Libby's Motions

by emptywheel

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.

Update: Via bkny in FDL's comments, we find out Libby's Defense Team apparently has also learned that Fitzgerald knows about the deleted emails.

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!)

Comments

[Kate]

Back to basics. Libby's defense team is interested in defending, get this, Libby! I know the left thinks Libby should not put on a defense, confess to being an evil Jewish neocon, turn in the other evil neocons for whatever, and report directly to jail.

Fitzgerald made cute deals with gossipy, biased reporters and tiptoed around not so shy spies. He went before the whole world and indicated that Libby hurt national security. I hope Libby is acquitted and that the reporters and Plame/Wilson spend many uncomforable and very public hours on the stand.

You know, the public's right to know and all...

[emptywheel]

Kate, you racist, don't you know that not all Neocons are Jewish?? What are you, antisemitic?

[njr]

for Kate, another nibble before we quit feeding the...

not all of us Jewish readers are Neocons

[orionATL]

well, well ,well

the defense fund is headed by the former ambassador to italy during the planning of the forgeries caper.

and he's a strong supporter -- actually sounds like a fanatic admirer -- of chaney. (and a florida developer to boot. wonder if he knows any of abrahmoff's folks.)

unwinding this mess may take much of the rest of the decade. i wonder if fitzgerald will just throw up his hands at some point.

cheney and his radical right friends better hope the democrats don't take over the house or the senate in 2006.

[emptywheel]

njr

Oops, I couldn't resist either.

Must be hitting close to home, huh? Didn't know we attracted the David Brooks types.

[SDangerfield]

This business of deleted e-mails is absolutely tantalizing. Fitzgerald's 1/23/06 letter to defense counsel states that the prosecution is "aware of no evidence pertinent to the charges against defendant Libby which has been destroyed." The next sentence, however, states the "[i]n an abundance of caution, we advise you that we have learned that not all email of the Office of the Vice President or the Executive Office of the President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system."
This is an interesting tip of the hand here by Fitz. He's saying, quite carefully, that he is not aware of anything relevant to the (narrow) Libby indictment that was destroyed, but he lets them know that he knows that there is stuff missing from the email archives. He of course did not say that the missing emails aren't relevant to other aspects of the investigation that aren't charged in the Libby indictment (even things that might be germane to Libby's possible culpability on other crimes).
I completely agree with ew that the discovery requests are not only about stalling and trying to argue that the defense must have classified information in order to assure a fair trial (information that they know the WH will not release, like PDBs), but are also designed to find out how much Fitz has on other defendants -- but you also have to include how much Fitz might have on other crimes by Libby. And Fitz clearly is signalling that he has some obstruction evidence on the OVP and the EOP, though he of course isn't telling what he has. I'm sure there's a tactical reason for the "abundance of caution" -- and it's not because Fitz thinks that some court might find the deleted emails to be Brady/Jencks/Giglio materials (i.e., things that the prosecution must produce to the defense).

[SaltinWound]

Now this:

http://www.nydailynews.com/02-01-2006/news/story/387396p-328749c.html

Looks like Fitzgerald got some PDBs, he just never "requested" them, I suppose. Still, I doubt anyone volunteered any of the good stuff. Very interesting read, wheel, I would add that they're not just fishing for how much Fitz has on Libby's co-conspirators, they're fishing for what he has on Libby. Libby hasn't been indicted on the most explosive charges yet either. (I apologize in advance if this link doesn't work--it looks weird)

[SaltinWound]

Beat me to it, Dangerfield. One thing I've been meaning to mention: I'm halfway through K Street, and the Plame leak just hit the show (episode 5). I have five more episodes to watch but there's some very interesting stuff already. So far there they're attempting to steer our sympathies toward Mary Matalin's need to pay for a lawyer. Has this already been discussed here? If not, I'll report back with more details at some future date.

