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Fishing? Call Me Irving…


Well, Irving has landed himself in a whole mess as of the latest Fitz filing, hasn’t he? It seems the more that his legal team tries to push the boundaries of acceptable discovery to go on a fishing expedition, the more Fitz and his team have to explain – in very clear, unambiguous terms – that Irving had better start thinking about manning the lifeboats.


Jeralyn has some great analysis on the latest Fitz filing at TalkLeft – and is hosting a PDF of the Fitz Response there as well, so everyone can have a read. Tom Maguire has the exhibits that were attached as well – which are snippets of Scooter Libby’s testimony to the Grand Jury and Fitz’s questions.

A very interesting read overall – and one that merits more analysis than I’ve had time to give it today, so I’m going to sketch things out as I see them at the moment, reserving some time to go back over the transcripts and the filing again to be certain I have gotten all the juicy bits. There are several issues that are niggling at me in the transcript – but I’m going to have to think about them for a bit and do another post.

In any case, the response itself provides some intriguing information. Fitzgerald and his team begin with a smack at the last Libby filing for having only one real argument in it that had not already been rebutted – that Cheney’s handwritten notes on the top of the Wilson op-ed had opened the door to the defendant being able to tra la through whatever discovery he felt was necessary to ascertain the mental state of any and all witnesses the government might call. (p. 1)

In other words, Team Irving is arguing that because Dick gave Scooter marching orders, that gives them carte blanche to go on a big ole fishing expedition to find dirt on everyone else to try and muddy the waters for the jury or to dig up a convenient scapegoat or whatever else Scooter might need to make himself look less guilty.

But smoke screen ammunition is priced dearly, I’m afraid, and Fitz says “nuh uh.” On pp. 2-3, Fitz walks through the government’s position that Cheney, as Libby’s immediate superior, directed Libby’s actions with respect to the Wilson op-ed. That Fitz and his team lay this out via an indirect assertion saying that Grossman was not in a position to do this is genius in terms of strategic writing – well done, indeed.

Here’s a question that keeps popping up in my mind: Libby consulted David Addington prior to his first meeting with Judy Miller regarding the legal propriety of the selective NIE and other disclosures he’d been ordered to make by Cheney. Was Addington also in on the discussions and meetings with Cheney on how to handle the Wilson Op-Ed? Did he see the “news clipping” on Cheney’s desk as a mere curiosity as well – or did the Veep hand out marching orders like this with every news article that pissed him off?

If there’s a pattern of behavior that Fitz can show in Cheney’s actions through the years, we could have a helluva ballgame in terms of inference here. But I digress…

On p. 4, Fitz goes into the specifics of Libby’s grand jury testimony and how it contradicts the very things that his legal team is trying to argue. Libby’s testimony (you can read it in the exhibits) is painful to read at times – punctilious does not begin to describe the tortured parsing of language that Irving goes through on the stand to carefully walk through the minefield of testimony. And you can tell by the questioning in parts that Fitz isn’t buying his act.

Here’s a good example from the response brief on p. 5:

Defendant further testified that the Wilson Op-Ed was discussed in the White House on a daily basis and on multiple occasions each day during the week following July 6, 2003. Ex. A, at 81.

First of all, hello WHIG – and does this sound like a coordinated response at the highest levels to anyone else or what? This was a full frontal assault on the attack on their credibility – oh wait, excuse me, on Cheney’s personal credibility (p. 7).

The resources of the top oppo political types were kicked into high gear on this one. And there is a copy of the Wilson op-ed with the marching orders written right there at the top – including the sorts of phrases that were repeated to media types, whether or not Valerie Wilson’s name was used: who sent Wilson on the trip – look into it – wife sent him on a junket.

On p. 6, Fitz brings up a potential discussion of Valerie Plame Wilson along with her husband’s op-ed on the Air Force II flight on July 12, 2003. This raised my radar with regard to all those credibility questions that Team Irving was jumping up and down about Cathie Martin. One wonders what really was discussed on that flight – including what calls were made and what sorts of phone records Fitz has in his pocketses.

One thread that runs through the whole of the Fitz filing is that Libby discussed – on multiple occasions – the Wilson op-ed with Dick Cheney, including the fact that Valerie Plame Wilson worked for the CIA – and that this is corroborated by other evidence including the Cheney handwriting on the Wilson op-ed piece itself. That “Scooter’s Swiss Cheese Memory” defense sure does have a whole lotta holes in it at this point, doesn’t it?

And it’s especially painful that those holes have been carved out from apparent testimony and evidence given to Fitz by his former boss and former co-workers. From page 6:

Therefore, the annotations corroborate the government’s other evidence indicating that these issues were communicated to defendant by his immediate superior, who also directed defendant during the critical week after July 6 to get out into the public “all” the facts in response to the Wilson Op Ed.”  (emphasis mine)

That “all” in quotes is quite a teaser, isn’t it? And Fitz does that again on p. 9 as well – when he says “all,” you have to wonder exactly how much he has at this point, don’t you? I know I do.  And I’m sure that Team Irving is having fits over that as well.  (Let alone the Rove and Cheney and who knows who else camps…that’s a serious ass teaser.)

There has been much ado made over the fact that Fitz may or may not call Dick Cheney to the stand.  Jeralyn has some great discussion on that point at TalkLeft — and I agree that simply to introduce the annotated Wilson Op-Ed, Fitz wouldn’t have to call Cheney at all — he could get the evidence in via other witnesses.  But there are a whole lot of other issues at play here that we can’t know from outside — and I’m wondering how much the "will he or won’t he call him" question will weigh on Irving’s mind in terms of strategy going forward — and on his loyalty versus saving his ass considerations after the hints that his former co-workers may have been spilling a lot more beans than he did.

Seems to me that Irving may not get a chance to be much of a fisherman.  But Fitz sure does know how to keep some serious tension on the line, doesn’t he?  (For a city boy, that’s pretty damned impressive…)

PS — Huge thank you to Jeralyn who sent me the docs yesterday when she downloaded them for herself.  Much appreciated.  🙂

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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