Scooter Libby & The Barber of Seville

June 2, 2006 was not a good day for Scooter Libby and his legal team. Just as people following the case will remember Scooter using crutches when he was indicted on October 28, 2005, yesterday may be remembered as the day Judge Walton knocked the crutches out from under his case. The Judge filed three documents that are worth taking a closer look at.
The first is Document 112, which is Judge Walton's Order, which outlines the Court's answer to Team Libby's Third Motion to Compel Discovery. This motion had led to Mr. Fitzgerald's Response and Team Libby's Reply, which allowed the public to have a far greater appreciation for the amount of evidence that the prosecutor has about the OVP/WHIG attempts to "discredit" Ambassador Joseph Wilson.
On May 5, the Court heard argument from both sides on the disputed issues. Team Libby had presented ten separate areas of information they argued were essential for his defense. Their goal is to make the case into a debate about the war in Iraq, and to argue about the president's state of the union address with his infamous "16 words," and about Wilson's trip to Niger.
But the judge isn't allowing that to happen. "Rather," Judge Walton writes, "the only question the jury will be asked to resolve in this matter will be whether the defendant intentionally lied when he testified before the grand jury and spoke with FBI agents about statements he purportedly made to the three reporters concerning Ms. Wilson's employment. The prosecution of this action, therefore, involves a discrete cast of characters and events, and this Court will not permit it to become a forum for debating theaccuracy of Ambassador Wilson's statements, the propriety of the Iraq war or related matters leading up to the war, as those events are not the basis for the charged offenses. At best, these events have merely an abstract relationship to the charged offenses."
Judge Walton explains in a footnote that this "reality is not altered" because Mr. Fitzgerald will introduce various news reports on the Wilson trip as evidence. He notes that Mr. Fitzgerald will not be introducing the full articles, that the Court "suspects it would not permit" the prosecution to introduce full articles if it attempted to, and that the truth of the articles is not at issue. Judge Walton defines the limited purposes that such evidence will be allowed to be introduced for. None of those purposes can be viewed as helping Team Libby.
Those limited purposes translate into seven of Team Libby's requests being fully denied. "For several reasons, and contrary to the defendant's position otherwise, the bulk of the documents which may be responsive to these requests are simply not material to the preparation of the defendant's defense," Judge Walton noted. Rather, they were attempts to dillute the prosecution's case by introducing evidence "without regard for whether the defendant or any likely witnesses even reviewed or ever knew about these documents."
And even in the case of the National Intelligence Estimate (NIE) that Scooter and other likely witnesses were aware of, Judge Walton correctly ruled that it is not at issue, because Mr. Fitzgerald is not claiming that it was "improperly" disclosed by Libby.
In the end, the Judge ordered the prosecution to produce a limited number of documents "to the extent it has not already done so" that relate directly to Scooter's role in the OVP/WHIG "effort to rebut the accuracy of Ambassador Wilson's" trip and findings, and related documents that are discoverable under Brady.
Document 113 is Judge Walton's Protective Order, in which he grants Mr. Fitzgerald's motion to withhold "discrete items of classified information from the defendant, and to provide to the defense, as substitutes for several items of classified information, summaries setting forth the relevant information contained in the classified documents."
A quick review of the types of classification may be helpful here. For those not familiar, these classifications are pursuant to Executive Order 12958, as amended by Executive Order 13292. National security information is classified in three ways: Top Secret; Secret; or Confidential. "Top Secret" is the designation of information which if improperly disclosed could reasonably be expected to cause "exceptionally grave damage to the national security." Next, "Secret" means the information's unauthorized disclosure could reasonably be expected to cause serious damage to national security. And "Confidential" designates information which when improperly disclosed can reasonably be expected to damage our national security.
Judge Walton writes that after careful review of the prosecutor's requests, "the Court finds the documents and information identified in the government's Section 4 CIPA filings are extremely sensitive and their disclosure could cause serious if not grave damage to the national security of the United States." Thus, he will allow Mr. Fitzgerald to provide "unclassified substitutions (which) are more than sufficient to address any obligation the government might have to produce the underlying classified documents and information to the defense."
This information includes a limited recounting of Valerie Plame's employment history with the Agency from January 2002 on; a review of "potential damage" created by the disclosure of her affiliation with the Agency; and the names of three individuals mentioned in classified documents previously provided to the defense.
The most significant issue, in my opinion, is that Judge Walton heard Mr. Fitzgerald's Motion in camera and ex parte, which means in chambers and with only the prosecutor there to present his side. Team Libby was particularly upset by the prospect of this being presented ex parte. There are a couple reasons why. First, Judge Walton is known for having strong beliefs on the need to keep classified information secret. His stating that the information Mr. Fitzgerald showed him "could cause serious if not grave damage" to our country if improperly disclosed indicates he has an appreciation for the full flavour of the OVP/WHIG operation against the Wilsons.
Further, although the classified information will not be introduced as part of the case for the jury to consider, Judge Walton now knows what the CIA knows about the case. It reminds me of when attorneys were preparing my friend Rubin "Hurricane" Carter's federal appeal, and they wanted to include what was known as the Caruso File. Leon Friedman, the Hofstra University professor who co-authored the definitive 5-volume history of the justices of the US Supreme Court, included the information in his appeal. The federal judge read the appeal, and then excluded the information from the Caruso File, because it did not fit the definition of an exhausted claim. However, Leon knew it was like on a movie, when explosive evidence is introduced, and the judge orders a jury to ignore it for technical reasons. No juror or movie viewer forgets that evidence. In Carter's case, Judge Sarokin noted that not only was he overturning the conviction on procedural grounds, but that he was aware that Rubin Carter was not only "not guilty," but that he was innocent. That was because he had read the Caruso File. In Scooter's case, even though the trial is limited to Libby's lying to the FBI and grand jury, Judge Walton is now aware of the true nature of the issues involved in the OVP/WHIG operation to destroy the Wilsons.
Document 114 is Judge Walton's Order to the prosecutor and defense to "appear for a status conference on June 12, 2006 at 1:30 p.m." They will be discussing several issues, including the status of discovery; the possibility that other motions are going to be filed; and if Mr. Fitzgerald will be "asserting any claims of executive privilege." These three issues alone make the hearing worth keeping an eye on. But there is something else that appears far more significant.
Judge Walton wants to discuss if the parties "believe it is necessary to issue early returnable trial subpoenas to resolve anticipated claims of testimonial privilege." It is hard not to conclude that Judge Walton is taking Mr. Fitzgerald's statements regarding the possibility of calling one Dick Cheney to testify very seriously. The possibility of Mr. Fitzgerald calling on the vice president is fascinating to consider, and there is a variety of opinions on how Dick Cheney might respond. Will he attempt to avoid testifying? Surely he would not want to either be used by Mr. Fitzgerald to put the screws to the man who is lying to protect him. Nor would he want to risk lying on the witness stand.
The three documents filed by Judge Walton on June 2 were bad for Scooter Libby. The June 12 hearing may be worse for Dick Cheney.