Thursday, February 2, 2006

Special Counsel Fitzgerald's Response to Libby's Discovery Requests

The Raw Story has the letter (here) sent by Special Counsel Patrick Fitzgerald to I. Lewis Libby's counsel, dated Jan. 31, 2006, responding to requests for certain documents as part of the discovery in the prosecution.  Defense discovery in federal prosecutions is fairly limited, governed by the provisions of Federal Rules of Criminal Procedure 16 (discovery of documents and tangible items) and 26.2 (witness statements/Jencks Act), along with the due process requirement of Brady v. Maryland that material exculpatory evidence be produced in time to be used at trial.  The discovery dance can be quite elaborate, and the Libby prosecution is complicated by the fact that the Classified Information Procedure Act will also be invoked because national security information is at issue.  In Fitzgerald's letter, the initial issue addressed is the Special Counsel's rejection of the defense demand for "open file" discovery, asserting that it is not the policy of either the District of Columbia or the Department of Justice to turn over all documents.  Later on, buried in the penultimate paragraph of the seven-page letter, is the statement that not all e-mails sent through the President and Vice President's offices were preserved.  How much is missing is not clear, but one begins to see the ghost of Rosemary Woods stretching out somewhere near the White House's computer server. (ph)

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Instead of the unfounded Clinton smear, you might want to talk about the fact that, while Fitzgerald asserted in his press conference that Plame's secret identify had been disclosed by Libby's leaks, he is now unable to provide any documentary proof for such an assertion.

Doesn’t that trouble you? Or do you only care when the defendant is Democrat?

Posted by: Joshua Chamberlain | Feb 3, 2006 2:14:58 PM

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