Judge Throws Libby a Small Bone
The Judge in the Scooter Libby case has ruled on Libby's discovery motion seeking a wide array of documents. All of Libby's requests were denied except one. Tim Grieves at Salon provides his usual lucid and correct analysis. Tom Maguire hosts the Court Order here, and offers his analysis is here.
From the Court's ruling.
...the only question the jury will be asked to resolve in this matter will be whether the defendant intentionally lied when he testified before the grand jury and spoke with FBI agents about statements he purportedly made to the three news reporters concerning Ms. Wilson's employment. The prosecution of this action, therefore, involves a discrete cast of characters and events, and this Court will not permit it to become a forum for debating the accuracy of Ambassador Wilson's statements, the propriety of the Iraq war or related matters leading up to the war, as those events are not the basis for the charged offenses. At best, these events have merely an abstract relationship to the charged offenses.1
The Court then notes that it "....appreciates that some reference to Ambassador Wilson, his trip to Niger, and his wife during the trial is probably inevitable."
....Any testimony or other evidence relating to these subjects, however, will be admitted for limited purposes--to establish what the principal players (the defendant, the three news reporters, and any other key witnesses) knew about Ambassador Wilson's wife's affiliation with the CIA and when they knew it, and as evidence of the defendant's purported motive to reveal Ms. Wilson's affiliation with the CIA to reporters. In fact, as to this first basis of admissibility, as the indictment makes clear, one aspect of the government's case will be an attempt to establish the defendant's knowledge of Ms. Wilson's affiliation with the CIA before his conversations with Miller, Russert, and Cooper.
On the news articles Fitz wants to introduce such as the one of Wilson's July 6 op-ed with Dick Cheney's handwritten notes:
The government does not intend to introduce these articles for the truth of the matters asserted, id. at 1, but rather, only for the limited purpose of demonstrating that the defendant had a motive to make the statements to the media representatives that form the basis for the charged offenses. Id. at 2-7. As such, the truth of the articles has no bearing on the prosecution of this case and the jury will be so instructed if requested by either party. Moreover, as the government has noted, it is highly unlikely that it will seek to introduce as evidence the full text of the articles during the trial. And the Court suspects that it would not permit the government to introduce the entire articles if it sought to do so.
More on what is not relevant to Libby's defense:
Thus, for example, the fact that other governmental officials may have known before July 14, 2003, that Ms. Wilson worked for the CIA is completely immaterial
unless that information was shared with either the defendant, Miller, Russert, or Cooper.
.......of these seven categories of documents [that Libby requested], the only documents that would be material to the preparation of the defense are those which tend to show that the defendant's conversations with government officials did or did not occur as alleged in the indictment.
....the CIA's referral to the Department of Justice concerning the disclosure of Ms. Wilson's affiliation with the CIA, .... is simply not material to the preparation of the defendant's defense.
Here's what Libby won. The Government must turn over:
(1) All documents which tend to demonstrate that the defendant was involved in an effort to rebut the accuracy of Ambassador Wilson's findings concerning his trip to Niger, and thus any documentation of discussions the defendant had concerning Ambassador Joseph Wilson, his trip to Niger, or Valerie Plame Wilson with any news reporters or other government officials that were conducted in an attempt to achieve this objective;
(2) All documents which tend to show that the defendant's conversations with
government officials did or did not occur as alleged in the indictment.
(3) All documents, from any individuals, whether or not they will be called as
witnesses in the government's case-in-chief, that are discoverable under Brady v.
Maryland, 373 U.S. 83 (1963).
This may not be as cut and dried as it seems. The Judge acknowledges that intent is an element of a perjury and false statement charge. It's not enough the statement was false but it also must be established that the defendant intended to make a false statement.
According to the defendant, his requests for documents relating to discussions he had with other government officials or news reporters that show that he was simply engaged in legitimate efforts to rebut the merits of Ambassador Wilson's findings are material to the preparation of his defense, as their content would arguably support his claim that the government's position that he intended to
make false statements, commit perjury, and obstruct justice is incorrect. In limited respect, the Court agrees.
....Therefore, if the government is in possession of documents that show the defendant's intent to participate or his actual participation in such legitimate efforts, those documents must be produced pursuant to Rule 16.
So much as the Court will try to limit such testimony, there will be evidence at trial from Libby that tries to establish that the focus of the Administration's efforts was on refuting the content of Joseph Wilson's statement, not discrediting him or his wife personally or outing his wife.
Bottom line: Libby's defense is he forgot about what he told reporters and what reporters told him because he was so caught up in matters of national importance, one of which was refuting the contents of Joseph Wilson's statements.
I think it will be a tough sell for the jury. To accept Libby's defense, they will have to accept that there was a concerted effort by the White House to discredit Wilson's allegations in his op-ed about his trip to Niger but not him personally. Yet the message other reporters received from government officials was that the trip was a boondoggle, arranged by his wife, a CIA employee.
In light of the seven or so officials who discussed Joseph Wilson and his wife with Libby before his converstations with reporters, it seems odd he would believe he first heard it from Tim Russert. Especially since he discussed Valerie Wilson with Judith Miller weeks before he spoke with Russert.
Nonetheless, the Judge threw Libby a bone, and while it's small, Libby won't starve.
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