The Latest Fitzgerald Filings

Diggers delight - here is a 30 page .pdf file containing Special Counsel Fitzgerald's response to Libby's discovery request.

The original discovery request is linked here, so you can see how the high-priced talent plays point-counterpoint.

It is a bit late for me to spot anything other than the clearest diamond, and none jumped out at me.

However, I liked this, from p. 13, on the question of whether Fitzgerald should turn over more of what he learned from other reporters:

Nor is the defendant entitled to know the identity of every reporter’s source in order to prove that such a source may not have “considered” Ms. Wilson’s employment classified, or to be able to investigate the possibility that Ms. Wilson’s employment was actually well known outside the intelligence community before July 14, 2003. Since the withheld evidence is not relevant, much less material, it certainly cannot be characterized as “favorable” to the defense within the meaning of Brady.

Well, saying the evidence is not relevant or material is not enough to make it irrelevant and immaterial.  I think it is great that Fitzgerald managed to write that with a straight face (assuming he did), but I will be surprised if a judge goes along.

Section 3, covering the defense request for CIA material about the harm done by the leak, is fascinating:

3. Request for Information Concerning Damage Caused By the Disclosure

The defendant also argues that he is entitled to information about any assessment of the damage caused by the disclosure of Ms. Wilson’s employment because “potential harm to national security was a focus of the government’s investigation.” (Memo. at 4). This claim is illogical. First, there were many things that were investigated that are not reflected in the charges in the indictment. The actual – as opposed to potential – damage caused by the outing of Ms. Wilson is not alleged in the indictment, nor was it a focus of the grand jury investigation. The indictment alleges only that the outing of CIA employees could cause damage. The actual damage resulting from uncharged conduct is irrelevant to whether the defendant lied about his conversations with reporters.

Even if the defendant had been charged with a violation of either the Espionage Act (18 U.S.C. § 793) or the Intelligence Identities Protection Act (50 U.S.C. § 421), there would be no requirement for the prosecution to prove actual damage, much less obtain, or produce, a damage assessment prior to trial. Actual damage is not an element of either substantive offense. A fortiori, where as here Libby is charged only with obstruction offenses, there is no basis for requiring discovery of any documents bearing on a damage assessment.  Libby makes the argument that “[i]f the evidence shows that this disclosure did very little, if any, harm to national security, this fact will undermine the prosecution’s expected argument that Mr. Libby had a motive to lie to cover up his alleged disclosure of Ms. Wilson’s CIA affiliation.” Even if the defendant were to contend that at the time he spoke to the FBI and testified to the grand jury, he did not believe that any actual damage had resulted from the earlier disclosure so that he had no reason to lie, this purported belief could not have been based upon any official government analysis that he never saw, and that had yet to be undertaken.

Moreover, the publication of any informal assessment of actual damage caused by the leak could compound the damage by disclosing intelligence sources and methods. Given that the defendant has not established that such an assessment would be material, much less “helpful” to the defense, there is no basis even to consider providing him with access to such sensitive classified information. See United States v. Yunis, 867 F.2d 617 (D.C. Cir. 1989).

In any event, the defendant’s entitlement to documents related to the assessment of actual damage is appropriately addressed in an ex parte filing pursuant to Section 4 of CIPA, and the government will follow this course.

Emphasis added.  Again, we will see what the judge says.  But suppose Libby's defense includes the argument that no one, in June, July, September, or October of 2003, hinted to him that Ms. Plame's status was a problem and that a leak could be (or had been) damaging to national security.  In that case, confirmation of Libby's extraordinary intuition (or contacts) ought to be relevant, since it would support his absence of a motive.

Fitzgerald does use the word "greymail", and his arguments against the request for the Presidential Daily Briefs seem fine; that was never going to be approved anyway.

Comments

[Wickedpinto]

I'm not a lawyer, my own asshole stinks enough as it is, I don't wanna have to live in an all body funk, But if fitzgerald has given up on an indictment based on the security acts, then he using a "work product" argument, for withholding grand jury testimony. YET, there is no espionage act indictment or any other, and none of them are directly dependant on the testimony offered before the now disbanded grand jury, and all testimony before a grand jury meant to find an espionage act violator, only to have the same grand jury find the indictment that Libbey is now defending against, is, (I'm not a lawyer, I tend to sweat at work) a violation of his rights to face his accuser.

