hayden on Thu Apr 13, 2006 at 03:24:13 AM EST
    The faulty memory of the others: oh, so he's following the precedent of Bush the Elder from Iran-Contra days? Do you think Libby's playing both sides here, signalling he'll both dig deep to defend himself (potentially drawing others into the prosecutor's net), and that he's also willing to be a good soldier (you guys scratch my back, and I'll emphasize 'bad memory' instead of 'big fat liars') ?

    Do you guys have this? I think it's in response to the 3/31 Team Libby filing. "The government attempts to salvage the appointment by submitting two affidavits recently prepared by Mr. Comey and Mr. Fitzgerald, claiming that their previously undisclosed, subjective understanding of the appointment was narrower," Libby's lawyers wrote. "Mr. Comey now asserts that `it was my intention that the special counsel would follow substantive department policies' in exercising that authority." "Similarly, despite the fact that as recently as August 2004 Mr. Fitzgerald characterized himself as `the functional equivalent of the attorney general in this matter,' he now insists in response to Mr. Libby's challenge that he always `understood' he had no authority to expand his jurisdiction and that he was required to follow certain substantive department policies," the court papers added.

    Re: Late Night Filing: Libby Responds to Fitzgeral (none / 0) (#6)
    by Edger on Fri Apr 14, 2006 at 06:05:10 AM EST
    and the only thing that'll scrape the teflon off is a crushing takover of the House and Senate in November.
    Republicans are going to have a tough race in 2006 because the country is not happy with us," [John] McCain said. "We have a 25 percent approval rating in Congress." McCain complained that Republicans, who control Congress and the White House, are in danger of alienating even their base because they can't rein in spending, which he said is out of control. More...

    Fitz may seem maddeningly painstaking at times, but he doesn't make mistakes. Hey, who wouldn't want rovesputin' head over the mantle, but I'm not a lawyer. I don't have the patience. I'll defer to his judgement as to how to land the big ones. The quarry he's trackin' is scum. Rabid scum at that. He knows how to land it.

    In Libby's filing, he states that a key component of his defense is that he had no motive to lie to either the FBI or the grand jury. Actually, he had every motive to lie. By obstructing the investigation, Libby, Rove, Bush, Cheney - were all able to delay public release of the White House involvement until after the election. Everything, including the Iraq war itself - was about the 2004 election. Libby probably knew he would be held to account one day, but this is one he is taking for the team. The cost of his indictment must surely be worth the re-election of the president.