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Great Big Libby Case Update, Part I


I’ve been insanely busy the last few weeks, and Fitz and company haven’t exactly been standing still either.  So I thought I would do a huge update on all those Libby things I’ve been trying to get to, but haven’t been able to hit because of pressing news issues or live-blogging needs or life in general.  So for all the Traitorgate aficionados, this is your lucky day.

I’m going to start with a review of the February 23rd hearing transcript which Jeralyn graciously posted on TalkLeft — but which is fairly lengthy and dense and required a lot of concentrated reading to pull out the interesting bits — so I apologize for not having had the time to do it from March 28th (when Jeralyn originally posted it) until now.  (NOTE:  This article covers only the hearing transcript from Feb. 23rd.  I plan on a later article, either this evening or early tomorrow on the remainder of the update, but my daughter has a bit of a fever today, so my timing may be later rather than sooner, depending on her health today.  Just FYI.) 

Emptywheel already tackled this as well here, and it is a great read, for those who can’t get enough Traitorgate — specifically on the importance of the Matt Cooper information and its implications for Libby. 

The hearing begins with Team Libby’s argument (via Wells) that the defense of their client is hamstrung by the redacted and still-classified bits that have been submitted ex parte to the Court, but have not been given to Team Libby at this point.  On Page 3 of the transcript, Fitz rebuts that rather handily with a smack at all of the leaks which have been coming from the defense end of the case (most notably from Luskin last Fall, I might add, in representing Rove’s interests in the press…a whole lot of the press).

The Court responds to this by saying that the investigation is clearly still an open one, and that he has to balance the pending investigation and its need for secrecy and on-going digging and fact finding, against the needs of Libby and that, for the moment, he does not find that the materiality and potential Brady arguments of the defense to merit disclosure when weighed against the government’s interest in protecting the ongoing investigation.  But that the Court will continue to review this as they go forward.  (Transcript p. 4)

On Page 5 of the transcript, we learn that Fitzgerald’s team has turned over an additional 250 pages of handwritten Libby notes to the defense team — and that these will require further transliteration, and then declassification review once they are typed up for everyone to be able to read.  (My thought here was "Jeebus, how bad is this man’s handwriting?"  And then I remembered the quote about Libby’s careful penmanship, and I’m not understanding how this requires so much translation.  And wasn’t it in one of Woodward’s books about the careful penmanship?  I need to find that exact quote again, but it sticks in my mind this morning.)

The attorneys then move on to the argument on how much information Libby needs to "refresh his recollection" — or whether Libby is really trying to go on a fishing expedition to find a better hook for the jury in the PDBs.  On pages 6 through 7, Wells argues that Libby needs the full PDBs to flesh out his swiss cheese brain.  Fitz counters that the period of time in which Libby’s conduct is called into question is a very compact period — between July 7th and July 14th, and that Team Libby is requesting documents from far too broad a period.

There is quite a bit of discussion back and forth between the lawyers from both sides and the judge on this, with the bottom line being that there are too many issues at play for the judge to make an immediate ruling — and that the judge wants the lawyers to break this down into distinct pieces for argument.  So they back up at that point to the question of whether "all the reporters knew and told Libby" (argued by Jeffress) and the issue of "Official One" (the initial Novak source) still being an "innocent accused" under seal. 

There is an interesting back and forth between Jeffress and Fitz on Pages 14 and 15 of the transcript.  Jeffress appears to minimize the conduct of "Official One" in discussing Valerie Wilson with a reporter (or two, depending on whose statements you are reading on this, but I think it is two — Woodward and Novak), by saying something along the lines of him "not committing a serious crime." 

Fitz rebuts this concern by stating first and foremost that this particular trial is not about every single aspect of the case — it is about Mr. Libby’s unlawful conduct which resulted in his indictment on five felony counts — and for those felony counts, and those only at this point, Libby is to be tried.  Fitz then goes on to succinctly sum up the fact pattern of Libby’s conduct, and I have to say it is a fairly damning read when it’s laid out in summary form.  It’s all information that we already know from the indictment, but in bullet point format from Fitz.

If Mr. Russert didn’t even know it, he couldn’t have passed it on. I think we have to focus that it is not just one part of the statement but he’s claiming to have truthfully said to these people he didn’t even know if the man [Wilson] had a wife but he [Libby] had been discussing it multiple times, and I think we go to far a field [sic] and jeopardize the rights of innocent people if we start turning over an investigation of someone else. (Transcript p. 15. Clarification points mine.)

There’s also a bit of back and forth about Andrea Mitchell’s brag then take it back that she may or may not have known something, but maybe not.  Wouldn’t we all like to know the whole scoop on that aspect of this.  (I know Tom Maguire would.  *g*  But I’d sure like a full explanation on that as well.)

On Page 15 of the transcript, we also get confirmation from Jeffress that, indeed as was reported in E&P earlier, that either Woodward or Official One recorded their conversation.

On page 16, Judge says that Libby’s arguments on wide-ranging discovery on this issue do not reach the materiality standard nor the Brady standard that they need to reach for discovery.  And that he simply is not going to permit a journalistic fishing expedition without that showing.

They move on to a discussion on what has been redacted and is still under seal (Transcript, p. 17-20), and how the defense team can deal with the "Official One" issue in defending Libby.  I have to say, this is a tricky issue for both sides, and I can see the merits of both arguments in terms of trying to defend your client against an unknown versus protecting an ongoing and open investigation and the information therein.  The judge reserves a ruling on specific documents until he can review the Section 4 CIPA filings that Fitz will submit in accordance with the regulations surrounding such ex parte submissions and the classified information that is implicated.  It’s a tough call on this.

