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 >
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    Very interesting, ethics question? (none / 0) (#1)
    by robrecht on Sun Jul 08, 2007 at 01:35:00 PM EST
    Is there much reason to expect Fitzgerald to be any more forthcoming with Schumer than he was to Waxman?

    Perhaps if Libby was indeed considering cooperation.  

    Perhaps if Fitz is very angry at the commutation.

    But I think it is more likely that Fitzgerald will consider himself ethically bound not to reveal anything of substance.

    The most I would hope for would be a disclosure if there had indeed been any real prospect of cooperation, but I don't think Fitzgerald would testify about Bush and Cheney.

    I'm no expert, but I wouldn't be surprised if Fitzgerald also considers himself ethically bound not to even disclose if there was a real discussion of cooperation so as not to risk harm to the reputations of the unindicted.

    Aside from lawyer client privilege, what are the ethical parameters that Fitzgeralmight consider himself bound to as a prosecutor?

    "Charge someone or be quiet" (none / 0) (#2)
    by robrecht on Sun Jul 08, 2007 at 02:00:59 PM EST
    "I think we should conduct this like any other criminal investigation: charge someone or be quiet."



    great question, j! (none / 0) (#3)
    by the rainnn on Sun Jul 08, 2007 at 02:22:45 PM EST
    now -- i do think a restating
    of fitzs' closing argument would
    be very helpful for the t.v. audience,
    no doubt assembled for his appearance
    before the senate judiciary committee. . .

    remember -- the cloud is still fully
    enshrouding the vice president, and now,
    with the dark-purpose commutation, the
    president, as well. . .

    here's a highly-distilled video
    of the longer C&L piece -- it is
    chock full o' schumer-ey goodness,

    Conyers is so funny: (none / 0) (#4)
    by robrecht on Sun Jul 08, 2007 at 02:38:22 PM EST
    Conyers said he wants Bush to waive executive privilege and let his pardon lawyers or other experts, "who it appears that he did not consult, explain this in a little more detail. ... "

    Thanks for the Conyers update!

    Exactly (5.00 / 1) (#5)
    by Jeralyn on Sun Jul 08, 2007 at 02:59:44 PM EST
    Bush can let his pardon lawyers testify because all they can say is they were left out of the process. So they can't shed any light.

    Funny how this Administration does everything it can to obscure, rather than illuminate, the facts.


    I'm beginning to think... (none / 0) (#7)
    by TomStewart on Sun Jul 08, 2007 at 03:49:27 PM EST
    that this administration is peopled with Vampires. Not just sunlight fearing Vampires, but truth and disclosure Vampires, shrinking from accountability and oversight, and there is Conyers and Waxman, trying to drive a subpoena into their shrunken, peachpit hearts.

    Raw Story has the whole video (none / 0) (#6)
    by robrecht on Sun Jul 08, 2007 at 03:21:54 PM EST
    of Conyers' segment here

    Chairman Leahy agrees (none / 0) (#8)
    by joejoejoe on Sun Jul 08, 2007 at 05:14:21 PM EST
    Both Chairman Leahy and Ranking Member Specter said they would like to hear from Fitzgerald on Late Edition with Wolfman Blitzer. That clip is worth pulling if it's available - Leahy and Specter pretty much hosted the show themselves having a conversation  and Wolf let them go without much interruption like he was Vin Scully calling a ballgame. It was good teevee. For once.