Yesterday and today, we've gotten more news that Libby's defense team is requesting all manner of stuff. ReddHedd explains that this is normal operating procedure, not to read too much into it. And while I'll cede to RH's expert judgment on legal issues, I wonder whether there isn't something more going on.
After all, this is only nominally the "Libby Defense Team." In reality, Libby's team of lawyers is attempting to ensure that the Plame scandal reaches no further than Libby, that it doesn't taint the rest of the Neocon cabal who participated in outing Plame and, more importantly, made the false case to bring the country to war. The fund is managed by a lifetime Republican operative, Barbara Comstock and chaired by Mel Sembler, Ambassador to Italy when the whole Niger caper was planned. In addition, the fund includes such notable contributors as Jeanne Kirkpatrick, Bernard Lewis, and James Woolsey. These folks are not just trying to bail out (literally) a good friend. They're trying to prevent their entire Neocon project from being severely damaged by the trial.
So what do I think they're after, this Neocon Defense Team with their motions? Well, they're after stuff that Libby knows about--but that the Defense doesn't know whether or how Fitzgerald knows about. They're trying to ascertain, I suspect, how much evidence Fitzgerald has against other members of the team. And if they can figure that out, they may adjust Libby's defense accordingly.
Let's consider at what they're looking for. A few weeks ago we learned (again) that they're going after journalists' records. On the surface, they may be looking for proof that Russert knew of Plame's identity, possibly from Tweety or Andrea Mitchell. But they already have a good idea of whether or not Tweety or Mitchell had received this leak--after all, someone who was part of the plot would have leaked it to them. (Arguably, they're trying to get dirt on Woodward, Judy, and Cooper, too, but that dirt won't affect the perjury charge much.) By getting that evidence, they will be able to argue the case that Russert knew of Plame from someone else and may not be telling the truth about what Libby said.
But they'll also know how much Fitzgerald knows of the larger pattern of leaking. Does Fitzgerald have evidence against Bolton or Wurmser or Hannah or, most importantly, Dick, the people that Judy or Russert or Andrea Mitchell are most likely to have heard this leak from (we know, for example, that Judy talked about Plame to other people--whether she has or not doesn't affect the perjury case, since it doesn't rely on her testimony at all, but it would indicate how much evidence Fitzgerald has against other Neocon plot members).
Then yesterday, we learned that Libby's team is after all the Presidential PDBs for the period of the leak.
Specifically, Libby's lawyers are seeking copies of the highly secretive President's Daily Brief, a summary of intelligence on threats against the United States, given to Bush from May 6, 2003, to March 24, 2004.
This most obviously appears to be a stall tactic. The Bush Administration has fought against releasing PDBs ferociously. It released (to their endless shame) the August 6, 2001 PDB that told us "Bin Laden determined to strike in the US." Not only (I'm sure) have they learned their lesson. But we also know some of the PDBs contain precisely the evidence that would reveal the willful attempt to lie the American people into war, such as the September 21, 2001 PDB that admitted there was little evidence to suggest a link between 9/11 and Saddam Hussein. Sure, Libby's team is not trying to get the pre-war PDBs. But they're almost certainly going after PDBs they know (because Libby told them) contain evidence that Bush knew of the plan to out Plame--and he continued to get updates on it after the initial outing.
In this case, though, it's unlikely (I would hope) that Libby's request will be granted. But he may have achieved his objective anyway. He now knows whether the FBI got any of the PDBs:
In a Jan. 9 letter to Libby's lawyers, Fitzgerald said he believes he is obligated to turn over only documents in the FBI's possession. Fitzgerald also said he did not have _ nor did he request _ many of the documents that Libby's lawyers want.
"As you are no doubt aware, the documents referred to as the Presidential Daily Briefs are extraordinarily sensitive documents which are usually highly classified," Fitzgerald wrote. "We have never requested copies of any PDBs."
Then there's the request for CIA materials on Plame's covert status:
Attorneys for Vice President Cheney's former chief of staff urged a court yesterday to force a prosecutor to turn over CIA records indicating whether former CIA operative Valerie Plame's employment was classified, saying the answer is not yet clear.
The defense team for I. Lewis "Scooter" Libby also asked that the court require Special Counsel Patrick J. Fitzgerald to turn over any informal assessments conducted by the CIA to determine whether the leak of Plame's identity in July 2003 damaged national security or agency operations.
Part of this is logically tricky. If they want to argue that Libby had no incentive to lie about how he leaked Plame's name, they'll need to show he knew whether she was covert or not--and whether the outing had done any damage. They no doubt do know how much damage they caused. I'm sure someone like Fleitz told them. But are they willing to admit Fleitz told them they had scored a direct hit? "Good job, Scooter, you nailed her and her stupid Brewster-Jennings front! Well done!"
They also no doubt know precisely what Plame's covert status was in July 2003. But do they want to admit that they learned as much when Tenet (or whoever) told Cheney what role Plame played in the DO?
Remember--the one identifiable source identified in the indictment who revealed Plame's covert status was the person in CIA who told Dick Cheney about Plame's role. I'm sure Libby's funders would like to know how much detail Fitzgerald got about that conversation. It's not so much the covert status will affect the validity of the perjury case. But it will alert the larger team--the one defending the Neocon project--how close Fitzgerald is to implicating others in a conspiracy to out a CIA operative.
I could certainly be wrong on this. But I think it pays to remember that when we talk about "discovery" here, we're not so much talking about a team whose primary objective is exonerating Libby. I'm sure that's one objective (the team is loaded with good trial attorneys). But the real client of this defense team has a much larger goal, to prevent the implication of the larger Neocon project.
Fitzgerald, who is fighting Libby's request, said in a letter to Libby's lawyers that many e-mails from Cheney's office at the time of the Plame leak in 2003 have been deleted contrary to White House policy.
Deleted emails? Sure sounds like we ought to reconsider the cost-benefit analysis of tampering with evidence.
Oops: ReddHedd spelling fixed (damn spell check doesn't know ReddHedd when it sees her!)