[emptywheel]

Saltin

We discussed K Street a million years ago (that is, last summer)--Mimikatz made the reference. I even went and got the DVDs. I'm just so TV-aphobic (unless there are football players on it) that I haven't watched yet.

I'll try to catch up to you this weekend.

I once predicted, btw, that Matalin flipped (at about the same time I predicted that Ari flipped, which turned out to be right). But I think I was wrong on that count. She's too actively involved with Cheney to have flipped.

SDangerfield.

Yes, they're also probing for the underlying crimes. In spite of what a good trial team they've got, they're probably still weighing the value of dealing--and trying to figure out how much they would have to deal.

[Jeff]

Whether you're right or not, Fitzgerald in one of the letters to Libby's team included as exhibits in Libby's filing has now told the entire world which reporters he knows knew about Plame before Novak's column, and it's only Woodward, Miller, Novak, Pincus and Cooper, with the addendum that John Dickerson talked with administration officials about Wilson's trip in Africa some time after Cooper's conversation with Rove on July 11, though it seems to be the case that he heard nothing about Wilson's wife.

There is all sorts of really interesting news for junkies in the new filing but particularly in Fitzgerald's letters included as exhibits.

[SDangerfield]

Jeff -- Indeed, there are nice little nuggets, particularly in the exhibits (and ew - if you need the docs themselves I can e-mail them to ya; you can email my pseudonym through my {largely inactive} blog, www.thegingerman.blogspot.com).
I find the arguments made in Libby's brief to be entirely predictable and pretty ho-hum, so there's not much meat there. That said, I think that Fitz put himself in a bit of a box by including an allegation that Plame-Wilson's employemnt was classified in the indictment, as I think he's not therefore in much of a position to say that the classified vel non nature of Plame's CIA employment is irrelevant). From the letters, it doesn't look like Fitz is going to fight too hard to withhold documents relating to the classified nature of her employment (hell, it marginally helps his case, at least in terms of atmospherics and it's arguably relevant to a defense argument about lack of motive to lie). I think he'll turn over the CIA's referral letter once it's cleared through declssification review, but he will fight the effort to ferret out everything the CIA has on the classified nature of her employment.

[Jeff]

As far as the PDBs go, from what I can tell from Fitzgerald's letter, at some point some apparently small amount of material having to do with one or both of the Wilsons made it into some PDBs; it's not clear if it had anything to do with Niger or Wilson's trip.

A couple of other tidbits from a quick first read: Fitzgerald only requested Libby's notes from some very specific dates, and those probably provide some clues as to the course of the investigation. For one thing, Sept. 27 to October 13 2003 or so were among the dates, which jibes with Murray Waas' report from a while ago that investigators were looking into whether some of the main players were involved in concocting a cover story once at the moment the investigation started.

The prosecution does not expect to call Wilson at trial (not surprisingly).

Libby apparently apparently testified that the purpose of the July 8 meeting with Miller was to transmit information about the NIE, and that he was authorized by his superiors (i.e., presumably, Cheney) to do so. This explains why Miller was asked a bunch of questions about whether Libby shared classified info with her that day and about the NIE specifically. But it's hard to tell what the significance of this is - Fitzgerald mentions it in the context of denying that at this time there is any intention to charge Libby with other crimes.

I'm sure there's more in there.

[Jeff]

One other thing: it's unclear where the Daily News got the information that specifically many emails were deleted. The special prosecutor's letter does not specify what amount. Two other things worth noting about Fitzgerald's comment: it's not just the OVP, it's also emails from the Executive Office of the President that were not preserved through the normal archiving process on the White House computer office. Fitzgerald also specifies that he's learned this about certain time periods in 2003. This probably just means that he's only looked into certain time periods in the course of his investigation, and he figured out that there were missing emails; so he's being precise in specifying what he knows about and what he doesn't. But it sure would be interesting to know whether the loss of emails in this way is a regular process or happened only during certain time periods in 2003. Also, to ask the obvious question, does this have to do with the Rove-Hadley email? And that alone, or is there some other relevance as well?

