Fitzgerald's Pot of Gold

[H2O Man]

"The defendant's defense must necessarily be predicated upon what the defendant believed to be the pressing and time sensitive national security and intelligence issues that dominated his work day." - US District Judge Reggie B. White; Memorandum Opinion; March 10, 2006.


Yesterday, Judge Reggie Walton ruled on several of the extensive arguments he heard on February 24, regarding the defense team for I. Lewis "Scooter" Libby's Motion to Compel Discovery. As those who follow the case will recall, at that time Judge Walton resolved several key issues. He granted Team Libby access to Scooter's personal notes, but denied their request for documents concerning journalists beyond those Libby dealt with (Miller, Russert, and Cooper).

Walton had also reserved the right to determine if Team Libby had the right to another set of documents; he held a private session "in camera" regarding these, and ruled in Fitzgerald's favor. Further, Walton has reserved judgement on two other Team Libby requests, regarding any damage assessment concerning the disclosure of Valerie Plame, and any documentation regarding her employment status at the CIA. (It should be noted that in the 2-13-06 edition of Newsweek, Michael Isikoff reported in "The CIA Leak: Plame Was Still Covert" that "according to newly released portions of a judge's opinion," the CIA had verified that Plame was indeed a covert agent at the time the administration exposed her. This includes having traveled overseas to work on counterproliferation issues.)

In yesterday's ruling, Judge Walton was primarily concerned with the Federal Rule of Criminal Procedure 16. This rule involves pre-trial discovery in five areas: {1} the defendant's statements, including oral, written, or otherwise recorded; {2} his prior criminal record; {3} certain document's the government has in their "possession, custody, or control"; {4} reports of examinations or tests; an {5} any summary of testimony of expert witnesses the prosecution anticipates using. Yesterday's ruling focused on #3.

Team Libby requested: {1} all documents provided to Libby in connection to his morning intelligence briefings from 5-6-03 through 3-24-04 in their entirety, including materials from the Vice President's daily briefing; and {2} all documents relating to inquiries Libby made as a result of those daily briefings, and all documents provided in response to his inquiries.

Judge Walton had to make his decisions based upon rules of discovery for classified information as government by Section 4 of the Classified Information Procedres Act (CIPA). Thus, he ruled that Team Libby was only entitled to a set of documents from a limited time period, and to only to "documents reflecting the defendant's inquiries he made during the morning intelligence briefings, and not the responses he received to those inquiries." Significantly, Judge Walton notes that Team Libby "appears to agree, in large part" to Walton's restrictions. (page 10)

The controversy over what documents Team Libby is requesting is limited to those from the CIA and the Office of the Vice President. There is no dispute over any evidence the Department of Justice, including the FBI, has. Thus, Walton focuses on "the first question for the Court to answer," which is what CIA and OVP evidence Fitzgerald has within his possession, custody, or control.

Fitzgerald had noted the CIA had not participate in the investigation, other than in the status of a witness. More, he "argues that the President's directive for White House employees to cooperate with the investigation does not align the OVP with the prosecution, but merely provided responsive documents to the Office of Special Counsel upon request."

Judge Walton ruled that the inquiry must be "fact-intensive and must be resolved on a case by case basis. He noted that then-White House Counsel Albert Gonzales had "declared that '(t)he president has directed full cooperation with the investigation'," and said there "is no indication the White House denied" Fitzgerald's requests. Thus, while he notes "the exact contours of the roles played by the OVP and the CIA are not entirely clear to this Court," and that the "CIA's involvement in this investigation is less transparent," Judge Walton will allow Team Libby access to some of the information they requested regarding Fitzgerald's investigation.

Still, he notes that, "In this case, the question of materiality is much more difficult, and closer question," than in ordinary criminal cases. He puts this into the context of what Libby's defense must be, which is "necessarily predicated upon what the defendant believed." Thus, while the government must provide summaries of information from the period in question to Team Libby, it will be up to Scooter to use them to "refresh" his memory. And Judge Walton reduced the amount of time in question from Team Libby's original request for 321 days' worth of specific documents, to 58 days' worth of summaries.

