Judge Walton made some rulings yesterday on Scooter Libby's right to certain materials he subpoenaed from the media. The most significant part of his ruling is that he found some internal inconsistencies in Matt Cooper's drafts relating to his testimony about the conversation he had with Libby on July 12, 2003. Since these accounts are inconsistent, he is ordering Time to turn them over now to Libby as these varying accounts can impeach anything Cooper can say at trial.The best analysis of that ruling and it's negative impact on the Libby AND Rove cases is by Byron York:
Any impeachment of the testimony of Time's Matthew Cooper could have far—reaching consequences in the CIA leak case. Two of the five counts against Lewis Libby — Count Three and Count Five — are based almost entirely on Libby's word versus Cooper's. (Few people seem to appreciate just how thinly—supported some of the charges in this case actually are.) In his decision today, first reported here on NRO, Judge Walton said that, given that fact, documents from news organizations might play a critical role in Libby's trial:
The charges against the defendant are based entirely upon what the defendant has said was discussed during his conversations with these news reporters. Accordingly, documents and information possessed by the various news reporters and news organizations played a central role during the grand jury investigation that led to the issuance of the indictment.
Also, as Stephen Spruiell has pointed out, if Karl Rove were to be indicted in the case, the indictment would likely rest heavily on Cooper's testimony. Any damage to Cooper's credibility could damage a case against Rove. (A spokesman for Rove declined to comment today on the Walton decision.)
It is important to point out that while there is the possibility that Cooper lied in his testimony, it seems more likely that his recollection of events simply differs from that of other players. That is a point Libby's defenders have been trying to make all along. People have different memories of the same event; when it comes to a perjury prosecution, what makes one of them a witness and the other a defendant?
That might not apply to charges in which Libby's testimony is contradicted by the testimony of several witnesses. But in some parts of this case, prosecutor Patrick Fitzgerald is basing some big charges on little evidence.
Judge Walton also indicated there are other materials in Time's and the New York Time's possession which Libby might seek after Judy Miller testifies, after Cooper testifies and after and if Andrea Mitchell testifies.
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