Judge Walton Rules On Motions To Compel

Judge Walton hands down an eight page order, and Libby gets very little, other than some obvious grounds for appeal. [There is also a 2 page order covering the handling of her employment history and the damage assessment (if any).  Byron York has more on this CIPA issue.  Finally, a one page order sets a status conference for June 12.]

Jeralyn Merritt has a good summary, but I will highlight this explanation for denying certain requests:

Thus, for example, the fact that other governmental officials may have known before July 14, 2003, that Ms. Wilson worked for the CIA is completely immaterial unless that information was shared with either the defendant, Miller, Russert, or Cooper.

I find that to be absurd.  Fitzgerald has already provided his list of known leak recipients amongst reporters.  However, just as a HYPOTHETICAL example, suppose Fitzgerald has in his possession an email from Under Secretary of State Grossman to Deputy Secretary of State Armitage saying "Just discussed the genesis of the Niger trip with Andrea Mitchell, who was *very* well informed".

Would someone care to argue that such an email is not relevant to the question of whether Andrea Mitchell might have known about Ms. Plame?  And since Ms. Mitchell works for Tim Russert, might it be relevant in assessing whether Tim is pure as the driven snow when he claims utter ignorance of Ms. Plame's CIA affiliation prior to the Novak column?

The defense will not be getting the CIA referral to the Department of Justice, either:

Finally, this Court has examined, in camera, the CIA’s referral to the Department of Justice concerning the disclosure of Ms. Wilson’s affiliation with the CIA, and concludes that it is simply not material to the preparation of the defendant’s defense. The defendant’s request for disclosure of documents related to the referral must therefore be denied.

I want to go back and see specifically why the defense requested it, since the judge's comment may represent a clue as to what is in the referral.  And you know we like clues!

Finally, the judge seems to hope he can run this trial without any discussion of just why Libby and others were talking about Joe Wilson with reporters.  That is Fitzgerald's fantasy, of course, since in his world, this trial will be all about Wilson's wife.  Well, good luck - it should make great Kabuki theater if the judge tries to have both sides discussing meetings and memos without actually discussing what was said or written.

And the judge did give Libby materials related to his own efforts to respond to Wilson's allegations, so that stuff is coming in one way or another anyway.

Comments

[Javani]

"Would someone care to argue that such an email is not relevant to the question of whether Andrea Mitchell might have known about Ms. Plame?"

Not me. Also goes to the "all the reporters know" issue. If shown that lots of State and WH officials knew, that would make it more likely reporters knew because, voila, this is a trial about a leaking official. We know they blab.

Decontextualizing the case serve another purpose. It narrows the narrative to fewer people and thereby assists (wrong) inferences that everything Libby did was a breach of super secret secrets. If the jurors are told about UGO and how he was the source of the leak that led to Plame's outing half of them will be thinking, "WTF they trying to convict this guy?"

[patch]

Thank you Judge Walton for this road map:

"Thus, for example, the fact that other governmental officials may have known before July 14, 2003, that Ms. Wilson worked for the CIA is completely immaterial unless that information was shared with either the defendant, Miller, Russert, or Cooper."

Team Libby now narrows down the search to everyone in the government who knew about "Secret Agent" Valerie, and who shared the info with Scooter, Miller, Russert, and/or Cooper.

What the hell that proves is beyond me, but if that's what the Judge wants, give it to him.

[Javani]

"Team Libby now narrows down the search to everyone in the government who knew about "Secret Agent" Valerie, and who shared the info with Scooter, Miller, Russert, and/or Cooper."

What if there were intermediaries, say Mitchell?

This judge is working hard for a conviction. "Completely" immaterial? Overstatement.

Also, why is the judge covering UGO's tracks so much?

[topsecretk9]

I think Ms. Merritt does a good job summarizing too...but I quibble with

I think it will be a tough sell for the jury. To accept Libby's defense, they will have to accept that there was a concerted effort by the White House to discredit Wilson's allegations in his op-ed about his trip to Niger but not him personally. Yet the message other reporters received from government officials was that the trip was a boondoggle, arranged by his wife, a CIA employee.

I don't think it will be a tough sell because this generally revolves on people memories and if the defense can show a few witnesses may have misremembered or not remembered certain things then why should Libby be held to a higher standard...

but Merritt says reporters interpreted the intention to hurt Wilson and Plame, who? Judy said she did not perceive a "smear" campaign, Russert said they didn't even talk about it and the only one who pre-wrote his story "War on WIlson" --had team members talk to Wilson first AND the Judge has found problems with his testimony/and article drafts.

I dunno, better hope Cooper holds up, I guess.

[Sue]

I think we are missing the fact that Judge Walton saw the referral letter and this case is going forward. Plame may very well have been covert. ::yikes::

[Sara (The Squiggler)]

Also, why is the judge covering UGO's tracks so much?

The bigger question, why is EVERYBODY protecting UGO so much?

[topsecretk9]

FYI

I did not mean the above comment to be an attack on Ms. Merritt just a different observation.

[kim]

Cuz' it's Tenet.
=========

[kate]

The case that is going forward is perjury/obstruction. At this point her status is irrelevant.

What are the chances that this case does not go to trial?

[Javani]

Sue,

If she was "covert" they would say "covert". Judge ruling about the secrecy of her job? Haul in the Senate!

If it was a big deal UGO would be going down. CIA would protest otherwise.

Judge writes:

"the only question the jury will be asked to resolve in this matter will be whether the defendant intentionally lied when he testified before the grand jury and spoke with FBI agents"

Oh, so foregone conclusion Russert isn't lying. Nice for the judge to put that on paper, it will be the key media phrase framing this trial.

""The prosecution of this action, therefore, involves a discrete cast of characters and events, and this Court will not permit it to become a forum for debating the accuracy of Ambassador Wilson's statements, the propriety of the Iraq war or related matters leading up to the war, as those events are not the basis for the charged offenses. At best, these events have merely an abstract relationship to the charged offenses."

