NEW 05/19/2006 SCOOTER LIBBY FILING - 8 PAGES

[stop the bleeding]

05/19/2006 Gov's Response to Def's 3rd Motion to Compel Discovery - 8 pages


If anyone cares to add a summary that would be much appreciated.

Thank you in advance.


All currently captured Docs are being stored here:

http://www.democraticunderground.com/discuss/duboard.php?az=view_oet&address=358x3589

[wtmusic]

1. Motion to compel - denied.

tough luck, Scoot.

[titoresque]

2. Hey!

Aren't you supposed to be spending quality time with your honey right now? :spank:

[WiseButAngrySara]

3. Thanks! I thought you signed off to be w/your wife? Have a good evening.

n/t

[stop the bleeding]

45. yes - you and titoresque got me, when I was signing off

I thought that I better check the site where these filings are stored, and yep there it was a Friday filing so I thought that you all would want it.

After that I signed off and I am glad I did:evilgrin:

[Spazito]

4. LOL, I have to say, Fitzgerald totally annihilates the Libby defense

team in the battle of case law. This is Fitzgerald's response to the Libby defense's team's third attempt to go fishing in a no fishing zone.

Edited to add: This is the Libby filing Fitzgerald is responding to:

http://justoneminute.typepad.com/main/files/Libby_060512_Lib_Memo_MotionCompel.pdf

[bleever]

5. Recommended.

And I thought you were gonna get off DU and spend some time with your lady?

:)

[titoresque]

6. .

:rofl:

[stop the bleeding]

46. I did .....

:evilgrin:

[Peace Patriot]

7. This Fitzgerald filing regards Libby's third request for sweeping access

to Fitzgerald's documents pertaining to witnesses that Libby's lawyers say they are going to call in his defense (against perjury/obstruction). It's got a zinger at the end--on p7, final para. Here's the leadup...

p2
"The defendant has identified as potential defense witnesses Richard Armitage, Stephen Hadley, Bill Harlow, Colin Powell, Karl Rove, Joseph Wilson and Valerie Wilson and seeks documents from 'the files of these witnesses – and others – that relate to former Ambassador Joseph Wilson’s trip to Niger' on the ground that they may aid in preparing to examine these witnesses. Supp. Memo. 1."

(a curious para...)
p3
"With respect to documents relating to Mr. Wilson’s trip, the government has declined to produce only documents that were created during the investigation and are protected from discovery pursuant to the Jencks Act, and documents which relate solely to individuals other than the defendant, including innocent accused, and have no connection with or relevance to the defendant."

("innocent accused"??)


Fitzgerald then proceeds to dismantle Libby's lawyers' arguments and case citings--neatly and efficiently. He cites US v Marshall:

p3
"Contrary to this contention, Marshall does not support an interpretation of Rule 16 that obligates the government to produce all documents related to any individual named by the defendant as a potential defense witness. To the contrary, the documents at issue in Marshall were incriminating in nature and directly related to the government’s case-in-chief, and thus were discoverable under Rule 16 in the absence of any connection to a potential defense witness. 132 F.2d at 68."

p5-6
"Nothing in the opinion in Marshall suggests that, to be protected from 'minefields,' the defendant is entitled to discovery concerning any person he names as a potential witness, even if such documents are not relevant to the charges contained in the indictment."

(cites also US v Zovluck)

p6
"Given their distinct circumstances, neither of these cases support the instant request for additional discovery, much less a blanket rule requiring the production of documents on the ground that they relate to individuals whom the defendant has named as potential witnesses."

(here's the zinger...)
p7
"Defendant’s arguments make clear that he intends to use the documents he seeks for impeachment (of these witnesses*), or to re-focus the jury’s attention to the conduct of others, rather than his own."

------------------------

*(Note: ...not the impeachment we would like to see, but rather trying to destroy his accusers and co-conspirator witnesses on the stand, i.e., Richard Armitage, Stephen Hadley, Bill Harlow, Colin Powell, Karl Rove, Joseph Wilson and Valerie Wilson.)

