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

[kim]

So, p.luk., obstructed what?
=============================

[boy spank doctor]

Interesting I was looking for some answer and you gave them to me http://spankzilla.spazioblog.it/