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Schumer Says Hearing Committee May Call Patrick Fitzgerald

By Jeralyn, Section Lewis Libby Trial Coverage
Posted on Sun Jul 08, 2007 at 01:08:26 PM EST
Tags: Libby Trial (all tags)
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Crooks and Liars reports that Sen. Charles Schumer said on Face the Nation today that the Committee may call Libby prosecutor Patrick Fitzgerald to testify about Bush and Cheney in the context of the Valerie Plame investigation.

If they do, I hope they ask him whether he and Team Libby had any discussions after Libby's conviction about Libby providing information to the Government on Cheney and Bush's role in PlameGate in exchange for the Government's filing of a Rule 35 motion for sentence reduction.

Rule 35 provides in part:

(1) In General. Upon the government's motion made within one year of sentencing, the court may reduce a sentence if:

(A) the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person;

I can't think of any reason off the top of my head why that information would be privileged. As a federal court in California ruled in a case I cite all the time in discovery motions, almost always with successful results:

More...

The Supreme Court defined the scope of lawyer-client privilege in Supreme Court standard 503. When restating the right of a client to prevent disclosure of "confidential communications," the Supreme Court defined "confidential communications" as those that are "not intended to be disclosed to third persons . . . ." ... Although this standard was never adopted by Congress, it restates the common law scope of privilege that was adopted by Federal Rule of Evidence 501 and therefore can be relied upon.....

Thus, if a client communicates with his lawyer for the purpose of having that lawyer relay that communication to a third party, the communication is not "confidential" and not protected by lawyer-client privilege. ...

.... Therefore, the Court holds that a client's communications of proposed testimony made with the intent that the lawyer relay the communications to the government are not protected by the lawyer-client privilege.

In other words, if Team Libby made disclosures to Fitzgerald during the course of post-sentence negotiations regarding cooperation, even if the disclosures were only contained in a letter to the Government and the cooperation never occurred, Congress should be able to ask Fitzgerald about the