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The Miller’s Tale (And Other Legal Wranglings), Part I


Well, well, well.  Team Libby has opened up a whole new front in the war on incarceration, and I have to say their response brief is going to engender some serious wrangling over the next few weeks.  The media motions hearing on May 16th is gonna be a doozy. 

And the intrigue we’ve all been wondering about — the quaking aspens, the St. Regis tete a tete, the Valerie Flame Victoria Plame Valerie Wilson bits and pieces — maybe, just maybe, we’ll get an answer or two out of this.

But if I were Scooter, I’d be worried about Judy Miller.  Nothing spells trouble like a diva scorned.  (Especially a diva who is familiar with how the news biz works and knows how to get the word out.)  And the way this brief reads, she’s not only yesterday’s pal, but she’s been used, abused and flushed like ratty old TP from the bottom of Scooter’s wingtip.  Yowch.  And after all that obfuscation and parting of the waters that she gave to Scooter, this is the thanks she gets?  Methinks her Judyship is not going quietly into that dark night. 

Central to the entire Team Libby argument is a series of cases that interpret the requirements for "discovery" and "subpoenas" under Rule 17 of the Federal Rules of Criminal Procedure, regarding subpoenas for evidentiary matters (things like documents, notebooks, diaries, bar napkins, that sort of thing). 

Discovery is the process by which one side is able to view and test the evidence to be offered — either by the opposing side in litigation, or by witnesses who are to be called by one or the other.

A subpoena is simply a formal document, filed with the court, which demands the production of some tangible object — a document, a knife, etc.  The subpoena is then formally delivered to the person who holds that object to be produced — an example would be a subpoena to Judy Miller for her to produce her reporter’s notebook with the "Valerie Flame" reference in it.

A "motion to quash" is a motion filed on behalf of the custodian of that requested evidence, asking the court to put a stop to the subpoena so that the object requested does not have to be produced to the person who sent the subpoena.

Now that we have the legal definitions out of the way, we can get to the meat of the Team Libby Response.  (Tom Maguire is hosting the PDFs of the filing at JustOneMinute, in case you want to read the originals.)

On p. 1, Team Libby begins with a little jab at Fitz — saying that they have had to subpoena all this material because Fitz and his team had not already done so, trying to intimate in this perhaps that the investigation was less than thorough.  This is a typical haggle between the prosecutor and the defendant, and not remotely something new in a criminal trial motions context, but it’s amusing to see that the same old back and forth is still going on, no matter how big the case.

Team Libby goes on to detail from whom they have subpoenaed material, including Judy Miller, the NYTimes, Andrea Mitchell, NBC News, Matt Cooper and Time Magazine.  In fn.1, p. 2, they go on to say that they’ve also subpoenaed information from Tim Russert (who says he has none to give in document form); ditto that for CNN; and Bob Woodward, who has already provided the memorandum of his interview with Scooter (of 6/27/03).  Then there is this curious last sentence wherein Team Libby says that Scooter chose not to require that the WaPo produce documents it furnished to Fitz, but which the judge has already ruled that they contain information to which the defense is not entitled — but Team Libby phrases it as "do not have to be disclosed to the defense."  This is, of course, regarding Woodward’s other source (who presumably may be or is Novak’s source as well, depending on who you read) — so I suppose Team Libby will have to move on to Plan C to publicly expose whoever this person is.  (And let the rampant speculation continue.)

There is some substantial presentation of the Team Libby version of standards for discovery via subpoena and, for the most part, they manage to make the argument in a straight-forward (albeit somewhat repetitive) fashion.  They rely heavily on the US v. Nixon case.  (You can read more about it here.)  And they concentrate heavily on its three-prong test:  relevance, admissibility and specificity — taking its cues from an older case (in Iozia)

As both parties agree, cases decided in the wake of Bowman have generally followed Judge Weinfeld’s formulation in United States v. Iozia, 13 F. R. D. 335, 338 (SDNY 1952), as to the required showing. Under this test, in order to require production prior to trial, the moving party must show: (1) that the documents are evidentiary 12 and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general "fishing expedition."  (Nixon at 699.)

