From an AP article on Judge Reggie Walton, the judge in the Scooter Libby case:
Walton’s role also may be crucial regarding the use of classified information and whether documents sought by Libby’s lawyers are relevant. If Walton rules against opening classified files to the defense team, Special Counsel Patrick Fitzgerald’s case would move to trial.
If Walton rules that Libby must be allowed to present certain evidence that is currently classified, all or portions of the case could be dismissed if the intelligence bureaucracy refuses to declassify the material for use in court.
A lot of people, including yours truly, would love to see Libby facing Espionage charges, and the indictment certainly seems to indicate Fitzgerald had the goods. But in choosing to bring these particular charges rather than others at this point, he may have been anticipating this kind of an end-run. As Fitzgerald said in his press conference:
[A]t the end of the day, I think I want to say one more thing, which is: When you do a criminal case, if you find a violation, it doesn’t really, in the end, matter what statute you use if you vindicate the interest.
And in the recent affidavit Fitzgerald filed, he states:
Because the indictment in this case charges obstruction offenses rather than substantive national security crimes, it is hoped that the case can be tried with a minimum of issues concerning classified information needing to be resolved, and thus that the trial may be conducted in as public a manner as possible.
Scooter’s looking at 30 years. I’d say that vindicates the public interest, especially if it allows BushCo. a minimum of opportunity to screw the pooch by refusing to declassify certain material.
Furthermore, as rwcole said in the comments:
Sounds like Fitz decided to take Libby down using the OLD Grand Jury — partly to insulate the evidence that would go to the NEW grand jury.
This will help him to keep Libby’s grubby mitts off evidence (if any) to be used in the big case – the espionage conspiracy case. Libby, of course, might get an invitation to that event as well — but he’ll have to wait with the other defendants to see what Fitz has against him.
Like I needed more reason to believe Mr. Fitzgerald is smarter than me. He’s putting the squeeze on Libby hard, and there is damn little wiggle room.
Update: Emptywheel has a great forray into Scooter and Dick’s history of press overreaction and demonstrates quite ably that their Wilson smear campaign was right in character.
(graphic by Monk at Inflatable Dartboard.)