Yeah, sure, Wilson's statements and acts have an "abstract" relationship with Libby's acts. Haha. Nice move by him to make it seem the Libby wanted to bring up the "propriety" of the war, which would be a rather large endeavor, burying the narrow Joe Wilson involvement in the broader words. Nice trial management, but reversal city for appeals.

[Carol Herman]

Steven Lubet has written a book called LAWYERS' POKER. (Glenn Reynolds gave a link on this to Amazon quite recently.)

But it offers the premise that there are 52 Lessons that a Lawyer Could Learn from a Card Player.

Seems to me, the judge is keeping his cards close to his chest. And, Libby has enough cards so that he fight any conviction, ahead, in APPEALS.

I know that judges try to cover themselves from "appeals" by trying to minimize errors. Still, if it's easy to convict Libby, now, in a DC court; because the judge allows in illiterates. People who couldn't possibly fill out juror forms. And, then expects this to play out well, I gotta add "I JUST DON'T KNOW."

It's one thing to bluff. If all cards are equal. It's another to know that you can't create a FICTION in a courtoom and then let it sit there as the truth.

By the way, DRUDGE is running the headline; WEN HO LEE WON ! I repeat. WEN HO LEE won. And, that case had all the government working together to smear this man for being Chinese. And, hence not trustworthy.

I don't think Fitzgerald has a strong case. And, all I've been seeing is that the judge doesn't care. He wants to be on TV!

"IF" Valerie was "under the covers" so to speak, she was working in a french whore house. And, Americans aren't going to be impressed.

Her book deal also fell through. So a lot of people grab at her for publicity. She gets headlines. But they don't amount to a hill of beans.

Anyway, Lubet's book just arrived. And, I think it looks like a winner. We're always asked to make judgments, as he says, on faulty or incomplete information.

Our Justice System fails completely, however, if it's just a railway car leading to "work sets you free."

[kim]

Ah, yes. This development makes a variety of perverse sense to me. When the prosecutor is off the rails and about to wreck his case in your courtroom you can either allow it, or shove him back onto a narrow enough path that an appeal will be a ride in the country. I suspect Walton sees that his case is so weak that Fitz'll lose even if Wells has one hand tied behind his back.
==========================

[Javani]

Carol:

"I know that judges try to cover themselves from "appeals" by trying to minimize errors."

Oh, he's bending over backward to get a conviction even if easily reversed. He's narrowing discovery, deciding that relevant information could not at all lead to material information.

[Javani]

More from the judge:

"The government does not intend to introduce these articles for the truth of the matters asserted, id. at 1, but rather, only for the limited purpose of demonstrating that the defendant had a motive to make the statements to the media representatives that form the basis for the charged offenses. Id. at 2-7."

Haha. The "truth" of the matter isn't relevant? Fitz needs this document to show a "motive"? He could do it numerous other ways. What he wants is to impress the jury with a secret-sounding like document, from No. 2 no less, and keep up the pretense that some secrets were revealed, all the while not charging Libby for the leak. Libby isn't allowed to testify as to the "truth" of his motive based on the itme read by a jury?

"As such, the truth of the articles has no bearing on the prosecution of this case and the jury will be so instructed if requested by either party."

Yeah, some little instruction will tell the average juror to disregard the import of the article and this big spy story they've heard about.

Start writing the appellate reversal now. I'm sorry I said Libby should be convicted of something in the past. He's getting railroaded.

[Sara (The Squiggler)]

Am I being naive? Maybe the judge already told us that there is no case there for Fitz with his statements about Cooper. Although, if he does feel that way he should dismiss.

Clarice, does the defense have to file another motion to dismiss or is the other one still valid? Can a judge do it on his own or does he have to wait for a motion?

[topsecretk9]

--Am I being naive? Maybe the judge already told us that there is no case there for Fitz with his statements about Cooper.--

I thought the same thing...no sense stinking up with all the classified with that already established fish hanging over.

So on the 26th Walton said Time needed to hand over in five days...can't see where Time appealed (if that is what they would have done)

[Carol Herman]

Well, Judge Walton wants a specific case, it seems, tried in his courtroom. Did Libby commit the acts he's charged with? In other words How did Fitzgerald find "his search for the truth" compromised with the grand jurors?"

Libby spoke to reporters, according to his own testimony, because the Vice President's office wanted to counter the lies that were coming from Wilson.

Now the case hinges on Valerie Plame somehow being hurt? Or our spy capabilities being destroyed. Because of a he said/she said debate with e or 4 reporters?

Even if the case is reduced to one sentence, Libby's not guilty of breaking any laws. Not the laws that put the quest into motion. Not anything like Fitzgerald stated in his presser.

I do remember when Marsha Clark "increased" the OJ case to show he was a wife abuser,judge Ito did not interfere. Nor did the public, watching the case televised, think that Marsha Clark didn't prove that OJ had motive. ANd, the ABILITY (he had the time), to do the crime. But the jury felt otherwise. It's created quite a divide in this country, too. Given that "some" juries have a propensity to nullify the law. And, I guess others, who can indict ham sandwiches, get lost in the nuances that Libby didn't harm Fitzgerald's "search for truth." Nor is it a given that he can't say what he wants to reporters, without going to jail.

So far, the only one who went to jail in this case is Judith Miller.

I think Walton holds WEAK CARDS. But I also think he wants to be on TV. And, he wants to keep the case "small" because then he doesn't have to know a great deal about all the laws. He just stays focussed on his little dilemma. His rulings are odd. But par for the course; if you were to ask the average citizen. The thought that our courts are fair, I think, sailed out the window long ago.

I also think Theodore Wells can work within the confines of the case the judge is willing to try. Because ultimately Libby will get exonerated. Too bad court cases go bad (like Martha Stewart's did), because it's awfully hard putting Humpty Dumpty back together again.

The other thing I notice is that no one knows the name of Wen Ho Lee's judge. Walton, like Ito, aren't as lucky.

[MayBee]

I've have to go look at Ms. Merritt's post. Did she happen to mention anything about Jason Leopold? What is this.. the 3 week anniversary of the 24-hour story that she said she believed?

