Will Bush Pardon Scooter Libby?
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Maybe you are thinking that Special Counsel Patrick Fitzgerald's case against Scooter Libby is yesterday's news, or, worse, in its last throes. Think again.
It has recently come to my attention that the title of the Ukrainian national anthem is "Ukraine Is Not Dead Yet." (Seriously, it is.) The same could be said of Special Counsel Patrick Fitzgerald's ongoing prosecution of Vice President Cheney's former aide I. Lewis "Scooter" Libby: The case -- involving charges of perjury, false statements, and obstruction of justice in connection with Fitzgerald's investigation into the unauthorized disclosure of the identity of former Ambassador Joseph Wilson's wife, Valerie Plame, as a CIA operative -- is not dead yet, nor is it even ailing.
U.S. v. Libby is Alive and Well
U.S. v. Libby is not only alive and well; it is also set to begin on January 16, 2007, just three and a half months from now. In June, the defense requested a one-month continuance, but U.S. District Judge Reggie Walton responded by granting a mere one-week extension and reiterating that pretrial filings had to be submitted by both parties in mid-November 2006.
Indeed, a review of court documents makes it abundantly clear that Judge Reggie Walton has no intention of letting this matter laze around on his docket. Filings in the case make it no less clear that Lewis Libby's opportunities to make the charges go away by exercising his rights within the judicial system are dwindling rapidly. Early on, Walton ruled that any motions to dismiss that the defendant wished to bring should be filed by February 24, 2006. Libby's attorneys filed one such motion and it was denied.
In that motion, Libby's defense team argued that the case should be dismissed because it was "obtained, approved and signed by an official -- Special Counsel Patrick J. Fitzgerald -- who was appointed and exercised his powers" in violation of the Constitution. Without getting too technical, the defense argument was that Fitzgerald was taking actions that could only be taken by a presidential appointee. This was essentially a more lawyerly version of accusations the Republican National Committee (directly tied into the Bush administration's political arm, the Office of Strategic Initatives) had begun hurling even before Libby's indictment. In various veiled -- and sometimes not so veiled -- attacks, they argued that Patrick Fitzgerald was "overzealous" and had exceeded his authority by bringing perjury and false-statements charges when he was, according to the Libby defense team and the RNC, only authorized to investigate the possible unauthorized disclosure of a CIA officer.
Not surprisingly, Judge Walton was unimpressed with Libby's motion. He ruled that it was perfectly appropriate and prudent for the Department of Justice to appoint someone outside the hierarchy of the Executive Branch when its highest officials were under investigation. He also said that Fitzgerald's letters of authority "unambiguously" authorized him to investigate and prosecute not only the disclosure of a CIA employee's identity, but also "any violations of federal law that arise during the course of that investigation."
Hoping that Graymail will be a Silver Bullet
Libby does, however, have one other hope for dismissal of the charges prior to trial: graymail -- a defense tactic so named because it is a subtle form of blackmail that forces a prosecutor to choose between disclosing highly classified information and continuing to proceed with a case. Such a tactic can be particularly effective when, as in this case, White House officials, who guard the classification system, would be as happy as clams if the whole case went away.
This is what has happened so far: In March, based on Libby's expressed intent to argue that he made false statements during the investigation because he was preoccupied with national security matters, Judge Walton ordered the government to produce -- for certain weeks in 2003 and 2004 -- a list of topics covered, and inquiries made by Libby, in his morning intelligence briefings. In effect, Judge Walton ordered the government to turn over tables of contents; he did not order it to disclose any substance contained within a classified document.
On September 28, Judge Walton began conducting closed hearings required by the Classified Information Procedures Act -- called CIPA -- to determine what parts of these topic lists would be admissible at trial. If Walton rules that certain information is admissible, and the Special Counsel does not want to disclose it, Fitzgerald may offer either to provide a statement admitting the facts that the classified information tends to prove or to substitute a summary. Then Walton, in turn, would have to decide whether those alternatives would provide Libby with substantially the same ability to present his defense as he would have if the actual information were disclosed.
An order Judge Walton issued on March 10, 2006 provides a giant clue as to how he might rule on this issue. In footnote 25, he pointed out that the prosecution does not dispute the defendant's work on important national security matters; nor has the defense attorney appeared to acknowledge that he was intending to present the substance of the documents to the jury. Then he added:
"It is unlikely that this Court would permit anything other than the general topic areas of these documents to be introduced at trial and would be prepared to advise the jury through an instruction that due to national security concerns the defendant is prohibited from discussing the details about the matters he was working on and that it is undisputed that the defendant was extremely busy during his work day, worked long hours, and worked on highly sensitive national security and intelligence matters."If Judge Walton continues to follow this approach -- and it's hard to imagine why he wouldn't -- graymail will probably not be the silver bullet that Libby is hoping for.
Elizabeth de la Vega is a former federal prosecutor. Her pieces have appeared in The Nation, the L.A. Times, Salon, and Mother Jones. She is the author of the upcoming book U.S. v. George W. Bush et. al., to be published by Seven Stories Press in late November.
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