Libby Files Response To Fitzgerald

Joe Wilson, Karl Rove, Ari Fleischer and George Tenet expected to testify. Inference suggests Rove or other higher up likely still being investigated. Claims of significant infighting between agencies, particularly CIA may impact case.

I've gone through a new 29 page filing on behalf of Scooter Libby and excerpted and emboldened particularly interesting passages. The full pdf is linked below if you desire to read it all.

The crux of the filing is Libby's request for significantly more documentation than what the government would allow. These include documents from all involved departments including CIA, State, NSC and DOJ, possibly even the President's Office. Passages indicate Joe Wilson, Karl Rove, Ari Fleischer and George Tenet are all likely to be called to testify - Wilson as a hostile witness. I would imagine Tenet may be viewed as hostile as well.

Libby asserts that neither Bush nor Cheney gave him any instructions to leak Plame's name, or anyone elses. Libby also asserts that the CIA at the highest levels, including Tenet are hostile to him and he wants to see the CIA referral to the Justice Department, which is being withheld.

Under Secretary of State Marc Grossman and Ari Fleischer also figure prominently in the filing. Libby contends Fleischer may have learned of Ms. Wilson from a document sent to Colin Powell while on Air Force One and relayed that information to reporters.

Scan the passages and you should get the complete gist. The pdf is available via Talk Left

Where's the case?

It is a fundamental tenet of our criminal justice system that as of this moment the government has proven nothing about its case against Mr. Libby ...

Nevertheless, to reduce any burden on the government, with respect to documents responsive to requests A(1) (which asks for documents concerning Mr. Wilson’s trip and subsequent discussion of it), B(1) and B(2) (which relate to the NIE), and B(3) (which asks for documents relating to the July 11, 2003 statement by Director of Central Intelligence George Tenet), the defense will agree to limit these requests to documents that are currently in the actual possession of the OSC or which the OSC knows to exist.3 We emphasize that request B(1), which calls for documents relating to the declassification of the NIE, triggers the government’s Brady obligations. At trial, the government intends to introduce testimony regarding Mr. Libby’s disclosures of portions of the contents of the NIE, which appears to be a unique story. Upon hearing about these events, jurors may suspect that Mr. Libby mishandled classified information or did something else wrong when he made these disclosures – even if the government does not argue that Mr. Libby’s actions were unauthorized or illegal. The defense has the right to argue at trial that Mr. Libby’s actions with respect to the NIE were authorized at the highest levels of the Executive Branch, and would be entitled to bolster such arguments with documents and testimony.

To reiterate the document request at the heart of this motion, we seek documents that concern Mr. Wilson’s trip to Niger, including reports about the origin and circumstances of the trip, as well as subsequent comment and analysis concerning the trip, such as discussions of the role played by Ms. Wilson and reactions of Administration officials to Mr. Wilson’s attacks. The defense is entitled to all such documents from each government agency that has played a significant role in the case: the White House, the State Department and the CIA. At a minimum, we are entitled to documents concerning Mr. Wilson’s trip to Niger that were generated, sent or received by officials from these agencies who are likely to testify at trial, so we can prepare to examine them. The government argues that it does not have to produce documents concerning certain government officials who are “subjects of the ongoing grand jury investigation or ‘innocent accused’ whose identities are protected from disclosure by Fed. Crim. P. 6(e).” (Gov’t Br. at 26.) But Rule 16 makes no exception for documents covered by the secrecy requirements of Rule 6(e). Significantly, the government has cited no case supporting its claim that an ongoing grand jury investigation allows the government to deny an indicted defendant access to documents that are material to the preparation of his defense. Mr. Libby has a firm trial date, and the prosecution has no right to resist providing Rule 16 discovery on the grounds that the investigation is continuing.

Significantly, the arguments the government relies on here were resoundingly rejected in another perjury case in this jurisdiction, United States v. Safavian, 233 F.R.D. 12 (D.D.C. 2005).

