Libby Team Admits Media Disclosures, Opposes Gag Order

On April 13, the judge in the Scooter Libby case issued an order (pdf) asking both sides to submit grounds in writing why a gag order should not be imposed as a result of disclosure of non-public information to the media and statements lawyers had made to the media about the case. Their responses were filed today. [Libby Response, Fitz Response, Fitz Affidavit.]

Shorter Fitz: His office didn't leak anything and because his office doesn't talk to the media about the case he takes no position on whether there should be a gag order.

Shorter Libby: Team Libby admits to two disclosures, explains and justifies them, (quite well in my opinion) and opposes a gag order.

I think the Judge will not issue a gag order based on Libby's response. The longer version:

The first leak Team Libby acknowledges is the "correction" letter by Fitz to the Government's earlier filing implying that Libby mischaracterized the "key judgments" of the NIE report to Judith Miller. Team Libby says in today's filing:

We released the Letter to the press in good faith, and we do not believe that such a disclosure breached either LCrR 57.7(b)(1) or the Court's instructions regarding contacts with the press.

....When we received the Letter, we assumed that the government wanted to correct the public record. We thought the government was motivated to file the Letter because the government had realized that the erroneous sentence in its brief was responsible for spawning false news reports and wholly unjustified conjecture about possible misdeeds by Mr. Libby and his superiors. Nothing about the Letter indicated that it was not to be disclosed publicly. It was not designated as confidential under the Protective Order in this case, and it did not contain any
classified information.

....When we received the Letter, we simply assumed that it was a public filing that was intended to be entered in the public docket, because we believed its sole purpose was to correct inaccurate statements in a publicly filed brief. Accordingly, we swiftly disseminated it to the media - without any public statements by defense counsel - for the purpose of preventing the publication of any additional incorrect reports that Mr. Libby, the President and/or the Vice President had lied to the press and the public. We sent the Letter to print, broadcast and electronic media outlets on Tuesday evening. The Letter was entered electronically on the public docket at 12:22 p.m. on Wednesday, April 12.

....the circumstances demonstrate that defense counsel did not disclose the Letter to the media to try to gain a tactical advantage or for any other improper purpose. Defense counsel had no intent to violate the local rule on extrajudicial statements or the Court's instructions. In the future, if there is any confusion about whether a document submitted to the Court is public for purposes of dissemination to the press, we will consult with the government and the Court for clarification and guidance.

The second disclosure acknowledged by Team Libby pertains to a discussion Libby lawyer William Jeffress had with WaPo reporter R. Jeffrey Smith or Jim VandeHei concerning the reporter's misapprehension of an argument in one of Libby and Fitz's filings. The reporter called Libby's lawyers and left a voice-mail about an article he intended to write and offered Libby a chance to respond.

Specifically, the reporter said that he was planning to write about how the government's revelations undermined Mr. Libby's contention that former Ambassador Wilson was unimportant. It appeared to Mr. Jeffress that the reporter's misunderstanding of Mr. Libby's contention was based on a reading of the government's Responsive Brief rather than Mr. Libby's motion, and he decided to return the reporter's call and attempt to avoid publication of an erroneous and prejudicial story in the jurisdiction from which trial jurors will be chosen.

In a brief conversation, Mr. Jeffress informed the reporter that Mr. Libby's motion contended that the subject of Mr. Wilson's wife was unimportant, not that the subject of Mr. Wilson's allegations was unimportant, and observed that the revelations in the government's brief about the NIE had nothing at all to do with Mr. Wilson's wife. The article published the next day in the Post, under the unfortunate subheading "Libby's Lawyer Rebuts Special Prosecutor's Filing," fails to mention that Mr. Jeffress referred the reporter to Mr. Libby's motion, but is otherwise a fair characterization of what he said in the conversation.

Mr. Jeffress' statement to the press on this issue was in no way intended to gain a tactical advantage, and was not meant to interfere with a fair trial or otherwise prejudice the due administration of justice. It was to correct a reporter's misunderstanding of publicly filed arguments that threatened to lead to an inaccurate story that would have been unfairly prejudicial to Mr. Libby.

....According to the Washington Post, "Jeffress said Fitzgerald's revelation about Libby's disclosure of information from [the NIE] 'is a complete sidelight' to his accusation that Libby deliberately lied. 'It's got nothing to do with Wilson's wife,' Jeffress said in a brief interview, adding that Libby continues to expect to be exonerated at trial." (R. Jeffrey Smith and Jim VandeHei, Disclosures Are Called Unrelated To Plame Case, WASHINGTON POST,April 8, 2006, at A01, attached as Ex. H.)

....As described above, defense counsel are flooded with inquiries from reporters,
and, in almost all of these situations, we do not respond to such inquiries. However, on certain occasions, when reporters have asked us for assistance in finding or understanding information in the public record, we have felt it proper and appropriate to provide such assistance. Our practice is never intentionally to release non-public information, never to comment on a ruling by the Court, and never to make statements that could fairly be regarded as a violation of Rule 57.7.

