While the above sign does pretty much sum up the Fitzgerald response brief, there are a whole lot of interesting tidbits that I know everyone wants to discuss and analyze. So I’m not going to stop here. But I did want to emphasize that the discovery process is limited to those pieces of information which are material to the charges within the four corners of the indictment and such material as is helpful to the defendant in his defense of these charges. Anything else is not relevent. Period.
Despite this, defense attorneys routinely ask for as much information as they can possibly think of, hoping against hop to get a prosecutor who will hand it over. Of course they do — wouldn’t you, under the circumstances? And prosecutors routinely fight requests for information which they feel are burdensome, irrational and designed to just be a pain for their offices. Of course they do — wouldn’t you?
But none of this gets to the real, meaty, strategery contained within this particular Fitz response. And I know that is what everyone is really wanting, so without further ado…
Before we get into any substantive analysis, I just want to say for the record that Patrick Fitzgerald and his legal team write a helluva brief, with just enough snark to keep a girl going into the wee hours. Truly some great work — sometimes, as an attorney, you just have to sit back and marvel at someone else’s work product. I say "Fitz" in terms of the writing and filing for brevity’s sake in my article, but there is an entire team of lawyers and investigators who work on these motions and this investigation, and they ought to be commended for the professionalism and commitment to the rule of law that they have shown. Each and every one of them. And I just wanted to say that for the record.
On Page 1 of the Fitz Motion Response (PDF), we discover that the government has already turned over more than 12,300 pages of classified and unclassified documents, has an additional 1400 pages of handwritten Libby notes ready to turn over for transliteration, and it preparing a whole slew of summaries for the PDBs as the Judge ordered for consideration. Fitz goes on to argue on Page 2 that the remaining issues of contention on discovery amount to the defendant attempting to end-run the usual rules (Rule 16 specifically — see here for the text of the rule and here for commentary – and attendant case law) in order to obtain what is called "open file" discovery — or where the defendant and his counsel simply get to rummage through everything the prosecutor has, no matter how irrelevent it may be to the case at bar. This is not what the case law and the normal procedures require, and not what ought to be done.
On Page 2, Fitz refers to the pending Libby discovery motions as "miscellaneous additional discovery." (which was really funny about 11:30 last night, btw) And he reminds Team Libby that under the Criminal Rules of Procedure Rule 16(a)(1)(E), the information requested must be "material to the preparation of the defense" and that an abstract relationship to its preparation is insufficient. (p. 3)
Accordingly, there is no general Rule 16 right to broadly fish through the government’s investigative file simply because the defendant makes a "conclusory allegation" of materiality. (p. 4)
This argument is repeated throughout the motion response. And Fitz gets right to the heart of things, and manages to poke at everyone else who is hanging out there in the wind in the unfinished, ongoing portion of the investigation.
Allowing defendant to attempt to replicate the government’s investigation is particularly inappropriate because the government’s investigation was broader in scope than the charges ultimately brought in the indictment. (p. 5)
Fitz goes on to nail Team Libby’s ass to the wall by citing the Court’s own opinion to back up his argument. And he pointedly refers Team Libby to "the backdrop of limited charges in this indictment" (emphasis mine) which are perjury, false statements and obstruction – which raises the big question in my mind as to whether there is more to come for Scooter and his cohorts. Kudos to reader rwcole for his early theory on Fitz’s limiting the charges in this indictment as a firewall to the rest of his ongoing investigation — I think it’s fairly clear that rw was on to something.
And then comes this huge shot across the bow:
Some documents produced to defendant could be characterized as reflecting a plan to discredit, punish or seek revenge against Mr. Wilson. (p. 7)
Well, unless Scooter has been doing lots of planning all by himself (unlikely), it sure sounds like our boy Pat is sitting on some more evidence that he has plans for himself, doesn’t it? Talk about your wake-up call to everyone still hanging out there at the same time he administers a Team Libby smack. And shorter Fitz on the Colin Powell mumblings from Libby: oh, on your casting of aspersions, I call bullshit. (Truly, page 7 is worth a thorough read.)
There is also a consistent bit in the footnotes that is meant as a subtle jab at the lawyers for Libby. I point this out only because lawyers tend to have big egos (especially the high priced ones) and this sort of jab, despite being in the footnotes, would carry a bit of a public sting in this case. On page 7, in fn. 3, there is a sort of "Oh, by the way, sloppy lawyering in your motion, considering you misnumbered and mislabeled things. Just wanted you to know that I noticed. Ahem."
Fitz then moves on to the argument regarding discovery requests for those witnesses that Team Libby has identified as probable for the government — and he pretty much undercuts their claims on a number of them.
Because the government does not intend at this time to call three of these individuals — Mr. Tenet, Mr. Hadley and Mr. Rove — defendant is not entitled to discovery based on the need to cross examine those individuals. (p. 9)
Not to get anyone’s hopes up or anything, but most prosecutors do not like to call as a witness people they intend to indict. It leaves them open to impeachment on the stand during cross examination, because defense counsel have clear evidence of wrongdoing in the behavior that led to their indictment to lay out for the jury. I’m just saying.
There is so much more — and the meatiest bits are yet to come in Part II. Trying not to overwhelm everyone all at once this morning.