April 13, 2006
Drama in Dry Documents: the Libby Case DeepensBy Clarice Feldman
The prosecution of Lewis 'Scooter' Libby has drama aplenty, though in its pre—trial phase, the action is visible only to those who carefully dissect the complex and dry language of seemingly—arcane filings with the court.
Just before midnight last night Lewis Libby filed a Memo in Reply to the Government's Response to the Defendant's Third Motion to Compel Discovery. In what for non—lawyers may generally seem a dry discussion on a dispute about what documents in the government's possession Fitzgerald must turn over to Libby to assist him in trial preparation, there are a number of blockbusters.
I will discuss these in greater detail in posts over the holiday weekend. Early next week, a longer article will appear. Like DNA tests, a full analysis sometimes requires time.
For the moment, the pleading suggests what I have argued previously, that this case was a CIA Gambit against the White House, that it was a mediagenic crisis, and that the Special Prosecutor is playing a razzle—dazzle game of making broad charges and then refusing to provide evidence in support of them, asserting that the charges against Libby are so narrow such evidence is not relevant.
Here are some things which caught my eye and are worthy of your attention:
The CIA's referral
I have always wondered how the CIA complied with the requirements of a proper referral letter. According to former federal prosecutor Joseph DiGenova, such referrals must establish that the person in question was a covert agent whose identity the agency had taken all reasonable steps to protect. The publicly known facts simply made it unlikely Valerie Plame met either of those tests. To date, the Special Prosecutor has refused to turn over the referral, and, understandably, Libby is fighting to get that document. In this pleading he argues:
Journalism used as evidence
Libby reveals that articles by Pincus, Priest and Allen of the Washington Post and Matt Cooper , Calabresi and Dickenson of Time magazine which charged that Libby was engaged in a smear campaign to punish Wilson by outing his wife 'were used as grand jury exhibits.'
That's some evidence! Lucky for Fitzgerald that he didn't have any Jayson Blair articles among them.
What Libby knew and didn't know
As to the government's refusal to hand over evidence that Ms. Plame was 'classified' — something charged in the indictment — Libby notes that he was not the source of the Novak article and testified unequivocally that he did not understand her employment at the CIA to be classified information.
Fitzgerald's withheld evidence
Importantly, Libby challenges the notion that the prosecutor can withhold from him documents related to 'innocent accused' (presumably Richard Armitage) and 'ongoing subjects of grand jury investigation.' In particular he seeks documents relating to Under Secretary of State Grossman, Karl Rove and Ari Fleischer. (As to the latter, the memorandum refers to a Sealed Declaration of Theodore V. Wells. Jr., Libby's lawyer, dated April 12, 2006). A 'sealed declaration' is certainly intriguing.
The secret war within the government
Also of note is this assertion by Libby:
We may finally get some on—the—record sworn testimony regarding the suspected efforts by some in the CIA and elsewhere to undercut Bush's Iraq policy.
Libby also asserts that Ms. Wilson role was never considered significant by those attempting to respond to Wilson's charges and observes:
The bias of George Tenet
Libby for the first time claims bias on the part of the CIA which may have extended to Director George Tenet :
Further he argues, if Tenet was involved in
So significant is this referral letter that Libby requests the Court at a minimum to examine the referral letter in camera, and if the Court determines that the document is privileged to make the document and specific findings of fact official to permit any necessary appellate review.