Posted on 02/02/2006 11:32:04 AM PST by hipaatwo
The CIA leak prosecutor refuses to turn over evidence to Lewis Libby.
Watchers of the CIA leak investigation are buzzing over a series of letters between prosecutor Patrick Fitzgerald and lawyers for former Cheney chief of staff Lewis "Scooter" Libby. In the letters, contained in motions filed recently by Libby's defense team and released by the court, Fitzgerald steadfastly refused to reveal whether he has any evidence that Bush administration officials violated the Intelligence Identities Protection Act, the Espionage Act, or any other law by revealing the identity of CIA employee Valerie Wilson.
Libby is charged with perjury and obstruction of justice in the leak investigation, but Fitzgerald has so far not alleged that anyone acted illegally by revealing Wilson's identity. In the letters, which give outsiders a glimpse of the intense behind-the-scenes maneuvering going on in the case, Libby's lawyers asked Fitzgerald to turn over evidence that might point toward such an underlying crime. Fitzgerald refused.
In a December 14, 2005, letter to Fitzgerald, Libby's lawyers asked for "Any assessment done of the damage (if any) caused by the disclosure of Valerie Wilson's status as a CIA employee." In the same letter, Libby's team asked for "All documents, regardless of when created, relating to whether Valerie Wilson's status as a CIA employee, or any aspect of that status, was classified at any time between May 6, 2003 and July 14, 2003." (Those dates mark the period in which some Bush-administration officials discussed Wilson with reporters.)
Fitzgerald declined both requests. "A formal assessment has not been done of the damage caused by the disclosure of Valerie Wilson's status as a CIA employee, and thus we possess no such document," he wrote in a January 9, 2006, response. In any event, Fitzgerald argued, "we would not view an assessment of the damaged caused by the disclosure as relevant to the issue of whether or not Mr. Libby intentionally lied when he made the statements and gave the grand jury testimony that the grand jury alleged was false."
On the question of Wilson's status, Fitzgerald wrote, "We have neither sought, much less obtained, 'all documents, regardless of when created, relating to whether Valerie Wilson's status as a CIA employee, or any aspect of that status, was classified at any time between May 6, 2003 and July 14, 2003.'" Although Fitzgerald said that "if we locate" such documents, he might turn them over, he argued that he has no responsibility to do so, because they are not relevant to the perjury and obstruction of justice prosecution.
In a later letter, dated January 23, 2006, Fitzgerald went further, refusing to provide information about whether Wilson was an undercover agent during the last five years. Referring to a 1963 Supreme Court decision in Brady v. Maryland, which requires prosecutors to turn over evidence that might point toward the defendant's innocence, Fitzgerald wrote, "We do not agree that if there were any documents indicating that Ms. Wilson did not act in an undercover capacity or did not act covertly in the five years prior to July 2003 (which we neither confirm nor deny) that any such documents would constitute Brady material in a case where Mr. Libby is not charged with a violation of statutes prohibiting the disclosure of classified information."
Fitzgerald's January 23 letter also referred to a conflict between the two sides over the actions of Valerie Wilson's husband, former ambassador Joseph Wilson. "You demand access to all documents referencing Mr. Wilson's 2002 trip to Iraq," Fitzgerald wrote to Libby's lawyers in what is apparently a mistaken reference to Joseph Wilson's 2002 trip to Niger that became the focus of contention after his wife's CIA employment was made public. Prosecutors will not turn it over, Fitzgerald wrote. "The relevance of Mr. Wilson's 2002 trip is the fact that it occurred and that it became a subject of discussion in spring 2003. What took place during that trip is not relevant to the issue of whether Mr. Libby lied about his spring 2003 conversations with various reporters and government officials about Mr. Wilson's wife's employment at the Central Intelligence Agency."
Still, Fitzgerald wrote that his office will turn over "all documents in our possession reflecting conversations involving defendant Libby about Wilson's trip, or meetings Mr. Libby attended during which Mr. Wilson's trip was discussed." Fitzgerald also wrote that he does not expect to call Wilson to testify at the Libby trial.
So far, there has been little attention paid to Fitzgerald's statements on the possibility of underlying crimes in the CIA leak case. Instead, much attention has focused on a paragraph at the end of Fitzgerald's January 23 letter in which Fitzgerald wrote that "We have learned that not all e-mail of the Office of Vice President and the Executive Office of President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system." That statement has fueled much speculation on left-wing blogs that some sort of cover-up has taken place and that the White House has destroyed evidence in the leak investigation. In all the documents made public so far, however, Fitzgerald has not suggested that that has happened.
All those reporters seem to have forgotten Valerie Plame and Joe Wilson lately, maybe they realize they don't want to be called to testify.
Therein lies the real rub.
Good point, I think they're all in hiding, hoping that if they stay away from the story for awhile they might be forgotten. I'm sure there are a slew of MSM names who are quaking and shaking and spilling their Chardonnay, hoping they will not be subpoenaed and required to make a choice between testifying and going to jail. Every reporter who touched this story should be grilled and required to barf up all sources. After all, this is a matter of grave national security as leading Demagogues and MSM babbling heads assured us so many times.........
Okay, so who is the judge in this case ?
If it is demonstrated that Fitzgerald already knew that no crime was committed, how could his investigation be legal?
I mean, that's like the police pulling you in before a grand jury to find out who robbed your neighbor's house, when no robbery had actually taken place, and then charging you with lying about the last time you visited your neighbor.
Or like the old example, interrogating you about when you stopped beating your wife.
perjury shmerjury. Lying to investigators is only bad if Clinton does it.
I think I'm being obtuse, especially for someone who followed this fairly closely :)
As natural as that progression of thought should have been when Fitzgerald first skirted the issue of Plames status, I guess I had never quite thought of it from the angle that Libby didn't know.
You're not being obtuse. At this point, it's entirely understandable if we are all confused -- all, that is, except for the attorneys among us.
At this point, I have to question whether or not there ever was a genuine investigation. More and more, I think the charges against Libby are a malicious prosecution, if not for political reasons than to cover the fact that Fitzgerald never conducted the investigation he was employed to conduct.
His legal staff anticipated all of these issues. It is a very narrow prosecution. As long as it remains narrow, and he defends how narrow it is, Libby's attorneys will have trouble.
The instructions to the jury will not involve anything about the underlying investigations. They will focus strictly on whether or not all statements by Libby to the GJ were accurate. Why the investigation is being conducted will be of no interest to a jury.
The only time that question could have merit is with a judge. If this goes to trial, and entirely different defense will be necessary.
How did you determine Libby lied?
IF Libby committed perjury he will have to face the legal consequences (and he should). Whatever the story of the Libby's testimony turns out to be, that will not change the fact that this is a sham investigation driven by a ludicrous effort by MSM reporters and Demagogues to concoct a case against the administration that never should have been taken seriously in the first place (Joe Wilson's asinine and incoherent recitations of nonsense, etc.).
Libby is responsible for any legal consequences he may have incurred IF he gave any untruthful testimony, but that should not distract from the far more important issue: the shameless charlatans who concocted and sustained the whole ludicrous "Niger uranium" story in the media.
It will be a D.C. jury.
Libby is a Republican.
In other words, his best shot is to get the case thrown out...before it goes to trial.
Which is beginning to look like a cinch...
One suspects that the worst thing that could happen to Fitzgerald's career would be for this case to go to trial.
He ought to be brought up on charges for defrauding the American people out of $2 million.
This is disgusting!
Good analysis and questions by Levin.
Good questions, Carolyn. Wish I knew the answer.
Didn't see it ... SORRY
I'm a morning EST (NY) viewer
GOOD POST
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