After all, his accuser isn't just the person sitting at the prosecutors table, but rather ALL people who accused him of a crime even in passing. Sorry, but if the left wants to expand this case as broadly as it has, without any repercussions that is THEIR fault, not libbeys, in fact, Libbey is the victim.

ANY reporter or witness in general who MIGHT have guided the prosecution to look at libbey for this charge, should be shared with defense, in fact, I think that they MUST be shared with the defense, so that it can be confirmed to the satisfaction of the defense, and the jury that those said same reporters can prove that Libbey is the only one to have that info prior to the declassification of plame, the publication of plames name, or the "false statements" Libbey to Fitzgerald. The Defendant has a right to all information that MIGHT exculpate him.

The PSYCHO anti bush Dem's wanna expose entire programs of surveilance, lets see how the feel about a SINGLE! situation of finger pointing.

[MayBee]

Wasn't he forced to sign a waiver to allow any reporter to testify 'against' him? It seems to me the waiver was forced upon him partially because of the importance of the matter at hand- outing a covert operative. He was under pressure to talk, and others were under pressure to talk about it. It was under this pressure that their stories got tangled up (or Libby lied, whichever happened).

How would those waivers have been obtained if the potential harm to national security angle hadn't been played in the first place? Were those waivers obtained in good faith?

[MayBee]

or to be able to investigate the possibility that Ms. Wilson’s employment was actually well known outside the intelligence community before July 14, 2003.

I wonder why he made that very point in his press conference, then. It not being relevant and all.
It seems to me that Fitzgerald's arguments will be limited much more than his televised opening statement was.

[Wickedpinto]

I agree. EVERY reference on the part of the Special Prosecutor should be a reference for all of the discovery evidence on part of the defense.

It was Fitzgerald who broke the seal of the grand jury, not the jury, not libbey, it was Fitzgerald who tained the jury pool, HELL, lets call fitzgerald, and hold him accountable for his predispositions, his reasonings, and his statements before the public.

(Once again, I ain't a lawyer, I ain't even a college grad, hell I'm not even a High School grad) But I know what it is to feel as though you have been railroaded. one time I lost(as I should have), the rest I won(as I should have). the whole "necessity" thing.

[MayBee]

OK, one more argument/question.

Could Libby's lawyers make the argument that without the information they've asked for, they are unable to properly defend their client because they don't know if the Prosecutor will use something that comes up in his defense to press other charges?

Fitzgerald has continued to go to a grand jury over this. Does Libby need to know if there are more charges pending, depending on what comes up at trial or who he gets to testify on his behalf (that may have been someone else's source, unbeknownst to him)?

Horrible sentence structure, sorry about that.

wickedpinto- you crack me up.

[Wickedpinto]

Maybee? Like I said, I'm not a lawyer, but you asked the right questions.

If libbey is gonna be the foundation of the next indictments, and fitzgerald wants to protect those next actions, does fitz have the right to withhold information from the libbey defense?

I'm not a lawyer, but I've read the constitution, in fact, I have a copy of it right next to my computer (I'm a political slave) and with my ignorant no degree having, basic english understanding, 100% American citizen being, former military serving ass? I Friggen hope so, otherwise I would have to find a lot of adgectives and nouns to redefine myself.

[MJW]

I notice Fitzgeralsd is still mis-stating the law to his advantage. In response to Libby's request for information concerning what damage was done by the discosure of Plame's CIA affiliation, Fitz says in a footnote:

Section 421 of Title 50 would require the government to prove that the compromised person had engaged in covert work within 5 years prior to the compromise and that the government took affirmative steps to conceal the compromised person’s identity.

What the law actually says is:

Whoever, as a result of having authorized access to classified information, learns the identify of a covert agent and intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than five years, or both.

Therefore, if the Fitz wanted to indict Libby for violating the IIPA, he would have to show not only that Plame was covert, but also that Libby knew she was covert. The extent of Libby's motive for lying depends on whether or not he believed he might be indicted for disclosing Plame's occupation. And the degree to which Plame's employment legitimately needed to be kept secret might determine whether a jury accepts Libby's claim that he had no reason to believe Plame was covert, particularly if Libby doesn't testify.

[Wickedpinto]

Actually, that is part of the conversation of the comments. Is Fitzy, holding back, while simultaneously tainting the jury pool?

Is fitzy trying to force an impression of a greater crime, while a pissant nothing crime is being prosecuted in his name, giving him more authority?

