The Chess Match over the Release of Information

by emptywheel

Along with today's news that Fitzgerald is presenting evidence to an already-sitting grand jury, there was a little news about the Dow Jones' push to make some of the case materials public.

At the hearing, Fitzgerald reached a compromise with Dow Jones and Co. and the Associated Press to ensure that some evidence gathered in the Libby prosecution could be revealed publicly. The two sides agreed that classified material, private personal information and secret grand jury testimony will be kept secret from the public and the news media, but that other information can be revealed in court filings.

There are several reasons why Fitzgerald may have made this agreement. 

First, as I explained in my Nixon Nixon Nixon post, one of Libby defense lawyer Jeffress' fortes appears to be controlling the flow of information during a trial. Regardless of Libby's defense strategy, this trial is going to be a chess match about the release of information as much as anything else, and Fitzgerald may have been using the Dow Jones request to move a piece in that chess match.

But is it possible that Fitzgerald is newly willing to release some of that information because he has less reason to keep it under wraps? Fitzgerald has proven to be a master at leaving all the good stuff hidden where only potential indictees can see it. Of coures, he is only going to want to reveal what he needs to, so he can conceal his strategy for further indictments, if necessary.

But is it possible the Woodward bombshell changes that calculation? Is it possible the Woodward bombshell will accelerate the case by implicating one of the potential indictees directly, thereby mitigating the need for a 66 indictment process to get to the ultimate target? Just a thought.

And while we're talking about access to information, check out Libby's judge's attitude toward profligate lawyer comments appearing in the press:

At yesterday's hearing, U.S. District Judge Reggie B. Walton told Libby's attorneys that he had read their recent comments about the Woodward matter in media accounts and urged them to hold their tongues until the trial, to avoid prejudicing future jurors. He said he has never issued a gag order in a case and hopes not to have to do so.

"I do have a very strong proclivity on cases being decided based on evidence presented in trial . . . not in the press," he said. "I assume . . . a word to the wise to be sufficient."

Ut oh. Guess we won't be hearing much more from Wells and Jeffress. I gotta say this though. this makes me want to see Rove's lawyer Luskin before this guy. What would Luskin do if he couldn't leak profusely?

Comments

[depressed (formerly obsessed)]

Have you seen the latest Vandehei?

And do you have any speculation as to what new info the Dow/Fitz ruling might cause to be released and what Fitz might gain from its release?

[Adam]

this makes me want to see Rove's lawyer Luskin before this guy

Joke, right? I mean, if not for Luskin, we wouldn't have been 100% certain that Rove is still under investigation. Or that he was a target in the first place. Etc. That man's glorious ineptitude has provided more and better information than almost any reporter out there.

Speaking of which, am I reading too much into the sentence in today's Washington Post article that says:

Two sources close to Karl Rove, the top Bush aide still under investigation in the case, said they have reason to believe Fitzgerald does not anticipate presenting additional evidence against the White House deputy chief of staff (emphasis mine)

[depressed (formerly obsessed)]

On the other hand, since Rove is still out there causing damage, Luskin may turn out to be not so inept.

[emptywheel]

Adam

No, I'm not joking. I said four months ago that Luskin was leaking so profusely because Rove knows no other way to respond. This would tie Rove's hands and likely make him explode out of frustration.

And I'm fairly sure those two Rove associates are lying. Rove's clinging to his job with tenterhooks, and anything they can do to suggest he's in a status quo right now, the safer his job is.

obsessed

I think we'll see more details from journalist's notes than we've seen. Perhaps direct quotes from notes. And whatever underlying sources are not classified may also get released.

[umzuzu]

Remember Walton is the judge who gagged Sibel Edmonds. http://www.govexec.com/dailyfed/0704/070904lb.htm

[MarkC]

Looking at Woodward's sources (which he always hides carefully) today. In a 4/19/04 WaPo article titled “With CIA Push, Movement to War Accelerated; Agency's Estimate of Saddam Hussein's Arsenal Became the White House's Rationale for Invasion” Woodward recounts his version of the genesis of the SOTU claims. At one point, the unconvincing case made by John McLaughlin is handed over, on Bush’s suggestion, to two lawyers who are charged with revising it as they would “put together a case for a jury.”

“The president was determined to hand the evidence over to experienced lawyers who could use it to make the best possible case. The document was given to Rice's deputy, Stephen J. Hadley (Yale Law '72) and Cheney's chief aide, I. Lewis "Scooter" Libby (Columbia Law '75). They visited the CIA and posed a series of questions that the agency answered in writing.”

I think it is interesting that these two are credited with the SOTU revision. In an earlier article (January 28, 2003) Woodward identifies Hadley as the person in charge of “trying to sort through the intelligence and recommend what to declassify”. That article, written three days after what he later (in the 2004 piece) identifies as Libby’s decisive presentation, doesn’t mention Libby.

So, writing in real time, Hadley is the focus, but then writing 15 months later, Libby begins to hog the spotlight. Another aspect is that Woodward’s sources identify Libby and Hadley with “ownership” of the SOTU claims. The same was likely true in June and July of 2003, when those claims were being called into question. Presumably, then, Rove’s call to Hadley shows they werestill in charge of defending those claims.

[bz]

When Wells introduced himself to the media as Libby's new attorney, he emphatically made a point of saying "We're going to try this case in the courtroom, we're not going to try this case in the press."