Skip to comments.Fitzgerald, Libby Spar Over Secret Documents in Leak Case
Posted on 02/17/2006 4:36:02 PM PST by BlueJ7
Special Prosecutor Accuses Former Cheney Aide's Legal Team of 'Greymail' In the latest legal wrangling in the CIA leak investigation, Special Counsel Patrick Fitzgerald pushed the judge in the case to deny Lewis "Scooter" Libby's defense team access to scores of top secret documents it had requested.
(Excerpt) Read more at abcnews.go.com ...
Yet another Scooter ping!
The government has provided the defendant with full disclosure of documents and information obtained during the courst of the investigation that relate in any way to the defendant's communications with members of the news media concerning Mrs. Wilson.1 The materials produced to defendant include subpoenas, correspondence, and other documents related to all reporters with whom the defendant spoke or claimed to have spoken regarding Ms. Wilson prior to July 14, 2003, all reporters who were questioned about contacts with the defendant, and all persons with whom Libby spoke or claimed to have spoken regarding communications with reporters on this subject. While the government has not disclosed statements and testimony of reporters whom the government expects to call as witnesses at trial (Jencks Act material), the government has produced to the defendant transcripts of grand jury testimony of some reporters.
FN1 The materials provided to defendant, and the materials withheld from discovery, are itemized in an Affidavit of Special Counsel dated February 16, 2006, which is submitted ex parte and under seal because it makes extensive references to sensitive grand jury information, including the identities of witnesses, the substance of grand jury testimony, and the strategy or direction of the investigation, which is continuing. See In re Grand Jury Subpoena, Miller, 405 F.3d 17, 18 (D.C.Cir. 2005); In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 973 (D.C.Cir. 2005).
In an effort to expedite the litigation, the government also provided the defendant with information and documents related to reporters who obtained information regarding Ms. Wilson's employment from sources other than the defendant, despite its view that such documents and information were not relevant or material to the preparation of the defendant's defense.2 The government disclosed to the defendant the identity of every reporter whom the government had identified as receiving information regarding Ms. Wilson's employment prior to July 14, 2003, and also has disclosed the substance of many of the reporters' testimony or statements reg arding their knowledge of Ms. Wilson's employment prior to that date. The government further produced to defendant copies of all subpoenas issued to reporters and/or news organizations to date.
FN2 The government produced these materials on the condition that the production would not be taken as a waiver of its contention that the such items were irrelevant and immaterial to the preparation of the defendant's defense.
The only type of evidence related to reporters the government has withheld is information and testimony regarding individuals other than the defendant. This evidence need not be disclosed because the evidence (a) is neither relevant nor material to the preparation of the defendant's defense; and (b) could not be dis closed consistently with the government's obligation to protect grand jury secrecy under Fed. R. Crim. P. 6(e) in order to shield from disclosure the "innocent accused," as well as to assure the integrity of the grand jury's ongoing investigation. See In re Grand Jury Subpoena, Judith Miller, 2006 WL 250224 (D.C. Cir. Feb. 3, 2006). See also In re Sealed Case, 237 F.3d 657, 667 (D.C. Cir. 2001)(quoting United States v. Procter & Gamble Co., 356 U.S. 677, 682 n. 6 (1958)(internal quotation marks omitted)); Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219 (1979).
The defendant has not, and cannot, establish that the withheld information is material to the preparation of his defense, much less that his need for the information outweighs the continuing need for grand jury secrecy. Indeed, information regarding reporters with whom the defendant had no contact, and reporters' sources other than the defendant, is highly unlikely to "play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.'" See Marshall, 132 F.3d at 68. The defendant is not charged with falsely characterizing what journalists knew prior to the July 14, 2003, as he contends. Instead, the indictment charges the defendant with lying about what he knew and did not know about Ms. Wilson, what reporters said and did not say to him, and what he said and did not say to reporters, prior to July 14, 2003. Given the nature of the charges, defendant's legitimate defense necessarily must focus on the defendant's state of mind, rather than that of others. See, e.g., United States v. Secord, 726 F. Supp. 845, 848-49 (D.D.C. 1989)(Robinson, J.)(holding that information of which defendant had no knowledge was immaterial to the defendant's state of mind, intent or motive).3 The fact that some reporters may have known of Ms. Wilson's employment could only be relevant if the defendant, or the reporters with whom the defendant spoke, became aware of it.
