New Libby Filing — A Bit of Analysis
Team Libby’s Reply Memorandum is an intricate piece of legal wrangling that tries to accomplish a couple of things: (1) Get facts out to both the Court and, I would argue, into the public domain that rebut what Fitz’s last filing managed to stir up with regard to Libby’s role in disseminating cherry-picked favorable intelligence information to friendly reporters as pushback to the Administration critic, Joe Wilson, in an Administration ass-saving maneuver once questions regarding the Iraq War started being raised; and (2) Make some more specific arguments as to why a fishing expedition through the government’s evidentiary files on the whole of th case, including the continuing investigation and potential charges outside the current Libby indictment, is not only proper but necessary for the defense of Scooter Libby.
Huge thanks to Jeralyn for hosting the PDF of this latest Libby filing, so everyone can take a read if they like.
First things first: in terms of legal writing, this is a much tighter document than their previous filing, and to my mind more persuasively written in terms of legal arguments. Doesn’t mean they will win any of them, but this particular filing is a vast improvement from the stilted, archaic argument langauge of the last Team Libby filing. And I just wanted to note that for the stylistic, lawyering record.
That being said, let’s take a walk through the document, shall we? (And for consistency’s sake, I’m using the PDF document numbering when I talk about page numbers, not the numbers on the document itself. I’m assuming most folks will be referencing the document via the online link, and I thought that numbering system would be easier for everyone.)
On pages 4 through 6, Team Libby argues for a more expansive reading of Rule 16 discovery than what Fitz argued in his last response filing. They specifically single out Marc Grossman as an example of why the defense is entitled to more substantial discovery.
What this comes down to between Team Libby and Team Fitz is a difference in perspective in terms of legal interpretation. The government’s interest is actually two-fold in this: Fitz is required to turn over any and all exculpatory material relating to the charges in Libby’s indictment, with or without any more expansive reading of the discovery rules. So that is already a duty that the government has up front. Beyond that, though, Fitz has an ongoing investigation on top of this current prosecution, so he is trying on the one hand to allow for a fair trial for Libby and for adequate discovery while at the same time keeping investigative materials that might tip his hand in the still-ongoing investigation a secret for now.
Frankly, this is a tough call for the judge, and I’m awfully glad that i don’t have to be the one drawing the line through what is or is not discoverable in this. I think there are valid arguments on both sides, and the judge is going to have to go piece by piece through the bits of evidence, I think, in order to make a determination. This is likely to take some time — which may be Team Libby’s ultimate intent in pressing this issue so strenuously.
On page 6, Team Libby argues that they want to tell "the full story" on how the government responded to Amb. Wilson — and how his wife was a tangential issue in the whole of the response. (Never mind that both Libby and Rove specifically addressed her to reporters, I suppose, but Team Libby conveniently downplays this issue. Or that disclosure of any iffy information about the CIA is to be checked out for classification and that disclosure is only to be done on a need-to-know basis — and not just blabbed around town on the media cocktail weenie circuit. But maybe I’m just being an SF-312 stickler.)
They then get into what I think is their strongest argument with regard to Jencks Act materials versus true discoverable issues in the case. Witness statements and other contemporaneous documentary evidence are generally discoverable if and when there is a showing that it is particularly material and relevent to the charges in the indictment andis necessary for preparation of an adequate defense.
The best description that I have found on Jencks Act issues for discovery comes from this great online resource for Hawaii courts:
The "Jencks Act" governs the production or discovery, in federal criminal trials, of written or recorded statements made to government agents by government witnesses. Subdivision (e)(1) statements are those "signed or otherwise adopted or approved" by a witness. Subdivision (e)(2) statements, although not signed or approved by the witness, are "substantially verbatim" written or recorded accounts of oral statements made "contemporaneously with the making" of the oral statements. The language of subdivisions (e)(1) and (e)(2) is virtually the same as that of paragraph (1)(B) and (C) of the present rule. The purpose of subdivisions (e)(1) and (e)(2) of the Jencks Act, according to the Supreme Court in Palermo v. United States, 360 U.S. 343, 349-52 (1959), is to define the "most trustworthy class of statements" of witnesses to be turned over to the defense for impeachment purposes. Regarding the requirement that (e)(2) subdivision statements be "substantially verbatim," the court said: "It is clear that Congress was concerned that only those statements which could properly be called the witness’ own words should be made available" under the Act. Since the purpose of Congress in writing subdivision (e) of the Jencks Act was similar to the legislative intent in adopting paragraph (1)(B) and (C) of the present rule, the Palermo case and other cases construing the Jencks Act, e.g., Williams v. United States, 338 F.2d 286 (D.C. Cir. 1964), will be helpful in defining the parameters of this rule.
