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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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  • Re: Judge Throws Libby a Small Bone (none / 0) (#1)
    by Talkleft Visitor on Fri Jun 02, 2006 at 02:40:08 PM EST
    According to the Guardian article, Libby will only get Fitzgerald's summaries of the CIA's damage assessment report and Valerie Plame Wilson's CIA employment history:
    A former White House aide facing perjury charges will get only a prosecutor's summary of classified documents assessing the damage to national security from the leak of a CIA officer's identity, a federal judge ruled Friday. U.S. District Judge Reggie B. Walton also said lawyers for I. Lewis ''Scooter'' Libby must settle for a prosecutor's version of information contained in secret government documents that describe CIA officer Valerie Plame's employment history. [snip] Walton said Special Counsel Patrick Fitzgerald convinced him that providing Libby's lawyers with classified documents describing the consequences, if any, of Plame's outing and her CIA employment history ''could cause serious if not grave damage to the national security of the United States.''


    Re: Judge Throws Libby a Small Bone (none / 0) (#2)
    by Tom Maguire on Fri Jun 02, 2006 at 03:43:22 PM EST
    Yet the message other reporters received from government officials was that the trip was a boondoggle, arranged by his wife, a CIA employee. Since Libby didn't say that to anyone (I assume you are referring to the leak to Pincus from a White House official), under what theory would the prosecution be allowed to introduce that? There is no conspiracy count in the indictment. FWIW, I think the judge has paved the boulevard for a nappeal - this (IMHO) is absurd: hus, 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. Really? I am just *SPECULATING*, but *IF* the government has evidence that Armitage or Grossman talked with Andrea Mitchell about Ms. Plame, that would go a long way towards undermining Russert's claim of blissful ignorance. Or suppose there is a more cryptic reference - e.g., an email from Grossman to Armitage saying "Discussed genesis of Niger trip with Mitchell, who was surprisingly well-informed". Now, if they don't have such evidence, fine (and elsewhere, Fitzgerald said he has delivered the full list of known leak recipients). But the idea that they would be allowed to sit on it even if they had it seems absurd to me.

    Re: Judge Throws Libby a Small Bone (none / 0) (#3)
    by Talkleft Visitor on Fri Jun 02, 2006 at 04:24:57 PM EST
    Tom, I think you are too focused on Andrea Mitchell. If you follow the defense pleadings, as I know you do, it's Marc Grossman and Ari Fleischer that are causing them sleepless nights.

    Re: Judge Throws Libby a Small Bone (none / 0) (#5)
    by aw on Fri Jun 02, 2006 at 06:12:16 PM EST
    How do they decide what a "legitimate effort" is?

    Re: Judge Throws Libby a Small Bone (none / 0) (#6)
    by annburns on Fri Jun 02, 2006 at 06:24:59 PM EST
    Hmmm. Gee, Walton looked at the documents about Plame being covert and let Fitz summarize them to Libby's team. Guess Walton doesn't buy the "she wasn't covert" canard that Byron York has been pushing. Funny that.

    Re: Judge Throws Libby a Small Bone (none / 0) (#7)
    by Tom Maguire on Fri Jun 02, 2006 at 06:48:54 PM EST
    Excellent point, and as everyone but Tom Maguire surely knows, it was more than just Pincus. Does eveyone know that there is nothing about a "boondoggle" in the Novak quote we are offered? Pincus popularized that particular word. And does everyone know that Armitage, who is surely *not* a White House official, is the most likely person to have given Novak that leak as of July 8? Well, the alternative is that the goalposts were deliberatlely shifted in this paragraph, which started with "White House" officials, then segued to "government" officials: 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. However, I figured the focus was on White House officials. Rove didn't say anything about a boondoggle to Cooper, so who is left? Ari Fleischer may well have leaked to Pincus, I suspect.

    Re: Judge Throws Libby a Small Bone (none / 0) (#8)
    by Talkleft Visitor on Fri Jun 02, 2006 at 06:50:24 PM EST
    Since Libby didn't say that to anyone (I assume you are referring to the leak to Pincus from a White House official) Jeralyn never said that he did. We don't know what Libby said, but there is reporting from two places that Libby testified that he told Miller that Plame had "something to do with" sending Wilson. Interesting that Waas and WaPo use the exact same phrasing.
    According to attorneys familiar with his testimony, Libby told the grand jury that at the meeting he told Miller that Plame had something to do with Wilson being sent on a controversial CIA-sponsored mission to Africa Waas 10/20/05
    Libby told Miller he heard that Wilson's wife had something to do with sending him" WaPo 9/29/05


    Never mind. The alternative explanation - that Fitzgerald had no clue about the June meeting until Miller brought it up - is too painful for some to contemplate. Maguire Fitzgerald knew.
    Judith Miller told the federal grand jury in the CIA leak case that she might have met with I. Lewis (Scooter) Libby on June 23, 2003 only after prosecutors showed her Secret Service logs that indicated she and Libby had indeed met that day Waas 10/20/05


    Re: Judge Throws Libby a Small Bone (none / 0) (#9)
    by Tom Maguire on Fri Jun 02, 2006 at 07:58:30 PM EST
    Polly, I understand that Jeralyn did not say that Libby said it. My goodness, my question, sans the parenthetical aside, was, "Since Libby didn't say that to anyone, under what theory would the prosecution be allowed to introduce that?" Just how is Fitzgerald going to explain that what someone (Ari? Armitage?) said to other reporters (Pincus? Novak? Woodward?) about a "boondoggle" is relevant to the question of whether Libby lied? Ari was out to shame Wilson, so therefore Libby lied? Absent a conspiracy count, I don't see why this is more relevant thana lot of other stuff getting tossed by the judge.