The problem with their reliance on Nixon, as I see it, is that the opinion gives the full discretion for whether or not discovery for impeachment purposes prior to trial is warranted to the presiding judge — who makes this determination based on the individual facts and circumstances of the case at bar.  In the Nixon case, you had scratchy tape recordings that would have had to be transcribed by a typist into readable form for discovery purposes.  In Scooter’s case, they are using his crappy penmanship (or at least their claim that it is) and the time it is taking him to decipher his own notes as a reason for a lengthy discovery period for all of these other documents — documents which might generally not be admissible until trial, to be given to the defendant only when there is a need for impeachment purposes depending on the testimony of a particular witness.

In other words, it’s not a sure win for Team Libby on this argument — they may get some of what they want, but I’d bet not all of it — and a lot of this is going to have to be reviewed by the judge "in camera" (by himself prior to Team Libby or Fitz seeing it) before a determination is made as to whether or not it is relevant, admissible and specific.

In pp. 7-9, Team Libby argues that Scooter didn’t much care what Joseph Wilson’s wife did for a living.  (Never mind that dossier he wanted worked up on Amb. Wilson or the carefully prepared notebook of oppo that Libby reportedly carried around with him or anything).  There is a curious legalism that I wanted to point out from p. 7:

Documents showing that Mr. Libby and other officials talked to reporters about Mr. Wilson during this time but never mentioned his wife will help show that there was no such campaign — or that if there was, Mr. Libby had nothing to do with it.

It is just this sort of sentence that makes non-lawyers roll their eyes when they read legal briefs, but this is the sort of thing you pay for when you hire a lawyer — they are covering every possible contingency, both for the sake of argument and for appeal purposes, should Libby be convicted.  You have to document everything — either in writing or on the record in court, so that there is a paper trail of you making each and every argument.  It makes for a smarmy read, but it is good lawyering, and I wanted to point that out for everyone in case someone had a question about this sort of thing.  (Plus, I like to think of that particular sentence as a "Hello, Karl.")

On p. 10, we get to the subpoena issued to Judy Miller.  And that’s where the sparks begin to fly.

Team Libby begins with a summary of the indictment portions wherein Judy figures substantially.  By p. 11, we’ve moved on to a catalogue of her every nuanced equivocation.  (This isn’t exactly a romantic Wyoming rodeo chance meeting any longer, is it Judy?)

On p. 12, they argue that Judy Miller’s stated recollections "[are] by no means sufficiently reliable to prove that the conversations [between her and Libby] occurred as the government alleges."  So poor Scooter has been forced to ask for every scrap of paper Judy Miller ever touched for an extended period of time, her calendars and anything else that might contain any piece of information about her life.  You’ll pardon me if I think this might be considered rather a bit too broad by the court for witness impeachment purposes — especially since this isn’t some tiptoe through the gossamer windmills and mattress outlets of the Miller Files, to give Scooter carte blanche to sift through the extended entries in her Franklin Planner for a convenient scapegoat.

My prediction is that the judge will now have to sift through all of this dross himself, and make a determination as to what is and is not relevent to the case at bar.  And won’t that be a rip-roaring, bodice-ripping good time for Judge Walton and his clerks.  (Sarcasm intended with every last letter.)

An amusing moment in fn. 2, p. 12, where Scooter signals:  Further diva bullshit will no longer be tolerated, Jude.

Ms. Miller’s motion states that at this time she has not located any documents responsive to Mr. Libby’s other subpoena requests, but that she has not yet completed her search….Mr. Libby assumes that Ms. Miller will complete her search as expeditiously as possible (and not later than May 16) and bring to his or the Court’s attention any additional responsive documents she may find.

Yowch. The bloom is off the rose, it’s withered on the vine and been stomped on a few times by elephants.

