Team Libby Filings (5-1)

Attorneys for I. Lewis "Scooter" Libby filed two documents on May 1, 2006 in efforts to prepare to his defense. The first is his "Response of I. Lewis Libby to Government's Motion for Reconsideration of the Opinion of April 5, 2006 Concerning Ex Parte Submissions Under CIPA Section 4." ( Case 1:05 - cr - 00394 Document 100)
This 9-page document concerns the on-going disagreement between Patrick Fitzgerald and Team Libby over how the prosecution attempts to have the court determine certain sensitive intelligence documents are non-material. Team Libby wants these issues "litigated in a separate adversarial hearing." Fitzgerald, of course, wants to present his side Ex Parte.
Part of the reason Fitzgerald wants the non-adversarial hearings is because of the classified nature of the material in question. After the filings on April 21, regarding the leaks of a court document, and regarding one defense attorney talking to a reporter on a sensitive issue, it seems reasonable for Mr. Fitzgerald to have concerns about protecting secret, classified information. More, Mr. Libby's legal problems are an outgrowth of his activities that included sharing a classified NIE with journalists, and exposing a CIA NOC agent's identity.
Perhaps because they are on the hot seat, Team Libby's document has a splattering of histrionics. There are phrases like, "It would be astonishing, and inconsistent with the Order's 'detailed analysis' ...(and) would render the Court's discussion of CIPA 4 meaningless dictim. ... It would be equally bizarre ...." It seems clear that to most people, including Judge Reggie Walton, Mr. Fitzgerald's case does not seem astonishing in its inconsistency, nor is it bizarre.
In the past, I have commented that some of the less significant Team Libby documents seem to have been authored by an angrier person than the others. This is one of the those examples. I will speculate that these are filed largely as an insurance policy of sorts, so that if Scooter doesn't make a deal before he goes to trial, that after he is convicted there are procedural issues for appeal. The Court's 4-5-06 opinion on the Ex Parte issue was clearly fair to Libby's defense team.
The second document is "I. Lewis Libby's Consolidated Response to Motions to Quash by NBC News, Judith Miller, Andrea Mitchell, Matthew Cooper, Time,Inc, and The New York Times, and Memorandum of Law in Support," (Case 1:06-mc-00169-RBW, Document 5). I found this document to be far more interesting. Most of the issues discussed are not new, though one thing did stick out.
In recent weeks, on a number of forums, people have questioned the integrity and the accuracy of Jason Leopold of Truthout.com. Mr. Leopold has had numerous hard-hitting reports on the Plame scandal, including information on Karl Rove, that indicates that Mr. Leopold has one or more "inside sources." Some people have questioned this. It appears that Libby's attorneys are not among those who question if Mr. Leopold has inside information: on page 20, we find, "See Jason Leopold, Libby Filing, Truthout.com, April 14 (Exh L.)"
Will Pitt of Truthout has vouched for Mr. Leopold on the Plame reports, and that is all the "proof" I needed to hear. Mr. Pitt, who is one of the resources that Ambassador Joseph Wilson cites in his book, has a passion for journalism. The Team Libby Document, in my opinion, indicates that a large part of Scooter's defense strategy is to put the media on trial. Unlike the AIPAC espionage trial, in which is being called an attack on the media, but is not, this part of the case involves serious constitutional issues of the integrity of the free press.
Team Libby shows an inclination to ignore the truth while attempting to blame the media for Scooter's legal problems. On page 11, they state, "The government will rely on these conversations to contend that Mr. Libby must have been lying when he testified that he was surprised to learn from Mr. Russert (on July 10 or 11) that Ms. Wilson worked for the CIA ..." Then, on page 20, we read, "Again, the government will presumably rely on this alleged communication to contend that Mr. Libby could not have been surprised when Mr. Russert told him the same thing a month earlier."
Mr. Fitzgerald is not contending that Scooter already knew about Plame before Russert told him she was CIA and sent Wilson to Niger. Rather, he contends that Libby knew who Plame was because VP Cheney told him, and he had several conversations with other administration officials about her, and that Libby lied about the conversation with Russert.
Team Libby's odd sense of who is on trial is also found in a footnote: "Mr. Libby chose not to require the Washington Post to produce documents it has previously furnished to the government, but which the Court has ruled do not have to be disclosed to the defense." The documents they do seek, they believe, "likely contain evidence that the employment status of (Ms. Plame) ... was so peripheral in Mr. Libby's mind that he could have easily forgotten or misremembered any conversation in which she was allegedly discussed." They go on to say that "...there was no such campaign (to smear Wilson and expose Plame) -- or that if there was, Mr. Libby had nothing to do with it."
Right. If not Scooter, who? Ari Fleischer, Marc Grossman, Cathi Martin, and Bill Harlow are among those that this documents points to as being the source of the problems that poor little Scooter is shouldering today. But more, they point at Judith Miller.
Regarding Scooter's three conversations with Judith about the Wilsons, Niger, and the NIE, they state, "Yet, Ms. Miller's own public account casts serious doubt on the reliability of her recollection." They point out that in her notebook, she wrote, "Valerie Flame, Valery Plame, Valerie p, V.F., Victoria Wilson..." This, they claim, "will allow Mr. Libby to contend that, contrary to the allegations in the indictment, it was Mrs. Miller who raised the topic in her discussions with Mr. Libby -- if the topic was raised at all."
All of this, Team Libby explains, "makes it more likely that Mr. Libby saw Ms. Wilson's CIA affiliation " as a non-issue. Regarding the issues involving the protection of a free press, they write, "Even if there were a reporter's privilege it would be qualified and easily overcome by the circumstances of this case." It seems clear that things like a CIA NOC's identity and a free press are of little consequence to our man Scooter.