[Spazito]

8. LOL, I loved that zinger too, that man has a deadly way with words n/t

[Patsy Stone]

13. A thread here earlier suggested that

Armitage was the innocent accused.

Libby asked for everything because he's planning on refuting all the background in addition to defending against the charges. He wants to show that while Fitzgerald thinks that Plame was center, she was actually not, and he was just soldiering along. Of course she was, and Cheney's notes on the op-ed confirmed it. Fitz wants to try the case at hand, and deal with who knew what after Wilson's article was published.

I put together a thread last week: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364x1189097

I found it strange that, as I say in the post, that Libby thought the plan was ever a "stop".

[bleever]

25. Before I just google it, do you have a definition for

"innocent accused", as a legal idiom?

[Patsy Stone]

31. AFAIK

and I hope someone will correct me, it means they have been wrongly accused and exonerated by the GJ.

[SeattleGirl]

17. Woohoo, LOVE that zinger!

"to refocus the jury's attention to the conduct of others, rather than his own." That, in a nutshell, is the modus operandi of the whole Bush cabal.

[Peace Patriot]

9. It occurs to me that the delay in indicting Rove may have to do with Libby

intending to call him as a witness for Libby against perjury/obstruction. One wonders what Libby expects from Rove by way of testimony. Fitzgerald has to think of both cases (existing against Libby, as well as potential against Rove), as well as all the other perps, and the main crime. F.i., if Rove incriminates himself on the stand in Libby case, then Fitz can't nail Rove, right? Could be the "aspen" plan--Libby as fall guy, Libby calls Rove as witness, and botches up Fitz case against Rove. The two, between them, are "throwing sand in the umpire's eyes" (as Fitz described it) to protect their bosses (Cheney, Bush); stone wall against cracking the case.

It sure would be interesting to know what Rove testimony on Libby lying/obstruction would be. And it would a gas to see it--the two master liars and obstructors, trying to dance on their tangled web of deception without getting caught.

Jeez, what a crew!

[stepnw1f]

10. I Thought About This As Well

but don't know about law. Learning though.

[bunny planet]

15. Is there such a charge as conspiracy to obstruct justice?

[Patsy Stone]

21. Conspiracy is conspiracy

is conspiracy. Hi! :toast:

To Fitz!

[bunny planet]

27. I know that.

I was just making a funny.

Btw Patsy, did you see the thread about the MP reopening the investigation (not sure if it's official or unofficial) into the death of Dr. David Kelly (none other than Judy Judy Judy's 'friend' who contributed to her 'Germs' book I mentioned last night.) Peace Patriot has a great post in that thread (which I can't find now, I think it's that thread) about possible other cover-ups that Fitz has encountered while working on the Plame case. Maybe much worse crimes have been covered up (other than the obvious criminal war) and PF in onto them.

[Patsy Stone]

34. I saw that thread

but haven't read it. I will. Thanks for the heads up. How's things?

[stop the bleeding]

47. If either you, Patsy Stone or Peace Patriot would like to show

us a link to that thread about Dr. David Kelly I would be most thankful - that is a most interesting development in this.

[Patsy Stone]

50. Good morning, stb!

Here's the link to the Kelly thread: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=102x2294849#2295411

Here's the link to Peace Patriot's theory: http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=364&topic_id=60048&mesg_id=61108

[H2O Man]

19. Libby nor Rove

can help each other now. Each, however, has the ability to harm the other. Either one would have to damage the other, in order to make a deal with Fitzgerald. But it is safe to say that neither one is looking out for the other at this point.

Mr. Fitzgerald holds all the cards right now.

[Spazito]

22. Yes, and Fitzgerald is likely dangling the 'first past the post'

gets the deal to both of them. It is like watching a master craftsman at work.

[H2O Man]

26. It is.

We are witnessing one for the history books.

[Catherine Vincent]

36. And you folks wonder why Fitzgerald has a loyal following here.

You've heard the phrase "nobody's perfect" right? Well Fitzgerald comes a close second. :-)

[Spazito]

41. LOL, he certainly does come a 'close second'!

I have never wondered why he has a loyal following here as I have been one of those who have been following his every move, legally speaking. I am waiting and watching him on the Conrad Black case as well, not to mention applauding him every time he smacks that POS, lol.

