Obviously, this case is much different from Jabara, because in Jabara, the withheld evidence WAS the evidence supposedly making the crime.
With the Libby case, Libby is mounting a defense to lying on "Matter A," that depends on "Matter A" being trivial and easily forgotten, compared with Libby's very busy life on "Matters P, Q, T, and X, Y and Z."
So, Fitz won't have as easy a time of dispensing with the Judge's order. There will be some dickering at the CIA about what they might be able to put together, some discussion with the VP and President about their sense of what they're willing to release, etc. Hey, it's a pardon in "we can't tell you that" clothing.
The alternative is Fitz appealing the order. He's independent by design, and may choose to do that. It puts off the chore of conformity, and gives the CIA and administration time to play with various ways to comply with the order if the appeal is lost.
I'd like to see it appealed - just because it's an interesting window into what the executive can withhold as a matter of stifling criminal prosecution. Sort of a Nixon v. US sort of case, but on little matters rather than big ones.
By Jim VandeHeiI think the assertion of "this has produced delay" is false. Walton anticipated some amount of sparring over exactly these documents, and the trial preparation is -so far- on schedule. An interlocutory appeal would take it off schedule.
Washington Post Staff Writer
Saturday, March 11, 2006; Page A06U.S. District Judge Reggie B. Walton said in yesterday's decision that the government must provide edited versions of intelligence material also viewed by Cheney in morning briefings and a list, by topic only, of information requests Libby made during the top-secret meetings. Walton said that if the government cannot produce redacted copies of the documents in question, a list of general topic areas discussed each day would suffice. He said the material is relevant to Libby's "preoccupation defense."
"The Court has painstakingly endeavored to ensure that the defendant is provided with the information he truly needs to prepare his defense based upon what he represented through counsel will be his theory of why he should not be held culpable for the offenses charged in the indictment," Walton wrote. ...
Walton noted that most of what he ordered turned over to Libby will not be seen by a jury. Classified evidence that Libby wants to use in the trial must be approved by the judge.
Walton said the White House and the CIA have until March 24 to make claims of executive privilege on the PDBs and related documents. In the past, the White House has resisted efforts to turn over documents about private communications, arguing that it would discourage aides and advisers from providing candid advice.
The fight over the classified material has delayed the Libby proceedings and prompted prosecutor Fitzgerald to charge that Libby's defense team is requesting unobtainable documents in an effort to derail the trial.