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Sunday, March 12, 2006

Team Libby Squeezed Between Footnotes

You have to hand one thing to Team Libby: they do know how to dream big. Even if the real world doesn't quite live up to those dreams...and Judge Walton's most recent ruling is certainly not a technicolor marvel for them, now is it?

I happen to agree with Larry Johnson's interpretation of this: Team Libby was shooting for the Briar Patch for Brer Libby, but instead, they got stuck with a tar baby of their own making -- a poor memory defense and a judge that is willing to refresh that memory at the lowest possible cost to the government doesn't leave them a lot of maneuvering room -- and when you add in a prosecutor who was intelligent enough to understand and prepare for just this tactical maneuver because he's been there, done that, it tightens things up a bit further still. Man, this is fun stuff to read.

Let me start by saying an enormous thank you to Jeralyn at TalkLeft for hosting the pdf's of the latest Walton rulings. Much better for all of you to be able to read what I'm talking about, and much less of a need for lengthy quotes from me -- so thanks, Jeralyn! Both the Judge's memorandum and order are in PDF format, but well worth the click thru if you want to read the documents in their entirety.

One of the things that I learned early in my legal career is that the real work often gets done in the footnotes of any brief or court order. No idea why it is that the footnotes get all of the meatiest bits, but it seems to work out that way in a lot of documents, so I always scan them very closely as I read through, just in case. In Judge Walton's order and memorandum, this little trick paid off, as you'll see below -- but I wanted to pass on that tip, so that you can see what I mean as you read through them yourself.

Also, not that I think Judge Walton's clerks are hanging out here frequently at FDL, but it's a well written memorandum -- with the issues of Rule 16 discovery questions and CIPA application being particularly tightly written, so well done to either the clerks or the judge. (And that tiniest edge of snarky tone on occasion is also much appreciated. Just so ya know.)

Let's start with Footnote 3, on pages 1 and 2 of the memorandum. The Judge denies Libby's previous motion for information on journalists and others which Fitz has not yet produced, after the judge's review of the ex parte submission from the government. And the judge specifically says that this information is not material to Libby's current charges. Too bad for Babs that whole "mean journalists made me lie" meme is now shit out the window, eh?

I like holding smarmy journalists accountable as much as the next gal, but in this case, it's just so ludicrous to argue that journalists made Scooter Libby lie on multiple occasions, even on multiple occasions under oath in front of a grand jury. If it comes down to a question of Tim Russert versus Scooter Libby, well the jury is going to have to decide that -- but if it comes down to a question of Scooter Libby versus factual evidence in the form of receipts, phone call records, taped phone conversations from various wiretaps, e-mail exchanges, contemporaneous notes, and the like, versus Scooter Libby -- well, the heap of evidence and an FBI investigator most often seem a helluva lot more credible than the squirmy guy behind the defense counsel table. I'm just saying.

There was an odd bit in the memorandum about Team Libby's amended request for documents relating to the PDBs -- wherein they asked for all inquiries relating to those briefings after they were completed, as well as all inquiries specifically made by Libby and copies of all documents provided to Libby (and the Veep) as a result of these inquiries. (Page 2.)

After reading this bit, I kept coming back in my mind to the question of whether this included all the requests Libby and Cheney made to independent actors within the CIA and the State Department for a work-up of Joe Wilson (and, presumably, of Valerie Wilson once they learned she worked at CIA). There have been hints off and on about this, but one wonders now if Team Libby just opened that door wide for Fitz and his investigators. I mean, truly, that's one big, honking discovery door, if so. Team Libby needs to be very careful which Pandora's box they decide to open in this...or they might just stumble into a big bear trap for their client, while trying to keep the firewall going.

And a note to Fitz, if this is material you haven't yet gotten, I'd sure as hell be asking for it now.

Also on page 2, in footnote 5, the Judge notes that the last couple of outstanding questions regarding the Team Libby attempt to raise the issue of Valerie Wilson's NOC status and damage assessments about the outing of her identity and resulting asset and network damage will be reserved for later -- only after the Government has an opportunity to address the Section 4 concerns regarding this information under CIPA. Presumably, the judge also reserves the right to deny Libby access to this material should it not be material to his charges, pending his review of everything -- that's always a consideration in this sort of matter.

