Wednesday, November 1, 2006

Pre-Trial Sparring in the Libby Prosecution

With the January 2007 trial approaching, Special Counsel Patrick  Fitzgerald and I. Lewis Libby have filed motions in limine to set the parameters for the proceeding (available below).  The parties filed motions on October 30 to prevent the other side from presenting certain evidence and arguments that each asserts is extraneous to the issues and potentially prejudicial.  The government motion seeks to prevent Libby's lawyers from discussing the government's decision to charge only Libby, and not to charge anyone for violating the federal law prohibiting the disclosure of the covert status of an intelligence agent.  According to the motion:

The evidence, comment, and argument this motion seeks to preclude are not relevant in the trial of the charged crimes; they have zero probative value in the case. The investigation that led to the indictment of defendant did not result in a charge against Libby or any other person for the act of disclosing classified information, nor was any person other than Libby charged with obstruction of justice, perjury, or making material false statements.  The fact that neither Libby nor anyone else has been charged with a crime for the disclosure of classified information is irrelevant to whether Libby committed the crimes charged in the indictment. Likewise, the fact that no one but Libby has been charged with obstruction of justice, perjury, or making material false statements is irrelevant as to whether Libby committed the charged crimes. Evidence, comment, and argument about the government’s charging decisions have no tendency to make any matter of consequence to the determination of the action more or less probable.

The government's concern is that the defense will put it on trial by raising questions about the reason for the charges and the failure to find any "real" wrongdoing.  This in turn leads to the position that the Special Counsel opted for the obstruction/perjury/false statement charges to justify the large expenditure of resources to investigate the leak of Valerie Plame's identity that did not turn up evidence of a substantive offense. To the extent the defense can build sympathy for Libby, which may be difficult, it would help make the argument that he has been singled out unfairly.

Libby's motions strike a similar tenor.  One seeks to prevent the government from offering evidence that Plame's position with the CIA was classified or covert, and to exclude arguing that national security was damages by the disclosure of her CIA status.  The defense argues:

Notwithstanding the clarity of the Court's prior rulings (and the government's own narrow view of relevance during discovery), Mr. Libby is concerned that the government intends to raise at trial both Ms. Wilson's actual employment status and "evidence" regarding "potential" damage that Mr. Libby knew nothing about at the relevant time . . . Having steadfastly refused to provide discovery relating to these issues (other than conclusory assertions contained in two brief "summaries" prepared by the CIA), the government cannot now be permitted to inflame the jury -- and encourage it to punish uncharged and unfounded national security violations -- by offering irrelevant and largely speculative evidence that sheds no light on Mr. Libby's guilt or innocence of the charges that were brought.  Specifically, the government should be prohibited from referring to Mrs. Wilson's employment status as classified or covert, or to any actual or potential damage caused by disclosure of that status, except for evidence and argument of what Mr. Libby, or others he spoke with, knew about those mattes at the relevant time.

The motion is built on the District Court's earlier denial of defense motions for broad discovery about Plame's CIA role and the knowledge of it in a variety of offices in the Administration.  To frame the case, the Special Counsel will want to discuss Plame's status with the CIA, so at least that part of the motion is likely to be vigorously opposed.  The second motion concerns references to the reporters whom Libby is alleged to have leaked to about Plame.  The defense seeks to exclude the following:

1. Whether any news reporters refused to testify in the government’s investigation of the disclosure of Valerie Wilson’s identity (the “investigation”);

2. Litigation involving news reporters and relating to the investigation, including any news reporters’ motions to quash grand jury subpoenas;

3. Threatened or actual contempt proceedings against any news reporter, including Judith Miller and Matthew Cooper, relating to the investigation; and

4. Judith Miller’s imprisonment for contempt of court, including the letter dated September 15, 2005 that Mr. Libby sent to Ms. Miller in jail.

Libby seeks to exclude this evidence to undermine the government's argument that Libby thought he could leak information freely because the reporters would protect their source, an argument the motion calls "implausible."  The relationship between Libby and the reporters will certainly be important, although the subsequent contempt proceedings against the reporters is the type of evidence the judge may well exclude or substantially limit because it appears to be irrelevant to the core issues of lying to the grand jury, federal agents, and obstructing justice.

As trial gets ever closer, look for the sparring between Fitzgerald's prosecutors and the defense team to intensify. (ph)

Download libby_government_in_limine_motion_oct_30_2006.pdf

Download libby_motion_in_limine_exclude_evidence_oct_30_2006.pdf

Download libby_motion_in_limine_exclude_reporter_issues_oct_30_2006.pdf

http://lawprofessors.typepad.com/whitecollarcrime_blog/2006/11/pretrial_sparri.html

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