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Libby Responds to Fitzgerald's CIA Filing

The Government's March 2 response to Lewis "Scooter" Libby's request for presidential daily briefings was unsealed today. It consisted of an affidavit (pdf) by CIA information review officer Marilyn Dorn alleging that the request was too burdensome and could be subject to executive privilege. Dorn said it could take the CIA 9 months to compile the materials sought in Libby's original request and 3 months to assemble those for the restricted time period suggested by the Judge. Libby had sought the information to refresh his memory about the specific matters with which he was so preoccupied that he was unable to remember details about discussions with reporters concerning Valerie Plame.

Reddhedd at Firedoglake analyzes the filing.

Libby's lawyers have responded with this filing (pdf). They say Libby needs the material in the PDB's to show that the matters he was concerned with "dwarfed in importance the snippets of conversations about Valerie Plame that form the core of the Indictment."

They say that it is "astonishing" that the Government can't easily isolate and produce the documents. Nonetheless, they offer to narrow their request even further. They note that Libby's daily briefings included three parts: The PDB, additional documents provided to Cheney and additional documents provided solely to Libby. The additional materials consisted of documents the CIA staffer thought Cheney or Libby might be particularly interested in or documents in response to an inquiry either of them had made.

Libby now withdraws the request for the documents provided only to him, and instead asks for Cheney's PDB's, with the exception of materials provided only to Cheney. (Apparently, the CIA may have kept better track of the material provided to the Vice President than the material provided to Libby.) Libby says the material earmarked only for Cheney should be designated in the briefing books as for "oval office only."

As for the Government's concerns regarding the classified nature of the materials, Libby points out that he has already seen them and that if the CIA makes them available, only four of his lawyers will view them and that they will go to the Government's offices to do so. They will not make copies of them.

On presidential privilege, Libby's lawyers say the Government has not yet claimed it, and they know of no case in which a defendant has been denied discovery because the White House might make such a claim in the future. Libby argues the court should order the production and then allow the government to assert any privileges.

There is a new date disclosure in Libby's filing. The lawyers say the discovery documents provided show that Libby may have first discussed Valerie Plame Wilson with a government official on June 9 or 10, 2003. The Indictment alleges it was June 11. Libby raises this in an attempt to expand the limited time periods the Judge indicated were relevant to his PDB disclosure request.

They say that Libby's recollection of events of June 9 through July 12 will be the "central focus of the trial." (While the Response notes that it was on June 9 that Libby received faxed documents from the CIA on Joseph Wilson, it fails to mention that July 12 is the date Cheney, Libby and Catherine Martin flew on Air Force Two and discussed reaching out to reporters to discredit Wilson's July 5 op-ed.) The lawyers argue that the PDB's for this period will be "enormously" helpful to them in "reconstructing the matters that commanded Mr. Libby's attention" during this period.

Lastly, Libby argues against providing summaries of the PDB's instead of the PDB's themselves. To illustrate their position, they attach the declassified 2001 memo referring to intelligence that Bin Laden and al-Qaeda planned to attack the United States. I wonder why they picked that particular memo.

I'm still not understanding Libby's need for the PDB's. I would assume reviewing his own e-mails and notes for the period would refresh his recollection about matters commanding his attention....and that if there was some really critical event happening, he would remember it independently.

The thrust behind the pleading seems to be that Libby was distracted by hugely important national matters and couldn't be expected to remember his Plame conversations with reporters at the time he was questioned by FBI agents or the grand jury. Once, I might believe. But on four separate occasions? You'd also have to buy that Libby didn't prepare either for his two FBI interviews or his two grand jury appearances. Color me skeptical. Even if Libby hadn't lawyered up for the FBI interviews, he did so before his grand jury appearances and no lawyer lets his client go into a federal grand jury without prepping and debriefing him, least of all a lawyer with a client as high-profile as Libby. And the media has consistently reported that Libby took copious notes.

It seems more likely to me that Libby intentionally misled investigators and the grand jury in an attempt to protect Cheney (see the timeline here), never dreaming that the reporters would be subpoenaed, and now in hindsight is trying to reconstruct not his memory but an alternative explanation for having lied.