Other issues remain unresolved. Thus, Judge Walton has ordered both sides to be prepared for a March 17th hearing to try to find common ground on other motions. It may be that Patrick Fitzgerald is prepared to show us the "pot of gold" at the end of this rainbow.

[rucky]

1. a couple of edits:

"Reggie White" as judge in the top quote.

4 graf from bottom: "Fitzgerald had noted the CIA had not participate in the investigation"

Thanks for the update! especially for sifting through all the legal jargon for us.

[kpete]

3. thanks for the update too

Still don't understand the whole grey mail stuff though...where is it all leading...

[TahitiNut]

25. About "grey mail" ...

A defendant has an inalienable right to mount a defense and, in preparing that defense, has a right to obtain ('discover') copies of all documentary evidence (and access to physical evidence) in possession of the government/prosecution having a relationship to the charges AND to the legal/validatable basis for the defense itself. If, however, the government is unable/unwilling to provide such documents in a discovery phase, then the defense can argue for a directed verdict of not guilty by reason of interference in mounting the defense itself.

It's an attempt to box the government into a "damned if we do and darned if we don't" corner where their production of the materials creates other difficulties - in this case, exposure of classified information - where the value and priority of the 'other difficulties' is higher than a successful prosecution.

Walton has chosen to greatly reduce the magnitude of the 'other difficulties' by barring the requirement that the government produce the actual documents, exposing their content, where the mere existence of such materials is sufficient in an evidenciary sense to serve the defense's legal needs. This, then, reduces the "damned if we do and darned if we don't" equation to one of "inconvenienced if we do and darned if we don't" - making production of the evidence feasible.

Caveat: IANAL, but this is how I comprehend the game.

[H2O Man]

52. Correct.

Well said.

[H2O Man]

10. Yikes!

To late to edit. Sorry about the errors.

[merh]

2. I like that, March 17 and "pot of gold"

Actually, this judge seems very fair and very knowledgeable of the issues involved. That is pretty encouraging in and of itself.

Thanks for the post, H2O. :hi:

:hug:

[Catrina]

6. 'A pot of gold' on St. Patrick's Day!

I agree regarding the judge ~ so far he does seem to be very fair ~ not allowing Libby to use deceptive tactics to get the case thrown out, yet providing his defense with enough of what they claim they need for his defense. That should limit the possibility of them claiming in an appeal that they were unjustly denied evidence they needed.

So, Libby's defense so far is that he has a bad memory based on the fact that he had better things to do other than be concerned about national security issues? Wonder how the jury will view such a defense?

[merh]

8. Oh, I am sure in this post 9/11 world that the admin has

created, that defense will go over like a fart in church.

Call it poetic justice, attribute it to karma, but the "war on terra" they have manifested will make Libby's defense very, very hard, if not totally impossible to prove to a jury.

Couldn't happen to a slimmier traitor in my book.

[H2O Man]

11. Sometimes it is

better not to bluff. Team Libby may find Judge Walton is interested in justice.

[merh]

15. I've often told folks that there are some folks that

take their "oaths of office" serious. I pray that Judge Walton is one of those who does, and after reading your OP, that appears to be the case.

[H2O Man]

17. Some were concerned

because he is conservative. That isn't necessarily bad, as you know. Judge Sirica wasn't liberal.

[merh]

22. In criminal cases, the defense wants liberal judges.

You know, the ones that are more concerned with civil rights than the public interests of seeing that criminals are taken off the street. ;)

It's a balancing act that the admin never thought they had to deal with. How much their propoganda may come back to bite them in the collective asses.

[H2O Man]

24. Thank you!

... for making me laugh out loud. You are so right. Exactly right.

[merh]

30. I'm so glad I could make you laugh ...

and so happy that you share posts with us that make us think and give us such insight. :hug:

It is good to be able to "think", I misplaced those brain cells but thanks to you, seem to have found some.

:loveya:

[H2O Man]

32. The old case

is warming up. Yesterday's ruling is "Document 63." And some, like Fitzgerald's Ex Parte Affidavit, are "Document 55-2," indicating there are more than people might suspect.

