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Saturday, February 18, 2006

Of Greymail, CIPA, Scooter and Fitz



Crooks and Liars has graciously offered to host the hearing transcript (PDF) from the February 3, 2006, Libby scheduling conference and hearing. (For some contemporaneous notes on the Feb. 3rd hearing, see this post and several others on this page.)

I've taken some time to comb through the transcript and thought that a little legal primer on greymail and CIPA might be useful for readers, along with a non-legalese translation for the hearing itself. So here goes.

The hearing transcript reads as a pretty standard representation of a usual scheduling conference, but deals with issues that are far above my former pay grade in terms of them dealing with serious national security and other classified matters. What both sides are trying to do, with the help of the trial judge, is to set up a framework for how classified documents and other evidentiary materials will be assessed and distributed -- and how disputes over whether discovery is proper will be resolved.

There is already a process set up for classified document review in federal courts. It is governed by CIPA (The Classified Information Procedures Act), which was promulgated in 1980 to streamline cases involving classified materials. CIPA has several steps -- including having originating agencies review materials, reporting to the Federal prosecutor, and then taking that information to the court for review as to what is safe and what is not safe for release.

Obviously, this leaves a lot of room for haggling between Fitz and Team Libby -- and is one of the main reasons we are looking at a trial date for Scooter Libby set for next January.

For more on a USAtty's perspective on CIPA, see here. For a history of CIPA and the CIA and other classified agencies, see here.

"Greymail" is a term that refers to substantial classified document requests on behalf of a defendant. It's a tactic that is in bad standing with most prosecutors who deal with national security matters, because it puts you in a difficult place at times: defend your case or defend your government's secrets.
Graymail is particularly invidious because it is likely to be most successfully employed by former officials from the heart of the government machine who subsequently face trial.
With regard to the "greymail" issue here, this is a complex subject that boils down to this for Team Libby: Scooter had a job that dealt with a lot of high level national security matters. He'd now like to use his complex job as an excuse for committing perjury, but to do that, he has to get access to a lot of the documents that crossed his desk in the service of the Veep. (Shorter Scooter: My job was hard, so you can't hold me responsible for lying.)

Fitz says those docs are irrelevent to the question of whether Libby is a perjurer/obstructor/false statement maker because, frankly, a lie is a lie.

In some cases, a "greymail" defense is a good strategy. Defense counsel are required, ethically, to defend their client with everything they can muster -- otherwise they aren't properly doing their jobs. That is absolutely true -- and if you ever face criminal charges, you'll want an advocate on your side who will do everything she or he can to help you to win your case within the bounds of the law.

In Libby's case, one of his counsels (Cline) has a history of successfully launching client defense based on "greymail" -- for Wen Ho Lee, as one high profile example. However, I would argue along with Fitz that for this case it is a transparent attempt to force a dismissal by over-requesting materials to which the Defendant ought not be entitled (including requests for 277 PDBs, which is unheard of, frankly) because they are outside the bounds of materiality.

Basically, Libby's counsel are banking on the fact that the Bush Administration will refuse to turn over classified materials they have requested. Fitz is arguing that Team Libby has no right to even ask for a lot of the material. The Judge is going to make a determination at some point as to what does or does not have to be turned over to Libby -- and, if it comes to that, whether the case can continue or not if the material is not turned over by the President.

It's a high stakes gamble on all sides, but I would argue that the case law makes it clear that if the documents and evidence requested are neither "material" nor "relevant" to the charges in the indictment, nor are exculpatory (shorthand: make Libby look not so guilty), then the defendant is not entitled to the discovery. (See Fitz' response brief that we discussed yesterday for more on this.)

The bottom line on this hearing: Libby has asked for a lot of information, most of which is highly classified. Fitz has already implemented review procedures on the documents which the judge has found acceptable. Scooter's poor handwriting is holding things up a bit, so the Judge has given everyone until early March to complete document review -- but an extension is possible, if needed.

There will be a hearing set at some point to argue whether or not Team Libby is even entitled to any of this material, and I'd guess that it will be likely that most of it is not discoverable based on the charges and the descriptions of what they are asking for at this point. Of course, nothing is certain until the Judge rules, but I think Fitz makes a persuasive argument that Libby is on a fishing expedition for information on how the ongoing investigation is going -- but he's asking for material that would only be relevent if and when he is indicted for IIPA or Espionage Act charges.

A huge thank you to Pachacutec, who braved the federal courthouse to obtain these docs for all of us.
I went in a suit and tie. DC power drag. Looked like a lawyer with a leather satchel. But no one shot me. In the face....
Thank you, Pach. You are a peach!

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