[cboldt]

Court Order [Doc 112] in HTML / Text Form <-- Mash here

[Dwilkers]

Sue-

I think we are missing the fact that Judge Walton saw the referral letter and this case is going forward. Plame may very well have been covert.

That's the same reaction I had reading it. The judge read the referal and one would think if it was in any way improper he would have said something or there would be some sign.

On the whole I think for Libby we should remember that all of this stuff is material Fitz originally didn't want to turn over. So anything the defense gets is a victory over where they were before. They didn't get everything they asked for but I doubt they expected to.

/shrug

IANAL so its hard for me to guess what they thought they'd actually get out of all these motions anyway.

[clarice]

Defendant gets numerous chances to seek dismissal. He may wait until the case is ready to go to trial. And it is traditional to do it after the prosecutor has presented his case.

I still haven't read the opinion, but from the excerpts I've seen he's trying very hard to keep this from being the kind of wide open fandango that we've all seen in California (where I might add the rules are different and far more generous to the defendant).
It still is a he said/she said case..with 2 of the 3 he saids in serious trouble . Wells will eat Miller and Cooper for lunch on cross.

It's been a while since I really read all the cases on criminal discovery in the US Dist Ct for the District of Columbia, and we have to remember they are less generous than they are in civil discovery. Remember, too, that it is not just the documents that the defendant is looking for, but as well, a sense of how the prosecution is groing to put on his case and how strong it is.

It will also be interesting to see if Negroponte agrees to even provide a summary to Libby.

[clarice]

Thanks, cboldt,,that's so much easier for me to read than the pdf..I appreciate your doing that for us.

[topsecretk9]

--The judge read the referal and one would think if it was in any way improper he would have said something or there would be some sign.--

The only sign I saw was:

Finally, this Court has examined, in camera, the CIA’s referral to the Department of Justice concerning the disclosure of Ms. Wilson’s affiliation with the CIA, and concludes that it is simply not material to the preparation of the defendant’s defense. The defendant’s request for disclosure of documents related to the referral must therefore be denied.

I am guessing the Judge just told Fitz, it's not part of your case.

[kim]

Alternatively, he isn't going to allow the referral letter because he is striving to keep this case only about the perjury and obstruction. Obstruction of what, though?

Another odd thought: Is Walton closing off some avenues in order to preserve other possible prosecutions? Sort of avoiding a double jeopardy sort of thing? I'm having trouble clarifying this thought, probably because it is wishful speculation.
==================================

[kim]

Right, ts, but then wouldn't Walton dismiss the obstruction charge as soon as asked?
==================

[Patton]

Anyone care to guess at Fitz's opening statement that doesn't mention anything but Libby, Russert, Cooper and Miller??

No Wilson, no OP-ED, no lies to be corrected.

If my client wasn't being railroaded to jail, I'd pull a Al Pacino in And Justice For All.

""Ladies and gentlemen of the jury, this court is fixed...my client is being railroaded...you won't be allowed to see the evidence, the CIA referral will be kept from your eyes, even the damn indictment this judge will not allow you to see, so this government can keep you from making up your own minds...."""

[John Loki]

The case that is going forward is perjury/obstruction. At this point her status is irrelevant.

Kate, I disagree. The important fact about 1623 is that only testimony that is "material" can be considered perjurious.

If Plame's was known to everyone prior to July 2003, how can anyone's testimony about a possible leak be material?

[Patton]

So if Libby lied to the GJ and stated his age was 60 when he's actually 61...that's a five year perjury conviction?? That's obstruction??

[topsecretk9]

Kim
I don't know, I just pretend I do.

[Rick Ballard]

Clarice,

How does Walton keep the 'big case' out with Russert on the stand and the subject of the Libby-Russert conversation being explored in full? The presumption is that Libby was hollering about Matthews shilling concerning the war. If that is true then I would assume it would be fully explored in examination of Russert - or in examination of Libby should he take the stand.

[clarice]

He's got a hard job keeping this in bounds, Rick.But here's what I think *whispering in your ear* I think it is more in Libby's interest to have this be a small case IF the judge keeps a tight rein on the Fitz razzle dazzle to hint it was really about a big case as he did in his presser. (BTW when I was away did the letter to the OPR die? I haven't had a chance to look at it.)

I took a quick look at the opinion and notice, for example, that Libby got a promise from the Court that he will advise the jury that there was nothing wrong about the NIE disclosures. I think that was very important for him.

[Javani]

John:

"that only testimony that is "material" can be considered perjurious."

I know but tell that to Bill Clinton. He "lied" about Monica and how was that "material" to the case in which he was being deposed? Worse, the criminal prosecutor/general-inquisitor of Clinton tipped off the civil lawyers toa ask the question. Clinton lied, no surprise. Gave the special prosecutor a "win" after years of investigations going nowhere.

[Sara (The Squiggler)]

that only testimony that is "material" can be considered perjurious.

If Plame's was known to everyone prior to July 2003, how can anyone's testimony about a possible leak be material

What is left? Where is a case for Fitz to try? Is this really a loss for Libby or another of those rulings that when looked at alittle closer turns out to be a boon?

[topsecretk9]

--I took a quick look at the opinion and notice, for example, that Libby got a promise from the Court that he will advise the jury that there was nothing wrong about the NIE disclosures. I think that was very important for him.--

Well shoot, I think that is hugely important...1- Fitz can't insinuate Libby was doing something wrong with the NIE and 2- It reminds everyone he didn't leak anything nefariously in regards to the NIE so he wasn't acting nefariously in this instance either. -- that hs was actually rather careful

[MayBee]

I'm with clarice (sorry, I was eavesdropping as you whispered in Rick's ear).
Every time Walton tells Libby the case is being limited to the smaller case, he is also telling Fitzgerald this is limited tot he smaller case. If Fitzgerald introduces the big case, then Libby gets to defend against that.

Walton seriously means this to be about the little case. On both sides.

[ghostcat]

Which reduces the game to Libby's word vs. the words of Russert, Cooper, and Miller.