[yodermon]

46. I am concerned, for the record,

because this Judge upheld the gag order that Ashcroft placed on Sibel Edmonds.

http://www.scoop.co.nz/stories/HL0601/S00177.htm

<snip>
So to quickly sum up, we have a judge with little background available, with long ties to the Bush’s, who someone doesn’t want the public to know his financial dealings, who has denied requests for domestic intelligence records (at least once), who has now been mysteriously “randomly assigned” to not only hear Edmonds’ FTC case, but is also assigned to a case regarding a senior White House official with whom this judge and the defendant worked with the White House at the same time, albeit in different capacities. Have we flunked the infamous Dan Burton “smell test” yet?

That is all.

[H2O Man]

53. On the other hand,

a conservative judge who believes that classified information should remain classified, and secret, may be a good thing in this case.

While I am sympathetic to Sibel Edmonds' position, it is important to recognize that her case is distinct from this one.

[merh]

62. Exactly, H2O

They want conservative judges, what better judge to hear this important national security case and decide that there are times civil rights take a back seat to national security. :evilgrin:

Be careful what you ask for, you just might get it.

[stop the bleeding]

40. Besides the judge taking his oath and job seriously, Fitzgerald probably

takes his job, the rule of law, and honor REAL seriously.

As H2O Man would say

"Things are good"

[Catrina]

45. Exactly, they are beginning to reap what they have sown ~

What is becoming so obvious, in every venture they have embarked on, they do not plan ahead.

Was this because they expected to have so much power that no one would dare to question them or was it just incompetence?

If it because they expected to be so powerful they would be untouchable, I think they were delusional ~ stupid, would be another word for them, imo.

[Carni]

21. THE 17th! Yeah! Am I getting a birthday present?

That would be awesome...seeing as my birthday has SUCKED for the last five years.

One year I got the invasion of Iraq for my B day :(

[merh]

29. Here is to this birthday being the birthday to try to make up

for the others. :toast:


We need to collectively send go mojo out for Fitz. :grouphug:

[Carni]

61. MAJOR moj o being sent to Ftz here! :) eom

[newspeak]

71. same here

it was the 20th in Iraq, but the 19th where I live--what a birthday present, NOT!!!!!

[Pithy Cherub]

4. Actually, Libby may have to show his meager hand.

Because his defense is predicated (currently)on how "busy" he was with matters of national security, he will have to demonstrate what he actually did that makes his memory faulty but his work product for the VP excellent. Scooter loses on the side of logic to say his memory or judgment was clouded while in front of the FBI, Grand Jury and federal judge, but his vaunted memory bank was at its optimal in secret with the Bush administration. Fitzgerald may also be ready to pounce because Libby also was a Special Assistant to Bush as well and wants to know when was his judgment also clouded on the job. Tis highly embarrassing to the Bush Administration all the way around.

the judge is reserving the right to challenge the requests and his patience will be sorely tried if its just a fishing expedition. This is really a high risk legal strategy for Scooter. Fitzgerald is letting Scooter hang himself and the BFEE because if the PDB's were exculpatory in any way for others, Fitz gets a good long look before bringing further charges.

Fitz is really quite masterful and patient at this.

[H2O Man]

13. If Scooter says,

"Lookie here: no mention of Wilson in all my notes!" and then Fitzgerald has a half-dozen witnesses who testify that Scooter was obsessing on Mr. Wilson, the jury may conclude Libby was purposely trying to keep the Wilson business under cover.

[Pithy Cherub]

20. That's almost comical.

Scooter: see no plan on paper...

Multiple Witnesses: Here's what he said and what he told me about Wilson & Plame.

Jury: WTF - just because he didn't write it down & told the biggest blabbermouths on the planet he wants a not guilty.

if Libby is relying on that then he is also praying for a pardon...

