This is the Archive site for Firedoglake. To go to the main site please click on the following link

Tuesday, February 28, 2006

Don't Hold Your Breath On Those PDBs, Scooter

Jeralyn at TalkLeft has graciously posted a copy of one of the three orders entered by Judge Walton in the Libby case on Monday, so that everyone can take a peek at it. The three orders were issued after the motions hearing, which was held on 2/24/06.

The first two orders ought to come as no surprise -- as they are simply putting the oral orders from the judge into writing. We discussed the hearing information here and here, based on what we heard from print and television reporters who attended the hearing.

Essentially, the presiding judge set a schedule for subpoenas for journalists and motions thereon in one order, and denied Libby's attempt to block Fitz from filing information with the judge ex parte (meaning Libby's lawyers don't get to know what it is -- only Fitz and the judge do) about the continuing investigation and why Libby oughtn't get access to certain materials he's trying to get his grubby little hands on -- things that Fitzgerald says are outside the charges in the indictment, and that go to the heart of his ongoing investigation.

(You hear that -- ongoing. As in continuing. As in still working hard on it. You hear that, Karl and Dick and cronies? Ongoing.)

The third order, though, was a bit of a surprise, seeing as it comes out of nowhere from the judge, himself, and appears to directly undercut Team Libby's request for all those pesky PDBs. I've read through this order and agree completely with Jeralyn's assessment on it:
The third order indicates to me that Libby is going to lose his request for being provided with the Presidential Daily Briefings, and even the documents he will receive will be for a much shorter time period than he had requested. I have uploaded the two page order here.

Essentially, the Judge says he believes Libby's memory defense requires only a description of the subject matter of the daily briefings and documents attached to them, not the entire documents. He also says the relevant time period is not the year of briefings Libby had asked for but only three short time intervals: (1) when he spoke to Miller, Cooper and Russert, (2) when he was interviewed by FBI investigators and (3) when he testified before the grand jury.

The judge suggests that two days leeway on each side of (2) and (3) should suffice.
The judge asks Fitz to provide him with a rudimentary summary of topics, and to give the court some idea of how much time it would take to compile a more thorough summary. This sounds to me like the judge is fed up with his schedule being taken up by less-than-on-point motions and that he has done enough perjury cases in his day to know when he's being asked for evidence which is not material to the charges.

Plus, as the Judge himself said at the hearing, concerns that the Executive branch would refuse to turn over the PDBs as a matter of national security ought not derail the prosecution in this case, given that the PDBs are neither material nor essential. Guess that greymail tactic wasn't so successful after all.

If this is any indication at all of Judge Walton's criminal court temperament, Scooter Libby is going to be tried on the narrow framework of his indictment without much embellishment. And that is not good news for Team Libby.

It's early to speculate on this just yet, because this is simply an information-gathering exercise from the judge. But in my experience, judges know just how heavy the case load is for most prosecutors (and Fitz's briefcase is crammed especially full between this investigation and his duties in Chicago), and they don't hand out homework assignments without a good reason behind them. Meaning, if I were Scooter, I wouldn't hold my breath on getting those PDBs.

Just guessing, but Team Libby likely won't get much beyond this order. (So much for all that cash thrown at Cline thus far, eh? Good thing Babs appears to be good at bilking the kool-aid impaired donor base fundraising.) And Jeralyn is absolutely right that if this ends up being the case, it will make Scooter's "memory" defense a much tinier needle to thread.

The big question in my mind is where does Team Libby go from here?

This is where the tension between the lawyers who want Scooter to stand up and fight for himself, perhaps cut a deal now while it is still possible, and get what he can from Fitzgerald rather than risk having the book thrown at him after a conviction at trial and the lawyers who hang with Babs and her crowd, and want Scooter to remain the steadfast and loyal firewall...well, they begin to get a lot more tense as these pre-trial dominoes begin to tumble, don't they?

I mean, there is still the journalist card to play, but if the PDB perspective is any indication -- and that's a stretch, considering I haven't seen enough of this judge to say one way or the other -- but if it is an indication of judicial temperament, Judge Walton doesn't seem to be the sort of judge that puts up with a whole lot of extraneous crap in his courtroom. That would include subpoenas for journalists that have no relationship to the charges, in my mind -- we'll see if Judge Walton agrees with me on that as well.

And between your former boss shooting a man in the face, and now having poll numbers in the low 20s, and the President having poll numbers in the 30s -- well, is that really what you want to bank the whole farm on at this point, if you are under indictment for five felonies and facing further investigation?

I mean, think about it: you are Scooter, sitting at home when you aren't at the wingnut welfare think tank office, and you flip on the teevee, and you are hit with pictures of Iraq sliding into civil war, this port deal with Dubai, NSA spying revelations, more Republican indictments and investigations into members of just goes on and on every day.

Can you assure yourself, if you are Scooter, that any pardon at all is even remotely the next three years, in this political climate, with Bush and Cheney as your trusty knights in severely dented and rusting armor, wheezing along astride a very lame looking duck to carry them forward into battle for the next three years? This is your battle plan for staying out of prison? You want to risk your life and freedom, and the happiness and well-being of your wife and children, on the steadfast loyalty and political capital of Bush and Cheney?

Don't know about you guys, but I wouldn't be holding my breath on that one, either.

Come to the light, Scooter. Fess up. Spill your guts. You'll feel better. Fitzgerald seems like a good listener. You know if things get dicey, Rove would stab you in a heartbeat to save his own pasty ass -- why not be the planter instead of the plantee with that knife, Scooter? Think about it...wouldn't you feel better if you just let it all out?

(Anime image of Chihiro from the amazing Hayao Miyazake's "Spirited Away." If you haven't seen this film, you really ought to -- this is my personal favorite of all his films. The soundtrack alone is worth the viewing.)