[Dwilkers]

I'm a bit baffled, I guess I'm just too tired. I cannot see how Fitz gets to materiality without the referal. There's something about how that works that I am missing.

[Jane]

I dunno, I don't think that ruling is all that devastating. This part works:

" In response to the charges filed against him, the defendant relates that one aspect of his

defense will be that he was not engaged in a sinister effort to punish Ambassador Wilson or

Valerie Plame Wilson; rather, any discussions he had with the reporters concerning Ambassador

Wilson, his trip to Niger, or Valerie Plame Wilson were conducted solely for the purpose of

refuting the accuracy of Ambassador Wilson's pronouncements. Def.'s Mem. at 3. According to

the defendant, his requests for documents relating to discussions he had with other government

officials or news reporters that show that he was simply engaged in legitimate efforts to rebut the

merits of Ambassador Wilson's findings are material to the preparation of his defense, as their

content would arguably support his claim that the government's position that he intended to

make false statements, commit perjury, and obstruct justice is incorrect. In limited respect, the

Court agrees. See, e.g., United States v. Dunnigan, 507 U.S. 87, 94 (1993) (indicating that intent

is an element of a perjury charge); United States v. Montague, 202 F.3d 261, 2000 WL 14169

(4th Cir. 2000) (noting that intent is an element of a false statement charge); United States v.

Baker, 626 F.2d 512, 516 (5th Cir. 1980) (same). Therefore, if the government is in possession

of documents that show the defendant's intent to participate or his actual participation in such

legitimate efforts, those documents must be produced pursuant to Rule 16."

Of course I'm assuming there wasn't some devious plot to out Madam Wilson.

[clarice]

I'm going back and forth between the opinion and here as it's easier--

Here's something else interesting in the opinion:
This reality is not altered simply because the government intends to introduce into evidence at trial
various news articles that discuss Ambassador Wilson's trip to Niger. See Government's Response to Court's
Inquiry Regarding News Articles the Government Intends to Offer as Evidence at Trial. The government does not
intend to introduce these articles for the truth of the matters asserted, id. at 1, but rather, only for the limited purpose
of demonstrating that the defendant had a motive to make the statements to the media representatives that form the
basis for the charged offenses. Id. at 2-7. As such, the truth of the articles has no bearing on the prosecution of this
case and the jury will be so instructed if requested by either party. Moreover, as the government has noted, it is
highly unlikely that it will seek to introduce as evidence the full text of the articles during the trial. And the Court
suspects that it would not permit the government to introduce the entire articles if it sought to do so. What will be
presented to the jury will be addressed by this Court in response to a properly filed motion in limine.

See--Fitz, you are on a short leash..No tap-dancing.

Here's another thing Libby got. The judge agrees that motive is a key element in the false statements and perjury counts and rules:"if the government is in possession

of documents that show the defendant's intent to participate or his actual participation in such

legitimate efforts, those documents must be produced pursuant to Rule 16."

fns 7 and 8 are also interesting:
7
In one of this Court's earlier opinions, United States v. Libby, ___ F. Supp. 2d ___, ___, 2006 W L
574260, at *5-6 (D.D.C. Mar. 10, 2006), the Court concluded that the CIA and the Office of the Vice President were
closely aligned with the protection and thus documents possessed by those entities were discoverable. Id. The Court
will not revisit that ruling here. In response to the current motion, the government contends that the W hite House,
the National Security Council, and the State Department are not closely aligned with the prosecution, and thus
production of documents in the possession of those agencies should not be compelled. Gov't's Opp'n at 32. The
defendant, however, has limited his requests to documents which are in the Special Counsel's possession or which
the Special Counsel has knowledge. Def.'s Reply at 23. This limitation would appear to resolve any issue
concerning what documents are covered by this Order. To the extent it does not, the defendant shall advise the Court
and it will revisit this issue. Therefore, the government at this time is required to produce only those documents
possessed by the Special Counsel or which the Special Counsel has knowledge as limited by this Court's earlier
opinion.

8
Both parties submitted additional pleadings on the issue of whether production of documents should be
limited to government witnesses, or should also include defense witnesses. Although helpful, the Court does not
need to reach that issue as it is simply requiring the production of documents relating to the allegations in the
indictment that are in the physical possession of the government."

[clarice]

Re 7 and 8 , presumably everything Fitz has about conversations Libby had with other officials in other departments and other reporters which show he was engaged in a legitimate endeavor; didn't know about Plame or never raised it..Libby gets. That allows him to show, for example, that he spoke to X number of reporters in that period and only two..very weak witnesses (Miller and Cooper) claim he mentioned Plame to them.

[Sara (The Squiggler)]

What am I missing? This all sounds rather positive for Libby to me, yet TM starts this post with "Libby gets very little."

[ghostcat]

He didn't get much of what he asked for. But that's not necessarily the point.

[cboldt]

More HTML of Court orders, Documents 113 & 114. The first order relates to information regarding Plame's CIA work history and damage assessment resulting from the leak. The secord order is for a status conference relating to discovery, to be held on June 12th.

Protective Order [Doc 113] and Schedule for Status Conference [Doc 114] <- Mash there

[ordi]

Sue wrote:

I think we are missing the fact that Judge Walton saw the referral letter and this case is going forward. Plame may very well have been covert.

Dwilkers wrote:

Sue-
I think we are missing the fact that Judge Walton saw the referral letter and this case is going forward. Plame may very well have been covert.

That's the same reaction I had reading it. The judge read the referral and one would think if it was in any way improper he would have said something or there would be some sign.

I am confused which is nothing new. Can someone explain how and where this doc says our pal Val may have been covert? Also, how could the Judge know whether information and/or her status were properly stated on the referral?

This is what I found in the ruling:

Finally, this Court has examined, in camera, the CIA's referral to the Department of Justice concerning the disclosure of Ms. Wilson's affiliation with the CIA, and concludes that it is simply not material to the preparation of the defendant's defense. The defendant's request for disclosure of documents related to the referral must therefore be denied.