[MJW]

A perfect illustration of Fitzgerald's skewed view of his investigation is contained in his response to Libby's request for, "all documents 'relating to whether Valerie Wilson’s status as a CIA employee, or any aspect of that status, was classified at any time between May 6, 2003 and July 14, 2003.'" He says, "The defense is not entitled to every document mentioning a fact merely because that fact is mentioned in the indictment," and adds in a footnote, "By this logic, the defense could ask for every document reflecting the fact that the CIA was an agency 'whose mission was to collect, produce, and disseminate intelligence,' every document reflecting that the President delivered his State of the Union address on January 28, 2003, and every document reflecting that Libby was employed at the White House at the relevant times."

Fitzgerald can't see the difference between the entire original purpose of his investigation and three undisputed facts.

[MJW]

MayBee, I think you ask an interesting question about whether Libby has the right to certain information to avoid putting himself into further legal jeopardy in the process of defending against the current charges. I hope Clarice or another attorney addresses that question.

[hrtshpdbox]

Yes, it doesn't seem right that Libby should be denied complete discovery when some of the information in Fitzgerald's possession could form the basis for other future charges. So, wickedpinto, how long have you been a lawyer, anyway?

[Extraneus]

I like what this part of Fitz's statement portends for the NSA leak case and the whole related greymail question:

Even if the defendant had been charged with a violation of either the Espionage Act (18 U.S.C. § 793) or the Intelligence Identities Protection Act (50 U.S.C. § 421), there would be no requirement for the prosecution to prove actual damage, much less obtain, or produce, a damage assessment prior to trial. Actual damage is not an element of either substantive offense.

Kinda blows much of the NYT pre-case defense away, doesn't it?

[dorf]

So damage to the CIA and Poor Darling Valerie was not a focus of the grand jury investigation? A farce from the beginning then. This is a stunning admission by the Feds.

[Specter]

I think is is simpler than that. Libby has been charged with Obstruction. That is not just lying - it means that Fitz accuses him of trying to stand in the way of an investigation. Well - if that is the case, then anything that was developed during the case could shed light on his innocence. When I read Fitzy's responses he keeps saying that Libby can't have the documents because they have no bearing on whether he lied or not. For some reason he never mentions the other charges that have been made against Libby...

[kim]

Libby's lawyers are just showing the judge the corner that Fitz has painted himself into. Let it out Fitz. If you won't investigate, let Libby's lawyers find the justice in this. Soon you'll be obstructing; well, you are now.
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[kim]

The right to defend oneself, and the right to confront accusers(often one and the same) is ancient. What is the matter with Fitz?
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[TM]

He says, "The defense is not entitled to every document mentioning a fact merely because that fact is mentioned in the indictment,"

I agree - This part of Fitzgerald's argument struck me as weak. Generally, when someone starts arguing by bad analogy, it is not a sign of a strong argument.

Fitzgerald also offered this black-white view of a gray world:

Indictment). The defendant overlooks the simple fact that Ms. Wilson’s employment status was either classified or it was not. If the government had any documents stating that Ms. Wilson’s employment status was not classified during the relevant time – and we do not – we would produce them though not strictly required to under the doctrine of Brady v. Maryland. The defense is not entitled to every document mentioning a fact merely because that fact is mentioned in the indictment....

Well, if the defense obtained a document showing that Ms. Wilson's status was going to be changed to non-classified effective Aug 1, 2003, I bet that would effect the jury.

[kim]

How about a special prosecutor to investigate Fitz? There is some reason he is this far off the trail, treeing the neighbor's kitty.
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[cathyf]

If Mrs. Wilson's status was not classifyable in 2003 because her status fulfilled EO 13292, Sec 1.7 (a) (1), (2), and/or (4), then that might affect the jury, too.

cathy :-)

[kim]

Fitz better have a nice solution to pull out of the box, or he's going to look increasingly foolish. "We don't have the piece of paper you want but if we did we'd give it to you even though we don't have to do so. All those other papers we do have that you want, you can't have, because we don't think you need them".

Illegal offense; fifteen yards.
====================================================

[Dwilkers]

I don't understand how Fitz is going to get around materiality. I'm not a lawyer though, so maybe it means something other than the plain language would lead one to believe.

I just don't see how he can demonstrate that whatever Libby lied about was material without first demonstrating an underlying crime.

And I agree it seems that his arguing he doesn't have to produce "every document mentioning a fact merely because that fact is mentioned in the indictment" strikes me as a very strange idea indeed. We'll see what the judge says.