[emptywheel]

Gotta luv me some tell some but not everything Patrick Fitzgerald...

[SDangerfield]

Jeff: I think the "many" business is just Daily News reportorial licence. The story sources the information directly and exclusively to the Fitzgerald letter. Just shows to go how sloppy reporters are -- especially when "many emails" sounds better than "an unspecified number of emails."

[emptywheel]

Jeff

I'd bet money it has to do with the Hadley email.

There are probably several more emails missing from the leak week, perhaps some from when they were setting up their coverup in September/October, and there may be some from around June 10. That's what I'd guess, anyway.

These guys were so arrogant they didn't think they had to cover their tracks for quite some time. I'd imagine that time is rich with incriminating emails.

[Swopa]

The Fitzgerald letter includes a line that sums up your point:

"(9) This request in effect seeks discovery concerning other subjects of the ongoing investigation."

Oh, and it adds:

"Lest there be any doubt, we do have some documents responsive to your request which we are electing not to produce because we do not agree that we are obligated to provide them."

[emptywheel]

Swopa

I love that last bit. Lucky for Fitz the secretary remembered to delete the "nah-nahny-poo-poo."

[viget]

So the real question: Fitz let 'em know that *he* knows about non-archived emails, but does Fitz really have those emails, or did someone just tell him that?

For the lawyers in the crowd, could the Libby defense team honestly argue for a discovery motion saying that they think there might be exculpatory evidence in those "missing" emails (just so they can find out whether or not Fitzgerald actually has the emails)? Or would that be treading dangerously close to admitting to an obstruction charge?

How delicious a Catch-22 that would be! They know there *is* evidence in the emails that exculpate Libby, but directly implicate Cheney or Bush or other neocons. So, they can never ask for discovery on them because Libby's bosses wouldn't like that info going public. And they can never try the discovery gambit to find out if Fitz *really* has them in his posession.

Heh, and since they never filed a discovery motion on that, they have no grounds for appeal either!

[viget]

Quick question:

Are there links to any of these letters or motions? They're not on the OSC website.

[emptywheel]

Here's the letter, courtesy of Raw Story.

I think Libby would have a hard time arguing there's something exculpatory in the emails. How could the emails prove he didn't remember that he already knew about Plame but forgot when he said he learned of it from Russert?

[JohnLopresti]

I would be interested to know how much of which PDBs were bonus appended for Fitz's perusal in response to a RFPOD, and when these were transmitted if appended at the same time as the initial packet or at a later time; and, corelatively, whether Libby people could coach those producing the documents to send a few things supplementary along which might help him self-extricate later, in kind of a passive way to seed the evidence. Too elaborate. These folks are evidence experts. I checked RH's file, but she is playing this hand close to the vest, too; and forthrightly so.

[TM]

I have posted links to all the court documents in an update to this post. Last week's stuff is here.

And, IIRC, ReddHedd made a comment similar to this last week, so I can ask the same question:

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...

Here is Count 1 of the indictment:

25. On or about September 26, 2003, the Department of Justice authorized the Federal Bureau of Investigation ("FBI") to commence a criminal investigation into the possible unauthorized disclosure of classified information regarding the disclosure of Valerie Wilson's affiliation with the CIA to various reporters in the spring of 2003.

26. As part of the criminal investigation, LIBBY was interviewed by Special Agents of the FBI on or about October 14 and November 26, 2003, each time in the presence of his counsel. During these interviews, LIBBY stated to FBI Special Agents that:

...c. LIBBY did not discuss Wilson's wife with New York Times reporter Judith Miller during a meeting with Miller on or about July 8, 2003.

...32. It was part of the corrupt endeavor that during his grand jury testimony, defendant LIBBY made the following materially false and intentionally misleading statements and representations, in substance, under oath:

c. LIBBY advised Judith Miller of the New York Times on or about July 12, 2003 that he had heard that other reporters were saying that Wilson's wife worked for the CIA but LIBBY did not know whether that assertion was true.

