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Last week Judge Reggie Walton threatened to issue a gag order after Libby’s lawyers leaked a letter to the press written by Fitzgerald before it had been filed in the public docket.  The judge gave both sides until today to make their case as to whether or not such an order should be issued.  (We wrote about it here, and Jeralyn has the new PDFs.)

In this latest filing, Libby’s lawyers play innocent and indicate their only desire was to set the record straight.  In the interest of truth, "consistent with our desire to avoid trying this case in the media":

On Tuesday, April 11, the defense received the Letter from the government as an attachment to an e-mail message bearing a 5:17 pm time stamp. 

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When we received the letter,we simply assumed that it was a publilc filing that was intended to be entered in the public docket, because we believed its sole purpose was to correct inaccurate statements in a publicly filed brief.  Accordingly, we swiftly disseminated it to the media — without any public statements by defense counsel — for the purpose of preventing the publication of any additional incorrect reports that Mr. Libby, the President and/or the Vice President had lied to the press and the public.  We sent he Letter to print, broadcast and electronic media outlets on Tuesday evening.  The Letter was entered electronically on the public docket at 12:22pm on Wednesday, April 12.

It all sounds so very innocent, doesn’t it?  Fitzgerald has a slightly different version of events in his affidavit:

It has [] been the consistent policy of the attorneys on the team, including AUSA Randall Samborn, the Public Information Officer for the United States Attorney’s Office for the Northern District of Illinois who handles press matters in this case, not to disseminate documents unless they have already been publicly docketed.  Consistent with that policy, on April 11, 2006, when government counsel submitted to the Court (and copied to the defense) a letter correcting a sentence in the Government’s Response to the Defendant’s Third Motion to Compel, the letter was not provided to the press because the letter had not yet been filed publicly.  During the evening of April 11, Mr. Samborn was surprised by a request for comment regarding the letter from a reporter who indicated that he had a copy of the letter.  Mr. Samborn himself did not have a copy of the letter, nor could he find the letter on the docket.  Subsequently, some articles articles were published indicating the government filings had been distributed to the media before they were publicly documented. 

Byron York had a post up attacking Fitzgerald with a 7:00 pm timestamp.  I’m not sure what time the Washington Post article went up but it was somewhere in that timeframe.  Neither article mentioned that the letter had been provided to them by Team Libby.  If the Libby lawyers are just trying to be so very damn transparent, why did they want to keep their fingerprints off this one?

It’s hard to believe someone doesn’t know where the bird went when they’re sitting there with canary feathers all over their lips.

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  3. Cheney’s Lawyer Already Leaked the Content of Cheney’s “Privileged” Interview
  4. Cheney’s Betrayal Made an IIPA Charge for Libby Possible
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