Fitz had no problem at his press conference saying that Val was classified and implying the CIA was harmed by the leak, but he refuses to provide any documentation to support those claims. He was afraid to put it in the indictment, but he had no problem saying it on national TV.
Also in his response to Libby's doc request, he accuses the defense team of 'greymail':
"It is respectfully submitted that in addressing these discovery requests, this Court be mindful that the incentive for defendants facing trial to engage in “greymail” to seek to derail a trial is so well recognized that Congress passed the Classified Information Procedures Act statute (“CIPA”) to deal with it."
http://justoneminute.typepad.com/main/files/Libby_060216.pdf
Fitz only likes it when his side of the story is told.
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.
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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.
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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]
Page 26 of 32
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
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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)...
http://justoneminute.typepad.com/main/files/Libby_060216.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
http://justoneminute.typepad.com/plame/files/LibbyJan31A.pdf
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) ...
http://justoneminute.typepad.com/plame/files/LinnyJan31C.pdf.pdf
Proposed Order Compelling Discovery Re: Rule 16 and Brady Material
http://justoneminute.typepad.com/plame/files/LibbyJan31D.pdf
Jan 26, 2006: Libby Motion to Compel Discovery Re: News Reporters (120kB PDF)...
http://justoneminute.typepad.com/plame/files/libbyjan26a.pdf
Appendices to Libby Motion to Compel Discovery Re: News Reporters (1.2 Mb PDF) ...
http://justoneminute.typepad.com/plame/files/libbyjan26b.pdf
Proposed Order Compelling Discovery Re: News Reporters (60Kb PDF) ...
http://justoneminute.typepad.com/plame/files/libbyjan26c.pdf