[kim]

You know I think I've settled on the problem. Fitz is probably unparalleled at prosecuting crimes that everyone knows exist but no one has the will to pursue. Given an investigation without a crime, at least by those he was investigating, he's followed an imaginary trail and treed the innocent. How to get him out of his fix? Let Libby's lawyers do Fitz's investigating for him, or let it proceed until Fitz sees how badly he has been miscarrying justice. Stopping it now would be so futile.
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[cathyf]

I don't understand how Fitz is going to get around materiality. I'm not a lawyer though, so maybe it means something other than the plain language would lead one to believe.

Unfortunately, I'm afraid that in this post- Martha Stewart era it doesn't mean anything at all.

cathy :-)

[kim]

It does seem that to hammer out an essentially irrelevant indictment, Fitz has perverted his mission into ignoring Plame and obstructing Libby's lawyers.

Shame, shame, shame.
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[kim]

My elected representatives have appointed you, Fitz, to spend my money to investigate an incident in the governance of the polity of the world, and you've fouled it up in an extremely parochial manner. I want a catholic accounting of the money and what you've accomplished with your appointment.
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[maryrose]

Kim;
I agree with your assessment regarding Fitz's behavior. It is inexplicable to me that if Libby is charged with obstruction he cannot have access to what was originally declared as a crime. Obstructing what? There is no blocking of the investigation other than reporters who originally wouldn't testify. The only reason Time magazine was ready to give up Cooper was because his supposed source was Libby who they didn't care about. This whole case has become a travesty of justice.

[cathyf]

Kim, speaking as a Catholic, the last thing you want is a "catholic accounting."

(Number one rule of Catholic Accounting: All liabilities belong to the parish, while all assets belong to the bishop. Number two rule: The parish has no authority to object to or even know about in advance the liabilities which are assigned to it.)

cathy :-)

[kim]

I think Fitz's argument is that Libby perjured himself to obstruct an investigation into retribution against a whistleblower. The trouble is Joe was blowing his own horn rather than any whistles. I know Justice is portrayed as blind, but does Fitz have to make her dumb, too?
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[kim]

Deaf and dumb, deaf and dumb.
Fingers be not so numb.
============================

[kim]

How parochial is your cathylicity!
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[cathyf]

You may not believe this, kim, but I heard that before!

cathy :-)

[kim]

There's nothing new, under the sun, in this whole wide world; only in your own little garden.
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[topsecretk9]

ALSO
Fitz is apparently now requesting Libby help translate Libby's notes??? WTF?

I don't know exactly how to state this but um this factoid combined with the other factoids (above) seems to be a bit of a cluster you know what.

[clarice]

OBSTRUCTING what? Fitz never had facts that showed that Plame came within the framework of the only Statute that might apply--the IIPA. He is playing a game here, that he will not get away with.

We have discussed this often, but his answer to these discovery questions finally gave the game away and we all know it.

[BurbankErnie]

kim is absolutely correct, Fitz is now obstructing justice. This Bizarro World is going to implode. It cannot exist with the reality world of real justice. Fitz will become an inkstain on the Courthouse wall. Libby will write his book and become a Fox News Analyst. The Left will forget this ever happened (just like all the other accusations - selective amnesia disorder) and go on with the next smear campaign.
I hope they all jump on the Richard Dreyfuss "Impeachment Tour" and join Congress Critter Conyers for another Tea Party in the Basement of some DC Building. I always enjoy listening to Larry Johnson. Has Fitz interviewed him yet?

[Gary Maxwell]

I don't understand how Fitz is going to get around materiality.

Great minds think alike. I said the same thing when I found JOM six to eight weeks ago. Coming from an accounting background I have dealt with materiality a lot. If its not a crime what is the obstruction and further if any lie presumed has no motive and even if incorrect does not have the effect of preventing the prosecution of a crime, well then its immaterial. Case dismissed.

I said about two weeks ago I see the judge tattooing the Prosecutor on several motions and Fitz dropping his prosecution, perhaps on some pretext but looking for a face saving way out. I have seen lots since then that tell me Fitz is holding deuces in a seven card stud game, and Libby just called and raised.

[topsecretk9]

when I found JOM six to eight weeks ago.
Gary, it's been longer than that!

OT, but I just have to say it...Jason Leopold is the Mary Mapes of this story.

There I said it.

[TM]

Fitz is apparently now requesting Libby help translate Libby's notes???

