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April 13, 2006

Libby Case Update — A Correction and A New Filing

Posted in: CIA Leak Case,Legal

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Team Libby filed a Reply Memorandum in Support of Libby’s Third Motion to Compel late last night – in response to Fitz’s Response Brief (covered here, here and here, among other entries).  Jeralyn (who is a goddess!) sent me a copy of the filing and exhibits, and I’m doing a read through this morning (while watching a DVD about Disney World with my daughter) — am planning to have a more thorough bit of analysis later in the day on this latest filing salvo from Team Libby.

In the meantime, Jeralyn has posted her thoughts on the filing on TalkLeft, and they are a wonderful synopsis of this whole memorandum and well worth a read.  Jeralyn has also thoughtfully posted the entire filing in PDF format at TalkLeft, so you can read the whole of the Reply Memorandum as well, if you are interested.  (And for another perspective, Tom Maguire has his read up as well at JustOneMinute, as well as posting the PDF of the filing.)

The initial news reports on the filing have hit the wires.  David Johnston at the NYTimes has a read.  The AP also weighs in here.  And the WaPo’s take by R. Jeffrey Smith adds some more bits and pieces.

A common theme among the articles is this, from Libby’s filing (via the WaPo):

But the lawyers asserted that White House documents outlining what Libby was to say in conversations with reporters did not mention Plame’s name. They said this supports Libby’s contention that he did not participate in a campaign to damage Wilson by disclosing Plame’s CIA employment or in a coverup of the episode.

The statement that Libby did not link Bush and Cheney to the disclosure of Plame’s name during his 2004 grand jury testimony is meant to bolster Libby’s contention that no conspiracy existed to make selective disclosures to undermine a key administration critic, as some in Washington have charged.

But there is much more in this particular filing — some of which is guaranteed to raise some serious hackles in the halls of the Bush White House this morning — so it is worth a thorough read and some serious contemplation  on all of the backhanded little bits.  (Oh yeah, this is a read this morning…)

So, the back and forth continues — as it always does in this discovery period prior to trial. I have gotten a lot of questions from readers about how typical this back and forth really is — and the answer is, it’s pretty typical, if not somewhat more voluminous than the average case just based on the stakes involved in this case and the classified issues involved which require an extra layer or two of argument. 

Although, to be honest, it’s nice to be standing on the outside of this fight, instead of being stuck in the middle of it.  It’s exhausting to be in the middle of this back and forth, day in and day out — especially when you consider how understaffed most prosecutor’s offices are around the country.  Let alone how difficult it can be to have a solo practice or a small firm practice as a criminal defense attorney when you are dealing with the mounds of paperwork and evidence a criminal prosecution generates.  I’ve been on both sides of that, and both are equally exhausting for much the same reasons — just different perspectives — and the legal beagles out there can second this if they’ve been through those 16-hour-prep trial days for weeks on end.

The difference that I see in this case compared to the average criminal defense practice that I saw in my career is the amount of money that Libby has at his disposal to continue to paper the prosecution with motions and other filings — which, considering the hourly rates of his legal team, appears to be a hefty chunk of cash in his legal defense trust.  Routine criminal cases simply don’t suck up this much air — but the more at stake in the charges for the client and for the government, the higher the level of work involved.  (As an example, you don’t see this enormous flurry of motions in a misdemeanor domestic battery case, but you sure do see this sort of effort for a murder case.)

Does this happen in every case? No. But it does happen in a lot of them — especially where the defendant contests the charges and has counsel who is willing to vigorously protect his or her rights. Honestly, this is the way the system is set up to work — each side consistently testing the other, over and over, to weed out the less-substantiated charges and the weaker arguments.

One of the odd aspects of this particular case is the amount of media coverage of the intricate little details — because the implications of this prosecution reach to the highest levels of the current Bush Administration and out into the public sale of the Iraq War and pushback on Administration critics and so many other politically charged issues — there is naturally a lot more scrutiny of this than there would be of any local, every day criminal prosecution.

As a result, something as routine as a correction filing from Fitz on the wording on his last Response has caused a huge stir — because the tiniest of details is scrutinized so carefully in the media and on the blogs.

The prosecutor, Patrick J. Fitzgerald, formally filed a one paragraph corrective letter on Wednesday to Judge Reggie B. Walton of Federal District Court, changing a sentence in the earlier filing. The passage had said Mr. Libby had been authorized to disclose to a reporter a "key judgment" from the 2002 National Intelligence Estimate that said Iraq was vigorously trying to obtain uranium.

Mr. Fitzgerald’s amended version changed the wording so that the passage would say that Mr. Libby was authorized to disclose "some of the key judgments of the N.I.E., and that the N.I.E. stated that Iraq was vigorously trying to procure uranium."

The distinction between the two versions is that the second accurately stated that the finding about Iraq’s efforts to obtain uranium was in the report, but was not among its "key judgments," a term used in intelligence reporting to indicate that a stated conclusion represents the consensus of intelligence agencies….

Mr. Fitzgerald’s letter did not seek changes in his assertion in the earlier filing that Mr. Libby had testified to a grand jury that Mr. Cheney had told him in 2003 that he was authorized by President Bush to release selected parts of the intelligence report to a reporter.

Now, to those of us who have been obsessed with this case since the investigation began, this has some meaning. But I can guarantee you that if you tried to explain the significance of this to someone who hasn’t paid attention to the case, you are simply going to get some eyes glazing over and a "huh?" (I know, I’ve tried, even with legal beagles — unless they are political junkies, they don’t seem to see a huge difference.)

But there is a difference in terms of the significance in the NIE — the key judgments have a higher level of importance than the rest of the document.  I think the explanation on this from Eriposte at LeftCoaster lays out the details on this best — so please take a read.  The bottom line for me — the political implications are essentially the same for the Administration in terms of public opinion, its a difference of degree of importance placed on the particular piece of evidence, but nothing is changed with regard to the selective declassification and cherry-picking of only those bits which supported the Administration’s position, the secretive leaking to the friendly Judy Miller, and the keeping of critical pieces of information behind a classified wall until 10+ days later.

It’s the weird, secretive behavior and the half-truth revelations that remain the problem for the Bush Administration – where the information fell as a key judgment or not is a distinction that is lost, I think, on the bulk of the public.  But I could be wrong on this — time will tell.  (And I’m sure folks on the other side of the political fence would vehemently disagree with me on this.)

In any case, that’s a bit to think about — and I’ll try and have analysis up as quickly as I can manage it this morning.  Now for some more coffee and a bit of legal reading.


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