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Fitzgerald Investigation/Libby Case Update, Part II

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First, an update on my Laura Flanders Show appearance this evening on Air America Radio.  It looks like Laura’s guests will include me, Bruce Shapiro from The Nation, and Greg Palast.  Wow.  I’m scheduled to be on around 8 pm ET, just FYI, for those who asked me for a confirmation update.

Aside from the Armitage speculation and other doings in the ongoing Fitzgerald investigation, there were some more salvos fired in the back and forth between Team Libby and Team Fitz.

The interesting question for me in the latest Team Libby filing (from May 19, 2006) is whether they are trying to bolster the "Scooter Libby’s memory is like swiss cheese" defense strategy — or whether they are trying to force Dick Cheney’s hand one way or the other by saying that Libby does not recall ever seeing the Cheney handwriting on the Wilson article.

This potentially would require Fitzgerald to call Cheney to the stand or not use the article as evidence — or find some other means to verify the handwriting. Or find some other witness that challenges Scooter’s memory by showing that, indeed, s/he participated in meetings with Dick and/or others wherein s/he clearly knew that this was Cheney’s handwriting, etc., etc.

But in my experience, putting that sort of pressure on someone as notoriously fond of playing hardball as Dick Cheney…well, it isn’t always the smartest of moves. Mayhap it was only meant to send a signal to pals in the WH that Team Libby is getting down to the wire on defense maneuvers — or maybe Scooter and company were telling the honest truth that he doesn’t recall seeing the Cheney notes on the Wilson article. But whatever the reasoning, the latest filings in the Libby case sure do stir the already swirling pot, don’t they?

Two media outlets have coverage on the latest Libby filing: NBC News and the WaPo. What I find most interesting about these two articles is that neither reporter or news outlet noted that there was any filing wahtsoever from Fitzgerald — only from Team Libby — despite the fact that both legal filings were served on the same day — May19th, 2006 and would, presumably, have shown up in the court docketing system for perusal since reader Momaloney found them — both — and sent them — both — to me via e-mail. (And a huge thank you to Momaloney for doing so!)

Is it me, or is the Babs Comstock Journalism-by-Proxy Fax Tip-line alive and well?

As NBC notes, Team Libby argues that Scooter’s prior G/J testimony was that he had not seen the Wilson article with Cheney’s handwritten annotations/questions until the FBI showed it to him during their investigation. Team Libby makes a pointed reference to both times that Libby testified to the grand jury that there was specification that he said he did not recall having seen the article until the FBI showed it to him.

Which begs the question, were there others in a meeting with Dick Cheney or with Scooter Libby who were directly shown the article with its Cheney notes — either by Dick himself or by Scooter explaining the notes as Dick’s proxy?  Does Fitzgerald have their testimony before the Grand Jury — and is Scooter aware of it or fishing to see what Fitz has on this?  And will there be testimony as such and, if so, how much does Team Libby know about this as a possibility — and how much does Team Fitz have on this above and beyond any grand jury testimony?  You know, things like phone records, notes, etc.?

The whole revelation of the Cheney handwriting on the Wilson article was a huge neon sign last week, but I have to wonder if this isn’t why Team Libby started a bit of a drumbeat about Cathie Martin a few filings back. (Did Cathie, Dick and Scooter talk about this on their plane ride? Was this faxed/communicated to Ari Fleischer on Air Force 1 as talking points? And boy, doesn’t THAT raise some big questions, if so…) And about Marc Grossman as well — that whole credibility issue with Grossman would be crucial if it comes down to a "who do you believe, Marc or Scooter" defense.

And is the Libby defense coming down to a "which Cheney loyalist should you believe and why?" — because, if so, that is one helluva risk. Especially when you flirt with dragging in Cheney himself for testimony as part of your "force the prosecutor’s hand" strategy.

Ultimately, the discovery issues that are being argued will be resolved by the judge, looking at whether the documents or other pieces of evidence requested meet the standard of being material to the case as well as being exculpatory (making it look like Libby might be innocent or calling guilt into question — to shorthand that a whole lot). This, I think, is going to be a difficult argument for Libby’s attorneys to make successfully, as has been demonstrated in Judge Walton’s repeated warnings to them that he will not allow them to re-try the rationale for war in Iraq or other issues outside the scope of Libby’s indictment charges — five federal felony counts of perjury (twice), false statements (twice) and obstruction of justice.

As Fitzgerald’s team makes abundantly clear in their filing, Team Libby appears to be seeking a lot of this material, simply put in Team Fitz’ own words, to "make clear that he intends to use the documents he seeks for impeachment, or to re-focus the jury’s attention on the conduct of others, rather than his [Libby’s] own." That might be awfully helpful in terms of Team Libby’s smokescreen construction project — but it is not a reason to hand them a big pile of discovery that would likely qualify, if anything, as Jencks material at best.

Judge Walton has to make a call on all of this. And to do so, he will likely have to take a peek at some of it in camera and then make a determination as to materiality and relevance and exculpatory nature and such, but I think his statements during the last hearing show which way he tends to lean when there is a close call on potentially immaterial evidence. And that is bad news for Team Libby, no matter how much they may try to argue otherwise in public.

Oh, and Team Libby is using their "misrecollected in good faith" description of Scooter lying to the grand jury and the FBI again, in the context of Libby not having the specific intent to state false information.

Libby’s attorneys argue that their only reason to show what their client and other witnesses were doing in June and July of 2003 in response to Wilson’s charges is for a jury to “understand that Mr. Libby may have been confused or may have misrecollected facts in good faith, and did not act with a specific intent to give false testimony.” They write that only with such context will the jury appreciate that “Mr. Libby did not need to attack Mr. Wilson personally to rebut his allegations, because the administration had clear factual support for its position that Mr. Wilson’s criticisms were wrong.”

That they bring up Libby’s "misrecollected facts" in the context of essentially calling Joe Wilson the "liar" in all of this — especially given the nature of the charges for which Mr. Libby was indicted — would be amusing, if it didn’t carry with it such a whiff of sweaty palms.

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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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