I wanted to mock that a few days back, but I have been battling the avian flu, or anyway, whatever my kids brought home from school.

Here is CNN:

Prosecutors have asked former vice presidential Chief of Staff I. Lewis "Scooter" Libby to help them decipher his handwritten notes for use in an ongoing investigation stemming from the leak of a CIA agent's identity.

The request to Libby was discussed in two court hearings February 3, including a closed session involving classified material.

...In the transcript, special counsel Patrick Fitzgerald said of the notes: "We can't read a substantial part of them."

Libby's handwriting "has a little bit of hieroglyphics in there, and so what we have to do is translate them so we can tell the intelligence agencies what their content is so we can figure out how sensitive it is," Fitzgerald said.

Government agencies may ask that some material in the notes remain classified or be changed before being made public to protect national security.

Fitzgerald said he will discuss with Libby's attorneys some sort of protection from penalty in case Libby makes an error in translating what the notes meant.

Can't make this stuff up.

I have not visited the "Fitzgerald is Superman" sites to see how they explained this as yet another indication of Fitzgerald's genius, as his clever master plan unfolds.

But I keep hoping it will dawn on some folks that this looks pretty dumb.

[topsecretk9]

Keep Hope Alive!

[vnjagvet]

On the notes:

Pretty soon they will be asking for Libby's deposition. Why didn't they ask questions about his notes when he was before the grand jury?

[Gary Maxwell]

There is still a faint echo in the mountains. I can still hear it coming back to me. It says, "smartest man in the room." Very cryptic, what could that mean?

[Other Tom]

I have felt from the very beginning that Fitz overstated his case, both in his press conference and the indictment, by making allegations that were sexy but not essential to the crimes charged. That may be coming back to haunt him now.

[clarice]

Fitz chose obstruction as a classic ploy. He cannot prove the requisite materiality of the allegedly perjurious and false statement counts. Obstruction doesn't require materiality, but in myarticle stuck in the queue at a very ill editor's office, I argue that you cannot logically use an obstruction charge to cover for the fact that there was nothing to obstruct--no criminal statue existed to cover this conduct. In effect, Fitz is trying to finesse the absence of maeteriality inthsoe charges by realleging them and sweeping them under the obstruction rug.

[cathyf]

"Obstruction of Idle Curiosity"?

cathy :-)

[clarice]

That's about if cathyf--and neatly put.

[cathyf]

I have seen reference to some rule or law which prohibits covert officers from politicking in American politics. Searching this morning, I was only able to find this reference in the Zell Miller op-ed from the Atlanta Journal Constitution from last fall where I first saw it. Does anyone have any more information about this? (Miller is advocating extending the ban to the immediate family members of intelligence personnel.)

So did Fitzgerald investigate whether Mr. Wilson was acting as an agent of Mrs. Wilson, so that Mrs. Wilson could break the laws against disclosing classfied information, and/or politicking by intelligence officers? If Fitzgerald didn't investigate theses two questions, the first of which is squarely within the request of the original referal, what excuse is he claiming?

cathy :-)

[clarice]

As I recall, he said he'd only investigated leaks against whistle blower Joe and no leaks of potentially classified information directed elsewhere.

[maryrose]

Clarice:
I am absolutely stunned by the turn of events in this case. When I heard on CNN a couple of days ago that Libby was going to have to help translate his own notes and then to hear he has to get an agreement in case he makes a mistake- I noe know I have entered the Theatre of the Absurd. Why not work out an agreement about his original testimony and say since no law was broken how have I caused any injury here.? Who has benen hurt by my actions.? Why am I being charged and why did you send a reorter to jail for nothing?

[clarice]

You would have thought that would have been done earlier, wouldn't you? I raised this late last night on another thread. Unbelievable.

How could they have questioned him before the gj on his notes--which he provided them--and determined he'd lied about those meetings without knowing what the notes said?

As to obstruction--note again the difference in the way regular DoJ prosecutors are handling the NSA leaks case. First ascertaining whether the Espionage Act even applies to the alleged conduct..Not fishing around into everything for months and then concocting some theory of wrongdoing based on a peripheral matter and charging obstruction of an investigation which on its face had nowhere to go.

[cathyf]

The part about the notes that I am wondering -- if Fitzgerald has possession of Libby's notes from the Cooper & Russert phone calls, and from the Miller meetings, has he asked Libby what they say? I can't believe that I am even asking the question!

cathy :-)