[Catrina]

35. Fitzgerald has already said, in answer to Libby's request for this

information (on witnesses) that he will not be calling Rove as a witness. It seems to me, as I recall, that Libby was not planning to call him either several weeks ago. I could be wrong, but his attorneys based their request on the assumption that Fitzgerald would be calling Rove.

Is this new, that they have added Rove to their list of witnesses then? And does it mean anything? I'm almost certain that Rove was not on their witness list a few weeks ago. I thought that might be either because he would have nothing to add that would help Libby as far as the real charges against him, or that Libby's attorneys may have thought Rove was going to be indicted and therefore would not make a good witness.

So, three questions:

1) Would they call a witness who they know may be under indictment himself and if not ....
2) Could the fact that Rove is now on their witness list mean that that he is not going to be indicted?
3) If #2 is the case, that would have to mean he has agreed to cooperate. So, would it be wise to use a witness who is cooperating with the prosecutor in the same case? Iow, by calling him as a witness, if he is cooperating, would that prevent Rove from giving information to Fitzgerald about Libby? Could they be calling him to protect Libby?

I don't know the law regarding cooperating witnesses who may be a legal threat to a defendant, also being a witness for that defendent. That would be a conflict wouldn't it?

[Patsy Stone]

39. Here's a bit from the May 5th transcript

Wells says they're going to call Rove. It's good reading, but it's a bit long.

MR. WELLS: If they don't call him, we're calling him. With respect to Mr. Rove, we believe there is no exception in the case law that says Mr. Libby's discovery rights are diluted because the government has an ongoing investigation. The government controls the timing of its indictment. It could have waited until it finished the whole thing. Just because the government says there is a continuing investigation, it cannot hold back on discovery materials.

THE COURT: I guess it depends upon, and I assume that Mr. Fitzgerald would not disagree with that but, I assume, would take the position that once the investigation is complete which I would assume would be sometime in the foreseeable future, that then maybe the landscape changes. And we're far off from the trial at this point. So it seems to me as long as it is turned over sufficiently an advance of the trial so that it can be used that that would be adequate but I don't know if you agree with what I just said.

MR. FITZGERALD: I would disagree in the following respect. We are not withholding evidence or discovery on the grounds that we think that Rule 16 has a continuing investigation exception that dilutes his rights. Our point is much of what they're asking for is not Rule 16 material. Rule 16, as Your Honor has found, is material to the preparation of the case in chief. If a witness is not being called by the government in the case in chief and isn't part of the substantive case and doesn't have, doesn't shed light on whether Mr. Libby lied about his conversations in the grand jury, that is not material to the preparation. Sometimes, often in this case, we've taken material that's not discoverable in the benefit of the doubt and given it to the defendant.

THE COURT: But what if a witness is going to be called, you know ahead of time based upon what Mr. Wells just said regarding Mr. Rove, you know that the defense intends to call a witness. The government has information about that witness and there is clear case authority that says that if that witness then testifies and the government is able to then catch him in a lie, knowing full well that they have this information at their disposal, that that is a problem as it relates to Rule 16. For example, I mean if you had, you know that he's going to call Mr. Rove to say X and you have information that would indicate that actually Mr. Rove previously said something that was Y, and then if he testifies, you catch him in a trick on cross-examination and discredit his credibility, the law says that they have a right to know about that so that they don't, you know, step in that mine field.

MR. FITZGERALD: Let me just be clear that whatever I say in my remarks, I'm not talking about Mr. Rove one way or the other.

THE COURT: I understand. I only use that as example because he did.

