Jeff, who is much more diligent watching Pacer than I, noted a Judge Walton ruling that probably answers a question I've asked about before. Does Libby get the Rove testimony?
I'm referring back to this post, in which I showed how anxious (and very tricksy--that Ted Wells, he is a tricksy lawyer) Libby's team was to get certain evidence related to Rove.
But Wells persists, claiming they have a right to any materials dealing with Rove.
But if they have, let's take Mr. Rove, if they have emails and other documents dealing with Mr. Rove's activities, I have a right to get that material.
The answer to this question may relate to the timing of Rove's escape from charges (the afternoon of the last hearing on Libby's case). After all, if Fitzgerald can't indict Rove and still prosecute Libby successfully, he may have decided to back off the Rove charges. Or, if Libby would be given information that might discredit Rove (such as a plea bargain) Fitzgerald may have backed off charge to retain the value of Rove's testimony.
Well, way back in early June, Walton issued this order, which pretty much shoots down most of Libby's discovery requests relating to State, the NSC, and their collective grandmothers' knowledge of Joe Wilson. But Walton does throw Libby three teeny little milkbones:
(1) All documents which tend to demonstrate that the defendant was involved in an effort to rebut the accuracy of Ambassador Wilson’s findings concerning his trip to Niger, and thus any documentation of discussions the defendant had concerning Ambassador Joseph Wilson, his trip to Niger, or Valerie Plame Wilson with any news reporters or other government officials that were conducted in an attempt to achieve this objective;
(2) All documents which tend to show that the defendant’s conversations with government officials did or did not occur as alleged in the indictment.
(3) All documents, from any individuals, whether or not they will be called as witnesses in the government’s case-in-chief, that are discoverable under Brady v. Maryland, 373 U.S. 83 (1963).
With a footnote to the last item:
Both parties submitted additional pleadings on the issue of whether production of documents should be limited to government witnesses, or should also include defense witnesses. Although helpful, the Court does not need to reach that issue as it is simply requiring the production of documents relating to the allegations in the indictment that are in the physical possession of the government.
It seems that Walton is attempting to skirt the question of whether Libby gets Rove's testimony or not by defining discovery narrowly to what appears in the indictment.
At one level, that makes the question of whether Libby gets Rove's testimony very clear: he gets Rove's version of the conversation they had on July 11, since that is referenced in the indictment.
On or about July 10 or July 11, 2003, LIBBY spoke to a senior official in the White House (“Official A”) who advised LIBBY of a conversation Official A had earlier that week with columnist Robert Novak in which Wilson’s wife was discussed as a CIA employee involved in Wilson’s trip. LIBBY was advised by Official A that Novak would be writing a story about Wilson’s wife.
Libby gets to find out whether Rove really did say that, and presumably whether Rove testified to Libby mentioning a conversation with Tim Russert (which would help Libby enormously) or Judy Miller (which would doom Libby's case).
But I'm still not sure if Libby's team got what they were after. They're after "emails and other documents dealing with Mr. Rove's activities," which is much more expansive than just this one meeting on July 11. Walton's still refers back to Brady, and Fitzgerald doesn't believe some of the Rove (though he's not mentioning any names) stuff fits under Brady:
MR. FITZGERALD: Not at all. I'm responsible for the government's case and Brady and turning over my obligations. I am not responsible for preparing the defense case. And the case law, and Your Honor cited it. It is material defined by the indictment and the government's case-in-chief. You just can't say I'm going to call 20 witnesses so give me everything about them. We then would have effectively open-file discovery or beyond that and I don't agree with that reading of the law.
Fitzgerald's comment here is almost the same as Walton's save for the fact that Walton seems to suggest Brady includes defense witnesses. Then Walton punts in his footnote: he "is simply requiring the production of documents relating to the allegations in the indictment." Well, is what Fitzgerald has related to the allegations in the indictment, to the July 11 meeting, or does he have something more?
I dunno. Here's an answer Fitzgerald gives to Walton in the May 5 hearing, about what he thinks he should or should not turn over (though, as always, he insists he's not speaking about any particular person).
We would not be turning over a conversation if there was a document about a conversation with a reporter necessarily as to what they said to the report. But if there is a document that would be relevant to the conversation with Mr. Libby such as an email saying I just spoke to Libby or even a calendar entry saying that they meet with Libby, that sort of thing was turned over.
Let's pretend this is Rove. Fitzgerald is saying that, if there were a document about Rove's conversations with Cooper or Novak, he wouldn't turn them over. But that he would turn over evidence--whether it's a calendar entry or an email--recording his July 11 meeting with Libby. It doesn't seem like Walton's ruling would change that. Calendar entries and emails would either verify or refute the claim in the indictment that Libby and Rove met and Rove told Libby about his conversation with Novak. Since the indictment doesn't go much further at describing what Rove said about Novak, I don't think Libby could claim the need to see documents relating directly to the Cooper or Novak conversations.
But then, I'm still mystified what Wells is getting after. After all, Fitzgerald has already turned over the Rove-Hadley email, which wouldn't seem necessary under Walton's guidelines. What more is Libby after?
The trick, of course, comes if, in a conversation with Novak, Rove mentioned a prior conversation with Libby. If that verified or refuted the allegations in the indictment--even if they don't relate in the least to the July 11 conversation--Libby clearly gets them.