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Tuesday, November 15, 2005

Fitz and Libby Oppose Media Access to Discovery

The Washington Post is reporting that:
Special Counsel Patrick J. Fitzgerald is seeking a protective court order that would bar Libby and his legal team from publicly disclosing "all materials produced by the government."

Dow Jones & Co., the publisher of the Wall Street Journal, went to court yesterday to fight the proposal.
What the WaPo fails to report is that Fitz isn't the only person attempting to block public access to the documents -- Libby's legal team signed on to Fitzgerald's motion as well.

What the WaPo also fails to say is that this is standard practice in federal courtrooms all over the country where discovery is given to a defendant in a matter where there may be unindicted co-conspirators and where an investigation may yet be ongoing. This is especially true in matters where you have an intricate conspiracy, such as drug or mafia cases, and where investigations often hinge on flipping defendants from lower levels in the matter up to the next rung and so on.

From what I have seen of the request from Fitz and Libby, everything is pretty much standard practice in terms of the requests and proposed order. Something entered hundreds of times a month by federal judges all over the country in complex criminal enterprise cases: gangs, drug distribution networks, mob enterprises, etc.

It is certainly understandable that the media -- here represented by Dow Jones -- would have a substantial interest in the Libby discovery. I mean, we all certainly have an interest in what is contained therein, don't we?

After all, we are talking about a governmental official who used his position and governmental resources to exact political payback on the family of a covert CIA operative, and who may be trying to cover up the involvement of others in the government who aided and abetted his actions. Oh, and he's also a liar. Under oath. Allegedly. Ahem.

Libby's right to a fair trial can be substantially prejudiced by a wholesale dump of discovery information that is gathered from only the investigator's perspective -- often this material contains little exculpatory material, since that is gathered by defense counsel in most cases as part of the defense strategy. (Honestly, if there were a lot of exculpatory material, there likely wouldn't be any charges -- prosecutors try not to waste their time on cases without a lot of substance. I'm just saying.)

Jeralyn has a lot more about this, and her post is exceptional -- well worth a read, especially for those who haven't spent time in the federal courts with a defendant in a wide-ranging conspiracy case.

The bottom line: Dow Jones is likely to lose this round, and they should. This isn't just about finding material to prop up Fitz's supporters or critics -- it's about giving a defendant a fair trial, and also about protecting national security matters that are almost certainly contained in a lot of the material.

We will get a lot of glimpses of this material in public filings and motions in the case as things proceed. Plus, there's always the leaks we keep getting from Luskin and Rove.

As Jeralyn says, there are a whole lot of questions I'd like answered: who flipped and spilled already, who got use immunity deals, who got other deals. But for Fitz to be able to fully complete his investigation and be able to bring all possible charges against each and every guilty party, I can be as patient as anyone.

Take your time, Fitz -- I've still got my popcorn stash. Just be sure and clear out the entire rats nest by the time you've finished.