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Saturday, February 25, 2006

Trying to Grab the "Family Jewels," and Other Libby-isms

The "blame the journalists" defense tactic continues for Team Libby, in its defense against the perjury, false statements and obstruction charges that Scooter Libby is facing (via the LATimes).
Lawyers for Libby say they have reason to question the accuracy of statements that journalists have made about him to special prosecutor Patrick J. Fitzgerald. They are also seeking to prove that information about Plame was widely known among reporters at the time, and that Libby therefore would have no incentive to lie about his knowledge of her.

Walton set an April 7 deadline for recipients of the subpoenas to respond to whether they intended to comply with them, and a date of April 21 for a hearing to consider objections.
I have to say, it's risky, in that if a jury finds that Team Libby is simply trying to throw up a screen of smoke and mirrors, then they are more likely to find Scooter guilty in the absence of any real "reasonable doubt." Jurors tend to be disgusted by obvious, smarmy tap dancing, at least in my trial experience in real-world criminal trials. (I'll try to have something more in depth about this soon, but I need to go back and review several pages of my notes on this.)

In this case, though, the first amendment arguments are going to be fairly robust from the news organizations involved, I'm sure, considering the high profile names involved. I'd guess that Team Libby is banking on this -- but I must say that Judge Walton's framework on subpoenas and motions is an aggressive one, and that bodes well for him not taking kindly to attempts to stonewall and delay. The deadline on this was set for April.

The most telling quote in the LATimes story is this one from Wells:
"The very heart of our defense is about the family jewels," Wells said. "We need the notes and the PDBs to put together a story to make the jury believe that his defense is not concocted."
Yep, that about sums it up, doesn't it? When you have a client who dosn't give you a lot to work with in his defense, the job is not a fun one, no matter how high your pay scale. One has to wonder about the internal dynamic of Team Libby -- the constant tug-of-war between actually defending Scooter on one side and maintaining the firewall for the Veep (and perhaps others in the Administration) on the other side.

According to the LATimes, Fitz will be keeping both the identity of the official who spoke with Woodward a secret, but also the second official who spoke with Novak. (Since Rove has already owned up to being the first source on this, we at least know one name, but indications are that the second name is not that of Scooter Libby.)

This was all requested by Team Libby and denied because of the ongoing nature of the investigation. btw, it seems that it was Jefress who indicated that the Woodward leaker didn't work in the White House, so take that statement with an enormous grain of salt for now. I sure am, because the LATimes article doesn't indicate whether Jeffress said this in court or outside of it to the press.

I wanted to take a moment to explain the whole judicial review issue of this information being kept from the defense for the moment. This is a process that happens frequently when there are questions or arguments about (1) whether the information requested is even material to the case at bar or (2) whether the information might tip the hand of the ongoing investigation or might be better kept as classified or sealed (depending on the type of information).

This process happens not only in cases where there is a classified information consideration in matters of national security, but also where you have a juvenile whose name and information needs to be kept from public disclosure (as in a child sexual abuse matter where protecting the victim is important) or where you have prior juvenile charges that need to be held in confidence (because that information is kept from public disclosure as well).

What happens is the judge gathers all relevant material, and he and his clerks will comb through it, looking at the information involved, as well as case law and court rules pertaining to what should and should not be disclosed. Then the judge will determine what is and is not disclosable, will issue a ruling, and any information to be disclosed will be ordered handed over to Team Libby. Information to be held in confidence will stay behind the non-disclosable wall. And arguments on the ruling will continue from there.

All this to say that this is not an unusual process -- but, in this case, the level of importance to national security that the large number of documents hold is unusual. PDBs aren't exactly a run-of-the-mill request. And Judge Walton made it clear to Team Libby that he was well aware of the potential "greymail" defense on this, and that he was skeptical of their request for information that Cheney has dubbed "the family jewels" of the Executive branch -- the PDBs. (And isn't that just asking for the late night comedians to have a field day? I mean, really?)

All of this will be under review, and Fitz will be providing information to the judge on his continuing investigation efforts to show why a lot of other information ought to be held close for now.

This cannot be a comfortable moment for Karl Rove or Dick Cheney or the other Administration officials involved in this: to know that Judge Walton and Patrick Fitzgerald have come to an understanding about the fact that this case is, in fact, moving forward and that his investigative team is looking much, much further into criminal conduct among them.

UPDATE: Meant to also say that Forbes has an updated version of the AP story.

UPDATE #2: The NYTimes story from this morning now appears to indicate that Fitz offered to stipulate the following:
Mr. Fitzgerald said Friday that he would readily agree that Mr. Libby had an important job and dealt with weighty matters. But he said that the presidential briefs would provide far more detail than Mr. Libby needed to make that argument.
Well, that sure gives the judge a huge out to refuse to order the PDBs turned over, doesn't it? We've all been thinking that Fitz would offer to stipulate on this -- looks like he thought it was a good move as well. This is the first reporting I've seen on this aspect of the hearing, and I'm hoping someone else will dig into this a little deeper, but we may have to wait until the transcript is available to know exactly what was said here.