Secrets and Lies
Judge Reggie Walton issued a Memorandum Opinion in the Libby case on November 13th, after multiple filings and arguments on the issues involved form both sides of the Libby case. The AP has the story that just about every news organization is running with this week — but the reporter, Matt Apuzzo, is not a careful reader of legal documents. So I wanted to take some time this morning to parse the judge's opinion (PDF) for everyone. (And a huge H/T to reader Stephen Parrish for the link to the opinion in the public docs area. Bonus — you get to read along!)
As per usual, the real meat of the opinion is found in a footnote — this time early on in the opinion. In footnote 2, Judge Walton lays the groundwork for Patrick Fitzgerald to follow in re-drafting his proposed substitutions for classified material for Libby to use in preparation for trial and, potentially, during trial (PDF):
In light of this ruling, the government has gone back to the drawing board to assess whether new substitutions can be devised that comply with the requirements of Section 6(c) [of CIPA]. Hopefully, this opinion will provide guidance as to what the Court will sanction. (fn. 2, p. 2)
And it does. The judge very carefully lays out what is and is not required, what he is looking for in terms of balancing the defendant's right to a fair trial and the government's need to protect national security information.
Section 6(c) of CIPA is outlined in full in Judge Walton's ruling (PDF), and requires, in pertinent part, that a substitution for any classified information be "a statement admitting relevant facts that the specific information would tend to prove" or "a summary of the specified classified information." (See 18 USC App. III, Sec. 6(c).)
What Fitzgerald has done, thus far, is to put together a combination of the two, according to his most recent filings, the filings of Team Libby in response, and the judge's opinion. The proposed substitutions and admissions of fact are not, however, sufficient according to Judge Walton. This is because they meet what the Judge deems the "quantitative" component of the Libby defense — i.e. he'll be able to show that he was a very busy guy at the office — but that they fail in the "qualitative" portion — i.e. Fitz had drawn the information so narrowly that the nature of the job wasn't ascertainable.
Because Libby is attempting to use a memory defense that relies not just on the high volume of work, but also the sometimes catastrophic nature of the information with which he had to deal as Cheney's national security advisor, the Judge feels — and I think, rightly so — that some evidence ought to be provided on the subjects of his day to day work during the particular times in question. And that is do-able for Fitzgerald, it will simply require very careful drafting of the responses and summaries so that some quantitative information is provided in summary form, without giving away the whole of the national security information contained therein.
It is painstaking, meticulous work, and no doubt something that Fitzgerald has had to face in previous national security cases that he has prosecuted. But, as Team Libby is no doubt aware, Fitzgerald's staff is quite small, part-time, and not able to devote substantial man-hours in and around the next few weeks because of their regular duties. So much of this work will likely fall on the government's team over the holidays as they rush through a second evaluation of what can and cannot be disseminated, and in what form.
What is very interesting in the opinion, though, is a description of Scooter's proposed defense strategy on p. 12:
…Rather, he contends that at the time of various critical dates and thereafter during the time before he spoke to the FBI agents and testified before the grand jury, he was consumed with matter of such importance to the security of this nation that any mistakes he may have made in remembering his earlier conversations with the various news reporters were inadvertent and not the product of willful disinformation. As to this aspect of the defense, other than the classified information the defendant seeks to introduce, he has no other evidence in his arsenal to present this proposition to the jury.
This says two things to me: (1) Judge Walton, like every other judge that I have ever known, does not enjoy being reversed on appeal and is going to make certain that every ruling on evidence is solidly grounded in fairness principles as well as precedents; and (2) Scooter's defense is really weak if he's dependent on evidence from the government to make his defense work.
Because The Peanut has been ill, I have not yet finished my review of all the filings that have happened over the last few weeks. The election coverage got me sidetracked and behind from my Libby/Fitz analysis, and I'm going to try and finish getting caught up tomorrow. Meanwhile, both Jeralyn and Emptywheel have some great analysis, and it's worth going through both of their thoughts on the case as well while you are waiting for the next installment here.
(Kabuki Scooter courtesy of Laniels.org.)