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Part II of Well, That Has to…


UPDATE:  Markos and Jerome are currently on CNBC on the Tim Russert show.  FYI — it’s a good conversation thus far.  (Cozumel says that the show will repeat on CNBC again at 10 pm ET.)

Continuing from Part I

Judge Walton then goes on to the actual detailed requests made by Libby’s defense team.  The sole issue that he finds merit in is the following (PDF):

Therefore, if the government is in possession of documents that show the defendant’s intent to participate or his actual participation in such legitimate efforts [to rebut the merits of Ambassador Wilson’s findings], those documents must be produced pursuant to Rule 16. (Walton Op., p. 4)

Okay, here’s the thing: Fitzgerald would already have been required to turn over any such documents in his possession, if any even exist, because this information would be considered potentially exculpatory material (making Irving look less guilty). So as victories go, this one rings awfully hollow: "Here, you can have access to the most likely nonexistent documents that you already likely would have had access to anyway." Oh boy. Pass the cocktail weenies and light the sparklers, it’s a par-tay.  Cel-e-brate good times.  Come on.

Judge Walton then goes on to broadly state that the bulk of the defendant’s document requests are denied because they simply are not material to the preparation of his defense under the charges as contained in the indictment.  The judge points out that the defendant requests a very broad swath of documents and information from a number of governmental agencies without regard to whether anyone from those agencies will be called to testify and/or for what witness such information may be required for preparation — over and above whether or not the material contained therein is material to the indictment charges.

In support of this contention, the judge cites the George case — on which Fitz has relied for a number of his arguments on materiality and limiting the case to that which is contained within the four corners of the indictment itself and nothing more.  (See Opinion, pp. 5-6)  Per George, Judge Walton opines that the only documents or information which are material in this case at bar is the information that the defendant and/or potential witnesses reviewed at the time that the alleged offenses occurred — including up to the time when Scooter alegedly lied to the FBI agents and the grand jury and attempted to obstruct Patrick Fitzgerald and his team from investigating this matter further.

Further, the judge has examined the CIA Referral of the case to the DoJ for investigation, and has determined that the referral is immaterial to the charges contained in Libby’s indictment.  (Opinion, p. 7) 

Now I know there is going to be a great, shrieking howl from the right side of the blogosphere about this, but the judge is simply following the procedures and requirements for discovery in criminal cases in federal court and, the bottom line is, Libby is charged with discrete charges within his indictment — and he is entitled to information regarding those charges and nothing further.  

He doesn’t get to go on some sort of scavenger hunt to find a scapegoat or to come up with personal attack material against any and all witnesses who may testify at trial — what he gets is to try his case on the merits, on the facts and on the indictment as voted on by a jury of his peers.

Just like everyone else who is indicted and prosecuted for multiple federal felonies.

Which brings me right back to the question that I asked at the beginning of Part I:

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.

If Scooter had nothing to hide from the grand jury and the FBI, why lie to them? Repeatedly? If his hands were so clean, if there was no intent to out Valerie Plame Wilson but simply to "get the truth out" as Team Libby keeps trying to spin things, then why not just tell the whole truth and be done with it and let the chips fall where they fall? Why lie — over and over again — both to investigators and then again under oath to a grand jury during two separate appearances?

That is a question that the trial jury will be asking themselves, I’m sure — and I’m just as certain that this is a question that the grand jury couldn’t satisfactorily answer for itself.  Hence, Irving Lewis Libby finds himself indicted on five federal felony counts.

I have read and re-read Judge Walton’s order, and I find nothing ordered for discovery that would not already likely have been provided by Fitzgerald’s team in the normal course of business, in terms of material that might prove to be exculpatory in some way (if any such material even exists in the form of documents). 

Now, the bulk of my criminal trial experience — both as a prosecutor and as a criminal defense attorney — was in state court.  But our state court rules for criminal procedure and evidence track the federal ones, so it’s not as though we are talking a completely different set of standards.  Additionally, I’ve also done a number of federal felony cases as trial counsel (as well as appellate counsel) for defendants — someone who has federal criminal experience in the last couple of years correct me if I’m wrong, but if a piece of information in the possession of the US Attorney tends to make it appear as though the defendant could be not guilty and/or even hint at a question of him not being so very guilty…well, it’s discoverable already without a special ruling to that effect.

So, honestly, it’s not so much a tiny little win for Scooter as an enunciation of what he was already going to get (or has already gotten, if it even exists in the first place) anyway.

Well, that has to sting.  And all the spin in the world doesn’t get around this fact:  the indictment is very tight, and becoming more and more tight all the time.  As Jeralyn says so well:

Bottom line: Libby’s defense is he forgot about what he told reporters and what reporters told him because he was so caught up in matters of national importance, one of which was refuting the contents of Joseph Wilson’s statements.

I think it will be a tough sell for the jury. To accept Libby’s defense, they will have to accept that there was a concerted effort by the White House to discredit Wilson’s allegations in his op-ed about his trip to Niger but not him personally. Yet the message other reporters received from government officials was that the trip was a boondoggle, arranged by his wife, a CIA employee.

In light of the seven or so officials who discussed Joseph Wilson and his wife with Libby before his converstations with reporters, it seems odd he would believe he first heard it from Tim Russert. Especially since he discussed Valerie Wilson with Judith Miller weeks before he spoke with Russert.

And that inconsistency with the Judy Miller/Tim Russert timeframe is enough for a jury to look sideways through the tap dancing and the smoke machines and whatever swiss cheese memory fog that Team Irving decides to use…and call bullshit.  Which isn’t exactly solid ground for building a great defense — I’ve been there as defense counsel, and it is never, ever fun.  And with each motion being shot down, one by one, Team Libby’s dance routines are starting to look stale, even to Judge Walton.

(Come to Jesus, Scooter…)

(Yep, more Sting hotness.  It’s all in the intellect, I swear…)

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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