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Judge Rules in Libby Case and Other Matters

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Catching up on all things Libby and Traitorgate, there are a few quick matters of housekeeping in this case that I wanted to bring to everyone’s attention. 

Jeralyn caught up with the media subpoenas which have gone out from Team Libby:

CASE #: 1:06-mc-00123-RBW: NBC NEWS & AFFILIATES

CASE #: 1:06-mc-00124-RBW: MATTHEW COOPER

CASE #: 1:06-mc-00125-RBW: JUDITH A. MILLER

CASE #: 1:06-mc-00126-RBW: ANDREA MITCHELL

CASE #: 1:06-mc-00127-RBW: TIM RUSSERT

CASE #: 1:06-mc-00128-RBW: TIME, INCORPORATED

CASE #: 1:06-mc-00129-RBW: NEW YORK TIMES COMPANY

Well, not any huge surprises here in terms of media subpoenas, although I do wonder about people not on the initial list (Pincus, anyone?  Woodward, even?). We knew Andrea Mitchell would eventually have to explain, under oath, her wacky comments on MSNBC and then the corporate take back of said comments.  Media attorneys have until April 18th, 2006, to file any motions to quash the subpoenas (meaning they have until that date to fight having to produce any documents or other evidence as requested by Libby’s subpoena) and hearings on those motions have been set for May 5, 2006, at 1:30 pm, so mark your calendars if this is of interest.  (Jeralyn has included the Judge’s order in her post — worth a read.)

The Judge in the Libby case issued a Memorandum Opinion on April 5, 2006 (PDF via Tom Maguire), regarding the issue of ex parte submissions by the government to the Court for consideration regarding classified matters that the government wants to keep classified — either as a refusal to turn over the documents entirely to the defense or regarding portions of documents which the government desires be redacted before defense counsel gets them in discovery. 

An ex parte submission means that one party submits the information to the judge, but the party on the other side does not get to see that information unless and until the judge says they are allowed to do so.  Courts try to limit this as much as possible because of the obvious one-sided nature of the discussion and the risk of bias against the other side.  Let alone the risks inherent in keeping material from being tested by both sides in a trial.

Jeralyn hits on a point that Team Libby wins on:  they are authorized to submit a brief to the Judge outlining their thoery of the case for the defense, which essentially gives the Judge a road map to what Libby’s strategy will be at trial.  This will allow the Judge to keep this in mind when reviewing ex parte submissions from Fitz as to whether or not an order of disclosure would be material to Libby’s defense and whether it would be appropriate.

I think this is both a blessing and a curse, in a lot of respects.  I’m assuming that the Judge will allow for an amended filing, should additional evidence or theories arise as Team Libby goes through the discovery given to them by the government.  But in filing a brief like this, as a defendant you necessarily limit yourself to what your lawyers are looking at for your particular case.  When you leave something like this to a judge’s discretion, especially one who is well-versed in trial proceedings and has been on the bench for a while, sometimes their understanding can be broader than an attorney who has tunnel vision with their own set of facts.  Libby’s attorneys are highly qualified and very experienced, so it is unlikely they will fall into the tunnel vision mindset, but even the best of attorneys can get a bit myopic when they are living and breathing a case day in and day out with motion production and can miss something.

It will depend on how heavily the Judge relies solely on Team Libby’s representations and how carefully those representations are crafted as to how this can favor or limit Libby down the road.  (And this is not something new — this sort of thing has occurred before in high level security clearance cases.  See US v. Poindexter, 732 F. Supp. 142 (DDC 1990) as one example — sorry couldn’t find a link on this case, if anyone can locate a good one, I’ll link it up.)

That said, the rest of the opinion is pretty much a win for Fitz’s team — which, given the CIPA regs and the allowance for ex parte submissions even in Rule 16, wasn’t exactly a shocker.  This was always going to be a tough argument for Libby to come anywhere close to winning, let alone getting anywhere with it at all.  And basically, he doesn’t. 

As looseheadprop said in the comments yesterday:

The juges decision which Christy will digest for us tomorrow is in response to some really bullshit carping about Fitz filing thing ex parte (the judge can read it but the defense cannot) and filing things underseal. One of their arguements in their motion was that the American people have the right to know what’s going on in this case.

So, the judge acknowledges that Fitz cannot be prevented from filing ex parte or under seal, but if the court feels it’s being done unfairly or abused, the documents will be unsealed by the court. All good.

It gets better, the the judge asks all “pretty please” would Fitz TRY not to file anything under seal if he can avoid it.

Well, the way you avoid it is by letting whatever parts of it you want to be public! ANd the defense can’t complained because they demanded it.

The snark of it all. The glorious irony! I love irony.

Honestly, Libby can’t exactly complain that the Presidential Daily Briefing is held close to the vest, given that his prior boss, Dick Cheney, referred to it as the "family jewels."

Even though the President and the Veep clearly treated some of the family jewels like they were only so much cubic zirconia when they sent Scooter to pass them around to his galpal Judy. Just because they hold national security secrets as their own personal political football to do with as they will, while holding other matters equally classified even from Congress because they might make the Administration look bad — it doesn’t mean the rest of us can’t have some respect for the principles involved in this process, does it?

All in all, I think it’s a more than fair ruling.  The Judge allows Team Libby to lay out for him what they are looking for from Fitz in discovery.  This gives the Judge a better eye toward what ought to remain calssified, and what he might want to consider more closely as he weighs both sides of the argument.  To get to that, however, the Judge must first make a determination of materiality overall — and that is really going to get to the heart of things for Team Libby.

My guess is that this Judge runs a tight ship in court.  He’s going to allow Libby some room, but will not allow him to just shove forward random theories in an effort to confuse the jury.  Libby is charged with perjury (2 counts), false statements to the FBI investigators (2 counts) and obstruction (five felony counts total).  He ought not have a kitchen sink defense strategy, but should be required to stay within his indictment parameters.

Thus far, I haven’t seen anything that this Judge has done that says to me Libby will be allowed to do anything other than that.  And looseheadprop is correct in saying that Team Libby has now opened the door a bit wider for Fitz in terms of what he will and will not be legally allowed to release to the public.  Which is all the better for those of us who follow this case closely.  More information is always better for our speculative purposes, isn’t it?  But it’s not necessarily better for Libby — and as this week showed, it’s also not necessarily better for the Bush Administration.

Could be a bumpy ride…

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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

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