The Supreme Court defined the scope of lawyer-client privilege in Supreme Court standard 503. When restating the right of a client to prevent disclosure of "confidential communications," the Supreme Court defined "confidential communications" as those that are "not intended to be disclosed to third persons . . . ." ... Although this standard was never adopted by Congress, it restates the common law scope of privilege that was adopted by Federal Rule of Evidence 501 and therefore can be relied upon.....

Thus, if a client communicates with his lawyer for the purpose of having that lawyer relay that communication to a third party, the communication is not "confidential" and not protected by lawyer-client privilege. ...

.... Therefore, the Court holds that a client's communications of proposed testimony made with the intent that the lawyer relay the communications to the government are not protected by the lawyer-client privilege.

In other words, if Team Libby made disclosures to Fitzgerald during the course of post-sentence negotiations regarding cooperation, even if the disclosures were only contained in a letter to the Government and the cooperation never occurred, Congress should be able to ask Fitzgerald about them.

If such an overture was made, it could tell us a lot about why Bush commuted Libby's sentence when he did. On the flip-side, if no such overture was made, Libby's reputation in the conservative community as a "stand-up guy" would be preserved.

Update: Rep. Conyers said today there was a suspicion that Libby might flip.

"What we have here _ and I think we should put it on the table right at the beginning _ is that the suspicion was that if Mr. Libby went to prison, he might further implicate other people in the White House, and that there was some kind of relationship here that does not exist in any of President Clinton's pardons, nor, according to those that we've talked to ... is that it's never existed before, ever," Conyers said in a broadcast interview Sunday.