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Part I of Well, That Has to…


Judge Reggie Walton has issued another opinion on motions made by Team Libby.  A copy of the opinion can be found on the DC Federal courts website (PDF). 

Jeralyn covered the opinion on TalkLeft yesterday.  And Jane kicked a few things around as well yesterday — including Byron York’s inaccurate, petulant spin — and the fact that Fitz has the gift of snark.

The opinion stems from a May 5, 2006, status conference wherein a number of discovery motions and issues were argued before the court.  We covered the hearing initially here — detailing information as to what a status conference is, among other things.  Once the hearing transcript became available, we covered it in more depth here and here (The Cirque Du Soleil defense series of posts).  At the time, I said this:

And all the knots in the world — tied or untied — don’t get around the ultimate questions: did Scooter Libby lie to the jury under oath? Repeatedly? Did Libby lie to the FBI during the investigation? Repeatedly? Did he do so to obstruct Fitzgerald’s investigation? Repeatedly?

That’s what the jury will be asked to answer. And that’s where the smokescreen doesn’t hold up for Scooter and Team Libby. None of the smoke has anything to do with whether Scooter lied and why. If he did not out Valerie Plame Wilson — why bother lying to the FBI and the Grand jury in the first place? Now that’s a question I’d love to see answered.

The judge appears to have agreed with this assessment for the most part. As you read through the spare eight-page opinion, you can feel his exasperation at having to cover and re-cover this ground beginning to show.

But let’s get to the meat of the order, shall we? 

Scooter loses the bulk of his requests…again…to go on an unfettered fishing expedition through the government’s files (Although, admittedly, after the last discovery motion smackdown, it was a more tightly worded request for a fishing permit.  See my previous analysis of a Fitz response brief on these issues here, here and here that was done prior to the judge’s order and see if Judge Walton doesn’t pretty much track Fitz’s characterization of discovery on this.)

As defense counsel, you know the judge is about to deny the bulk of your motion when the first page contains a paragraph which reads as follows (PDF):

The motion now before the Court seeks and array of documents through ten separately numbered requests. Before addressing the merits of these requests, it is helpful to set forth what this case is and is not about, as this reality defines the scope of discovery the defendant is entitled to receive.  (Walton Op., p. 1) (emphasis mine)

Hello, Scooter and company, welcome to the reality based community.

The judge goes on to detail the charges within the four corners of the indictment against Mr. Libby, the possible charges that the Special Prosecutor is still investigating (and might have completed but for the obstruction and repeated lying for which Mr. Libby is charged, I might add), and then says this (PDF):

Rather, the only question the jury will be asked to resolve in this matter will be whether the defendant intentionally lied when he testified before the grand jury and spoke with FBI agents about statements he purportedly made to the three news reporters concerning Ms. Wilson’s employment. The prosecution of this action, therefore, involves a discrete cast of characters and events, and this Court will not permit it to become a forum for debating the accuracy of Ambassador Wilson’s statements, the propriety of the Iraq war or related matters leading up to the war, as those events are not the basis for the charged offenses. At best, these events have merely an abstract relationship to the charged offenses. (Walton Op., pp. 2-3) (emphasis mine)

Well, I’d say that’s a pretty clear explanation as to what is and is not on the table, wouldn’t you? And to me, this says that the judge will not permit this to become some dog and pony show media extravaganza, but that this prosecution will be conducted as every other prosecution of every other person who is charged with a crime is done, by and large, in the United States — which is to say that this will not be some OJ/Michael Jackson trial sideshow anomaly, but will, instead, be a criminal trial on the merits. Period.

The judge goes on to detail how the information regarding Amb. Wilson, his wife, and other witnesses and the defendant’s background, involvement, and otherwise will be used during trial.  And darn it all if Judge Walton doesn’t expect everyone to follow the Federal Rules of Criminal Procedure and the Federal Rules of Evidence…just like every other attorney and every other defendant and every other US Attorney has to do in every other trial before every other court. 

Not exactly a shocker, but for the naysayers out there, this is how things work in our system of justice.  No matter how high your friendships may go, the laws apply equally.

More to come in Part II.

(Yeah, yeah, I know.  I’ll use any excuse for a Sting pic…)

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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