:popcorn:

[TahitiNut]

27. The "too busy to recall" defense ..

... would be interesting if, during all that "busy time," Libby is found to have engaged in frequent and/or extensive pursuits unrelated to the duties he offers 'evidence' of taking up so much time. If I were Fitzgerald, I'd sure explore impeachment evidence (not subject to prior discovery, by the way) that demonstrates Libby was engaged in such activities. Such activities need not be as far departed from his duties as sailing the Caribbean - they only need to be shown as unrelated to his direct duties and assignments as he compiles them.

If I were on a jury, I'd sure be persuaded by an argument to the effect of "If you say you were so busy, then how did you find so much time to ____ and ____ and ____ and ___??"

[stop the bleeding]

42. give them plenty of rope and they will hang themselves

Because his defense is predicated (currently)on how "busy" he was with matters of national security, he will have to demonstrate what he actually did that makes his memory faulty but his work product for the VP excellent. Scooter loses on the side of logic to say his memory or judgment was clouded while in front of the FBI, Grand Jury and federal judge, but his vaunted memory bank was at its optimal in secret with the Bush administration.

I like the way you think

[cassiepriam]

64. It is like playing a high stake chess game. Fitz is quiet,

methodical, patient, low key, and plays totally by the book.
On the surface, he is a bureaucrat who dots all his i's, crosses all the t's.

But there is much more to him. He has the the heart and soul of a poet, a strong internal moral compass, and he is quite intuitive. He knows the moves his opponents are going to make before they make them.

He has the edge in this battle between good and evil.

[WinkyDink]

67. I love post #64.

[countingbluecars]

5. Thanks for keeping us up to date

on this evolving case.

Fitzgerald on St. Patrick's Day-how fitting! I hope we get at least a glimpse at the "pot of gold".

[seemslikeadream]

7. "Top of the morning to you!" H2O Man

[H2O Man]

14. And to you.

Bob Marley was, like Malcolm and Che, part Celt.

[Me.]

9. So What's The Deal With His Very Excellent Lawyers?

Those of the big reputation? Why would they let their client play into FitzG's hand? Isn't Libby hoisting himself by his own petard by arranging for our favorite prosecutor see what info he requested?

[Beetwasher]

12. Fitz Called His Bluff

It's that simple.

I think Libby may have been hoping that OTHER people would not allow the information he requested to come out. This was not so much a bluff against Fitz as it was a threat to others in the admin as in "You guys better do something about this case now or it's all coming out". Libby is greymailing Cheney/Bush. If Cheney/Bush doesn't want certain things to come out in the evidence Libby is requesting, they better step in and stop Fitz somehow.

[H2O Man]

16. Yeah, that's right.

I'd think that Team Libby -- as opposed to Client Scooter-- know they have to channel attention away from their boy, and aim it at others. These "others" have to include his supervisor(s). I think DUers will be pleasantly surprised at what comes from those 250 e-mails.

Regarding "good lawyers." I remember one time when I was in court with two talented, very capable attorneys. Before the hearing started, one said to the other, "I'm really going to kick your ass in there today." And the other guy knew it. It wasn't that one was smarter or more capable -- he just had the better case that day. The other guy bluffed a little bit, then settled the issue in chambers. Afterward, he said, "It sucks to have a real jerk for a client." Of course, this case had nothing to do with Scooter, but I'm reminded of it.

[Beetwasher]

18. "Nothing To Do With Scooter"

"It sucks to have a real jerk for a client." Well, maybe the cases were unrelated, but they sure sound similar! :evilgrin:

Sometimes the best lawyer in the world is stuck w/ a giant pile of shit and an asshole for a client and finds his options quite limited. "You gotta work w/ what ya got".

[tanyev]

59. You go to trial with the client you have, not the client you want.

As Rummy would say.

[Missy Vixen]

37. The most interesting incident we've ever had with an attorney

>Before the hearing started, one said to the other, "I'm really going to kick your ass in there today." And the other guy knew it.<

Our attorney, my husband and I were asked to appear at a meeting over a matter that happened many years ago. I can't divulge what happened, but I will talk about this. The attorneys we faced in this matter were the best money could buy. I can't even imagine the hourly rates involved, and their side brought FOUR. We could never afford them, but we had a great attorney on our side.

