Judge Walton has rejected the substitutions proposed by the government and insisted that the government try again to accomodate Libby's desire to introduce classified information in his defense. [The AP coverage has arrived.]
Although they were invited to re-write the proposed substitutions and try again, this ruling leaves open the possibility that the government will walk away from this case rather than press forward and reveal secrets. And yes, those secrets are important:
In examining the substitutions provided by the government with this framework in mind, this Court must conclude that as currently proposed, the substitutions do not provide the defendant with substantially the same ability to make his defense. That having been said, there can be no argument that the government has an important interest in protecting the classified information at issue from disclosure. And as set forth in the affidavit provided to this Court for its ex parte, in camera review on November 7, 2006, this interest is substantial. But that alone does not mandate that this Court accept any substitutions proposed by the government.
The problem - part of Libby's memory defense is that the Ms. Plame's CIA employment was a minor scrap of nothing compared to the hair-raising terror related material he was working on. Judge Walton notes that it would be hard for the jury to assess that without some exposure to the material:
The defendant’s faulty memory defense has both quantitative and qualitative components. In other words, he is alleging both that the volume of his work would have impacted his memory and that some of the information presented to him as the Vice President’s National Security Advisor was so potentially catastrophic to the well being of the country that the focus he had to devote to this information also impacted his memory. If the defendant’s defense was focused solely on the quantity of information that came to his attention and the volume of his work, the substitutions provided by the government would no doubt suffice.... However, volume is not the extent of the defendant’s defense.
Rather, he contends that at the time of various critical dates and thereafter during the time before he spoke to the FBI agents and testified before the grand jury, he was consumed with matters of such importance to the security of this nation that any mistakes he may have made in remembering his earlier conversations with the various news reporters were inadvertent and not the product of wilful disinformation. As to this aspect of the defense, other than the classified information the defendant seeks to introduce, he has no other evidence in his arsenal to present this proposition to the jury. Thus, to determine whether the government’s proposed substitutions are appropriate, the Court must examine whether those substitutions strike the right balance between the government’s national security interest and the defendant’s Sixth Amendment right to present his defense.
Balancing these factors, this Court concludes that the government’s proposed substitutions, as currently proposed, will not provide the defendant with substantially the same ability to make his defense... The proposed substitutions, which would exclude extremely significant items of classified information, goes too far and their collective omission would prevent the
defendant from being able to show the jury the true nature of his defense. Thus, to approve the substitutions now proposed by the government would amount to a grave error of constitutional proportion.
Judge Walton exhorts the prosecutor here:
The Court notes, however, that it firmly believes that what the government has provided [in related filings and substitutions] by and large demonstrates that with further effort it can develop substitutions that will overall protect the government’s national security interest and still afford the defendant with substantially the same ability to present his defense.
What does it mean? Well, this trial was always likely to founder on the rocks of national security. And the ball is not exclusively in Special Counsel Fitzgerald's hands - if the CIA insists that some of Libby's material is too sensitive, the trial may be scrubbed.
As to why the CIA might make that determination, political incentives can run the gamut - maybe Bush will encourage the new leadership to squash this case; maybe the same CIA folks who initiated the criminal referral that launched this case will decide that fun's fun and it is time to move on.
MORE: There are plenty of other new documents:
1. A response response from Libby to the prosecution motion regarding discussion of the government's charging decisions (IIRC the Fitzgerald motion came out on Oct 30, but I have not yet re-found it). From the intro:
The government argues that Mr. Libby should not be allowed to urge the jury to acquit him because the Special Counsel did not charge anyone else, or because Mr. Libby has not been charged with any crimes beyond those in the indictment. To the extent that is all the relief the government actually seeks here, its motion is not controversial. But the government does not stop there and, instead, seeks extraordinary relief that, if granted, will deprive Mr. Libby of his right to a fair trial.
This is the filing that is getting the headlines. From the AP:
Attorneys for former White House aide I. Lewis "Scooter" Libby dismissed the idea of a White House plot to leak a CIA operative's identity to the press and said Libby plans to tell jurors at his perjury trial that he had no reason to lie.
That is an old argument that was kicked around some months back, and I should dredge up the link. I stand by my lead! The graymail ruling is both new and more important.
2. Libby's proposed jury instructions.
[DUE TO an unexplained tecnical glitch, TYPEPAD has swallowed links to two other recent filings: the government proposed jury instructions and voir dire- they will be restored sometime Friday, I hope.]