FN3 In George, when comparing the ruling of Judge Greene in Poindexter allowing discovery concerning documents about the knowledge of others and the ruling of former Chief Judge Robinson in United States v. Secord, 726 F. Supp. 845 (D.D.C. 1989), denying discovery concerning the knowledge of others absent proof that the defendant knew what information the others had, Judge Lamberth commented that "Judge Robinson has the better of the argument," and denied the defendant's motion for discovery. Id. at 64. But see United States v. Safavian, 2005 WL 3529834 (D.D.C. Dec. 23, 2005).
Nor is information regarding other reporter's sources material to the issue of whether the defendant was involved in a plot to discredit Mr. Wilson, or the issue of whether reporter Matthew Cooper is biased against the defendant. The defendant is not charged with participating in a plot to discredit Wilson, and even if he were, the motives of others would have little if any probative value with respect to the defendant's motive and intent. ... [near end of page 12]
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3. Request for Information Concerning Damage Caused By the Disclosure
The defendant also argues that he is entitled to information about any assessment of the damage caused by the disclosure of Ms. Wilson's employment because "potential harm to national security was a focus of the government's investigation." (Memo. at 4). This claim is illogical. First, there were many things that were investigated that are not reflected in the charges in the indictment. The actual -- as opposed to potential -- damage caused by the outing of Ms. Wilson is not alleged in the indictment, nor was it a focus of the grand jury investigation. The indictment alleges only that the outing of CIA employees could cause damage.9 The actual damage resulting from uncharged conduct is irrelevant to whether the defendant lied about his conversations with reporters.
Even if the defendant had been charged with a violation of either the Espionage Act (18 U.S.C. § 793) or the Intelligence Identities Protection Act (50 U.S.C. § 421), there would be no requirement for the prosecution to prove actual damage, much less obtain, or produce, a damage assessment prior to trial. Actual damage is not an element of either substantive
FN9 In that regard, the defense cites to a press conference statement by the Special Counsel that did not address specific harm to Ms. Wilson but a general loss of confidence when CIA employees are outed. Indeed, at the press conference, the Special Counsel indicated an unwillingness to address the damage caused "with a ten foot pole." Transcript annexed to Defendant's Motion as Exhibit D at p. 17.
Feb 16, 2006: Government's Response to Motions to Compel Discovery (180kB PDF)...
And more links ...
Feb 03, 2006: Circuit Court Opinion and Order to unseal parts of "Miller and Cooper must Testify" Case [discussed at http://www.freerepublic.com/focus/f-news/1571203/posts]
Jan 31, 2006: Libby Motion to Compel Discovery of Rule 16 and Brady Materials
Exhibits A (Dec 14 letter to Fitz), B (Fitz letter of Jan 9), and C (Fitz letter of Jan 23) [discussed at http://www.freerepublic.com/focus/f-news/1575259/posts?page=128#128] http://justoneminute.typepad.com/plame/files/show_case_doc-2.pdf
Exhibits D (transcript of Fitz presser), E (WaPo Article), & F (WH mesage to staffers) ...
Proposed Order Compelling Discovery Re: Rule 16 and Brady Material
Jan 26, 2006: Libby Motion to Compel Discovery Re: News Reporters (120kB PDF)...
Appendices to Libby Motion to Compel Discovery Re: News Reporters (1.2 Mb PDF) ...
Proposed Order Compelling Discovery Re: News Reporters (60Kb PDF) ...
4. The Requests for Information Concerning the Classified Status of Ms. Wilson's Employment
The defense also seeks all documents "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." Mr. Libby predicates his request on a single reference in the indictment to the fact that Ms. Wilson's employment status was classified during the relevant time.11 (Paragraph 1(f) of the Indictment). The defendant overlooks the simple fact that Ms. Wilson's employment status was either classified or it was not. If the government had any documents stating that Ms. Wilson's employment status was not classified during the relevant time -- and we do not -- we would produce them though not strictly required to under the doctrine of Brady v. Maryland. The defense is not entitled to every document mentioning a fact merely because that fact is mentioned in the indictment. 12
FN 11 While this fact provides context to the charges, Ms. Wilson's classified employment status is not an element of any of the three statutory violations charged.
FN 12 By this logic, the defense could ask for every document reflecting the fact that the CIA was an agency "whose mission was to collect, produce, and disseminate intelligence," every document reflecting that the President delivered his State of the Union address on January 28, 2003, and every document reflecting that Libby was employed at the White House at the relevant times.