    Re: Judge Throws Libby a Small Bone (none / 0) (#10)
    by Talkleft Visitor on Fri Jun 02, 2006 at 09:04:06 PM EST
    Tom See here and here (Under construction, but 2003 is useful).

    Re: Judge Throws Libby a Small Bone (none / 0) (#11)
    by Tom Maguire on Fri Jun 02, 2006 at 09:07:03 PM EST
    As to the idea that Fitzgerald knew about the June 23 Miller-Libby meeting - who are you going to believe, Murray Waas or your common sense (buttressed by Murray Waas)? Here is Mr. Waas himself from Oct 11: In two appearances before the federal grand jury investigating the leak of a covert CIA operative's name, Lewis (Scooter) Libby, the chief of staff to Vice President Cheney, did not disclose a crucial conversation that he had with New York Times reporter Judith Miller in June 2003 about the operative, Valerie Plame, according to sources with firsthand knowledge of his sworn testimony. Libby also did not disclose the June 23 conversation when he was twice interviewed by FBI agents working on the Plame leak investigation, the sources said. Special prosecutor Patrick Fitzgerald apparently learned about the June 23 conversation for the first time just days ago, after attorneys for Miller and The New York Times informed prosecutors that Miller had discovered a set of notes on the conversation. In the follow-up to which you linked, Wass offered the "Fitzgerald knew all along" line. But here is the common sense - DoJ guidelines exhort prosecutors to achieve specificity in their subpoenas to reporters. Fitzgerald mentioned two July dates in his subpoena to Miller. If he knew about June 23, or knew he wanted to ask, then he deliberately violated DoJ guidelines to mousetrap her. Is that really your position? And why did Libby never get asked about a June 23 meeting? If he denied it, where is the perjury charge - that would be open and shut. And there is no way he admited to discussing Plame with Miller on June 23 - that would make his "I forgot" defense even more absurd. So how can it be that he didn't deny a June 23 meeting and didn't admit it? My guess - he was never asked. So if he was never asked, when did these helpful Secret Service logs turn up - wouldn't they be the first thing an investigator would check? Well, if it is your position that the investigators were incompetent and Fitzgerald deliberately violated DoJ guidelines, I'm surprised. As to the alternative - Waas sometimes delivers crowd-pleasing hype - well, that was exactly the point I was making made in the thread to which you linked, and no one has offered a serious rebuttal. Or more here. So, although his reporting has been good, it has not been infallible. And as free advice, I don't think my friends on the left are doing him any favors by letting his absurd stuff go unchallenged.

    Re: Judge Throws Libby a Small Bone (none / 0) (#12)
    by Talkleft Visitor on Sat Jun 03, 2006 at 08:09:55 AM EST
    Tom You had this from the WSJ in the previous thread.
    In a brief telephone interview yesterday, Ms. Miller said she discovered the June 2003 notes in her office after being prompted to seek out answers to another question Mr. Fitzgerald had asked her. "There was an open question about something, and I said I would go back and look and see if there was anything in my notes that would address that question," she said yesterday. WSJ 10/17/05
    I don't see anything in this Miller quote that is in conflict with the idea that Miller was asked in her 9/30/05 GJ appearance about a 6/23/03 meeting with Libby. The "other question" she refers to in the WSJ article is probably regarding the 6/23/03 meeting. The Miller subpoena was issued to show that Libby did in fact remember that Plame worked for the CIA before the Libby claim that he had forgotten until the Russert conversation on 7/10/03. Fitzgerald is clear in the 8/27/04 affidavit that he is seeking to find whether Libby talked to Miller about Plame before the Russert conversation. I have seen descriptions of the Miller subpoena, but never the actual subpoena and so I don't know how Fitzgerald qualified the specific dates. I would think that Fitzgerald having stated his reasons (to show Libby still knew about Plame before Russert) for needing Miller's testimony, would be within the scope of the subpoena in asking Miller about earlier converstions with Libby. In reading the 8/27/04 affidavit, I don't think Fitzgerald knew about the 6/23/03 Miller/Libby meeting as of 8/27/04. I don't know when the SP became aware of the logs showing Miller was at the OVP, it's possible the SP learned something from Miller's notes or 9/29/05 Miller interview which he had before Miller testified on 9/30/05. I believe Waas in his 10/20/05 article. He is specific and detailed regarding the fact that the SP asked Miller about the 6/23 date. Regarding Waas's 10/11/05 article, it's entirely likely that Waas did not have this infomation at the time he wrote that article.