While the media focuses on handwritten notations by the Vice President on a newspaper article, there is much more to be gleaned from late Friday's court filings in the Libby case. The spin says that damaging new evidence has surfaced. But the filings by Fitzgerald reveal how rapidly his case is sinking.

Discovery in legal cases is rather like playing the old game 'Battleship' where you can surmise from your opponent's responses to your blind probes where he is hiding his fleet. So you can sink it. Scooter Libby's legal team is playing the game masterfully and as the latest filings late Friday show, Fitzgerald's fleet is taking on a lot of water.

News articles as evidence

In the course of the May 5 hearing it was revealed that Fitzgerald intended to offer as evidence at trial a series of news articles (obviously sourced by Wilson).  The Court asked the prosecution to identify any news articles it anticipated offering into evidence in its case in chief. The first is the op—ed in the New York Times written by Wilson which appeared on July 6, 2003, with the Vice President's notes on the margin [scroll to page 3 for an image].

Before getting to the arguments Fitzgerald makes for its admission, let's consider the actual motivation for placing this item before the jury. I don't consider those to be identical to the stated reasons. He wants this before the jury because he has said he has no intention of calling Wilson to the stand as his witness. He has said clearly that he does not stand by Wilson's credibility and yet he wants the jury to buy into the Wilson revenge theory first peddled by Ambassador Munchausen and his pals David Corn, Ray McGovern and Marc Grossman. It's that simple.

Wilson is radioactive and will be demolished by the defense, so Fitzgerald wants to distract the jury's attention from that indisputable and damaging fact while forwarding Wilson's attack on the Administration. Put Wilson's article in front of the jury, not the man himself.

In this latest pleading, the Prosecutor contends that he wants to show how beginning from the date of the op—ed, Libby's attention was focused on responding to the issues in that article. Even then he is quick to add that the statements in the article 'may not be considered as proof of the matters asserted therein.' Indeed.

Of course, Ambassador Munchausen's tale of his truth—seeking Mission to Niger actually began earlier, about May 2, 2003 at the Senate Democratic Policy Committee Meeting, (now mysteriously scrubbed from its website), during which he first peddled it to Nicholas Kristof.  The tale continued on for two months during which time he spoke to numerous journalists, all of whom were equally focused on it. And some, including David Corn (who has never been questioned in this inquiry), seemed to have knowledge (probably from Wilson) of his wife's position in the agency. Libby says he has five or more witnesses that Wilson outed his own wife, (and a wise bettor would put his money on more.)

Fitzgerald also wants to show the jury annotations apparently made by Vice President Cheney to the article to demonstrate that he and Libby were focused on the assertions in the article and in responding to them.

So what?  This is evidence in a case which the prosecutor claims is a small case about perjury respecting conversations with three reporters. Nowhere in the op—ed does Wilson mention his wife or her role or her employment. If every article that caught an official's attention—because, I might say, it involved a pack of lies harmful to an important matter—were to be considered evidence of wrongdoing, no one would be safe from such  ridiculous probes.

Fitzgerald also wants to offer in redacted form 5 other articles: the May 6, 2003, NYT article by Kristof; the June 12, 2003, Washington Post article by Walter Pincus (which was a pack of lies, as I reported, and the Post, 2