Nor can the defendant persuasively argue that documents reflecting the classified status of Ms. Wilson's employment would have any bearing on the defendant's state of mind in the absence of any evidence that defendant ever saw such documents. As stated in United States v. Secord, 726 F. Supp. 845 (D.D.C. 1989) with respect to a demand for evidence purportedly relevant with respect to a defendant's lack of motive to lie:
To affect Defendant's state of mind, his specific intent, a piece of information must have been perceived by him personally, or been conveyed to him via his contacts in the Executive Branch. . . . The point is simply that Defendant's state of mind can only come from what he hears or sees . . . Conversations or correspondence which never reached Defendant in any manner, however, remain immaterial to motive. . . . The bottom line is that if at the time of his testimony . . . General Secord had no knowledge of the contents of these materials, they have nothing whatsoever to do with his state of mind or his intent. They are absolutely meaningless for the purposes of divining defendant's motives before Congress.
726 F. Supp. at 848-49 (emphasis in original). Thus, the defendant's claim that "without documents concerning Ms. Wilson's employment status, Mr. Libby cannot prepare this critical element of his defense" lacks any basis in law, fact, or logic.
You'd be wrong about that .. but with all the crimefighting in which he's engaging in IL as well, I'm starting to see tears in Superman's cape.
I wouldn't be surprised if Fitz wants out of all of this and is just looking to save face.
No. He's saying that certain statemens and papers should not be PUBLIC documents. To the extent material can be unclassified and/or not compromise the secrecy of grand jury proceedings, it will be made public.
The correspondence between the lawyers and the public court filings provide some details as to the nature of what is filed under seal or kept from discovery altogether.
I have said that I think Judge Walton's eventual ruling on the defense motions to compel discovery will be appealed, no matter which way it goes.
Here's a link to another AP story - no thread at FR ...
Chron.com | Prosecutor: Libby Has Evidence He Needs | Feb. 17, 2006
I've read the comments about his work in Illinois, and some posted news stories. But I'm not persuaded that his work has been impartial, directed equally at corrupt Republicans and corrupt Democrats.
And the more I see of him, the less credible I find these stories about his being a bulldog prosecutor who puts justice above everything else. That simply doesn't describe his activities and his failures to act. There's another, partisan pattern there that is absolutely glaring.
Compared to Libby, he is middle level.
I have held a security clearance since the mid 1970's and this "public talk" is all very unnerving. All of this NSA stuff does NOT belong out in public and I really want the NYT publisher is prison for treason - he has damaged this country's ability to intercept islamofacists electronic communications forever. No different than Ethel and Julius Rosenberg but for a different type of war! I really could care less about the freedom of the press when it conflicts with NATIONAL SECURITY!!
.....The document filed by Fitzgerald indicated that the grand jury investigation into who leaked Plame's name is still ongoing.......
"A source close to Judge Walton revealed that many beleive that the recent shooting of a lawyer by the vice President was a chilling message to the Special Prosecutor telling him to lay off"
Oh, jeeeezzzz. All I can do is shake my head in wonder at such profound stupidity.
Hey! I want the whole seedy bunch of reporters on the stand to testify! Everyone who had a word to say in this case. Stick them in jail for a year if they don't.
Is there a difference in "graymail" and "greymail"?
......"Milbank: I understand that Pat Fitzgerald has been offered an invitation to the next one.......
...."A source close to Judge Walton revealed that many beleive that the recent shooting of a lawyer by the vice President was a chilling message to the Special Prosecutor telling him to lay off"......
The upperline was taken from this thread.... Crossing the Line on a Cable Show? (WaPo ombudsman comments on Milbank's hunting outfit on MSNBC) http://www.freerepublic.com/focus/f-news/1581548/posts
I wrote the second line as a joke. Turns out it was close to real.
I only had a "Secret" clearance in the army, although for a while I was the company classified documents clerk. Mainly that involved keeping track of the technical documents used for radar repairs, and burning of extra, unneeded documents in a 55-gallon oil drum out in back.
I think I can now safely say that I learned about the existence of Claymore mines at that time, before they were used in Vietnam, because somebody who couldn't be bothered to dispose of a secret manual properly sent me the instructions on how to set them up, which I burned. Didn't seem much point in keeping the manual in the library when we didn't have any Claymore mines around and had no brief to repair them.
At least the first Vietcong they used them on were probably surprised.
I agree with you completely that the Times reporter and editors responsible for the security leaks should be punished, and that their sources should be even more heavily punished. But what we're talking about here is a political operator, Fitzgerald, who is helping the Democrats play games with national security, pretending you can't trust the assistant to the V.P. to keep secrets.
Disgusting beyond comment. Something has got to change or as a nation we are in for some rough times ahead with the islamofacists waiting to either convert us all, make us servants, or lop our heads off. I am told by someone who has a better understanding of the Koran than I ever will, that these are the 3 options for dealing with infidels like myself.
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