This portion of the ruling does not address her status. It just states the Judge concluded the referral was not material to the preparation of the defendant's defense.

Or did I miss something when I read the ruling?

[eric]

Now I - and seemingly many other here - am not a lawyer, but it seems that a defense that pins its hopes on appeals is not embarking on the strongest legal strategy.

[clarice]

Doc 113 might shed some light on this. There is not a word anywhere that Plame was "covert", but the Govt apparently has evidence that her position was "classified" information:
" (1) The government shall provide to the defense by June 9, 2006, the proposed
substitution recounting Valerie Plame Wilson's employment history with the
Central Intelligence Agency from January 1, 2002, and thereafter.

(2) The government shall provide to the defense by June 9, 2006, the proposed
substitution discussing potential damage (if any) caused by the alleged disclosure
of Valerie Plame Wilson's affiliation with the Central Intelligence Agency.

(3) The government shall, as requested, provide to the defense by June 9, 2006, the
true names of three individuals whose identities were redacted from classified
documents previously made available to the defense, and shall identify for the
defense the specific documents and locations within those documents where those
names should be inserted."

[Dwilkers]

Ordi, at least as I understood it, in order for the referal to meet the minimum requirements for being submitted to DoJ it has to assert that classified information was leaked (among other criteria).

Therefore as has been kicked around a bit, some of us have wondered if the CIA referal actually makes that claim about Plame. We thought it might even be flawed in that way. Apparently it is not...maybe.

[clarice]

Actually, no reasonable prosecutor would have read a possible violation ot the IIPA or the Espionage Act out of that referral, especially after Novak informed him who the leaker was and the circumstances of that leak.Not a single one.

I say that. Victoria Toensing says that. Joe DiGenova says that. No one would have taken up so much time and money for such a pointless case.

I believe that Libby will not be convicted, but I believe just as strongly that Fitz has done his reputation no good by this indictment.

[Sara (The Squiggler)]

I think someone else made this observation, but to clarify ...

If the referral is immaterial
and
materiality is required to prove perjury
and
the perjury is supposed to be about the information in the referral, hasn't the judge just about announced a dismissal?

I know, I know, the little case is about Libby, Cooper, Miller and Rusert. But what can they testify to if anything to do with Plame's status is immaterial. Doesn't that effectively eliminate all the testimony from anyone, except maybe Cooper's welfare question?

[kim]

Yes, S, I'm trying to wrap my mind around that the referral is immaterial to preparation of the defense. I think he's telegraphing that he's ready to dismiss.
====================================

[clarice]

The judge is saying that this was an investigation to determine whether classified information was improperly disclosed, and in connection with that investigation what Libby said to reporters was material . Therefore, if he deliberately lied to the investigators or grand jury about such conversations it would be material.

(Remember, Libby has not argued that the referral; letter was the equivalent of a search warrant and that if it contained false information the prosecution should be dismissed.)

[tryggth]

Would someone care to argue that such an email is not relevant to the question of whether Andrea Mitchell might have known about Ms. Plame?

But Tom, do you seriously think there is anything like this? Perhaps. And if there is, sure, it should be made available.

But for Fitz to leave that open-ended and dependent on the judge's discretion just makes zero sense.

[Sue]

Sorry, I had a time out to watch a basketball game. What does this mean to y'all?

Upon careful review of the government’s requests, its supporting declarations from the intelligence community filed ex parte, in camera, and the original documents from which the summaries were created, the Court finds that the documents and information identified in the government’s Section 4 CIPA filing are extremely sensitive and their disclosure could cause serious if not grave damage to the national security of the United States.

Maybe I'm reading too much into that paragraph. But to me, this is the 3rd judge who has seen the material and we are still going forward.

[Sue]

This portion of the ruling does not address her status. It just states the Judge concluded the referral was not material to the preparation of the defendant's defense.

Ordi,

To me that says that there is nothing in the referral letter that Libby can use to prevent the perjury case from going forward. If it had contained something less than Plame being classified covert (maybe she was still over-classified, I don't know) it would be relevant to Libby's case in that his attorney could use that information to say that Libby was set up to commit perjury. At least that is my take on it not being relevant to his defense.

[topsecretk9]

---Maybe I'm reading too much into that paragraph. But to me, this is the 3rd judge who has seen the material and we are still going forward.---

I don't think so, but if it were damning it would be big case. I think it revolves around what she worked on more than her...which I think has been bashed about a lot.

[Sue]

Not necessarily, Top. Not if Fitz can't prove Libby knew it. And I don't think he did, if she is, until afterwards. Probably not until Novak's column and he starts freaking. Just guessing of course, but if there wasn't anything in the big case (the referral letter) it would seem to me it would be relevant to Libby's defense to his perjury, obstruction, false statement defense. That the judge says it isn't relevant is why I think it shows her status was still NOC or she was a case officer or some such.

[clarice]

You're on the jury..It turns out that Novak and Woodward heard from UGO and he wasn't prosecuted. You hear from at least 5 credible witnesses that Wilson told them about Plame and Wilson wasn't prosecuted. Is there any other reaction besides WTF?

[topsecretk9]

hat got to the questions that are at the heart of Fitzgerald's investigation: Who revealed the identity of Valerie Plame Wilson? Was she a covert CIA agent, and if so, who knew about it, and did the disclosure of her name damage national security?

The Libby side has asked for three things relating to those questions. The first is evidence showing that Mrs. Wilson's job status was classified. (Fitzgerald demurs whenever the word "covert" is mentioned, so the argument is about whether her status was "classified," even though most experts don't see a significant difference between the two.)

http://justoneminute.typepad.com/main/2006/05/byron_york_on_t.html

Just a thought, but the more covert she is, more pressure to do something about UGO.

[Sara (The Squiggler)]

Sue, I read it just the opposite. Seems he is saying there is nothing relevant to the perjury charge at all. In other words, whatever the subject and content of the referral are, they have nothing to do with Libby's case since Libby didn't leak her in the first place.