The deadlines for media subpoenas were moved, so the defense team must submit subpoenas to be returnable for the 7th of April, with arguments on any Motions to quash the subpoenas set for the 23rd of April.  What this means is that the media subpoenas will go out and be served at the beginning of April, and lawyers for the various reporters and media entities will then have an opportunity to argue against the specific reporter/news outlet having to provide documents or testimony — and those arguments will be set for the 23rd of April at 2:30 pm ET.  (Transcript, p. 21-22.)

The judge then hit the graymail issue head on with regard to the Team Libby request for the PDBS (or as Cheney calls them, the "family jewels").  (Transcript, p. 23)  There was an odd bit at the top of page 24 of the transcript, where Wells is describing the level of detail of the briefings and who gets more information and who gets less.

But in Mr. Libby’s book that was only one part of his book. [Referring to President Bush’s PDB portion.] Then in his book was part two which the vice president gets. So the vice president gets more than the president. Part three of the book was there for Mr. Libby. Mr. Libby got more than the president and vice president. So the book was in three parts. (Transcript, pp. 24-25. Clarification mine.)

Now I have no earthly idea if that is the way briefings are normally done in all administrations, but doesn’t it seem a bit odd that the vice president’s chief of staff would be getting the most information? Is it me, or oughtn’t the President and his National Security Advisor be the ones getting that? Does anyone know if this is the way it has always been done — because this just reads very oddly to me? There is a lengthy argument as to whether or not Libby needs the PDBs as a prop up for his defense — Fitz argues that Team Libby hasn’t even bothered to request Libby’s calendar and that this is essentially a graymail tactic.  (Without saying it right out.)  (Transcript, pp. 26-27)

Besides his own memory of what was so important, I mean if it’s important enough — I know this about memory, and I’m not an expert, if it’s important enough to sort of block out what else you are doing, you should remember the topic. You don’t forget broad strokes. And if we’re getting down to the level of detail at PDBs, I’m very worried…. (Transcript, p. 27.)

On pages 28 and 35 of the Transcript, there is a fascinating glimpse into the workings of these high level intel briefings and what questions from those being briefed would trigger in and among the intelligence agencies. And from Fitz’s description, you can see just how an off-hand remark from Dick Cheney on having someone look into the yellowcake/Niger/Iraq issue led to Ambassador Wilson eventually being sent. Truly fascinating stuff.

Fitz goes on to argue that Libby should not be allowed to simply go on a fishing expedition in and among the PDBs and other documents to find his own hook for the jury.  That either Libby knows what he was doing at the time or not, but that fishing for a better story within the documents ought not to be allowed.  (Transcript p. 29)  There is quite a bit of back and forth between Wells, Fitz and the judge on this issue, with Fitz going back again to the concentrated efforts that Libby was making the week of July 7th through the 14th to discredit Wilson.  (Transcript, p. 32.)

I want to highlight an amusing aside here for a moment, because it is emblematic of a lot of courtroom interaction that I’ve lived with as an attorney and that every trial attorney lives with at some point.  On page 33 of the transcript, Wells is dressed down by the judge for interacting with someone in the gallery (likely an associate who has been working on that particular aspect of the case or perhaps someone from the CIA legal department or whomever).  The judge gets miffed because Wells diverts his attention from the Court while the judge is speaking to him.  Most judges run a very tight courtroom ship, and that truly is what happens when you run afoul of their individual courtroom rules.  It’s not a big deal, but I thought I’d mention it because lawyers live with this day in and day out in court.

Back to the arguments on the PDBs and other classified materials, Fitz reminds the Court that he has a Section 4 disclosure coming up which might shed some light on this.  And reminds the court of the squirrelly behavior that Libby was exhibiting with his reporter and administration contacts regarding Valerie and Joe Wilson.  (Transcript, p. 35.)  He refers specifically to Libby’s request that Judy Miller quote him as "a former Hill staffer," and meeting with people off premises from his offices, which was apparently odd for Libby.  And then Fitz says, "There were some unusual things I won’t get into about that week." referring to that July 7th through the 14th timeframe.  (Transcript, p. 35.) 

Well, isn’t that interesting?  Don’t know about you, but that gets my mind whirring and I’m going to have to go back through my notes and posts on that tidbit.

Fitz also makes clear that Libby’s behavior and statements to others showed that he knew or should have known that the information regarding Valerie Plame Wilson was classified and that its release was potentially damaging, and that they have evidence to that effect.  (Transcript, p. 39)  (Such as the conversation where Libby said they couldn’t talk about it over an unsecure line, just as an example, as documented in the indictment.) 

Wells tries to argue for disclosure of Valerie Plame Wilson’s status information and the damage assessment based on a "good lawyering" argument as a need to best represent his client.  I thought this was a very clever argument with the court, frankly, since arguing this based on the charges indicted weren’t gaining them the necessary traction.  (Transcript, p. 39)  Fitz again brings this back to the charges in the indictment — perjury, false statements and obstruction — and says that the Court should hold its ruling until it receives the Section 4 filing under CIPA in terms of what the defense ought to know or not know about the initial CIA referrel, Valerie Plame Wilson’s status and any damage issues that may or may not be known at this point.  The Judge concurs.  (Transcript, pp. 40-41).

All in all, it’s a fairly routine hearing in terms of scheduling and arguments, it’s just that the stakes are so very high in terms of the national security matters and documents which are being bandied about between the lawyers in this.  I was impressed by the immediate command of documents that Fitz showed in the discussion with the court about the ex parte submission on pp. 16 through 18 of the Transcript.  All in all, an intriguing read.  And the question on what else Libby was doing that caught the investigators’ and Fitz’s team’s attention during that crucial week is one that I’m going to be pondering for a while.

It’s a long read, but well worth it for the rich detail.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com