One of my favorite moments was where the Judge called the Brady claims by Team Libby "baseless" in footnote 6, on page 4. The Brady case essentially says that if a piece of evidence is material to questions of guilt or punishment, the prosecution cannot withhold said evidence. By calling the Brady claims baseless, the Judge is basically saying that Team Libby's attempt to paint Fitzgerald as somehow acting in bad faith is also baseless. (Strike two, Babs.)

After describing the legal foundation for the decision, the judge lays out the decision itself -- its a Solomon decision. The judge finds that material relating to why Libby allegedly had faulty memory would be potentially discoverable under Rule 16, but that Libby is only entitled to the amount of information it would take to refresh his recollection on the facts. (Pages 18 through 20)

The judge also says that Libby already has been given a large amount of what he needs to reconstruct his memories on these issues -- including his own notes -- and that only very limited bits of information need be provided by the government as summaries to supplement it. (btw, I think the judge is signalling here that he thinks the memory defense is flimsy at best. You all read this section and see if you don't agree that he's saying it seems awfully thin on page 20.)

On page 20, in footnote 21, we learn that Team Libby hasn't even bothered to request Libby's calendar. Hmmm...if you wanted your client to truly refresh his recollection, wouldn't you think his daily calendar and log of activities would be helpful?

On page 21, the funniest bit for me was put out by the judge -- that Libby's defense must be based on his OWN recollection, not that of whatever briefer the CIA sent along that day, and that the judge wasn't going to help Libby construct a defense out of CIA cloth. Seriously amusing legal snark.

Then, in footnote 23 (on page 21), the judge further says that Team Libby has already demonstrated a substantial knowledge of the issues involved in the PDBs in their own filings with the court. Gee, that kinda undercuts the whole "my bad memory made me lie" bit, doesn't it? (Erm....strike three, Babs?)

The judge pares back Libby's timeframe requests as well -- Libby had originally asked for documents pertaining to June 9, 2003 to July 12, 2004. The judge restricted the very general summaries to:
6/7/03 to 7/14/03
10/12/03 to 10/16/03
11/24/03 to 11/28/03
3/3/04 to 3/7/04
3/22/04 to 3/26/04
That's two days on either side of Libby's interviews with the FBI (on Oct. 14 and Nov. 26, 2003) and of his testimony to the Grand Jury (on March 5 and 24, 2004).

[NOTE: I neglected to mention that the June 7 to July 14, 2003, dates also encompass Libby's conversations with journalists and, presumably, members of the White House and Veep staffs, State Department and national security folks, about Valerie and Joe Wilson and other pertinent details. So this pretty much covers everything to which Libby would be entitled in the Judge's mind, and nothing outside those dates. This includes the timeframe of the multiple Judy Miller conversations, the Tim Russert conversation, the confirmation to Matt Cooper, the discussion with Ari Fleischer, and whatever was said on Air Force II. Tidy, eh?]

Oh, and by the way, the judge isn't likely to let Team Libby present any of this information -- even the seriously redacted, vague summaries, to the jury because of his grave national security concerns about the information being disseminated. (See footnote 25 on page 23.) That's going to really put a crimp in the "pity me, my job was hard and it made me lie" defense, now isn't it?

For Jeralyn's take on all of this, take a peek here. For Larry Johnson's assessment, see his blog here. And for the NYTimes reporting on this, read here.

The government has until March 24 to challenge this ruling. Team Libby's opposition motion would then be filed by April 7 and a reply from Fitz to that would be required to be filed by April 14. No hearing date on any motions was set -- that will established if and when they are filed.

So, to sum it up -- Libby gets very little of what he asked for to start. And what he gets may only be used by him to "refresh his recollection" such as he needs it, since the judge thinks he already knows most of what he needs to know to try his little tap dance across the potholes of my mind defense.

And then the jury and the public will likely never know it, which really makes it tough to make your client look all sympathetic and stuff because of his really important, really hard, really busy, really scary job -- since he won't really get to talk about what he did.'s about it.

Oh, except Team Libby forgot to mention that detailed, tabbed notebook that Libby kept on the Wilsons. Or his constant, obsessive need to bring them up -- repeatedly -- to folks who worked at the White House in and around the time he was also bringing them up to people in the press. Guess their busy jobs made them forget that, too.

The graymail tactic to get the charges booted out of court? Not so effective.

Oh yeah. Whoop-dee-doo. What a victory for Team Libby. Pass the cocktail weenies. Ahem. Partaaaay.