The trustworthiness of statements defined in paragraph (1)(A), (B), and (C) is further assured by the requirement that the witness-declarant be "subject to cross-examination concerning the subject matter of the statement." The situation envisioned is one where the witness has testified about an event and his prior written statement also describes that event but is inconsistent with his testimony. Since the witness can be cross-examined about the event and the statement, the trier of fact is free to credit his present testimony or his prior statement in determining where the truth lies. Because the witness is subject to cross-examination, the substantive use of his prior inconsistent statements does not infringe the sixth amendment confrontation rights of accused in criminal cases, see California v. Green, 399 U.S. 149 (1970).
Essentially, what the judge is going to have to do is go through each witness statement at issue and make a determination on materiality and relevance — and whether or not it falls within Jencks Act concerns. Again, this could take a while, if the judge determines this is the necessary step. Libby doesn’t get to just go fishing through the entire government files — but neither does Fitz get to limit discovery that would be useful in the preparation of Libby’s defense. It’s a tough call — and one that will likely have to be made on a witness by witness, document by document basis. Which is to say, there is a long, hard document slog for some legal folks that is likely ahead in this.
On page 9, Team Libby reveals that they may call Joe Wilson as a "hostile witness." This is a specific legal term of art which allows for Libby’s lawyers to call Wilson and question him as if he were being cross-examined. This is something you never really want to do as an attorney — unless, of course, your point is to put pressure on a witness you think might fold. I think that’s a pretty big gamble with Joe Wilson.
On page 11, Team Libby gives a shout out to George and Dick in this form:
The defense has the right to argue at trial that Mr. libby’s actions with respect to the NIE were authorized at the highest levels of the Executive Branch, and would be entitled to bolster such arguments with documents and testimony.
Is it me, or does that say "I’m gonna subpoena your ass unless I see a big, fat pardon."?
Pages 13 through 15 walk through the arguments on discovery — using the Safavian case ruling as a point in their favor in terms of discoverability of requested documents that may corroborate Libby’s testimony or bolster his defense. The interesting part here for me was the zeroing in on Grossman, Fleischer and Rove. That could get very interesting, couldn’t it?
Pages 19 through 23 concentrate on several issues that all point to motivations for lying — including that Libby wants to argue his case by making points about the bureaucratic infighting between the State Department, the CIA and the White House (which just brings up that whole cherry-picked intel to bolster the WH position, and essentially lying to the public by not revealing all of the critical evidence as well — another shot across the Dick and George bow).
There was a VERY interesting bit on p. 20:
…contemporaneous documents reflect the points that Mr. Libby was to make to reporters, and these documents do not include any information about Wilson’s wife. (emphasis by Team Libby — no doubt a Babs Comstock addition as a Cliff’s Notes to the press corps)
This suggests to me that Libby had written talking points about what to say to Judy Miller and other reporters. Well, isn’t that interesting? Who drew these up? Cheney? Rove? The members of the WHIG? Libby himself? Who gave them to Libby? So many intriguing questions spring to mind on that single little new tidbit, don’t they?
Finally, there is an argument centered around page 26 which discusses the need for discovery of the CIA referral documents. Team Libby changes its focus once again, this time to a perceived need to potentially cross-examine George Tenet as to his potential biases and the need for this referral document to ascertain whether or not he has some bias.
All in all, an interesting read — some changes in focus and a narrowing of scope in terms of what Team Libby is willing to call acceptable for discovery. (From everything Fitz could possibly gets his hands on down to only those relevent things that Fitz actually has in his possession at this point.) The judge is likely to narrow this down even further, with a ruling that splits the difference between both sides — which is guaranteed to make neither side happy. I don’t think Team Libby will win their full argument on this — but they might get some expanded discovery out of this. And really, that’s better than nothing.
But we learn that Libby had a primer document on exactly what to say. And that mystery in and of itself is worth the price of admission in this reading.