Marc Grossman. As discussed in the introduction, the government plans to call Under Secretary Grossman to testify that he discussed Ms. Wilson’s CIA employment with Mr. Libby – a conversation that Mr. Libby testified in the grand jury he did not recall and which may not have occurred as alleged in the indictment. For example, the indictment asserts that this conversation occurred “[o]n or about June 11 or 12, 2003.” (Indictment, Count One, at ¶ 6.) Accordingly, Mr. Grossman’s activities in that time period, including any other communications about Ms. Wilson that he may have had, are highly relevant. If, for example, documents indicate that Mr. Grossman confused details of the conversation alleged in the indictment with a conversation with another government official, the defense will use such documents to suggest that his recollection is faulty.

The government asserts that Mr. Libby was motivated to lie under oath to avoid causing “great embarrassment to the administration.” (Id. at 26.) Yet, at the same time, the government also argues that the defense should not have the opportunity to determine whether Mr. Grossman might be motivated to testify in a manner that would prevent embarrassment to the State Department.

The government states that it intends to call former White House press secretary Ari Fleischer to testify about a conversation with Mr. Libby, during which Ms. Wilson’s identity was allegedly discussed. 4 Again, as with Mr. Grossman, the defense has the right to challenge this allegation and investigate when and how Mr. Fleischer learned of Ms. Wilson’s employment. The government has admitted that “multiple officials in the White House discussed her employment with reporters prior to (and after) July 14,” and the defense has the right to explore whether any of these other officials may also have discussed Ms. Wilson with Mr. Fleischer. (Id. at 30, n.10.) In addition, Mr. Fleischer may have learned about Ms. Wilson’s identity from someone at the State Department or the CIA.

Press accounts suggest that Mr. Fleischer may have learned about Ms. Wilson during his trip to Africa after seeing it in a classified report sent to Mr. Powell on Air Force One and then disclosed this information to reporters. Yet, the government claims that nothing further is required for Mr. Fleischer’s cross-examination than “a copy of the report in question.” (Id. at 12.) In so arguing, the government is once again attempting to dictate which defenses may be raised and which allegations in the indictment may be challenged.

Finally, the defense also seeks documents that will shed light on the Administration’s response to criticism from Mr. Wilson. The government questioned Mr. Libby about this topic at length in the grand jury, and it put it at issue in the indictment and with its proposed use of the NIE. As the White House press secretary, Mr. Fleischer likely played a key role in orchestrating and implementing the Administration’s strategy for rebutting Mr. Wilson’s claims. Documents from his files – or from anywhere in the White House – that relate to this subject must be produced pursuant to Rule 16.

Senior White House advisor Karl Rove figures prominently in the government’s indictment. He allegedly spoke both to Mr. Novak and Mr. Libby about Ms. Wilson’s affiliation with the CIA. Accordingly, the government’s statement that it does not presently intend to call Mr. Rove does not diminish his importance in this case.

The defense is likely to call Mr. Rove to provide testimony regarding Mr. Libby’s conversations with Mr. Rove concerning reporters’ inquiries about Ms. Wilson, as expressly discussed in the indictment.

The defense intends to show the jury that the controversy over intelligence failures during the spring and summer of 2003 led certain officials within the White House, the State Department, and the CIA to point fingers at each other. This bureaucratic infighting provides necessary context for the testimony of witnesses from different government agencies. In addition, Mr. Libby plans to demonstrate that the indictment is wrong when it suggests that he and other government officials viewed Ms. Wilson’s role in sending her husband to Africa as important.

the government’s theory ignores the fact that neither the indictment nor the evidence supports the notion that Mr. Libby told any reporter that “Mr. Wilson’s wife sent him on the Niger trip.”

it is vital that Mr. Libby obtain discovery of the truth regarding Mr. Wilson’s allegations, including all communications by him with the CIA, the State Department, or anyone else concerning those allegations.

According to the government, Mr. Libby made false statements and committed perjury because he knew “there would be great embarrassment to the administration if it became publicly known that [he] had participated in disseminating information about Ms. Wilson’s CIA employment,” and because he “would have had every reason to assume he would be fired if his true actions became known.”

In particular, the defense needs documents from all the relevant agencies, including the White House, State Department, and CIA that relate to the Administration’s strategies for countering Mr. Wilson’s criticism.

The government resists disclosing information regarding the allegedly classified status of Ms. Wilson’s employment, and the knowledge and understanding of others as to whether that employment was classified,

Mr. Libby does not contend that he was instructed to make any disclosures concerning Ms. Wilson by President Bush, Vice President Cheney, or anyone else.