Now, how is Fitzgerald going to advance that without her testimony?

[CaseyL]

"Now, how is Fitzgerald going to advance that without her testimony?"

Has he stated that he's not going to call her to testify? If he has copies of her notebooks, and the notebooks confirm what the indictment says about Miller, does he need Miller to testify?

Maybe he doesn't. Maybe Libby does. There's nothing stopping Libby's lawyers from calling Miller to testify. That might suit Fitzgerald just fine: he can treat her as a hostile witness during cross examination. (Frankly, he can probably do so anyway.)

As for the motive behind Libby's discovery request, of course it's a fishing expedition to find out what Fitz knows about the espionage issue; and of course Libby wants the documents, etc., so he can tell the WH what Fitzgerald has. Fitzgerald didn't indict Libby on espionage charges; therefore, information concerning the espionage issue is irrelevant to the "4 corners of the indictment."

Fitzgerald has been adamant since announcing the indictment that he's not going beyond those "4 corners." I'd love to know if that's his own legal conservatism at work - not addressing the espionage charges because they're not in the indictment - or if he figured out ahead of time that Libby would try exactly what he's trying, and wanted to pre-emptively spike Libby's guns.

It all depends on what the judge rules. Does anyone here know anything about the judge assigned to this case?

[emptywheel]

TM,

Will check the post out.

I was being flip about Judy, of course. Yes, he has to prove a few bullet points about Judy. But he left out all the real substantive parts of Judy's testimony. He doesn't trust her as far as he can spit, so I'm sure he took very few risks with those two bullet points.

[TM]

He doesn't trust her as far as he can spit,

I certainly agree that there is a lot less of Judy in that indictment than one might expect from her story. It's *possible* that Judy's mom thinks she will be a good witness, but I don't think Fitzgerald or anyone else does - Valerie Flame, Victoria Wilson, someone told me but I can't remember who - she will be a star.

OTOH, leaving her out altogether would have raised eyebrows.

[emptywheel]

Plus if you left Judy out, she's throw a caniption, of course. Better to appease her gently then deal with another one of her fits.

Actually, I suspect, if this thing goes on long enough, we'll learn that Flame Victoria is not an error on Judy's part. Don't forget that Novak used Flame too, in his October 1, 2003 article that was an attempt to put his genie back in a bottle while, at the same time, ensuring that Brewster Jennings was good and dead as a cover. It's not reasonable that Plame would be Plame's covert name. Even straight DO operatives, not NOCs, have different names. So perhaps Flame was one of her covert names. My guess is she wrote those names down later in case she ever got to leak them.

[Sebastian Dangerfield]

CaseL: If fitz wants Judy's notebooks in evidence, he'll have to call Judy, period. Judy is the only one who can authenticate the evidence. I don't think there's any way around Fitz's calling Judy as a witness, but we can be very sure that he is going to use her in the most limited way. He will examine her very narrowly on a couple of key facts that she can't really wriggle out of because he pinned her down before the grand jury. He knows that she will try to equivoate and throw lifelines to Scooter, but he knows very well what he has and doesn't have and will take no chances. Getting Judy to testify on a very few discrete facts will limit the scope of cross-examination as well, though her faulty memory will be fair game.

[emptywheel]

Sebastian

I'd add, too, that Judy is the one person whom Libby doesn't want aggressively questioned (well, maybe Novak, too, but he won't be on the stand for the perjury). There is a lot that Fitz allowed Judy to not reveal, about her "clearance," about the content of other discussions with Libby, about the other conversations she had about PLame, likely with some of Libby's buddies. Libby doesn't want to go there.

[squeaky]

the e-mails were not deleted. They were not archived properly according to the rules applying to WH e-mails. Minor point but not really.

Great analysis though. I remember reading about Clinton's defense fund and Robert De Niro was a big contributer at $5.000. Different crowd here and you are on to something for sure.

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