MR. FITZGERALD: Okay. If the defense is calling a witness and, with all due respect, he's not bound to call a witness so at a pretrial discovery phase defendants often decide to call lots of witnesses that don't appear. My understanding is that under the law, 3500, Jencks and Giglio, we don't have obligations to turn over materials pertaining to defense witnesses and so my point is –

THE COURT: I have to go back and look at this case but I just looked at a case before I came out on the bench I think, and it is a case out of this circuit. I have to find it, where Judge Sentelle said something I believe totally different than that. I think what he said in that case, if my memory is correct, it was, in fact, a witness that the government knew about, having information on, did not reveal that information to the defense. The defense called the witness and then the government used that adverse information against him on cross examination, and my recollection is Judge Sentelle said that was a Rule 16 violation. I've got to go back and look at the case. I know it was cited in the reply. Does the defense have the name of that case? I know you cited it in your reply. It was not Lloyd because it was a new case I think. I think it is the U.S. versus Marshall which is 132 F.3rd at page 63, specifically page 67 and 68. I'm going to give the reporter a break. We'll take a 10-minute recess.

(Recess from 2:52 p.m.,to 3:02 p.m.)

THE COURT: You are good, Mr. Wells, because you actually got me to take a position that's totally incorrect. The witness in Marshall was actually a government witness, not a defense witness. There are cases and I looked at those last night where the courts have specifically held that the information that you are requesting that would help you in reference to a witness that you intend to call is not discoverable under Rule 16.

[Catrina]

51. Thank you Patsy ~ seems like there is a question about an indicted

person, or a person under investigation, or one maybe cooperating with the Prosecution, can be a witness for the defense. Or, the question actually seems to be that if the Defense does call such a witness ~ do they have the right to get any information the Prosecution has. It was a nice try and Libby's lawyers nearly succeeded. Good thing Fitz knows the law.

I'm impressed that the judge is doing his homework and not falling for their tactics. But he does seem to respect Fitzgerald ~ I wonder if they thought by putting Rove on their witness list (as Fitz pointed out, that wouldn't mean they'd call him, but they were trying to use it to get info) just to see what Rove has told Fitzgerald?

So, once again, they were slapped down by the judge and by Fitz ~

Thank you again, that answers my questions ~ :-)

Rove could be a defense witness, but if they put him on the stand, they risk Fitzgerald surprising them with something. Mmm, I doubt they'll call him, unless he's completely cleared, or pardoned! For now, Fitz is holding the cards ~ I hope it stays that way ~

[Spazito]

40. Going back in the previous filings by Libby's lawyers, I find

Rove's name as a pontential witness for the defense in a filing dated April 12, 2006, written as a response to Fitzgerald's response to a previous motion to compel they had filed.

In the filing of April 12, 2006, they write:

The defense is likely to call Mr. Rove to provide testimony regarding Mr. Libby's conversations with Mr. Rove concerning reporters' inquiries about Mrs. Wilson, as expressly discussed in the indictment.

[Catrina]

52. Thank you, Spazito ~ after reading Patsy's post showing the transcript

I think they may change their minds. They just added him in April, I wasn't sure when. That must have been after Fitz said he wouldn't be calling him. They probably were curious about that, what Fitz had been told by Rove. It seems that they thought by saying they might call him, they could demand information about what Fitz does know. But Fitz argument swayed the judge and they got another 'no'.

If they call him now, their concern that Fitz might use information he has to discredit Rove as a witness, is a reality. Don't these lawyers know the law? The judge seemed to think they were just taking a shot that he might be fooled, which, he admitted, he nearly was.

[Catherine Vincent]

11. Recommended!

:hi:

[bleever]

12. It's Friday night, and I'm reading court filings, pro bono.

:)

Hey, Ted Wells: What part of



don't you understand?


Frankly, I think it's all about the delay. Streeeeetch it out. I also think Fitz is making the stretch work in the prosecution's favor.


Happy Friday to everyone in DU not at the Jets versus Sharks rumble!

[Patsy Stone]

14. To the geeks in the library!

:toast:
:hi:

[bunny planet]

18. Yeah.

Friday night geek patrol.

:hi:

[bleever]

23. Special Friday night geek patrol.

Keg in the stacks.

:toast:

[bunny planet]

28. Youza!!

:toast:

[H2O Man]

16. Very interesting.

Team Libby wants to know if it is safe for them to try to put on a defense that includes calling, or potentially calling, a variety of witnesses. They want to know beforehand if Mr. Fitzgerald has information that would humiliate them in their attempts to distract from the core issues being tried.

