Schumer Says Hearing Committee May Call Patrick Fitzgerald
Crooks and Liars reports that Sen. Charles Schumer said on Face the Nation today that the Committee may call Libby prosecutor Patrick Fitzgerald to testify about Bush and Cheney in the context of the Valerie Plame investigation.
If they do, I hope they ask him whether he and Team Libby had any discussions after Libby's conviction about Libby providing information to the Government on Cheney and Bush's role in PlameGate in exchange for the Government's filing of a Rule 35 motion for sentence reduction.
Rule 35 provides in part:
(1) In General. Upon the government's motion made within one year of sentencing, the court may reduce a sentence if:
(A) the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person;
I can't think of any reason off the top of my head why that information would be privileged. As a federal court in California ruled in a case I cite all the time in discovery motions, almost always with successful results:
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.
|< Lawyer Asks Bush: What About My Client? | Isikoff: Bush Had to Consider Cheney in Libby Commutation >|