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

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…and continuing our legal filing saga from The Miller’s Tale, Part I.

On pp. 15-24, Team Libby makes their arguments with regard to the subpoena issues to the NYTimes itself, separate and apart from the one issued to Judy Miller.  (Who, as we all know, no longer works for the Gray Lady.)  Their first argument hinges on the need to obtain copies of internal notes about interviews done by NYTimes counsel and reporters as part of their clean-up once Judy had testified to the grand jury (and, presumably, in preparation for that testimony and during the whole hold-out period as well).  Team Libby wants immediate access to all of those notes and draft articles, without the judge doing an in camera review of the material.

There are all sorts of considerations woven into this argument, not the least of which is a substantial hearsay question — since they would be getting Judy’s words as heard by another person entirely and then written into note form by that other person.   Team Libby tries to get around this by making a "business records" argument (fn. 4, p. 16), saying that this is a course of business/contemporaneous record-keeping matter that ought to be discoverable just like meeting minutes or other regular business records are.  It’s clever, but I don’t think the judge is going to buy it hook, line and sinker.  I’d look for some sort of in camera review of documents by the judge and his clerks before any decision is made on what is or is not discoverable here.

This is really a nightmare scenario for any prosecutor, by the way — to have a witness who has given testimony to the grand jury, especially one as flighty as Judy Miller has been, to then be interviewed by others is generally a horrible thing to have to deal with for trial preparation purposes.  The absolute worst is to have a witness who then goes on to do a flurry of television interviews — every time you speak up, the story changes ever so slightly, and a good trial attorney can magnify that a thousandfold on cross examination for the jury.  Especially if new memories surface that were not relayed to the grand jury or, worse, the story gets completely mangled in the telling over time.  There are ways to deal with it — including impeaching your own witness up front with the bad news so that you get it out before the jury before defense counsel ever gets there — but it’s never a good thing for trial to have to juggle this sort of thing.

Thankfully, Judy Miller is not the sole witness.  We’ve always known she was going to be a big thorn in the side of the entire process — but from Team Libby’s filing, it is obvious that they plan on making that abundantly clear for any jury that hears this case at trial. 

You hear that, Judy — all that protective weasling on Scooter’s behalf bought you a whole helluva lot of loyalty, didn’t it?  Let this be a lesson to anyone who has to testify in a case — be it criminal or civil.  Any obfuscation, any weaseling, any attempt to spin comes back to bite you in the ass in a big way — Judy tried to tap dance around to make herself look good and to protect Scooter’s flank (at least in her public articles and statements, since we have no way to know exactly what she said to the grand jury at this point), and Scooter Libby’s defense attorneys are going to play up every "I don’t quite recall." or "I’m just not sure why I wrote that." flightiness for all that it is worth.  Because that is their job. 

Judy Miller handed them her own head on a platter — maybe that was intended, I dunno, that whole intertwined aspen roots turning together nonsense — but if this case goes to trial, it’s going to be an ugly ride for Judy on the stand.  That it will come from her own words and her own writings makes it all the more powerful. 

The odd thing, and Emptywheel covered this so well, is that Judy isn’t the central figure of the indictment.  And the twisting of the Libby/Miller exchanges — as well as the twisting of the other issues in this brief with other journalists — is designed for one purpose alone:  defending Scooter by taking the jury’s eye off him and putting it anywhere else.  The smokescreen defense can be done effectively by a good defense counsel — but that assumes that the prosecutor isn’t good at cutting through the fog.  I’m thinking Fitz has been there and back, and that this case is going to be one helluva trial to watch.  Hold on to your hats, kids, and I mean that.

On p. 18, Team Libby throws a bone to their donor base supporters:

Mr. Libby can rebut this theory [that Administration officials engaged in a vigorous effort to discredit Wilson by outing his wife] by showing that his conversations with reporters about Mr. Wilson and his trip were necessitated by, and focused upon, the false information being spread by Mr. Wilson, and were not focused upon Mr. Wilson’s wife.  In that regard, he may seek to elicit testimony from other Administration officials — including, for example, his subordinates in the Office of the Vice President (OVP) — to testify that they too were intent on rebutting Mr. Wilson’s criticism on the merits; that they saw his wife’s CIA affiliation as a peripheral issue (at most); and that they were never instructed by Mr. Libby to disseminate information regarding Ms. Wilson’s CIA affiliation to the press.

