Scooter Libby's defense counsel team, along with Prosecutor Pat Fitzgerald's team, has filed a joint discovery status report with the Federal judge overseeing the Libby matter in advance of their scheduled February 3 hearing in the matter. The motions and filings give a glimpse of defense strategy and, as has been previously reported, it looks like Team Libby will be trying a scattershot approach, highlighting journalists and lapses in reporting and potential other Administration leakers to take the heat off Scooter.
As Jeralyn reports, the Libby segment of the filings highlights a number of disputes over discovery (or material turned over to defense counsel by prosecutors).
6. It is the position of the defense, based on the government’s written and oral responses to our requests, that significant disagreements exist between the parties with respect to the nature and scope of the government’s obligations under Rule 16 and Brady. These disagreements include, but are not limited to, the following:This sort of dispute is not uncommon, and often serves as a means of stalling the trial schedule because defense counsel uses a lack of discovery in some area as a rationale for argument to the judge that a trial cannot proceed. Jeralyn has a great discussion of the areas of dispute at TalkLeft.
A. Whether information in the government’s possession about reporters’ knowledge concerning Valerie Wilson’s employment by the CIA from sources other than Mr. Libby is material to the preparation of the defense. The defendant has already prepared and expects to file a motion to compel disclosure of such information on or before February 3, 2006.
B. Whether the prosecution must obtain and produce documents and information within the possession, custody or control of Executive Branch agencies other than the Office of Special Counsel and the FBI. The defense is preparing, and intends to file on or before February 3, a motion concerning this issue.
C. Whether classified information about Mr. Libby’s participation in meetings, briefings and discussions concerning pressing national security matters between May 6, 2003 and March 24, 2004 is material to the preparation of the defense. The defense is preparing, and intends to file on or before February 3, a motion concerning this issue.
D. Whether information concerning Mrs. Wilson’s status as a CIA employee, and the allegedly classified nature of that employment, is material to the preparation of the defense. The government intends to address this issue with the Court and the defense pursuant to CIPA.
Additionally, David Johnston reports in the NYTimes:
Defense lawyers said the disagreements centered on issues like whether prosecutors were obliged to turn over to the defense information from the government about how much reporters knew of the employment of Valerie Wilson, the C.I.A. officer at the heart of the case, from sources other than Mr. Libby.Johnston has had good sources within the Libby defense team in past articles, so I would suspect that he's getting this from someone who has been in on strategy sessions.
Other disagreements cited by defense lawyers focused on whether the prosecution had to turn over to Mr. Libby's lawyers information about Ms. Wilson's status as a covert employee at the C.I.A.
Another dispute, the defense lawyers said, involves whether prosecutors must relinquish documents in the government's possession about classified briefings and meetings that Mr. Libby attended from May 2003 to March 2004.
I agree with Jeralyn that this is likely to be a defense tactic -- the reaching beyond the scope of the indictment for a sort of "kitchen sink" defense. In my previous incarnation as criminal defense counsel, I occasionally found it useful to use this stall with a particularly annoying client case so long as it was a low-level offense, because occasionally you can wear down a prosecutor into giving you a better plea deal just to make an annoying defendant go away. This only works, though, when you have a client who is very low level and not at all important for a further piece of a broader case.
For Libby, I would think the long-term annoyance bid will only serve to dig in Fitzgerald's resolve. I know my response as a prosecutor in a complex case when I had opposing counsel trying a tap dance tactic was to say to myself, "Be as annoying as you like, but I'm going to nail your client's ass with both barrels." Fitz strikes me as the sort of prosecutor who doesn't take well to manipulative tactics, but it's too early in all of this to tell that for sure. We know that Fitzgerald doesn't appreciate liars, and I can't imagine manipulation sits well with him, either.
The practical aspect of this is that any trial date will be set much further down the road. Because it is a joint filing, the judge is likely to give it much wider latitude in terms of any request for extension of time. Additionally, there are clearly going to be a number of subpoenas for additional journalist and Administration personnel testimony and records, and then a flurry of motions to quash those subpoenas, so in practical terms, an early trial just isn't likely to happen.
In this case, the government has already turned over more than 10,150 classified and unclassified documents to Libby's lawyers, according to the AP and the NYTimes. That is a lot of interview and deposition transcripts and a huge paper trail of government documents that have already been handed over by Fitz. And, because Fitz has been playing this set of charges close to the vest, is likely to only be a small portion of the whole of the case.
Carole Leonnig of the WaPo has some additional spin from the Libby defense team, regarding potential defense tactics -- and looking specifically at a two-pronged approach: (1) independently investigating journalists involved in the case for methods and practices issues (basically challenging credibility because, jeepers, Judy Miller is a paragon of First Amendment virtue and all and...well, you know where this is going) and (2) the Booby Woodward "I've got a secret pal" defense of pointing the finger at others in the Administration who talked, too. (That means you, Karl.)
On the one hand, it's a flurry of motions and other crap to wade through for Fitz. On the other hand, though, it could get ugly if Team Libby and Team Bushie start to have clashing legal objectives and Scooter decides that saving his own ass is more important than covering Karl and Company's. If it can happen in the mob, it can sure as hell happen with this bunch -- you think this Administration has it all over la casa nostra in terms of loyalty and responsibility to the team first, and self last? Please. Blood brothers this crew ain't -- especially if they could sell one another out to keep their greedy little individual holds on power.
(Come clean, Scooter. You'll feel better if you do. Plant the knife in Karl's back for a change...he's due. Wouldn't you rather be the planter instead of the plant-ee this time?)
I can't imagine the Administration would be happy with an "everybody was doing it" defense from Scooter's team, so tactically the "blame others in the Administration" prong is intriguing. Since Loose Lips Luskin had his pie hole shut by Fitz, there just haven't been as many juicy leaks for all of us to chew on, and this filing and the upcoming hearing offer a good window into what has been going on behind the scenes.
Fitz and his team have likely been very busy with a flurry of continual motions requests from Team Libby. Not at all uncommon. And given the magnitude of some of Fitz's previous cases, not something he hasn't seen any number of times before now.
What it has meant, though, is that Karl has been left twisting -- perhaps just as a casualty of a busy schedule, perhaps on purpose. And all the anonymous folks close to Karl who couldn't help but call up Jim VandeHei at the WaPo to drop some hints in Rover's favor aside, the anonymous aide who said that had Fitz been done with Rove he would have cleared him already is right. You don't keep a full plate unless you have to as a prosecutor because you have too much other work to get done in the public's interest. That Rove is still twisting is a pretty good indication that Fitz isn't done with him yet. In my opinion, everyone ought to hold on -- Karl's on slow roasting at the moment.
Ought to be an interesting few days until February 3rd, wouldn't you say?
(Graphics love to On the Fritz.)