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Hey, Team Libby…(Part II)


Continuing in our analysis of the Government’s Response of 4/5/06 (PDF), we turn to page 11 of the filing.  In this section, Fitz points his analysis right back to the indictment itself — and reminds Team Libby that the four corners of the indictment are the important portion for discovery analysis.

The second paragraph on page 11 is guaranteed to give all the wingnuts fits, so I’m going to spend a little bit of time typing this in very slowly, so that even the most kool-aid imparied individual might understand:  when Fitz says "…indeed, it is irrelevent whether Mr. Wilson’s wife actually did work at the CIA or actually did play a role in aranging the trip, or how State Department employees viewed the results of the Wilson trip," the only thing to which he is referring in that context is irrelevant to the particular charges in Libby’s indictment — namely perjury, obstruction and false statements.  And he is correct — that information is irrelevant to the consideration as to whether or not Scooter Libby lied — under oath and/or to FBI agents — and blocked the further investigation of the case.

And let me type this especially slowly:  Fitzgerald is not saying that whether or not Valerie Plame Wilson worked for the CIA or was a NOC is irrelevant to the ultimate question of IIPA or Espionage Act violations.  This statement is a very narrow, very purposeful legal argument based upon Libby’s current indictment and charges therein — and nothing else.

Fitz continues the discussion with regard to what is and is not relevent to the charges in Libby’s current indictment contrasted with what has been requested by Team Libby — and points out repeatedly that they are not entitled to every piece of information that Fitzgerald’s team has in their ongoing investigation, but only such information as is material to defending Libby against his current charges.

Nor has the defendant established any connection between the documents defendant has demanded and any relevent testimony Mr. Rove or Mr. Hadley could provide. The trial in this case necessarily will focus on whether or not defendant committed perjury. While defendant may prefer to put the conduct of others on trial, he is not entitled to do so. Nor is defendant entitled to discovery so that he may examine witnesses at trial regarding their conduct and the conduct of others that is not germaine to the issue of whether defendant lied and obstructed justice.  (pp. 15-16)

Ouch. It’s painful for Libby, but it is true:  you do not get to re-write your own history as the actions that you wish you would have taken.  Your conduct is viewed by the court and the jury as it was done at the time.  And no amount of finger-pointing today changes the facts as they were and are.  You don’t want to be faced with your own criminal behavior?  Don’t commit a crime.  (It sounds harsh, and I know with this Administration there are a whole lot of people who have been swept into a net without any charges whatsoever — but that’s not what I’m talking about here.  Apples and oranges.  If you lie under oath to a grand jury — repeatedly — and to FBI investigators, you get what you have coming to you.  But then, I’ve never been asked to provide a firewall for my bosses at the highest echelon’s of government…nah, you still get what you have coming to you.)

On page 18, Fitz calls the Barbara Comstock public wingnut "attack Valerie" argument for what it is — a smokescreen meant to shift the public and the jury’s field of vision away from the alleged criminal activity of Libby — or, in the words of the response, "to provide an irrelevant distraction from the issues of the case."  (See my commentary above on the CIA employment issue/perjury.)

At the bottom of page 18, there is an interesting moment wherein Fitz discusses Libby’s current indictment in terms of what was "in context the state of mind of defendant and others working in the Office of Vice President at the relevant time, nor explain why defendant was likely to have forgotten conversations about the topic in which he participated."  What an intriguing choice of phrase "an others working in the Office of Vice President, isn’t it? 

Fitzgerald goes on to point out that "the evidence will show" (which is a classic opening statement phrasing at trial, just fyi) that:

…the July 6, 2003, Op Ed by Mr. Wilson was viewed in the Office of Vice President as a direct attack on the credibility of the Vice President (and the President) on a matter of signal importance: the rationale for the war in Iraq. Defendant undertook vigorous efforts to rebut this attack during the week following July 7, 2003. (p. 18)

Two things as I read this: (1) Fitz is confident he has the goods to back this up and (2) wasn’t the use of the parenthetical, almost portraying it as an afterthought for Libby and the Veep, on (and the President) a very interesting choice here?  Maybe I’m just tired and punchy and reading too much into this, but I think we see where a great deal of the focus is for Fitz in the repeated references to the Office of Vice President.  And I wonder how much of this pointed focus came about as a result of Rove’s machinations and how much information he may have given over to throw Libby and Cheney and pals at the Veep under the bus?  Interesting, no?

What I read overall from page 18:  "I’ve got you by the short hairs on this."

The final bit of analysis in this is coming up in Part III.

Hey Team Libby…(Part I)

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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