Gotta keep that good will going among the faithful, even when reporters are digging up new bits of information every single day that undermine this claim and expose it for the kool-aid induced delusion that it is regarding Wilson’s claims.  But let’s take a closer look at the second sentence:  Libby’s subordinates also knew that Valerie Wilson worked for the CIA.  They would have learned that how, exactly?  Via the Veep or Libby — who both signed SF 312 clearance agreements regarding protocols for classified information, including the fact that such material is only to be discussed on a "need to know" basis.  I’d like to know just how sloppy the Bush Administration is being with classified information that it just gets spread around the worker bees like so much peanut butter on hot toast.  (And why isn’t the corporate media asking about this each and every chance they get?)  Appalling.

On pp. 18 and 19, Team Libby goes through a wrangle about the NYTimes having documents which may or may not show that Scooter and/or his subordinates did not mention Valerie Wilson to every reporter they saw.  They concentrate specifically on Cathie Martin (the public affairs person for the Veep) (see fn. 5, p. 19).  I wonder if perhaps Ms. Martin didn’t blab Valerie’s job status around the block because she actually took her security clearance responsibilities more seriously than her need to get even?  It does seem like Ms. Martin and Ari Fleischer are going to get their turn in the potential scapegoat chair as well, though — remember the more fingers you point in the other direction from Scooter, the more defense counsel gets an opportunity to attempt to confuse the jury.  (Don’t hate them for doing their job, reasonable doubt is what they have and they will try to raise it on behalf of their client at every opportunity.)

There is an odd bit on pp. 20-21, where Team Libby raises some questions about Marc Grossman and potential bias against Libby.  This is a theme that has been woven through a lot of the Libby filings of late, but this time they point to an online article by Jason Leopold at truthout.org to get to a Mike Allen and Dana Priest article in the WaPo to get to documents held by the NYTimes which may or may not have anything to do with Grossman.  Whoa, that’s like playing Six Degrees of Kevin Bacon, isn’t it?  How is the NYTimes going to know anything about what Leopold or Priest or Allen suggest in their articles, their sources, or the credibility of any of those sources — or how they might feel about Scooter?  I just don’t see the judge buying into this serious stretch to get to other NYTimes sources which may have nothing whatsoever to do with whomever Leopold or Priest or Allen spoke with, or with Scooter Libby’s own conduct in lying to the grand jury, the FBI and his attempts to obstruct the investigation — which, after all, is what Libby is actually charged with here.

In the last part of the NYTimes section, Team Libby gets into a bit of a sticky area dealing with some privilege questions between corporate counsel and Judy Miller in terms of any notes taken during the course of their discussions.  I’m not certain as to how the judge will rule on privilege attaching fully here or not, but it’s certainly an area of the law that will get a lot further exploration in the hearing on May 16th, I’m sure.  It’s amusing that the Marie Brenner article in Vanity Fair and Judy’s quotes therein come up here.  (I suppose it’s understandable that Judy would play things up a bit with her pal for a rehabilitation article, after all maintaining that First Amendment Martyr for the 21st Century crown is a full-time job and all, but I’m thinking the manipulative, shilling for your criminal pals tap dance may not cut it any longer for the talent portion of the competition.)

Team Libby makes a big deal of the fact that Judy said she spoke with government officials both before and after the Novak article about Valerie Plame.  I’m not so certain this is helpful for Libby overall — I mean, it does raise some finger pointing issues to potentially make the jury look at others beyond Libby, but that sure as hell walks them into conspiracy territory in the jury’s mind, especially if the folks with whom Judy spoke end up being all of Scooter’s WHIG compadres.  This is a tricky needle to thread, and one that I’m not certain they can viably pull off in front of a jury.

There is much more, but it’s going to have to wait for Part III, I’m afraid.  And that will be coming up shortly…stay tuned.

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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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