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BREAKING:  Suspicious package found at Federal courthouse where Libby hearing was to have been held this morning.  MSNBC reports that Fitz had arrived for the hearing along with his team, and they were all evacuated outside the building along with everyone else.  Judges have been moved to the federal courthouse across the street.  Team Libby had not yet arrived.  The hearing will clearly be delayed, if not rescheduled altogether.  More as I get it.

There is a big hearing scheduled in the Libby case this morning regarding the CIPA/graymail issues involved in the myriad of classified documents requested by Team Libby.  This is where Libby finds out whether hiring his graymail specialist from California (Cline) will pay off or not in terms of the case going forward, the limitations of documents for introduction to the jury and whether Patrick Fitzgerald will be forced to choose between a case going forward that has the potential to reveal damaging national security information or dismissing a case against a defendant that he felt was worthy of multiple federal felony charges for his alleged criminal conduct.

In other words, it's a big one today, and it is likely to be a very, very long hearing.

As I said previously when detailing the intricacies involved in this particular case, the unusual high-level nature of the classified document requests because of Libby's high level placement within the Bush Administration and Dick Cheney's staff, and regarding, generally, CIPA/graymail hearings:

There is already a process set up for classified document review in federal courts. It is governed by CIPA (The Classified Information Procedures Act), which was promulgated in 1980 to streamline cases involving classified materials. CIPA has several steps -- including having originating agencies review materials, reporting to the Federal prosecutor, and then taking that information to the court for review as to what is safe and what is not safe for release....

"Greymail" is a term that refers to substantial classified document requests on behalf of a defendant. It's a tactic that is in bad standing with most prosecutors who deal with national security matters, because it puts you in a difficult place at times: defend your case or defend your government's secrets.

Graymail is particularly invidious because it is likely to be most successfully employed by former officials from the heart of the government machine who subsequently face trial.

With regard to the "greymail" issue here, this is a complex subject that boils down to this for Team Libby: Scooter had a job that dealt with a lot of high level national security matters. He'd now like to use his complex job as an excuse for committing perjury, but to do that, he has to get access to a lot of the documents that crossed his desk in the service of the Veep. (Shorter Scooter: My job was hard, so you can't hold me responsible for lying.)

Fitz says those docs are irrelevent to the question of whether Libby is a perjurer/obstructor/false statement maker because, frankly, a lie is a lie.

In some cases, a "greymail" defense is a good strategy. Defense counsel are required, ethically, to defend their client with everything they can muster -- otherwise they aren't properly doing their jobs. That is absolutely true -- and if you ever face criminal charges, you'll want an advocate on your side who will do everything she or he can to help you to win your case within the bounds of the law.

In Libby's case, one of his counsels (Cline) has a history of successfully launching client defense based on "greymail" -- for Wen Ho Lee, as one high profile example. However, I would argue along with Fitz that for this case it is a transparent attempt to force a dismissal by over-requesting materials to which the Defendant ought not be entitled (including requests for 277 PDBs, which is unheard of, frankly) because they are outside the bounds of materiality.

Judge Walton has been careful in terms of signalling his hand on this, and he and Fitzgerald and Team Libby will have to go document by document through all of the Libby requests today -- through the entirety of the CIPA process for each and every one to determine admissibility, relevance and all the other questions that require answers before a decision can be made with regard to admissibility of each and every document -- or lack thereof.  (More on CIPA/graymail matters here.)

LHP suggests the following analysis in these types of cases, which I think is spot on:

Is this relevant?

Is this necessary?

Is there some other way to prove this fact?

This is similar to a motion in limine process that most attorneys who do trial work go through at one point or another. It's just that the information with which these attorneys are dealing is at a much, much higher level, with much stronger protections in terms of not being disseminated for no good reason -- but with a delicate balancing act that the Judge must perform in order to assure a fair and just trial for the criminal defendant as well. As EPU is fond of saying, though, the US Attorney does enjoy a bit of an advantage in these types of proceedings, because national security matters are handled very carefully indeed, with protections for the nation's secrets being ingrained in all the lawyers and judges involved in these types of matters. It's a tough argument on all sides, frankly.

It is also a tedious process, and likely to take quite a while.  And because it has to be done "in camera" -- before the judge but not in public, due to the highly classified nature of the documents under review -- we may not know anything about the proceedings for quite some time.  To be completely honest, though, this is make or break for both sides of the case:  Fitzgerald wins out on his arguments, Libby is more likely to cut a deal, if at all;  Libby wins out on his arguments, Fitzgerald is then under pressure to dismiss to ensure the safety of state secrets over conviction for Libby.

What is most likely to happen is that the Judge rules somewhere in the middle, neither side is happy, but the case goes forward nonetheless.  We'll see.

As Jeralyn reported last week (bless her, all of this came out while The Peanut was sick!), Team Libby filed a pretrial memorandum with the Judge asserting that:

  • Libby will testify in his defense at his trial
  • Libby will introduce a powerpoint presentation at his trial
  • Libby will seek to introduce his notes made during pertinent times
  • Libby will seek to introduce classified documents, including documents pertaining to Joseph Wilson's trip to Niger, which he asserts fall under four exceptions to the hearsay rule.

Jeralyn also pulled information from Fitzgerald's response brief that is well worth a read.  There are substantial arguments that Team Libby is going to have to overcome on hearsay issues and others to argue for admissibility of a number of the documents they are requesting -- as I said above, this is likely to be a long, long hearing.  Team Libby is claiming that these documents are essential to show that his job was hard, and that made him say untrue things.  Fitz and his team argue that no matter how hard your job is, dealing with classified material is no excuse to repeatedly lie to federal agents and a federal grand jury.  Period. 

But the question is, what will the judge think about admissibility, relevance, hearsay, and all of the other legal questions that are caught up in all of this -- because it is these questions on which the way forward -- or not -- will hinge.

More information on this as we get it today, as always.