Does anyone see it differently?

Update: Tom Maguire posts his analysis.

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    Re: Libby Responds to Fitzgerald's CIA Filing (none / 0) (#1)
    by Talkleft Visitor on Wed Mar 08, 2006 at 03:24:57 AM EST
    A Limerick. A Whitehouse aid named Scooter Did dastardly deeds for a shooter, Outing an agent named Plame Got shafted and stuck with the blame, Pity it wasn't Ann Coulter.

    Re: Libby Responds to Fitzgerald's CIA Filing (none / 0) (#2)
    by Jlvngstn on Wed Mar 08, 2006 at 06:02:28 AM EST
    Just wondering, where are all the lawyer haters on the right now? Seems to me that if this were a demo "lawyering up" and asking for this info the right would be jumping up and down about how lawyers are killing this country. Or does that only apply to class action lawsuits against big biz?

    Re: Libby Responds to Fitzgerald's CIA Filing (none / 0) (#3)
    by Talkleft Visitor on Wed Mar 08, 2006 at 06:05:06 AM EST
    I summarize Libby's defense team strategy in this way. If we can't dazzel the judge with details we'll do their best to baffel him with Bull Shlt.

    Re: Libby Responds to Fitzgerald's CIA Filing (none / 0) (#4)
    by Lora on Wed Mar 08, 2006 at 07:50:04 AM EST
    Seems to me Libby is hoping that the PDB's, while perhaps not saving his own keister, may serve to bring some other folks down with him....?

    Re: Libby Responds to Fitzgerald's CIA Filing (none / 0) (#5)
    by Patriot Daily on Wed Mar 08, 2006 at 08:26:52 AM EST
    I still do not understand why Fitz does not just shut down this whole issue by stipulating that Libby handled complex security matters each day. Just a stipulation of that fact. Then Libby can argue to the jury his theory that these matters rendered the Plame case trivial or something he would not remember. Given that Libby is not charged with saying he did not recall something, but rather is charged with affirmative statements of falsehoods, the busy man with complex issues will not help on those charges. So, what risk is there to Fitz to stipulate? Seems like it would save a lot of time being spent on nonissues. And, if Libby has his way, he can try to shut down the case by forcing the judge to say that Libby needs this material but it can not be provided. So, why does Fitz keep going down this road?

    Re: Libby Responds to Fitzgerald's CIA Filing (none / 0) (#6)
    by Talkleft Visitor on Wed Mar 08, 2006 at 08:55:02 AM EST
    Libby addresses that in his motion and says the stipulation would not eliminate his need for documents.

    Re: Libby Responds to Fitzgerald's CIA Filing (none / 0) (#7)
    by Talkleft Visitor on Wed Mar 08, 2006 at 09:12:57 AM EST
    Jeralyn, Is it your sense that he can do more than draw this thing out with these tactics? Can he actually prevail on the merits significantly with these motions for PDBs, etc,etc. I've got to think he's going to have a hard time shifting gears from "one of the most brilliant minds in the World," to "We need to...what were we talking about again?" I can't believe anyone will buy it and it's got to tick the Judge off, eh? Obviously, there's value for the administration in merely drawing this out and the possibility of a pardon on the way out the door is hardly remote.

    Re: Libby Responds to Fitzgerald's CIA Filing (none / 0) (#8)
    by Patriot Daily on Wed Mar 08, 2006 at 10:49:30 AM EST
    But why would a stipulation not eliminate the need for documents? What issue would he need the documents for if he has a stipulation?

    Re: Libby Responds to Fitzgerald's CIA Filing (none / 0) (#9)
    by Talkleft Visitor on Wed Mar 08, 2006 at 12:11:01 PM EST
    Two reasons 1) without them he wouldn't be abl to hide behind the WH refusal to turn them over. 2) He would like to impress a jury with the details of all the important stuff he had to deal with. If that really matters is up to the judge. These are my guesses.