When their side entered the room, I introduced myself and shook hands. Their lead guy had sweaty palms. I waited till they left the room and whispered to our attorney, "They're scared."

Julie

[stop the bleeding]

44. Anyone with a lick of sense that reads the Oct, 2005 Fibby indictment

knows that Fitz has a ROCK SOLID case on all 5 counts.

" I remember one time when I was in court with two talented, very capable attorneys. Before the hearing started, one said to the other, "I'm really going to kick your ass in there today."

We all know who the ass kicker and ass kickee is in this court room battle.

This reminds of chess where you know you have your opponent beat but they are still trying every last ditch effort to stay alive. Fitz is letting Fibby and his lawyers move themselves deeper and deeper into a corner on the chess board.


I am Irish, skin, freckles, thirst for beer, temper, hair, eyes, and a potato loving fool to prove it.

I think this year I will look upon the 17th with even more enthusiasm, and cheer than normal.

"Things are good" Amen Brother!

Thanks Waterman

[H2O Man]

54. Our old friend Thomas Cahill

wrote a wonderful book, "How the Irish Saved Civilization." Mr. Fitzgerald is intent upon doing it again.

[Me.]

39. Well What I'm Wondering Is....

if there may be 2 Team Libbys? Two different strategies going on. One from his lawyers and one from a company associated with earthmovers (and we know how smart they are). I also wonder, if my tinfoiling is correct, if there is conflict? His lawyers advising him one way, in Libby's best interests, and the other team advising Libby in their best interest.

[H2O Man]

55. Yes.

Team Libby is the lawyers. They are focused on providing Mr. Libby with the best possible legal defense. In doing so, they can not have conflicted interests .... which simply translates into their are not able to look out for VP Cheney.

Then there is the group known as "the defense fund." They are the neoconservative forces. Their goal is summed up entirely in a little quote from George Galloway that I have repeated 144,000 times in the past four weeks:

"... regime survival is the ultimate priority of most systems -- we just don't know it in our own countries yet." -- Mr. Galloway Goes to Washington; page 45.

In this case -- and I choose my words carefully -- the "regime" attempting survival is the "shadow government" that VP Dick Cheney instituted on 9-11, which is well-documented in the writings of James Bamford, John Dean, and Senator Byrd.

[HereSince1628]

56. Yes, this is a VERY important trial for Cheney/Bush/WHIG

They are raising money so that they can plan various defenses, study Fitzpatrick's case, work on the various parameters of plea bargains, damage minimization for Team Cheney, etc.

If Libby's team doesn't have more than 50 law school grads working on it's various aspects I'd be surprised.

[Me.]

58. So Let Me Ask You This

Under "l'etat c'est moi", is Cheney the shadow government and the shadow government Cheney? Is he the regime and does it cease to exist without him?

[Justice Is Comin]

19. Their defense is so preposterous

it borders on sheer stupidity. He has to explain how he could have a "faulty" memory talking about it to 7 other people. :rofl:

Not only that, but he's the one who initiated the conversations. That's not faulty memory. That's faulty intelligence :rofl:

[Wordie]

23. Thanks for this, H20man! I'll be waiting impatiently for March 17. K&R

Love the "pot of gold" idea... It will be very interesting to see the next move on the part of Team Libby.

Go get him, Fitz!

:yourock:

[Catherine Vincent]

26. Well his name is Saint Patrick!

K&R!

[troubleinwinter]

28. Why this:

"Further, Walton has reserved judgement on two other Team Libby requests, regarding any damage assessment concerning the disclosure of Valerie Plame...."

Why does Libby ask this when he is charged with PERJURY, not with outing Plame, and why does Walton reserve judgment on the request?

[H2O Man]

31. It has to do

with possible motivation to lie. However, neither of the major statutes that concern outing an agent call for any assessment of damages. Thus it seems unlikely to me that Walton will allow Libby to go out on this tangent.

[troubleinwinter]

33. I see... so

Libby maybe wants to be able to say that his PERJURY doesn't matter because his PERJURY to the Grand Jury may not be shown to have damaged her work??!!!

Gads.... convoluted, nonsensical and immaterial.