This whole case boils down to whether Libby said X and one of the 3 said Z. I don't think it even matters what the substance of the conversation was all about at this point. All that seems to be of interest is did their stories match or didn't they and if they didn't was it Libby who was lying.

[ordi]

OK here is a crazy thought that just popped into my head.

Is it possible that her status was changed from non-classified to classified as part of the sting on the Bush Administation? After all we know Joe and Val had "friends" at the CIA that helped orchestrate his little trip.

OK my tinfoil hat is now back on the hat shelf. LOL

[Sue]

Sara,

I hope you are right, because I sure don't want to find out Plame was indeed the super, duper secret spy they claim she was. But I'm reading it the opposite of what you are.

[Cecil Turner]

What am I missing? This all sounds rather positive for Libby to me, yet TM starts this post with "Libby gets very little."

I think it's a disaster for Libby. The whole point (from his side) is that Plame's identity is a relatively insignificant and eminently forgettable detail in a Byzantine collection of much more significant issues. Walton is apparently going to strip away most of the context, but leave the gist of the articles (with the lies), merely informing the jury:

the truth of the articles has no bearing on the prosecution of this case . . .

How do you think most DC jurors are going to react to that? I can hear Libby's plaintive wail now: "we were just trying to tell the truth . . ." He might want to start fitting an orange jumper now.

Maybe I'm reading too much into that paragraph. But to me, this is the 3rd judge who has seen the material and we are still going forward.

I'm not sure what you're reading into it, but that looks to me like boilerplate saying the referral is classified ("serious damage" = Secret, "exceptionally grave damage" = Top Secret) and not material. (Which is appears consistent with Walton's rulings that Libby isn't charged with anything alleged in the referral.)

[Sue]

Ordi,

Cue spooky music. ::grin::

I'm not a lawyer. Clarice is here, maybe she can explain it, but if there was nothing there, it would be relevant to Libby's defense of perjury, obstruction and false statement charges. That the judge claims it isn't tells me somethig is there.

[ordi]

Sue, Thanks for your take. I see what you are saying.

[Sue]

Of course, "somethig" is probably not the same as "something". ::grin::

Doesn't materiality come into play at some point? If what you are being questioned about under oath wasn't a crime to begin with can't that go towards your defense?

[ordi]

Yeah but what is that something? Is it about her status or her job or "something" else?

Only the Shadow knows! LOL

[topsecretk9]

I do remember some Fitz filing in which he sort of stepped back for the "covert" question which made the press conference utterance so baffling...but Sue...your emails (the classified? ones)...I thought I speculated on some thread recently (a few nights ago) that Grossman misinformed Libby (on purpose) and that is why the INR memo he **didn't** share says she is managerial.

In a weird way, I wonder if pressuring for the referral and Fitz demurring from **covert** was the stated goal.

If every note and piece of paper and correspondence has Libby only knowing she was just a managerial, winpac-y analyst and Fitz is holding a piece of paper that clearly states her role and that is completely different than everything than Libby's uttered...that dang referral might just exonerate Libby.

One thing is for sure...the more covert she is, the more suspect UGO getting a pass looks.

[clarice]

Cecil has explained it just fine. I tried upthread.

[Sue]

I don't know Top. If I did, I would be making big bucks instead of sitting here sipping domestic beer and wondering how someone as smart as Libby got caught up in something so assinine. I don't buy the conspiracy to out her. I have never bought that part of the theory Fitzgerald is trying to lay out. I suspect Libby thought she was exactly what you said, and found out before the investigation began she was more than just managerial, WINPAC, or whatever. An "oh shit" moment. That has been my theory all along. If you go back to my very first posts at JOM you will see where I posed just that scenario.

Having said all of that, I do not want Libby prosecuted for perjury, etc. I never have. Not unless they put Wilson under oath and make him tell the truth where he is facing the same charges.

[Sue]

Clarice and Cecil,

I don't get it then. How would it not be relevant that she was just some desk jockey at Langley?

[topsecretk9]

Well, personally --- my own weird hunch--timing wise-- I don't think it was any mistake she was recorded as working for WINPAC under Foley in Vanity Fair.

[topsecretk9]

That bit of VF info came January 17, 2004...so is it any wonder why Plame herself is seeking to **define** the narrative in the form of a book deal preferably by Jan 2007 I suspect

[Sue]

Top,

That could be why Fitzgerald didn't go forward with the big case. Grossman's emails. And Wilson's big mouth.

[clarice]

I don't get your point, ts.

[topsecretk9]

No one testified before the GJ before Jan 2004, right?

[Cecil Turner]

How would it not be relevant that she was just some desk jockey at Langley?

He's charged with lying to investigators and the grand jury on matters pertaining to the investigation. Even if there was no substance to the investigation (as long as it was conducted in good faith), it'd still be obstruction and perjury. And they don't have to prove her identity is properly classified before starting an investigation . . . that could even be one of the things they were investigating.

[Sue]

OT, but the headline at the NYTs is Jobs Report Signals Cooling Economy. Just a thought, but for something to be cooling, didn't it have to be other than cool to begin with? Something they have never acknowledged?

[Sue]

Cecil,

Okay. But isn't it relevant if she was just a desk jockey? Motive to lie and obstruct?

[Carol Herman]

In the world of "sound bytes" let's not forget how Fitz talks to the judge when he's submitting documents! He'a already ACCUSED The Vice President of behaviors that are not in the note Cheney made on the Wilson Op Ed piece!

It seems Fitz (with the judge's collusion) has a very good grasp of what the media plays.

Fitz will do the same thing in the court room! He will give this view of the White House on par with SMEARS and character asassination. It's going to be the mainstay of the "small case."

I'll give Theodore Wells credit, however, for being such a good attorney; and his cross can be devastating, if not constantly interrupted by jackass behaviors from Fitz, and the judge's gavel.

I still say that Fitz has problems with Val. Nicole Simpson proved there's not much sympathy for a blond, no matter what you learned at the movies.