The other day on MSNBC, on of the guests said that due to the pretrial hearings, and the direction Judge Walton is allowing the case to move in, Team Libby is going to have to make a deal. I agree.

[bleever]

20. Have to make a deal because the pretrial gambits are failing,

and acquittal is highly unlikely?

[H2O Man]

24. There is little chance

of Scooter being found "not guilty" at trial, unless Dick Cheney is on the jury. Team Libby is also finding that the issues they were hoping to use for grounds to appeal the convictions are not there. His legal team is good. They have to be telling him the bad news.

[bleever]

30. In the realm of speculation

what might Mr. Libby's options be, at this point?

Assuming we all know what the crimes were, and who perpetrated them (based on our previous discussions), where can he find an upside?

I guess the coin of the realm at this point is testimony that implicates higher-ups...

The only thing we can be talking about at this point is prosecutable crimes committed by the vice-president, the "procedural" crimes of hindering a federal investigation through OOJ via false representations made to a federal officer.

?

[H2O Man]

44. Good question.

Two things that I'd add: first, prosecutors rarely, if ever, trade down. Fitzgerald is not going to give Scooter a "get out of jail free" card for ratting on a low-level person. Trading up in this case can only equate with ratting on VP Cheney, or possibly on two or more people at about his level. That would likely mean getting Cheney on the substantive charges, or people like Rice if she participated in substantive or procedural crimes.

Second is that Libby had considered a plea before being indicted. He turned down the opportunity, because he refused the idea of serving serious jail time. He is not in a stronger position now. In fact, I would suggest that we keep in mind that he could face further charges if Mr. Fitzgerald's on-going investigation had turned up proof of other wrong-doing. There are a few options that come up when an umpire wipes away the sand that was thrown in his eyes.

[stop the bleeding]

48. That umpire is getting a clearer and clearer view of the plate, field,

ballgame, along with the game making/breaking plays now.

I no idea this thread was gonna be this full of knowledge you guys out there are doing exactly what I wanted you to do with the Research Forum - Kudos DU Rocks!!!

[Patsy Stone]

29. Fitz is arguing

in response to Libby's motion to (try YET AGAIN) to compel discovery of any information Fitz may have relating to witnesses the defense could call, so as to avoid "minefields" (read: illegal activity in other areas of this case not related to these charges) they may encounter. Wells tries to plead that any information Fitz had which was created by, related to, or even has a whiff of any of these witnesses about it, should be turned over as part of the discovery.

Fitz said no. Now, to the judge.

Minefields, huh? Hmmm...

[bleever]

32. I read "minefields" as being areas where

false testimony, part of defense testimony and strategy, might be exposed because of ignorance about the evidence the govt. has to countermand their lies.

I.e., You tricked me by not telling me you knew the lie I was going to tell was completely fake!

[Patsy Stone]

37. LOL

Exactly!

But why, oh, why would you put on a defense that causes you to avoid these minefields? If he'd just stick to defending the charges of perjury and OOJ, none of these minefields would exist. Why in the blue blazes is he calling Wilson? WTF? Why bother?

The whole defense leaves me cold. It's not even remotely logical, and it's a pain in the ass to boot. :eyes:

[bleever]

38. Are you familiar with the Ruy Lopez opening in chess?

Me neither. But it may well have something to do with the long game.

I'm just glad I have a good seat, in a good section, with good people.

[Me.]

33. Scrambling Over Each Other, Knocking The Other Down

Pulling at shirttails to slow the other up. Who will get a deal first? My money's on Rove. That may even be what's holding things up. Libby may still be fooling himself and has a delusion that he's a Liddy sort of guy and can do the time. Besides I still think that defense fund has strings attached (no proof).

Is this the first we've heard of V. Plame being called?

*shadow government*

[blogslut]

42. thanks for this

:)

[DemReadingDU]

43. K&R

[ismnotwasm]

49. Read it twice

Ok, three times-- I'm definetly not a law expert, but I found it darkly hilarious. Fitzgerald certainly has a way with words. I don't know enough legal stuff to summarize, and I see other posters have done an excellent job.
Thank you, BTW