[TacticalPeek]

36. Maybe more like a potential reason why he would not have "needed" to lie.

I think Libby apologists would say something like this: See, no one got hurt, no one was killed, so there was hardly any harm - why would Libby need to lie? He just forgot. On the other hand, if the CIA reported that x were killed or y were tortured or z were imprisoned, then Libby would be very motivated to lie to try to distance himself from the blood. That would be a Pyrrhic distancing - the blood is all over the sands of Iraq.

[merh]

63. To prove perjury, the prosecution has to establish that the lie

was integral to the investigation. (It depends on what "it is" - was that perjury are was he testifying consistent with the very narrow definition of sexual relations as supplied by the court? The court said to act to give another sexual gratification (or something to that effect), so to get a blow job is not giving sexual gratification to another. -- not really perjury, but so conviluted in legal hair splitting, hard to both prosecute and defent.)


It's so very good to see you trouble. :hug:

[Uncle Joe]

34. Thanks for keeping us up to date on this H2O Man.

Kicked and recommended.

:kick:

[Neil Lisst]

35. Team Libby made a gambit that didn't work.

And lost a rook without gaining any ground.

Libby, Rove et al. have believed all along that the rules of law would save them from either disclosure or successful prosecution. They believed that their initial story would be the stopper:

they got it from journalists, not vice versa

Never did they dream that reporters would be jailed and/or forced to cough up Rove and Libby as sources.

Never did they dream that their deleted emails would be recovered.

And they thought the National Security scam would clutter the discovery in the Libby case.

This judge is going to try to get this case to trial without giving the defense reason to make an end around to the appeals court.

[stop the bleeding]

43. yep, yep, yep and

yep on all four of your statements

[lonestarnot]

38. 3/17... St. Pat's day... should be a good one!

[KAT119]

48. Thank you h20 man-have deeply appreciated your depths of analyses

for many moons now, and love to be able to correctly connect the multitude of dots thru your keen brain cells. Am 100% Irish-American & will be toasting our modern Saint Patrick & you (are you not also named Patrick, prey tell?)...on our most fortunate day! Thank you for all that you do for JUSTICE....

[Wilms]

41. .

[Patsy Stone]

47. Thanks again, H2O Man

Karma is a bitch, ain't it? :)

K&R.

[H2O Man]

51. I always loved

John's song "Instant Karma." I think it fits this situation.

[Catherine Vincent]

57. Don't you mean "I think it 'fitz' this situation"?

;-)

[Independent_Liberal]

49. Kick!

[texpatriot2004]

50. May the luck of the Irish be with Fitzgerald and all those working

with him

[foreverdem]

60. Nothing could go wrong for him on St Patrick' s Day!

It's just not possible for our modern day St. Patrick! This Irish American will make be sending him the luck of the Irish.

Thanks H2O man, for keeping us all up to date on this and for your insight.

[Catherine Vincent]

65. ~~~

:kick:

[joeunderdog]

66. Most excellent thread!!! Great reading. nt

[H2O Man]

68. Disinformation:

Although Newsweek ran a two paragraph article in February, which noted that the grand jury investigation had documented that Plame was indeed a covert CIA agent, other nonsense continues.

See:
http://www.mercurynews.com/mld/mercurynews/news/politics/14076459.htm

[Patsy Stone]

69. So, because the CIA didn't give her a cover that this reporter

approved of, or thought was sufficient, it's okay that she was outed? Because she listed the company that she was "working" for on a camapign donation, Brewster Jennings, it's her fault and she, in fact, outed herself?

More smoke and mirrors and spin.

[stop the bleeding]

70. I call bullshit - How could the Tribune do an internet search on Valerie

Plame before her name was outed?????

They couldn't and they can't.

I mean it is one thing to know the name, company names, and other details after the fact, but to pull these names out of the sky to do searches on the internets to find CIA links to being under cover while people's identity is still private is beyond being omnipotent, it's crazy.

Lets see if the Tribune can find some more under cover CIA agents that the Tribune does not know the names of by using the internets.

BULLSHIT!!!!

this type of reporting makes me angry to say the least.