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Friday, February 17, 2006

Fish Or Cut Bait

Patrick Fitzgerald has filed his Consolidated Response to Team Libby's Discovery Motions. It's a 32-page response brief that covers all the motions filed thus far by Team Libby, for all of the myraid of discovery requests that they have made. (Tom Maguire is graciously hosting the PDF of the document here. Thanks, Tom. You can read his take on the docs here, as well.)

After spending some time going over the response brief, it's pretty much what I expected in terms of argument from Fitz and his staff -- Fitz argues that Libby vastly overreaching on discovery requests that have no relevance to the charges he faces, and that Libby's defense counsel appear to be on some sort of fishing expedition for information pertaining to other matters outside the indictment charges of perjury, false statements and obstruction.

On page 9, footnote 1, of the brief, Fitz reveals that there was an additional filing from his team of an ex parte (meaning it went only to the Judge, and not to Team Libby) affadavit under seal which makes extensive reference to grand jury information, including the identities of various witnesses, their testimony, and the strategy and direction of the continuing investigation. According to the brief, this was filed along with this response on 2/16/06.

My assumption is that this details some of the ongoing investigative work and potentially those areas to which Libby continues to be an impediment to the investigation, and where other members of the Administration may be implicated, along with where the investigation may be currently headed and why such requests for information from Libby would cause difficulties for the investigation.

The judge will review that material and make a determination on a couple of fronts: (1) whether or not the material referred to in the ex parte filing is, indeed, relevant or irrelevant to the charges faced by Libby and (2) to what, if any, of that information Libby may be entitled (as Fitz argues, none, but the judge will have to review the information in the context of the entire case and the applicable case law). There will be a motion date for arguments set at some point in the future where this will no doubt be argued much further by both sides, and a ruling will issue at some point after that.

On page 11, Fitz argues that the only reporter information which has not been shared with Libby is that which relates to other individuals (who may or may not be currently under investigation) who are not Libby. Fitz argues that this is neither relevant nor material to Libby's case, and that the material ought to be privileged due to grand jury secrecy requirements. (Standard prosecutorial objection, frankly, to a request that is beyond the boundaries of the "four corners of the indictment.")

I do wonder if Team Libby is fishing for some particular piece of information here -- potentially about someone who has testified adversely to Libby's or some other Administration official's interest. If there is some mole who has been feeding information to Fitz and his team, as some have speculated, this sort of fishing expedition might be one way to get a hint as to who that might be.

On pages 13-14, Fitz lays out more reasons why he feels that the Libby requests are tangential at best, and an attempt at overreach for a potential dismissal as a "greymail" tactic. This is especially true in the arguments advanced regarding Valerie Wilson's employment status -- and Fitz' argument that this has nothing whatsoever to do with the charges Libby faces (perjury, obstruction, false statements), and that Team Libby is using this as a pretext for a vast discovery fishing expedition.

Fitz hits this point heavily on page 15, stating that Team Libby, "whether by design or otherwise" has made discovery requests which impinge on governmental privilege issues and that the Judge ought to rebuff this transparent greymail attack under the guidelines established in CIPA. Fitz goes on to bolster this argument on page 20 (by saying Libby is attempting "to bootstrap" an argument that the massive PDB and other document requests have any relevance whatsoever to his charges) and on page 25 (by alluding to defense counsel's "breathtaking" and "transparent effort at greymail" on behalf of Libby).

Essentially, the entire response brief is one big "put up or shut up" from Fitz to Team Libby. We knew when Libby hired Cline (the former counsel for Wen Ho Lee who specializes in greymail cases out of Jones Day in LA) that this would be a large portion of the defense tactic at the start of the case, but the breadth with which such requests have been made truly is nothing short of ballsy. Requesting 277 PDBs is not something you try every day in defense of a client for a perjury indictment, let me tell you.

Based on my knowledge of the case law involved (Brady, Giglio, Poindexter, George and others), Fitz has a very good chance of winning his arguments. But, as with anything in court, nothing is certain until you get the written ruling.

The AP (via MSNBC) covers the filing, as does Bloomberg, which notes that Fitz has already turned over more than 11,000 pages of documents to Team Libby to date.

Additionally, the WaPo noted yesterday in an article about Cheney's declassification claims that Libby's defense may attempt to use those claims as a hook.
Libby is not charged with leaking classified information, and his lawyers said last week that there was no truth to a published report that they had advised the court or prosecutors that Libby will raise a defense based on authorization by superiors.

A legal expert said Cheney's comments could nonetheless foreshadow a Libby defense.

Former Whitewater independent counsel Robert Ray said, "If the focus is off the defendant and on to somebody else, generally for the defense that's a good day. If it turns out that Cheney was actively involved in decisions related to the disclosure of a CIA officer's identity and if the truth of it is that he was orchestrating the disclosure of information to the media, it seems to me that's a fundamentally different case than one centered around the activities of Libby."
I don't buy how declassification claims can make the fact that Libby lied repeatedly to investigators and the grand jury disappear in a poof of magic legal smoke, but then I'm not trying to spin the national media establishment on behalf of my client, either.

And finally, John Eckenrode, the chief FBI investigator on Fitz' team, is retiring after 32 years of service to the Bureau, according to the Philadelphia Inquirer. He'll still be an integral part of any trial involving Libby or others who may yet to be indicted, because he was the chief officer who took witness statements and was involved in overseeing so many aspects of the investigation thus far. Here's hoping he has a great retirement, and a smooth transition into some nice private sector consulting gig or into a La-Z-Boy lounger of his choice. He's earned it and then some.

Fitz has clearly been down this defense block a time or two, although his tone in this brief is that of prosecutor who is laughing off the audacity of defense counsel's requests (a common tone, frankly, for prosecutors at this stage of back and forth on discovery -- I've been on both the receiving end of this as well as the dishing it out end). I think he has solid arguments that a large amount of the information requested by Team Libby is irrelevent to the charges in the indictment, that Libby is fishing for potential discovery for possible future charges for himself and others in the Administration (to which he is not entitled until such time as those charges may be filed).

One bit that amused me was on pages 28 and 29, wherein Fitz argues that Libby would not be entitled to information regarding Valerie Wilson's covert employment status unless he could show that he (Libby) had been privy to such documentary proof at the time that his alleged crimes were occurring. It's your basic "put up or shut up" response from Fitz -- but it requires that Libby either let it go (because he did not see such documentation, and thus admit that it has no relevence whatsoever to his state of mind at the time of indictment) or that Libby fesses up to knowing that she was covert (which would open a whole new level of speculation, now wouldn't it?) or that both sides will just keep on whistling past this issue altogether.

Never play poker with Fitz. That's all I'm saying.