Much Ado About Nothing

Scooter Libby has filed two In Limine motions to exclude evidence and arguments in the case. The first (posted here) deals with the purported security issues which formed the very basis of this proceeding; the second with related matters relating to reporters' testimony. 

Under the headings, (a) Security Issues, (i) Plame's status,

Libby seeks to bar the government from offering any evidence or argument that Valerie Plame's status with the CIA was, in fact, classified or covert. The indictment alleges that her employment status at the Agency was 'classified', but in discovery when Libby requested all documentary evidence relating to whether her status was classified between May 6, 2003 and July 14, 2003, the government refused this request, asserting that it was irrelevant to any element of the case, that, in fact, 'it is irrelevant whether Mr.  Wilson's wife actually did work at the CIA' at all, and that unless there was evidence that Libby saw or knew of the contents of these documents, these documents were irrelevant and immune from discovery.

Libby notes, interestingly, that potential witnesses who knew more than Libby did of Plame's employment did not believe she had covert status. Illustrating this point, Libby informs us that William Harlow, then—spokesperson for the CIA, found out that Plame was 'not under cover' when he confirmed to Bob Novak that Plame worked there.

He notes that Fitzgerald has indicated he would not discuss if Plame had covert status but seeks to offer that she was 'classified' in 2003 before her identity was disclosed.

Libby argues, sensibly I think, that since the Court had ruled that the nature of her employment status is irrelevant unless the prosecution can establish that Libby knew that and therefore limited discovery on the basis of this determination, no mention or evidence on this score should be permitted. Further, the prosecution has conceded that he has unearthed 'no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work.'

In sum, since by arguing this matter was irrelevant, Fitzgerald succeeded in substantially denying Libby discovery of evidence necessary for his defense of such a claim and it has denied him any means to challenge any claim that her status was covert or classified. Further, to raise it in this way when it is irrelevant to the charge would cause unfair prejudice to him. Under the heading:

(2) Potential Harm by Disclosure of that Status

Similarly, Libby argues that the court should exclude any evidence and argument concerning any potential harm caused by disclosure of her status. The indictment charges that disclosure of the 'classified fact' that a person works for the CIA has 'the potential to damage the national security.'

Libby sought all documents relating to

'any assessment done of the damage (if any) caused by the disclosure of [Plame's] status as a CIA employee.'

In response, the government said that 'actual damage' is irrelevant unless Libby was aware of it. Logically, Libby argues, if that is true of actual damage, it is equally true of potential damage, and further, based on the government's argument, the Court allowed the government to withhold virtually all documentation relating to this issue as not material to the defense.

The government represents that, now, however, it intends to offer evidence regarding the 'potential damage' that could possibly have been caused by the disclosure. Again, Fitzgerald seems to be attempting a fancy two step arguing that evidence is immaterial or irrelevant when the defendant sought the evidence against him, but arguing that he may still slip it in before the jury through some back door.

Libby argues,

'The government has successfully denied Mr. Libby the opportunity to show the jury what damage did (or did not) actually occur in [Plame's] case. It cannot now be permitted to inflame the jury by offering irrelevant, conclusory speculation about damage that may potentially occur when a person's CIA affiliation is disclosed.'

The Court has previously ruled that it anticipates excluding arguments concerning potential damage. I anticipate it will follow through on that and prohibit such a razzle dazzle move at trial.

With both of these matters excluded from the trial as they should be, the case is exposed as the nothing burger it has always been. From Libby's second motion (posted here), under the heading  (b) Reporters,  

Libby discloses that Fitzgerald plans to argue that Libby felt free to argue about his conversations with reporters because he never anticipated they'd cooperate with the prosecution. In that connection, Libby notes that he voluntarily gave waivers  of confidentiality to all the reporters he talked to  and his counsel did everything they could, as did Libby himself, to assure them that the waiver was freely given. Libby, in fact, repeatedly exhorted them to testify.

Concerned that Fitzgerald may try to buttress that contention to bolster his motive arguments with evidence relating to reporters' First Amendment litigation, contempt proceedings and Judith Miller's incarceration, Libby seeks to exclude  the government from presenting any evidence of arguments concerning:

(1) Whether any reporters refused to testify in the underlying investigation;

(2) Litigation involving these reporters;

(3) Threatened or actual contempt proceedings against any reporter; Miller's imprisonment for contempt of court, including the letter Libby sent to Miller while she was in jail urging she testify.

Libby notes that he hasn't been charged with attempting to impede the grand jury proceedings by discouraging reporters from testifying  and that the government has notified him they do not intend to bring such a charge. He notes he can respond to the suggestion that he felt free to lie because he anticipated the reporters' non—cooperation but that such a defense would require a lengthy

''trial within a trial' involving extensive testimony from many additional witnesses, including the attorneys who represented certain reporters. The defense may even need to call the Special Counsel to testify about his discussions with counsel for Mr. Libby and counsel for reporters concerning the voluntariness of Mr. Libby's waiver.'

Libby asserts that the argument the government advances is implausible, not obviously relevant and likely to

'confuse the jury and protract the proceedings with litigation of what is indisputably a collateral matter.'

In sum, should Fitzgerald be excluded from presenting such evidence or arguments to the jury, the case is shrinking to what it, in truth, always was: the slightly differing variances in testimony about a trivial matter of no substantial consequence, in which a motive for Libby to have lied about these conversations seems indiscernible.

Clarice Feldman is an attorney in Washington, DC and a frequent contributor to American Thinker.