Posted on 02/23/2006 7:56:53 AM PST by PJ-Comix
Tomorrow CIA leak prosecutor Patrick Fitzgerald and indicted former Cheney chief of staff Lewis Libby will meet in a Washington courtroom to fight over what evidence will be at the center of Libby's trial on perjury, obstruction, and false statements charges. In the latest exchange of court motions between the two sides, Libby's defense team is repeating its request for evidence concerning perhaps the two most fundamental questions in CIA leak investigation: Was Valerie Wilson a secret CIA officer when her name appeared in Robert Novak's famous July 14, 2003, column, and what damage did the exposure of her identity do to national security? Fitzgerald has so far refused to provide any evidence touching on either question, at times shifting his reasoning as Libby's lawyers pressed their case.
During his October 28, 2005 news conference announcing the Libby indictment, Fitzgerald said flatly, "I will confirm that [Wilson's] association with the CIA was classified" at the time covered by the investigation. The indictment itself says that "Valerie Wilson was employed by the CIA and her employment status was classified."
Last December, Libby's lawyers asked Fitzgerald to provide "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" in the time period before the Novak column was published. Fitzgerald refused, saying that "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'" during that period.
Later, Libby's team repeated the request. Fitzgerald again refused, saying, in effect, that the information was none of Libby's business:
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. 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.
It would perhaps be an understatement to say that Fitzgerald's answer left the Libby team unsatisfied. Now, in a motion filed on Tuesday, Libby is trying one more time:
The government argues that "Ms. Wilson's employment status was either classified or it was not," and states that it if it possessed any documents stating her employment was not classified, it would produce such documents. What Mr. Libby seeks, however, is all documents supporting the indictment’s allegation that her employment was classified, as well as those showing it was not. To date, the defense has not received a single document showing that Ms. Wilson’s employment was classified information. Further, the government has told us that it "neither sought, much less obtained," from the CIA the documents we requested with respect to Ms. Wilson's employment status. This assertion calls into question how the government can represent to the Court that no [relevant] material on this issue exists. [emphasis in the original]
In addition, Libby argued, Fitzgerald's refusal to provide information confirming Wilson's status touches on fundamental questions of fairness:
By refusing to provide any documents confirming the allegation in the indictment that Ms. Wilson’s employment status was classified during the relevant time period, the government has in effect demanded that the defense concede that this allegation is correct. Such a demand is flatly inconsistent with the basic principles of our criminal justice system. The defense is entitled to investigate this allegation and determine whether any factual support for it exists.
Fitzgerald is also continuing his refusal to provide the Libby defense team with any assessment of the damage done to national security by the exposure of Wilson's identity. Fitzgerald at first refused because, he said, no "formal assessment" of the damage had been done. Later, he argued that he had never claimed any damage had been done:
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." 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. The actual damage resulting from uncharged conduct is irrelevant to whether the defendant lied about his conversations with reporters. [emphasis in the original]
In their latest brief, Libby's defense lawyers argue that the question of damage is central to the case, that Fitzgerald himself had said so during his October news conference, and that it is hard to imagine the issue not coming up at trial:
The government argues that evidence concerning whether any damage resulted when Ms. Wilson's identity was "leaked" should not be provided to the defense because a claim of actual damage is not explicitly alleged in the indictment. The defense has every right to anticipate that the government will attempt to portray the disclosure in question as a damaging breach of national security at trial. This expectation is reinforced by the Special Counsel’s statement at his October 28, 2005 press conference that when Ms. Wilson’s affiliation with the CIA was made public, "the damage wasn’t to one person. It wasn’t just Valerie Wilson. It was done to all of us."
ROTFL!
It doesn't always have to be material to the investigation as long as it extended from the investigation but it does have to be material to what is in the indictment. You're exactly right, there is and has never been a case here just a he said, she said indictment.
Thanks, Coop. Libby's team makes a strong case here, and if the prosecution can't provide the evidence this case will be thrown out.
Well, I'm hedging my bets until I find out who appointed the judge. :-}
Luckily I'm not a lawyer because to me this looks like every day in the Clinton administration.
Based on the charges against Libby, I don't understand why Judith Miller and Tim Russert weren't prosecuted as well. They could just as easily be assumed to be lying as well as Libby.
Apparently as Grandma would say "the sh*t is starting to fall apart" Really hard to make a case when you forgot to ask for evidence of a crime. But he sure gives a good press conference.
He's charged with lying about it under oath.
The fact that Valerie may or may not have been outed, because she may, or may not have been a secret spy girl, really ain't got too much to do with this. Neither does the fact that her sleazoid bed partner may, or may not have, outed her long before Scooter may, or may not have.
Scooter's defense team would very much like to make these points part of the case. If they succeed, pay'em double!
PJ, there has got to be DUFU thread in the works over this. Some of them are either going to go on meds or be so freaked out they'll forget to take their meds.
Scooter (rather dumbly IMHO) walked into what's known as a "Perjury Trap." And a rather neatly laid snare it was!
I'll check but recently there has been VERY LITTLE discussion of Fitzmas over in DUmmieland.
An excellent point ands one that has trouble me from the beginning. Who at the CIA was involved in launching this probe? Why have their names been so invisible? What is Goss actually doing to clean house?
Fitz has NO credibility left. Lawyers at a friends office were laughing at his ineptness this morning!
LLS
Fitzgerald is stonewalling. He needs to be seen as stonewalling.
Something about it being impossible to prove a negative?
The Kafkaesque Prosecution of Scooter Libby Continues
Fitzhooey has dug himself a deep hole, and he only has himself to blame.
Tenant?
brainpoop = Tenet
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