Fitzgerald's Pot of Gold

"The defendant's defense must necessarily be predicated upon what the defendant believed to be the pressing and time sensitive national security and intelligence issues that dominated his work day." - US District Judge Reggie B. White; Memorandum Opinion; March 10, 2006.

Yesterday, Judge Reggie Walton ruled on several of the extensive arguments he heard on February 24, regarding the defense team for I. Lewis "Scooter" Libby's Motion to Compel Discovery. As those who follow the case will recall, at that time Judge Walton resolved several key issues. He granted Team Libby access to Scooter's personal notes, but denied their request for documents concerning journalists beyond those Libby dealt with (Miller, Russert, and Cooper).
Walton had also reserved the right to determine if Team Libby had the right to another set of documents; he held a private session "in camera" regarding these, and ruled in Fitzgerald's favor. Further, Walton has reserved judgement on two other Team Libby requests, regarding any damage assessment concerning the disclosure of Valerie Plame, and any documentation regarding her employment status at the CIA. (It should be noted that in the 2-13-06 edition of Newsweek, Michael Isikoff reported in "The CIA Leak: Plame Was Still Covert" that "according to newly released portions of a judge's opinion," the CIA had verified that Plame was indeed a covert agent at the time the administration exposed her. This includes having traveled overseas to work on counterproliferation issues.)
In yesterday's ruling, Judge Walton was primarily concerned with the Federal Rule of Criminal Procedure 16. This rule involves pre-trial discovery in five areas: {1} the defendant's statements, including oral, written, or otherwise recorded; {2} his prior criminal record; {3} certain document's the government has in their "possession, custody, or control"; {4} reports of examinations or tests; an {5} any summary of testimony of expert witnesses the prosecution anticipates using. Yesterday's ruling focused on #3.
Team Libby requested: {1} all documents provided to Libby in connection to his morning intelligence briefings from 5-6-03 through 3-24-04 in their entirety, including materials from the Vice President's daily briefing; and {2} all documents relating to inquiries Libby made as a result of those daily briefings, and all documents provided in response to his inquiries.
Judge Walton had to make his decisions based upon rules of discovery for classified information as government by Section 4 of the Classified Information Procedres Act (CIPA). Thus, he ruled that Team Libby was only entitled to a set of documents from a limited time period, and to only to "documents reflecting the defendant's inquiries he made during the morning intelligence briefings, and not the responses he received to those inquiries." Significantly, Judge Walton notes that Team Libby "appears to agree, in large part" to Walton's restrictions. (page 10)
The controversy over what documents Team Libby is requesting is limited to those from the CIA and the Office of the Vice President. There is no dispute over any evidence the Department of Justice, including the FBI, has. Thus, Walton focuses on "the first question for the Court to answer," which is what CIA and OVP evidence Fitzgerald has within his possession, custody, or control.
Fitzgerald had noted the CIA had not participate in the investigation, other than in the status of a witness. More, he "argues that the President's directive for White House employees to cooperate with the investigation does not align the OVP with the prosecution, but merely provided responsive documents to the Office of Special Counsel upon request."
Judge Walton ruled that the inquiry must be "fact-intensive and must be resolved on a case by case basis. He noted that then-White House Counsel Albert Gonzales had "declared that '(t)he president has directed full cooperation with the investigation'," and said there "is no indication the White House denied" Fitzgerald's requests. Thus, while he notes "the exact contours of the roles played by the OVP and the CIA are not entirely clear to this Court," and that the "CIA's involvement in this investigation is less transparent," Judge Walton will allow Team Libby access to some of the information they requested regarding Fitzgerald's investigation.
Still, he notes that, "In this case, the question of materiality is much more difficult, and closer question," than in ordinary criminal cases. He puts this into the context of what Libby's defense must be, which is "necessarily predicated upon what the defendant believed." Thus, while the government must provide summaries of information from the period in question to Team Libby, it will be up to Scooter to use them to "refresh" his memory. And Judge Walton reduced the amount of time in question from Team Libby's original request for 321 days' worth of specific documents, to 58 days' worth of summaries.
Other issues remain unresolved. Thus, Judge Walton has ordered both sides to be prepared for a March 17th hearing to try to find common ground on other motions. It may be that Patrick Fitzgerald is prepared to show us the "pot of gold" at the end of this rainbow.