On pp. 13-15, we get to the heart of the arguments on the Miller materials:  Team Libby really is hoping to find a convenient scapegoat in her notes or in the notes of some other NYTimes compadre.  First, they bring up the fact that Miller had the Wilson’s name and phone number in her reporter’s notebook — without, of course, mentioning that Kristof works for the Times as well, and that Judy would have, perhaps, spoken with him to pump him for imformation prior to meeting with Scooter at the St. Regis?  (Oh, but that wouldn’t serve their purposes, now would it?  Can’t expect an admission against interest at these hourly rates, now can you?)

We also learn that Team Libby may have some forensic examination of Judy’s notebooks in mind — "e.g. the color of the ink and the weight of the markings" — in order to determine what may have been going through Judy’s mind at the time of her writing.  Well, gee, that sounds fun.  It’s scientifically questionable unless Judy’s using highlighters and five colors of ink in one pen sorts of pens like a junior high school girl in advanced placement home management, and this move is going to raise all sorts of expert witness hell, but hey, judge, let’s have some CSI:DC just for kicks.  (Legally, I can see their point, but I would assume that Fitzgerald’s team of investigators has already looked things over and done some initial assessment — and although we wouldn’t be privy to any forensic analysis from our vantage point, it pays to be cautious.  But still, really, the point the finger anywhere but Scooter game is so transparent, isn’t it?)

Team Libby does make a good point regarding the parentheticals (pp. 13-14) — whether they could represent Judy’s own thoughts as opposed to questions raised by Scooter in their conversation.  But the way to determine this would be to ask Judy — not by holding her pages up to the light to divine their meaning in the cosmos.  (Depositions — I hear they are all the rage in legal circles this summer.)

Here’s the thing about requesting everything Judy has in every one of her notebooks.  (And I can’t believe I’m going to write anything supportive on Judy Miller’s behalf given her track record in this case, but here goes…)  Team Libby is not entitled to Judy’s dry cleaning "to do" list, or her contacts with people on completely unrelated stories, or even her doodles.  (Although I’m guessing she’s regretting that "SL + JM, BFF xoxo pinkie swear" one, even if her surrounding aspen trees doodle is a bit Monet-esque.)  Team Libby is entitled to discovery of evidence that is material to the preparation of his defense — and nothing else.  The judge is going to have to decide where the line between relevant and not is — but I’m betting that Judy’s attorney Bennett has vetted this six ways to Sunday before making any representation to Judge Walton as to relevance. 

The last paragraph in the Judy, Judy, Judy section sums up Team Libby’s current strategy toward her:  it’s the blame Judy the Blabbermouth strategy.  If you can’t pin it on another convenient scapegoat, Judy and her tattered shreds of credibility will have to do.

As a prosecutor, one of the things you have to come to terms with early on in your career is this:  you don’t find swans swimming in sewers.  (OMG, she needs more coffee, you are thinking…but be patient, it will all make sense, grasshopper.)  Criminals do not hang out with nuns or saints or pristine pillars of the community, by and large — and when you are preparing a case for trial, whether you are prosecuting or defending a criminal, you learn early on to come to terms with the fact that almost every person you will deal with as witnesses (outside your own investigators…and sometimes including them) will be someone you’d rather not have to call to the witness stand because they all bring a buttload of baggage.  In this case, that person just may be Judy Miller for Pat Fitzgerald — but you take the case as it comes to you, warts and all — and sometimes that means you have to work with and around a particularly difficult duckling. 

Thankfully for Fitz, Judy is not the sole witness in the case.  There is a lot more to this response — and I’ll cover it in the next part.

In case you missed it yesterday, MSNBC’s David Shuster did a follow-up to his damage report on Valerie Wilson’s outing, it’s impact on our intelligence network in Iran and the Administration’s role in all of this mess.  Crooks and Liars has the video of this, and it’s worth a watch.

(I found this medieval little picture via Dacha Dude, and thought it would fit the potential mood of La Diva Judy after reading this Response Brief.)

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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