I think Libby's response is more than adequate to avoid a gag order. Lawyers are allowed to speak to the press to explain their pleadings and what occurred at court hearings. In McVeigh, for example, we had a very strict order limiting extra-judicial comments during the pre-trial phase of the case, but it still allowed me to go on tv and explain (although not take sides) on pleadings that had been filed, what issues would be taken up at court hearings and after the hearing, what both sides had argued and how the Judge ruled. From Judge Matsch's order:

....The foregoing shall not be construed to prevent any of the lawyers appearing in this case or any persons associated with them, including any persons having supervisory authority over them, from quoting or referring without comment to public records of the court in the case; from announcing the scheduling or result of any step in the judicial process; from requesting assistance in obtaining evidence; or from announcing without further comment that the defendants deny all charges made against them.

.... [A] lawyer may quote from or refer without comment to public records of the court in the case and may give such explanations of pleadings and hearings as may assist the public in understanding the legal issues being presented and the relationship of any hearing or ruling to the trial process without expressing any opinions as to the merits of the positions and arguments of any party or giving any predictions concerning the expected result.

During the trial itself, a more restrictive order may be warranted, but at this stage I think it's overkill and I will be very surprised if the judge imposes one.

Update: Jane thinks Team Libby is pulling a fast one with this filing. She also notes that Libby's lawyers received the letter in a "cc" email from Fitz at 5:17 pm on the 11th when he emailed the letter to the Court.

Update: Tom Maguire weighs in, as does Empty Wheel.

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    Re: Libby Team Admits Media Disclosures, Opposes G (none / 0) (#1)
    by scribe on Fri Apr 21, 2006 at 06:13:18 PM EST
    TL: While you may well be right that the Judge will not enter a gag order (and I agree with you there, the disclosure is not as egregious as, say, the Sheppard circus), Libby's folks' explanation for "swiftly" releasing the letter to the media just does not hold water. "Assuming" it had been filed, their explanation, is so much bullsh*t. The ECF doesn't work that way. When one files an ECF document, an email noting the filing is sent immediately to all parties in the case, containing in it a link to the actual document filed. Click on the link, get the "filed" document. (This is also a nice way for the filer to double-check the right thing got filed.) So, Libby's folks would have known within 5 minutes or so whether the document they had received was actually "filed" as a part of the public docket because they would have received an email from the Clerk's office notifying them. That their own papers admit that the document was not filed until 12:22 PM the next day indicates they knew, when they forwarded copies to their media minions the evening it came in, that it was not public. They hurried to get it out in time for the next day's papers and that evening's news. So, what I think happened is Fitz sent them a courtesy copy ahead of filing it. The defense abused the prosecutor's courtesy to spin the media. Whether Fitz gave the courtesy to see how the defense would act - smoke the defense out (by giving them the opportunity), or to palliate some possible self-perceived overreaching in the original brief on the prosecution's part (an excess of fair play) - or not is something only Fitz knows. The defense did, IMHO, try to use this letter to their tactical advantage, as much as they might deny it. Moreover, their brief's opening line, that they have no desire to try this case in the media is, IMHO, laughable. If that were so, Barbara Comstock would be out of a job. As to the second disclosure, responding to a WaPo reporter's analysis of the filings seems to me to be well within the lines and therefore not a problem. IMHO, they included that to show the Judge the downside of gagging people and show what good guys they are, wanting the truth out....

    Re: Libby Team Admits Media Disclosures, Opposes G (none / 0) (#2)
    by squeaky on Fri Apr 21, 2006 at 07:00:08 PM EST
    Whether Fitz gave the courtesy to see how the defense would act - smoke the defense out....
    Nice one. I do not believe the feigned innocence either. Once something is done it has an effect. Just like in the movies when a statement is made and the prosecuter objects and the judge sustains, the statement hits the mark anyway and cannot be erased. Comstock is working this but good. Spin and smear are her trade. We can expect more. I hope that a gag order is not put in place as Fitz seems a far better player than Comstock. Think of all we would miss.

    Haven't read the filings yet, but Libby's team is lying when they say they've only communicated two times. There was also the press release, released under Jeffress' name, correcting Shuster's misreading of the Fitzgerald filing. Again, it's correcting the press' mistaken understanding of the case. But if they're misrepresenting the number of times they leaked to the press, what else are they misrepresenting?

    Graymail, late night press releases. The defense is trying lots of ways of restraining communications. There was an interesting Memo Opinion April 5, 2006 in which the judge used the following language to chide the defense about a defense motion to bar some prosecutor communication; Walton: "...this Court's prior admonition to both parties that they make all possible attempts to refrain from filing documents both ex parte and under seal,..." (p.5, para.2; Interesting that the judge cites the Poindexter matter in the precedential notes, ibid p.7, para.2.