Mr. Libby has requested the CIA’s criminal referral to the Department of Justice (“DOJ”) and all documents referenced or relied upon in preparation of the referral (collectively, the “referral documents”). The government resists this request on the grounds that the referral documents bear no relationship to the perjury charges against Mr. Libby, because the author of the referral will not be a witness and the referral does not summarize statements made by government witnesses. This is not the appropriate standard for assessing materiality under Rule 16. In arguing that these documents have no relevance to perjury charges, the government once again ignores the breadth of the indictment brought against Mr. Libby.

  The indictment alleges that Ms. Wilson’s employment was classified, and that disclosure of that fact “had the potential to damage the national security.” (Indictment, Count One at ¶¶ 1(d), (f).) Ms. Wilson’s employment status and any damage caused by the disclosure of her identity are thus directly at issue in this case, and the referral documents are a uniquely valuable source of information about both of these subjects.

to the extent that Director Tenet was involved in the creation of the referral documents, or actively pushed the DOJ to investigate the disclosure of Ms. Wilson’s identity, the referral documents would show that the bias against Mr. Libby reached to the highest levels of the CIA and did not simply represent the complaints of lower-ranking employees. Further, Mr. Tenet is a likely witness.

During his grand jury appearances, Mr. Libby testified that he did not recall any conversations with Mr. Grossman about Mr. Wilson’s wife. The defense is absolutely entitled to investigate whether the conversation alleged by Mr. Grossman actually occurred and to test Mr. Grossman’s memory and credibility about what he did or did not say to Mr. Libby at trial.

Joe Wilson to the stand as a hostile witness:

The indictment puts directly at issue Mr. Wilson’s trip to Niger and subsequent
comment and analysis concerning the trip, including discussions about Mr. Wilson’s wife and her role in selecting him for the trip. The government has previously acknowledged that “[t]he relevance of Mr. Wilson’s 2002 trip is the fact that it occurred and that it became a subject of discussion in spring 2003.” (Ltr. from Patrick Fitzgerald to William Jeffress, et al., dated Jan. 23, 2006, at 2 (emphasis added), attached as Ex. C.) Reports, memoranda and other documents relating to the trip itself are relevant because the circumstances and origins of the trip
are discussed in the indictment. Further, because the defense may call Mr. Wilson as a hostile witness, we need to prepare to examine him, if necessary, on the details of the trip, including his wife’s role in selecting him for the assignment and the findings he reported to the CIA, and later, to the press.

With few exceptions, the government has refused to produce documents from agencies other than the OVP that reflect reactions of the various agencies to Mr. Wilson’s criticism of the Administration. In support of its position, the government relies on three general arguments, all of which fall short of the mark.

The government has admitted to the defense that it collected hundreds of thousands of documents. So far, the government has produced or been ordered to produce approximately 14,000 pages of classified and unclassified discovery – only about six boxes.

the government argues that production of the requested documents is not warranted because Mr. Libby has been charged with perjury, not other crimes. As we discussed in our opening brief, this contention ignores the expansive nature of the factual allegations in the indictment, all of which the defendant has the right to challenge.

Also see analysis here at Just One Minute and additional comments from Anonymous Liberal.

Comments

[bill gaffney]

Keep on talking, I like that EXPANSIVE VIEW, will this morning several more
Generals are in an expansive mood and they want rummey fired, Lt. General
Newbold has company!!!! Abramoff is in an expansive mood, he is not finished drop! drop!!! drop!!!!!! Who is next to get the "JUICE!"
You can try to rationalize everything away, but things do not look so
good and we still have Dellayyyyyy's trial to look forward to between now
and Nov. hopefully! Now Delayyyyyy he is a man who really passed around the
"JUICE!"

[bill gaffney]

P.S. Libby will cut a deal! He doesn't relish being a federal inmate's
good and close friend!!

[davod]

Dear Bill:

Have a great Easter. You need the break.

[bill gaffney]

Davod don't look now but just an hour ago libbys attorney is quoted thusly
"if you think that Mr Libby was the highest person envolved in this then you beleive in fairy tales." Do I smell a deal in the works?