Again, Walton's not an unknown quantity to the lawyers in DC. Plus, Miller, when she walks in to take the stand will have her own attorney (ROBERT Bennett) helping her adapt to they types of cross she can expect. PLUS, he might help her undermine Fitz as well. Ya just never know. What if Fitz has to declare her "hostile?"

The missing referral letter contains the information on who signed it. What if it was signed by Alan Foley? What sort of information, in summary form, does Negreponte have to turn over to the defense?

AND, why assume if Val was deep under the covers that Libby would have known this? Foley doesn't seem to know Val from a whole in the wall. So there's been a set-up someplace.

Harder, now, to dig up those Aspen roots, I suppose? Hardly likely that Walton's case doesn't sprout from a "small seed" into something bigger. Or that bumps don't occur, ahead. If Walton's railroading Libby, I'd think the APPEALS could step in a bit sooner than "after" conviction?

We don't even know if this summer spells the end of Ruth Bader Ginsberg's term on the Supreme's? So? Well, that would put a whole lot of emphasis on the judiciary. And, then the arrangement of the 9 seats also gets to be fixed during Bush's presidency. This, too, is no small thing. The dems are burning up a lot of firewood over small potatoes. Why are they spending so much to roast Libby? IF the case is as small as Walton wants it, there's no way enough rope stretches to get the Veep. Or Rove.

I think Americans hate seeing miscarriages in justice.

[Cecil Turner]

Okay. But isn't it relevant if she was just a desk jockey? Motive to lie and obstruct?

Motive is entirely in Libby's head. What someone at CIA HQ thinks about her status is entirely irrelevant, if it hadn't been passed to Libby.

(Full disclosure: I'm playing Devil's advocate here, and think it is relevant, because I think her actual status was likely to crop up in discussions with Libby or discussions with folks who discussed it with Libby, none of which will be retrievable at this point. But I can appreciate Walton's view.)

[Sue]

Well, Mr. Libby will have to fight this fight through the night without me.

Night y'all.

[Cecil Turner]

Me too. Cheers.

[Tom Maguire]

Well, I was not rocked by the CIA referral comment. Fitzgerald has said all along her status was classified, which I believe. And it may simply be that that is all the referral says.

Or there could be something waffly in there saying that it will be up to the DoJ to determine the applicability of the Espionage Act or the IIPA.

About all we know about the referral is from this letter to Conyers, which said it was about the disclosure iof classified info, not (necessarily) the outing of a covered agent under IIPA, and not (necessarily) a leak of any consequece to national security.

Or it may be that, as noted above, it is not relevant to the defense anyway

[Carol Herman]

What about patriotism? Judith Miller had access to Libby. And, Libby had some idea that talking to her carried enough weight that he could later see things in print up at the NY Times.

Is patriotism too old fashioned to mention?

Would Robert Bennett, Judith Miller's attorney, have any such feelings for country and flag?

When Robert Bennett took Judith Miller on as his client, she was in jail. What issues would stir in his breast, now, as Fitzgerald looks to jail Libby?

What about the law, itself? Lawyers could care less about country and flag?

Why do I think Fitzgerald, even if he has Walton going along with this prosecution, by putting roadblocks in front of Wells, and the information the defense needs to answer these charges in court ...

What about SKILLED PEOPLE HAVING IDEAS THAT ARE NOT THE SAME AS JOE WILSON'S AND COMPANY?

It's odd to me that Joe Wilson is cut a lot of slack by the judge when Walton says Wilson's truthfulness is of no matter.

Because Judith Miller went to jail, until Fitzgerald "lowered his sites" so the only testimony he wanted from her was to "snitch" on Libby; to which she's agreed ... What kind of a witness does that make her, now?

Cooper's interests are locked to the democratic party; because of where his wife sits. In Hillary's camp. But he's got a problem. His notes show he's put forth both "IT's A." And, it's NOT A.

I'm sure Fitz intends to use his pop-up ability, every time Wells asks a question. If the judge goes along and gavels Wells, continuously in Court, so that the jury loses the ability to follow the confusion ... WHICH WAS JUST WHAT FITZGERALD'S BEEN DOING! He's been playing to the media so the media could write about how "confusing" this case is!

The first time I saw Clarice Feldman's writings I began to understand that the case wasn't so confusing, after all.

And, now there are lots of players watching.

It seems that Libby was supposed to be railroaded right at the famous PRESSER. That Libby picked up any sympathy, prior to trial, has a lot to do with this site. And, the American Thinker. And, Free Republic.

Woodward also knocked Fitzgerald off his PRESSER track, when he came out and said "Plame's status was known before Libby said anything." And, he even implicated Pincus in needing a hearing aid.

We now also know about players inside government who were school mates of Wilson. (Marc Grossman comes to mind. But there are others.)

And, the judge is playing CAT & MOUSE! If that referral letter was exposed we'd know who signed it. And, the questions that should be raised against Fitzgerald STILL get brushed away. Why is he protecting the UGO, for instance?

Why was Libby a target?

And, why was there legal manueverings to "get Rove to be perp walked out of the White House?"

By the way, with WEN HO LEE winning today, because the government and the media FOLDED; so that his legal expenses are now covered. And, he's $800,000 richer because ABC and others have agreed to the payouts. What does this mean about the future of "leaks?"

Sometimes, I think this case is Pandora's Box, and Walton just slammed the box shut, locking hope, inside.

If it wasn't for the Internet "injustice" would win. But the rockiest ground Fitzgerald stands on is in public opinion. Here he owns no public trust at all. A lot of good Walton knocking his gavel is gonna do him.

Why is it that bad judges never seem to get punished? And, why do such mediocre people become teachers and judges, anyway?

Yes, the Law contains some brilliant practitioners. Which brought me to ask about PATRIOTISM. What will motivate some of the bigger players, here, down the line? ROBERT BENNETT. THEODORE WELLS. Even Judith Miller. And, Bob Woodward. I'd hate to think that at the end of the day the Wilson's walk away "winnahs."

[MJW]

Well, I agree with Cecil: this is a bad ruling for Libby. It seems to me, Walton is indicating he will allow Fitz to present the "big" case against Libby, with the disclaimer that it's for context, not for the truth of the matter, but he will restrict Libby to rebutting the "small" case. Since Walton has also indicated he doesn't want to prevent dunces from getting on the jury, good luck in conveying the distinction between "context" and "for the truth."

[Patton]

thuis judge is doing a great disservice to JUSTICE i this case.

He is totally relying on the CIA to be telling the truth in the referral. This is the organization that was totally wrong on Iraq WMD then tried to cover that up and put the blame elsewhere.

WHY WOULD ANYONE BELIEVE THE CIA REFERRAL AT THIS POINT, WITHOUT IT BEING OPEN TO PUBLIC SCRUTINY. PERHAPS IF THERE WAS MORE SCRUTINY OF THE CIA AND IRAQ WMD, WE WOULD HAVE GOTTEN A BETTER INTELLIGENCE PRODUCT...but everyone just screams National Security and TRUST US, ITS A SLAM DUNK. That, plus the CIA Inspector Generals office revealing secrets to the press,,,,.

At this point I would place ZERO trust in the CIA

[Patton]

TM ""Or it may be that, as noted above, it is not relevant to the defense anyway""

I totally disagree. This smacks of the KGB and secret prosecutions. It is a terrible direction for our justice system for the government document that CAUSED this investigation and subsequent prosecution to occur cannot be scrutinized in public, nor even be seen by the person being prosecuted.

This taken with the judges comment that the jury cannot see the indictment is not what our justice system was supposed to be about.

It is secret government run amuck. I have no problem with secrecy when required, but the government has accused a citizen and is threatening to jail them for the rest of their life...that to me means the governemnt gave up the right to have secret referrals and secret indictments and must be open to public scrutiny when it prosecutes a citizen.

How do we know whether the referral contains anything? if we are not allowed to see it? Redact anything still classified and release the damn thing, no more secret tribunals with the information only held by government pawns.

[Patton]

Fitz case will rely on circumstantial evidence that Libby may have had reason to lie.

IT IS ALSO PERFECTLY ACCEPTABLE FOR THE DEFENSE TO OFFER THAT THE GOVERNMENT MAY HAVE REASON TO LIE, THEREFORE THE GOVERNMENT FILES RELATED TO THIS CASE SHOULD BE PUBLIC, PERIOD!!

[Patton]

It should matter to this court and to this jury whether the government LIED in the referral, LIED in the indictment, LIED in the Fitz press conference, offered as evidence OP-EDs full of more LIES, wrote submissions to the court with more LIES about Mr. Libby, and has COVERED UP and CONCEALED the role of UGO.

Its not just Mr. Libbys credibility that needs to be tested, but the governments as well,...that is the only way to get REAL justice.

[kate]

The "little case" may be getting even smaller.

I suspect that the only charge standing at time of trial will be the Russert charge. I believe the Cooper charges will fall. While the Miller charge may stand I don't see her helping the prosecution on the witness stand at all.

I recall reading at the time of the indictment that Fitz offered Libby a plea deal but it involved significant prison time. I read that to mean at least a year or two years. I believe that Libby would be foolish to take that.

Any chance that this is settled with a mnre reaonable sentence?

[Patton]

"""about statements he purportedly made to the three news reporters concerning Ms. Wilson’s employment. """

I wasn't aware Libby was charged with making statement to THREE reporters??

What is the judge talking about? Who's the third reporter Libby made stataments to??

[kate]

Miller, Cooper, Russert.

[Patton]

So the judge says the CIA referral is in no ways related to the Libby charges, and he says, the jury can't see the indictment because it makes alot of claims not relevant to the charges and 90% of Fitz pressers was not about the conversations with the three reporters.

So apparently the judge has turned this into a Seinfeld episode where the charges are ABOUT NOTHING.

Can Wells ask the FBI agents:

So why were you interviewing Mr. Libby?

....and what road would that lead down??

So you did your investigation and found UGO had leaked to Novak...wasn't that the end of your investigation??

What is the status of the prosecution of UGO for revealing Plames identity to Woodward and Novak??

[Jane]

I believe that Libby will not be convicted, but I believe just as strongly that Fitz has done his reputation no good by this indictment.

That's my prediction too Clarice.

And I still don't think this ruling is devastating to the defense. The prosecution has to prove Libby's motive to lie and obstruct justice in order to get a conviction. That seems a mite harder now.

What is Fitzy going to say was the reason Libby lied to the GJ? To avoid prosecution for outing a "classified officer"? Surely the Judge won't stipulate that Plame was classified - and then that door swings wide open.

[Patton]

"Miller, Cooper, Russert"

Libby hasn't been charged with making statements about Ms. Wilson to Russert...that's just wrong..does this judge even know what he is talking about??

[kate]

This is frustrating for Libby's team. However, the perjury case will be very hard to prove. I think there will be a plea deal in this case before the January 07 trial. Anyone agree?

[Patton]

Given the judges position, wouldn't it also be immaterial if Libby heard about Plame PRIOR to his conversations with the reporters??

What does that have to do with what he said to the reporters??

I would take it that working with classified information, Libby KNEW alot of things that he didn't share with reporters.

[kate]

You're right. Libby is charged with lying to Russert when he said he did make claims about Wilson's wife, when in fact, he didn't.

What a case, what a triffling, pathetic case.

[Sara (The Squiggler)]

Well I've completely lost track of what this case is all about now.

Can someone remind me exactly what is supposed to be Libby's lie with each of the three reporters?

[kate]

OT-sorta, but not exactly. One of the biggest reasons that I'm losing respect for President Bush, is either his unwillingness or inablility to take on the press.

In this instance, he could claim "ongoing investigation" although that never seemed to stop the Clinton folks from getting their story out.

His support for our militay in the wake of the Marine freenzy has been uninspirational.

He has had tons of non legal instances where he could point out to the American people the poor reporting of the media: Katrina, the economy, the NSA stories, Hassert.

The President is very unwilling to take on his #1 enemy...the media, don't understand.